June 19, 2018

1. G.R. No. 237428

REPUBLIC of the PHILIPPINES, represented by SOLICITOR GENERAL JOSE C. CALIDA, Petitioner

vs.
MARIA LOURDES P.A. SERENO, Respondent

RESOLUTION

TIJAM, J.:

This resolution treats of the following motions:

1. Maria Lourdes P. A. Sereno’s (respondent) Ad Cautelam Motion for Reconsideration of this Court's
Decision 1dated May 11, 2018, the dispositive portion of which states:

WHEREFORE, the Petition for Quo Warranto is GRANTED. Respondent Maria Lourdes P. A. Sereno is
found DISQUALIFIED from and is here y adjudged GUILTY of UNLAWFULLY HOLDING and EXERCISING the
OFFICE OF THE CHIEF JUSTICE. Accordingly, Respondent Maria Lourdes P.A. Sereno
is OUSTED and EXCLUDEDtherefrom.

The position of the Chief Justice of the Supreme Court is declared vacant and the Judicial and Bar Council is
directed to commence the application and nomination process.

This Decision is immediately executory without need of further action from the Court.

Respondent Maria Lourdes P.A. Sereno is ordered to SHOW CAUSE within ten (10) days from receipt hereof why
she should not be sanctioned for violating the Code of Professional Responsibility and the Code of Judicial Conduct
for transgressing the subjudice rule and for casting aspersions and ill motives to the Members of the Supreme
Court.

SO ORDERED.2

2. Respondent’s Ad Cautelam Motion for Extension of Time to File Reply (to the Show Cause Order dated 11 May
2018).

We first dispose of respondent's Motion for Reconsideration.

Respondent claims denial of due process because her case was allegedly not heard by an impartial tribunal. She
reiterates that the six (6) Justices ought to have inhibited themselves on the grounds of actual bias, of having
personal knowledge of disputed evidentiary facts, and of having acted as a material witness in the matter in
controversy. Respondent also argues denial of due process when the Court supposedly took notice of extraneous
matters as corroborative evidence and when the Court based its main Decision on facts without observing the
mandatory procedure for reception of evidence.

She reiterates her arguments that the Court is without jurisdiction to oust an impeachable officer through quo
warranto; that the official acts of the Judicial and Bar Council (JBC) and the President involves political questions
that cannot be annulled absent any allegation of grave abuse of discretion; that the petition for quo warranto is time-
barred; and that respondent was and is a person of proven integrity.

By way of Comment, the Republic of the Philippines (Republic), through the Office of the Solicitor General (OSG),
seeks a denial of respondent's motion for reconsideration for being proforma. In any case, the OSG argues that
respondent's motion lacks merit as there was no denial of due process and that quo warranto is the appropriate
remedy to oust an ineligible impeachable officer. The OSG adds that the issue of whether respondent is a person of
proven int egrity is justiciable considering that the decision-making powers of the JBC are limited by judicially
discoverable standards. Undeviating from its position, the OSG maintains that the petition is not time-barred as
Section 11, Rule 66 of the Rules of Court does not apply to the State and that the peculiar circumstances of the
instant case preclude the strict application of the prescriptive period.

Disputing respondent's claims, the OSG reiterates that respondent's repeated failure to file her Statement of Assets,
Liabilities and Net Worth (SALN) and her non-submission thereof to the JBC which the latter required to prove the
integrity of an applicant affect respondent's integrity. The OSG concludes that respondent, not having possessed of
proven integrity, failed to meet the constitutional requirement for appointment to the Judiciary.

Carefully weighing the arguments advanced by both parties, this Court finds no reason to reverse its earlier
Decision.
 I

Respondent is seriously in error for claiming denial of due process. Respondent refuses to recognize the Court's
jurisdiction over the subject matter and over her person on the ground that respondent, as a purported impeachable
official, can only be removed exclusively by impeachment. Reiterating this argument, respondent filed her Comment
to the Petition, moved that her case be heard on Oral Argument, filed her Memorandum, filed her Reply/Supplement
to the OSG's Memorandum and now, presently moves for reconsideration. All these representations were made ad
cautelam which, stripped of its legal parlance, simply means that she asks to be heard by the Court which
jurisdiction she does not acknowledge. She asked relief from the Court and was in fact heard by the Court, and yet
she claims to have been denied of due process. She repeatedly discussed the supposed merits of her opposition to
the present quo warranto petition in various social and traditional media, and yet she claims denial of due process.
The preposterousness of her claim deserves scant consideration.

Respondent also harps on the alleged bias on the part of the six (6) Justices and that supposedly, their failure to
inhibit themselves from deciding the instant petition amounts to a denial of due process.

Respondent's contentions were merely a rehash of the issues already taken into consideration and properly
resolved by the Court. To reiterate, mere imputation of bias or partiality is not enough ground for inhibition,
especially when the charge is without basis. Acts or conduct clearly indicative of arbitrariness or prejudice has to be
shown.3 Verily, for bias and prejudice to be considered sufficient justification for the inhibition of a Member of this
Court, mere suspicion is not enough.

Moreover, as discussed in the main Decision, respondent's allegations on the grounds for inhibition were merely
based on speculations, or on distortions of the language, context and meaning of the answers given by the
concerned Justices as resource persons in the proceedings of the Committee on Justice of the House of
Representatives. These matters were squarely resolved by the Court in its main Decision, as well as in the
respective separate opinions of the Justices involved.

Indeed, the Members of the Court's right to inhibit are weighed against their duty to adjudicate the case without fear
of repression. Respondent's motion to require the inhibition of Justices Teresita J. Leonardo-De Castro, Lucas P.
Bersamin, Diosdado M. Peralta, Francis H. Jardeleza, Samuel R. Martires, and Noel Gimenez Tijam, who all
concurred to the main Decision, would open the floodgates to the worst kind of forum shopping, and on its face,
would allow respondent to shop for a Member of the Court who she perceives to be more compassionate and
friendly to her cause, and is clearly antithetical to the fair administration of justice.

Bordering on the absurd, respondent alleges prejudice based on the footnotes of the main Decision which show that
the draft thereof was being prepared as early as March 15, 2018 when respondent has yet to file her Comment.
Respondent forgets to mention that the Petition itself was filed on March 5, 2018 where the propriety of the remedy
of quo warranto was specifically raised. Certainly, there is nothing irregular nor suspicious for the Member-in-
Charge, nor for any of the Justices for that matter, to have made a requisite initial determination on the matter of
jurisdiction. In professing such argument, respondent imputes fault on the part of the Justices for having been
diligent in the performance of their work. Respondent also considers as irregular the query made by the Member-in-
Charge with the JBC Office of the Executive Officer (OEO) headed by Atty. Annaliza S. Ty-Capacite (Atty. Capacite
). Respondent points out that the same is not allowed and shows prejudice on the part of the Court. For
respondent's information, the data were gathered pursuant to the Court En Bane’s Resolution dated March 20, 2018
wherein the Clerk of Court En Banc and the JBC, as custodian and repositories of the documents submitted by
respondent, were directed to provide the Court with documents pertinent to respondent's application and
appointment as an Associate Justice in 2010 and as Chief Justice of the Court in 2012 for the purpose of arriving at
a judicious, complete, and efficient resolution of the instant case. In the same manner, the "corroborative evidence"
referred to by respondent simply refers to respondent's acts and representations ascertainable through an
examination of the documentary evidence appended by both parties to their respective pleadings as well as their
representations during the Oral Argument. Reference to respondent's subsequent acts committed during her
incumbency as Chief Justice, on the other hand, are plainly matters of public record and already determined by the
House of Representatives as constituting probable cause for impeachment.

II

The Court reaffirms its authority to decide the instant quo warranto action. This authority is expressly conferred on
the Supreme Court by the Constitution under Section 5, Article VIII which states that:

Sec. 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

x x x x (Emphasis ours)

Section 5 of Article VIII does not limit the Court's quo warranto jurisdiction only to certain public officials or that
excludes impeachable officials therefrom. In Sarmiento v. Mison, 4 the Court ruled:
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases
like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated
in Gold Creek Mining Corp. v. Rodriguez, that:

The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law
and of the people adopting it. The intention to which force is to be given is that which is embodied and
expressed in the constitutional provisions themselves.5 (Emphasis ours)

The Constitution defines judicial power as a "duty" to be performed by the courts of justice.6 Thus, for the Court to
repudiate its own jurisdiction over this case would be to abdicate a constitutionally imposed responsibility.

As the Court pointed out in its Decision, this is not the first time the Court took cognizance of a quo warranto petition
against an impeachable officer. In the consolidated cases of Estrada v. Macapagal-Arroyo7 and Estrada v.
Desierto,8 the Court assumed jurisdiction over a quo warranto petition that challenged Gloria Macapagal-Arroyo's
title to the presidency.

Arguing that the aforesaid cases cannot serve as precedent for the Court to take cognizance of this case,
respondent makes it appear that they involved a totally different issue, one that concerned Joseph E. Estrada's
immunity from suit, specifically: "Whether conviction in the impeachment proceedings is a condition precedent for
the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution."9

Respondent's allegation is utterly false and misleading. A cursory reading of the cases will reveal that Estrada's
immunity from suit was just one of the issues raised therein. Estrada in fact sought a quo warranto inquiry into
Macapagal-Arroyo's right to assume the presidency, claiming he was simply a President on leave.

Respondent also asserts that Estrada cannot serve as precedent for the Court to decide this case because it was
dismissed, and unlike the instant petition, it was filed within the prescribed one (1)-year period under Section 11,
Rule 66 of the Rules of Court. 10

The argument fails to persuade. Estrada was dismissed not because the Court had no jurisdiction over the quo
warranto petition but because Estrada's challenge to Macapagal-Arroyo's presidency had no merit. In ruling upon
the merits of Estrada's quo warranto petition, the Court has undeniably exercised its jurisdiction under Section 5(1)
of Article VIII. Thus, Estrada clearly demonstrates that the Court's quo warranto jurisdiction extends to impeachable
officers.

Furthermore, as will be discussed elsewhere in this Resolution, the filing of the instant petition was not time-barred.
The issue of prescription must be addressed in light of the public interest that quo warranto is meant to protect.

Accordingly, the Court could, as it did in Estrada, assume jurisdiction over the instant quo warranto petition against
an impeachable officer.

Quo warranto and impeachment are two distinct proceedings, although both may result in the ouster of a public
officer. Strictly speaking, quo warranto grants the relief of "ouster", while impeachment affords "removal."

A quo warranto proceeding is the proper legal remedy to determine a person's right or title to a public office and to
oust the holder from its enjoyment. 11 It is the proper action to inquire into a public officer's eligibility12 or the validity of
his appointment. 13 Under Rule 66 of the Rules of Court, a quo warranto proceeding involves a judicial determination
of the right to the use or exercise of the office.

Impeachment, on the other hand, is a political process undertaken by the legislature to determine whether the public
officer committed any of the impeachable offenses, namely, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of public trust. 14 It does not ascertain the officer's eligibility for
appointment or election, or challenge the legality of his assumption of office. Conviction for any of the impeachable
offenses shall result in the removal of the impeachable official from office. 15

The OSG 's quo warranto petition challenged respondent's right and title to the position of Chief Justice. He averred
that in failing to regularly disclose her assets, liabilities and net worth as a member of the career service prior to her
appointment as an Associate Justice of the Court, respondent could not be said to possess the requirement of
proven integrity demanded of every aspiring member of the Judiciary. The OSG thus prayed that respondent's
appointment as Chief Justice be declared void.

Clearly, the OSG questioned the respondent's eligibility for appointment as Chief Justice and sought to invalidate
such appointment. The OSG's petition, therefore, is one for quo warranto over which the Court exercises original
jurisdiction.

As the Court previously held, "where the dispute is on the eligibility to perform the duties by the person sought to be
ousted or disqualified a quo warranto is the proper action." 16
Respondent harps on the supposed intent of the framers of the Constitution for impeachable officers to be removed
only through impeachment. 17 However, a circumspect examination of the deliberations of the 1986 Constitutional
Commission will reveal that the framers presumed that the impeachable officers had duly qualified for the position.
Indeed, the deliberations which respondent herself cited 18 showed that the framers did not contemplate a situation
where the impeachable officer was unqualified for appointment or election.

Accordingly, respondent's continued reliance on the Court's pronouncement in Mayor Lecaroz v.

Sandiganbayan, 19Cuenca v. Hon. Fernan,20 Jn Re Gonzales,21 Jarque v. Desierto22 and Marcoleta v.
Borra23 (Lecaroz etc.) is misplaced. Not one of these cases concerned the validity of an impeachable officer's
appointment. To repeat, Lecaroz involved a criminal charge against a mayor before the Sandiganbayan, while the
rest were disbarment cases filed against impeachable officers principally for acts done during their tenure in public
office. The officers' eligibility or the validity of their appointment was not raised before the Court. The principle laid
down in said cases is to the effect that during their incumbency, impeachable officers cannot be criminally
prosecuted for an offense that carries with it the penalty of removal, and if they are required to be members of the
Philippine Bar to qualify for their positions, they cannot be charged with disbarment. The proscription does not
extend to actions assailing the public officer's title or right to the office he or she occupies. The ruling therefore
cannot serve as authority to hold that a quo warranto action can never be filed against an impeachable officer.

The Court's quo warranto jurisdiction over impeachable officers also finds basis in paragraph 7, Section 4, Article VII
of the Constitution which designates it as the sole judge of the qualifications of the President and Vice-President,
both of whom are impeachable officers. With this authority, the remedy of quo warranto was provided in the rules of
the Court sitting as the Presidential Electoral Tribunal (PET).

Respondent, however, argues that quo warranto petitions may be filed against the President and Vice-President
under the PET Rules "only because the Constitution specifically permits" them under Section 4, Article VII.
According to respondent, no counterpart provision exists in the Constitution giving the same authority to the Court
over the Chief Justice, the members of the Constitutional Commissions and the Ombudsman. Respondent, thus,
asserts that the Constitution made a distinction between elected and appointive impeachable officials, and
limited quo warranto to elected impeachable officials. For these reasons, respondent concludes that by
constitutional design, the Court is denied power to remove any of its members.24

The Court is not convinced. The argument, to begin with, acknowledges that the Constitution in fact allows quo
warranto actions against impeachable officers, albeit respondent limits them to the President and Vice-President.
This admission refutes the very position taken by respondent that all impeachable officials cannot be sued
through quo warranto because they belong to a "privileged class" of officers who can be removed only through
impeachment.25 To be sure, Lecaroz, etc. did not distinguish between elected and appointed impeachable officers.

Furthermore, that the Constitution does not show a counterpart provision to paragraph 7 of Section 4, Article VII for
members of this Court or the Constitutional Commissions does not mean that quo warranto cannot extend to non-
elected impeachable officers. The authority to hear quo warranto petitions against appointive impeachable officers
emanates from Section 5(1) of Article VIII which grants quo warranto jurisdiction to this Court without qualification as
to the class of public officers over whom the same may be exercised.

Respondent argues that Section 5(1) of Article VIII is not a blanket authority, otherwise paragraph 7 of Section 4,
Article VII would be "superfluous." Superfluity, however, is not the same as inconsistency. Section 4, Article VII is
not repugnant to, and clearly confirms, the Court's quo warranto jurisdiction under Section 5(1) of Article VIII.
Respondent herself has not alleged any irreconcilability in these provisions.

Indeed, contrary to respondent's claim, Section 4 of Article VII is not meant to limit the Court's quo
warrantojurisdiction under Article VIII of the Constitution. In fact, We held that "[t]he power wielded by PET is "a
derivative of the plenary judicial power allocated to the courts of law, expressly provided in the Constitution."26 Thus,
the authority under Section 4 of Article VII to hear quo warranto petitions assailing the qualifications of the President
and Vice-President is simply a component of the Court's quo warranto jurisdiction under Article VIII. This finds
support in the nature of quo warranto as a remedy to determine a person's right or title to a public office, 27 which is
not confined to claims of ineligibility but extends to other instances or claims of usurpation or unlawful holding of
public office as in the cases of Lota v. CA and Sangalang,28 Moro v. Del Castillo, Jr.,29 Mendoza v. Allas,30 Sen.
Defensor Santiago v. Sen. Guingona, Jr. 31 and Estrada. It will be recalled that in Estrada, the Court took cognizance
of, and ruled upon, a quo warranto challenge to a vice-president's assumption of the presidency; the challenge was
based, not on ineligibility, but on therein petitioner's claim that he had not resigned and was simply a president on
leave. To sustain respondent's argument, therefore, is to unduly curtail the Court's judicial power and to dilute the
efficacy of quo warranto as a remedy against the "unauthorized arbitrary assumption and exercise of power by one
without color of title or who is not entitled by law thereto."32 It bears to reiterate that:

While an appointment is an essentially discretionary executive power, it is subject to the limitation that the appointee
should possess none of the disqualifications but all the qualifications required by law. Where the law prescribes
certain qualifications for a given office or position, courts may determine whether the appointee has the
requisite qualifications, absent which, his right or title thereto may be declared void. 33 (Citations omitted and
emphasis ours)
This Court has the constitutional mandate to exercise jurisdiction over quo warranto petitions. And as Estrada and
the PET Rules show, impeachable officers are not immune to quo warranto actions. Thus, a refusal by the Court to
take cognizance of this case would not only be a breach of its duty under the Constitution, it would also accord
respondent an exemption not given to other impeachable officers. Such privilege finds no justification either in law,
as impeachable officers are treated without distinction under the impeachment provisions34 of the Constitution, or in
reason, as the qualifications of the Chief Justice are no less important than the President's or the Vice-President's.

Respondent's insistence that she could not be removed from office except through impeachment is predicated on
Section 2, Article XI of the Constitution. It reads:

Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust. All other public officers and employees may be removed from office as provided by law, but not by
impeachment. (Emphasis ours)

By its plain language, however, Section 2 of Article XI does not preclude a quo warranto action questioning an
impeachable officer's qualifications to assume office. These qualifications include age, citizenship and professional
experience - matters which are manifestly outside the purview of impeachment under the above-cited provision.

Furthermore, Section 2 of Article XI cannot be read in isolation from Section 5(1) of Article VIII of the Constitution
which gives this Court its quo warranto jurisdiction, or from Section 4, paragraph 7 of Article VII of the Constitution
which designates the Court as the sole judge of the qualifications of the President and Vice-President.

In Civil Liberties Union v. The Executive Secretary, 35 the Court held:

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on
a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can
be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory. 36 (Citations omitted)

Section 2 of Article XI provides that the impeachable officers may be removed from office on impeachment for and
conviction of culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. Lack of qualifications for appointment or election is evidently not among the stated grounds
for impeachment. It is, however, a ground for a quo warranto action over which this Court was given original
jurisdiction under Section 5(1) of Article VIII. The grant of jurisdiction was not confined to unimpeachable officers. In
fact, under Section 4, paragraph 7 of Article VII, this Court was expressly authorized to pass upon the qualifications
of the President and Vice-President. Thus, the proscription against the removal of public officers other than by
impeachment does not apply to quo warranto actions assailing the impeachable officer's eligibility for appointment or
election.

This construction allows all three provisions to stand together and to give effect to the clear intent of the Constitution
to address not only the impeachable offenses but also the issue of qualifications of public officers, including
impeachable officers.

As this Court intoned in its Decision, to take appointments of impeachable officers beyond the reach of judicial
review is to cleanse them of any possible defect pertaining to the constitutionally prescribed qualifications which
cannot otherwise be raised in an impeachment proceeding.

To illustrate this, the Court cited the requirement that the impeachable officer must be a natural-born citizen of the
Philippines. We explained that if it turns out that the impeachable officer is in fact of foreign nationality, respondent's
argument will prevent this Court from inquiring into this important qualification that directly affects the officer's ability
to protect the interests of the State. Unless convicted of an impeachable offense, the officer will continue in office
despite being clearly disqualified from holding it. We stressed that this could not have been the intent of the framers
of the Constitution.

Respondent, however, contends that the above-cited defect will actually constitute a ground for impeachment
because the appointee's continued exercise of public functions despite knowledge of his foreign nationality amounts
to a culpable violation of the Constitution.

The argument is untenable. Citizenship is a qualification issue which this Court has the authority to resolve. Thus,
in Kilosbayan Foundation v. Exec. Sec. Ermita,37 where the appointment of Sandiganbayan Justice Gregory S. Ong
(Ong) to this Court was sought to be annulled for the latter's supposed failure to comply with the citizenship
requirement under the Constitution, We stated that:
Third, as to the proper forum for litigating the issue of respondent Ong's qualification for membership of this
Court. This case is a matter of primordial importance involving compliance with a Constitutional mandate.
As the body tasked with the determination of the merits of conflicting claims under the Constitution, the
Court is the proper forum for resolving the issue, even as the JBC has the initial competence to do
so.38 (Citation omitted and emphasis ours)

In the subsequent case of Topacio v. Assoc. Justice Gregory Santos Ong, et al.,39 Ong's citizenship was raised
anew, this time to prevent him from further exercising the office of a Sandiganbayan Associate Justice. The Court
held that the challenge was one against Ong's title to the office which must be raised in a quo warranto proceeding,
thus:

While denominated as a petition for certiorari and prohibition, the petition partakes of the nature of a quo
warranto proceeding with respect to Ong, for it effectively seeks to declare null and void his appointment as
an Associate Justice of the Sandiganbayan for being unconstitutional. While the petition professes to be one
for certiorari and prohibition, petitioner even adverts to a quo warranto aspect of the petition.

Being a collateral attack on a public officer's title, the present petition for certiorari and prohibition must be
dismissed.

The title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot
be assailed collaterally, even through mandamus or a motion to annul or set aside order. In Nacionalista Party v.
De Vera, the Court ruled that prohibition does not lie to inquire into the validity of the appointment of a public officer.

x x x [T]he writ of prohibition, even when directed against persons acting as judges or other judicial officers, cannot
be treated as a substitute for quo warranto or be rightfully called upon to perform any of the functions of
the writ. If there is a court, judge or officer de facto, the title to the office and the right to act cannot be questioned
by prohibition. If an intruder takes possession of a judicial office, the person dispossessed cannot obtain relief
through a writ of prohibition commanding the alleged intruder to cease from performing judicial acts, since in its very
nature prohibition is an improper remedy by which to determine the title to an office.40 (Citations omitted and
emphasis ours)

Determining title to the office on the basis of a public officer's qualifications is the function of quo warranto. For this
reason, impeachment cannot be treated as a substitute for quo warranto.

Furthermore, impeachment was designed as a mechanism "to check abuse of power."41 The grounds for
impeachment, including culpable violation of the Constitution, have been described as referring to "serious crimes or
misconduct"42 of the "vicious and malevolent" kind.43 Citizenship issues are hardly within the ambit of this
constitutional standard.

The Constitution must be construed in light of the object sought to be accomplished and the evils sought to be
prevented or remedied.44 An interpretation that would cause absurdity is not favored.45

It thus bears to reiterate that even the PET Rules expressly provide for the remedy of election protest. Following
respondent's theory that an impeachable officer can be removed only through impeachment means that a President
or Vice-President against whom an election protest has been filed can demand for the dismissal of the protest on
the ground that it can potentially cause his/her removal from office through a mode other than by impeachment. To
sustain respondent's position is to render election protests under the PET Rules nugatory. The Constitution could
not have intended such absurdity since fraud and irregularities in elections cannot be countenanced, and the will of
the people as reflected in their votes must be determined and respected.

The preposterousness of allowing unqualified public officials to continue occupying their positions by making
impeachment the sole mode of removing them was likewise aptly discussed by Our esteemed colleague Justice
Estela M. Perlas-Bernabe when she stated that qualification should precede authority, viz:

Owing to both the "political" and "offense-based" nature of these grounds, I am thus inclined to believe that
impeachment is not the sole mode of "removing" impeachable officials as it be clearly absurd for any of them to
remain in office despite their failure to meet the minimum eligibility requirements, which failure does not constitute a
ground for impeachment. Sensibly, there should be a remedy to oust all our public officials, no matter how high-
ranking they are or criticial their functions may be, upon a determination that they have not actually qualified for
election or appointment. While I do recognize the wisdom of insulating impeachable officials from suits that may
impede the performance of vital public functions, ultimately, this concern cannot override the basic qualification
requirements of public office. There is no doubt that qualification should precede authority. Every public office
is created and conferred by law.xx x. 46 (Emphasis in the original)

Underlying all constitutional provisions on government service is the principle that public office is a public trust.47The
people, therefore, have the right to have only qualified individuals appointed to public office. To construe Section 2,
Article XI of the Constitution as proscribing a quo warranto petition is to deprive the State of a remedy to correct a
public wrong arising from defective or void appointments. Equity, however, will not suffer a wrong to be without
remedy.48 It stands to reason, therefore, that quo warranto should be available to question the validity of
appointments especially of impeachable officers since they occupy the upper echelons of government and are
capable of wielding vast power and influence on matters of law and policy.

III

Much noise and hysteria have been made that a sitting Chief Justice can only be removed by impeachment and
that quo warranto is an improper remedy not sanctioned by the Constitution. The wind of disinformation was further
fanned by respondent who claimed that her ouster was orchestrated by the President. This campaign of
misinformation attempted to conceal and obfuscate the fact that the main issue in the petition which the Court is
tasked to resolve is the qualification of respondent.

In the instant motion, respondent made mention of Senate Resolution No. 738,49 which urges this Court to review
Our May 11, 2018 Decision as it sets a "dangerous precedent that transgresses the exclusive powers of the
legislative branch to initiate, try and decide all cases of impeachment." This Resolution was supposedly aimed to
express "the sense of the Senate to uphold the Constitution on the matter of removing a Chief Justice from office."
We have to remind the respondent, however, that while a majority of the Senators - 14 out of the 23 members -
signed the said Resolution, the same has not yet been adopted by the Senate to date. In fact, the Court takes
judicial notice that on May 31, 2018, the Senate adjourned its interpellation without any conclusion as to whether the
Resolution is adopted. 50 Without such approval, the Senate Resolution amounts to nothing but a mere scrap of
paper at present.

The Senate Resolution also appears to have been drafted, signed by some Senators, and interpellated on while
respondent's motion for reconsideration is still pending consideration by the Court. While the concerned Members of
the Senate insist on non-encroachment of powers, the Senate Resolution itself tends to influence, if not exert undue
pressure on, the Court on how it should resolve the pending motion for reconsideration. The importance and high
regard for the institution that is the Senate is undisputed. But the Court, in the discharge of its Constitutional duty, is
also entitled to the same degree of respect and deference.

At any rate, and with due regard to the Members of the Senate, We emphasize that the judicial determination of
actual controversies presented before the courts is within the exclusive domain of the Judiciary. "The separation of
powers doctrine is the backbone of our tripartite system of government. It is implicit in the manner that our
Constitution lays out in separate and distinct Articles the powers and prerogatives of each co-equal branch of
government."51 Thus, the act of some of the Senators questioning the Court's judicial action is clearly an
unwarranted intrusion to the Court's powers and mandate.

To disabuse wandering minds, there is nothing violative or intrusive of the Senate's power to remove impeachable
officials in the main Decision. In fact, in the said assailed Decision, We recognized that the Senate has the sole
power to try and decide all cases of impeachment. We have extensively discussed therein that the Court merely
exercised its Constitutional duty to resolve a legal question referring to respondent's qualification as a Chief Justice
of the Supreme Court. We also emphasized that this Court's action never intends to deprive the Congress of its
mandate to make a determination on impeachable officials' culpability for acts committed while in office. We even
explained that impeachment and quo warranto may proceed independently and simultaneously, albeit a ruling of
removal or ouster of the respondent in one case will preclude the same ruling in the other due to legal impossibility
and mootness.

Quo warranto is not a figment of imagination or invention of this Court. It is a mandate boldly enshrined in the
Constitution52 where the judiciary is conferred original jurisdiction to the exclusion of the other branches of the
government. Quo warranto, not impeachment, is the constitutional remedy prescribed to adjudicate and resolve
questions relating to qualifications, eligibility and entitlement to public office. Those who chose to ignore this fact are
Constitutionally blind. US Supreme Court Justice Scalia once said: "If it is in the Constitution, it is there. If it is not in
the Constitution, it is not there." 53 There is nothing in Our Constitution that says that impeachable officers are
immuned, exempted, or excluded from quo warranto proceedings when the very issue to be determined therein is
the status of an officer as such. No amount of public indignation can rewrite or deface the Constitution.

IV

The plain issue in the instant case is whether respondent is eligible to occupy the position of Chief Justice. To
determine whether or not respondent is eligible, the primordial consideration is whether respondent met the requisite
Constitutional requirements for the position. Questions on eligibility therefore present a justiciable issue, which can
be resolved by juxtaposing the facts with the Constitution, as well as pertinent laws and jurisprudence. In Kilosbayan
Foundation,54 the Court affirmed its jurisdiction to resolve the issue on the qualification for membership of this Court
as the body tasked with the determination of the merits of conflicting claims under the Constitution, even when the
JBC has the initial competence to do so. 55

True enough, constitutionally committed to the JBC is the principal function of recommending appointees to the
Judiciary. The function to recommend appointees carries with it the concomitant duty to screen applicants therefor.
The JBC's exercise of its recommendatory function must nevertheless conform with the basic premise that the
appointee possesses the non-negotiable qualifications prescribed by the Constitution. While the JBC enjoys a
certain leeway in screening aspiring magistrates, such remains to be tightly circumscribed by the Constitutional
qualifications for aspiring members of the Judiciary. 56 These Constitutional prerequisites are therefore deemed
written into the rules and standards which the JBC may prescribe in the discharge of its primary function. The JBC
cannot go beyond or less than what the Constitution prescribes.

The surrender to the JBC of the details as to how these qualifications are to be determined is rendered necessary
and in keeping with its recommendatory function which is nevertheless made expressly subject to the Court's
exercise of supervision.

As an incident of its power of supervision over the JBC, the Court has the authority to insure that the JBC performs
its duties under the Constitution and complies with its own rules and standards. Indeed, supervision is an active
power and implies the authority to inquire into facts and conditions that renders the power of supervision real and
effective. 57 Under its power of supervision, the Court has ample authority to look into the processes leading to
respondent's nomination for the position of Chief Justice on the face of the Republic's contention that respondent
was ineligible to be a candidate to the position to begin with.

Arguments were raised against the Court's assumption over the quo warranto petition on the premise that the
determination of the integrity requirement lies solely on the JBC's discretion and thus, a prior nullification of the
JBC's act on the ground of grave abuse of discretion through a certiorari petition is the proper legal route.

The question of whether or not a nominee possesses the reqms1te qualifications is determined based on facts and
as such, generates no exercise of discretion on the part of the nominating body. Thus, whether a nominee is of the
requisite age, is a natural-born citizen, has met the years of law practice, and is of proven competence, integrity,
probity, and independence are to be determined based on facts and cannot be made dependent on inference or
discretion, much less concessions, which the recommending authority may make or extend. To say that the
determination of whether a nominee is of "proven integrity" is a task absolutely contingent upon the discretion of the
JBC is to place the integrity requirement on a plateau different from the rest of the Constitutional requirements,
when no such distinction is assigned by the Constitution. As well, to treat as discretionary on the part of the JBC the
question of whether a nominee is of "proven integrity" is to render the Court impotent to nullify an otherwise
unconstitutional nomination unless the Court's jurisdiction is invoked on the ground of grave abuse of discretion.
Such severely limiting course of action would effectively diminish the Court's collegial power of supervision over the
JBC.

To re-align the issue in this petition, the Republic charges respondent of unlawfully holding or exercising the position
of Chief Justice of the Supreme Court. The contents of the petition pose an attack to respondent's authority to hold
or exercise the position. Unmoving is the rule that title to a public office may not be contested except directly, by quo
warranto proceedings. 58 As it cannot be assailed collaterally, certiorari is an infirm remedy for this purpose. It is for
this reason that the Court previously denied a certiorari and prohibition petition which sought to annul appointment
to the Judiciary of an alleged naturalized citizen. 59

Aguinaldo, et al. v. Aquino, et al., 60 settles that when it is the qualification for the position that is in issue, the proper
remedy is quo warranto pursuant to Topacio. 61 But when it is the act of the appointing power that is placed under
scrutiny and not any disqualification on the part of the appointee, a petition for certiorari challenging the appointment
for being unconstitutional or for having been done in grave abuse of discretion is the apt legal course.
In Aguinaldo,the Court elucidated:

The Court recognized in Jardeleza v. Sereno that a petition for certiorari is a proper remedy to question the act of
any branch or instrumentality of the government on the ground of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions.

In opposing the instant Petition for Certiorari and Prohibition, the OSG cites Topacio in which the Court declares that
title to a public office may not be contested except directly, by quo warranto proceedings; and it cannot be assailed
collaterally, such as by certiorari and prohibition.

However, Topacio is not on all fours with the instant case. In Topacio, the writs of certiorari and prohibition were
sought against Sandiganbayan Associate Justice Gregory S. Ong on the ground that he lacked the qualification of
Filipino citizenship for said position. In contrast, the present Petition for Certiorari and Prohibition puts under
scrutiny, not any disqualification on the part of respondents Musngi and Econg, but the act of President Aquino in
appointing respondents Musngi and Econg as Sandiganbayan Associate Justices without regard for the clustering of
nominees into six separate shortlists by the JBC, which allegedly violated the Constitution and constituted grave
abuse of discretion amounting to lack or excess of jurisdiction. This would not be the first time that the Court, in the
exercise of its expanded power of judicial review, takes cognizance of a petition for certiorari that challenges a
presidential appointment for being unconstitutional or for having been done in grave abuse of discretion.xx
x.62 (Italics and citations omitted.)

A certiorari petition also lacks the safeguards installed in a quo warranto action specifically designed to promote
stability in public office and remove perpetual uncertainty in the title of the person holding the office. For one,
a certiorari petition thrives on allegation and proof of grave abuse of discretion. In a quo warranto action, it is
imperative to demonstrate that the respondent have usurped, intruded into or unlawfully held or exercised a public
office, position or franchise.

For another, certiorari may be filed by any person alleging to have been aggrieved by an act done with grave abuse
of discretion. In a quo warranto action, it is the Solicitor General or a public prosecutor, when directed by the
President or when upon complaint or when he has good reason to believe that the grounds for quo warranto can be
established by proof, who must commence the action. The only instance when an individual is allowed to commence
such action is when he or she claims to be entitled to a public office or position usurped or unlawfully held or
exercised by another. In such case, it is incumbent upon the private person to present proof of a clear and
indubitable right to the office. If certiorari is accepted as the proper legal vehicle to assail eligibility to public office
then any person, although unable to demonstrate clear and indubitable right to the office, and merely upon claim of
grave abuse of discretion, can place title to public office in uncertainty.

Tellingly also, the rules on quo warranto do not require that the recommending or appointing authority be impleaded
as a necessary party, much less makes the nullification of the act of the recommending authority a condition
precedent before the remedy of quo warranto can be availed of. The JBC itself did not bother to intervene in the
instant petition.

Under Section 6, Rule 66 of the Rules of Court, when the action is against a person for usurping a public office,
position or franchise, it is only required that, if there be a person who claims to be entitled thereto, his or her name
should be set forth in the petition with an averment of his or her right to the office, position or franchise and that the
respondent is unlawfully in possession thereof. All persons claiming to be entitled to the public office, position or
franchise may be made parties and their respective rights may be determined in the same quo warranto action. The
appointing authority, or in this case the recommending authority which is the JBC, is therefore not a necessary party
in a quo warranto action.

Peculiar also to the instant petition is the surrounding circumstance that an administrative matter directly pertaining
to the nomination of respondent is pending before the Court. While the administrative matter aims to determine
whether there is culpability or lapses on the part of the JBC members, the factual narrative offered by the latter are
all extant on record which the Court can take judicial notice of. Thus, considerations regarding the lack of due
process on the part of the JBC present only a superficial resistance to the Court's assumption of jurisdiction over the
instant quo warranto petition.

In any case, the rules on quo warranto vests upon the Court ancillary jurisdiction to render such further judgment as
"justice requires."63 Indeed, the doctrine of ancillary jurisdiction implies the grant of necessary and usual incidental
powers essential to effectuate its jurisdiction and subject to existing laws and constitutional provisions, every
regularly constituted court has power to do all things that are reasonably necessary for the administration of justice
within the scope of its jurisdiction and for the enforcement of its judgments and mandates. 64 Accordingly, "demands,
matters or questions ancillary or incidental to, or growing out of, the main action, and coming within the above
principles, may be taken cognizance of by the court and determined, since such jurisdiction is in aid of its authority
over the principal matter, even though the court may thus be called on to consider and decide matters which, as
original causes of action, would not be within its cognizance."65

This Court had likewise amply laid down the legal and factual bases for its ruling against the dismissal of the instant
petition on the ground of prescription. Our ruling on this matter is anchored upon the very purpose of such
prescriptive period as consistently held by this Court for decades and also upon consideration of the unique
underlying circumstances in this case which cannot be ignored.

In addition to the catena of cases cited in the assailed Decision, the Court, in Madrigal v. Prov. Gov.
Lecaroz, 66exhaustively explained the rationale behind the prescriptive period:

The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo
warranto and mandamus affecting titles to public office must be filed within one (1) year from the date the petitioner
is ousted from his position. xx x The reason behind this being was expounded in the case of Unabia v. City Mayor,
etc., x x x where We said:

"x x x[W]e note that in actions of quo warranto involving right to an office, the action must be instituted within the
period of one year. This has been the law in the island since 1901, the period having been originally fixed in Section
216 of the Code of Civil Procedure (Act No. 190). We find this provision to be an expression of policy on the
part of the State that persons claiming a right to an office of which they are illegally dispossessed should
immediately take steps to recover said office and that if they do not do so within a period of one year, they
shall be considered as having lost their right thereto by abandonment. There are weighty reasons of public
policy and convenience that demand the adoption of a similar period for persons claiming rights to positions in the
civil service. There must be stability in the service so that public business may [not] be unduly retarded;
delays in the statement of the right to positions in the service must be discouraged. The following
considerations as to public officers, by Mr. Justice Bengzon, may well be applicable to employees in the civil
service:

'Furthermore, constitutional rights may certainly be waived, and the inaction of the officer for one year could be
validly considered as waiver, i.e., a renunciation which no principle of justice may prevent, he being at liberty to
resign his position anytime he pleases.

And there is good justification for the limitation period; it is not proper that the title to public office should be
subjected to continued uncertain[t]y, and the peoples' interest require that such right should be determined as
speedily as practicable.'

"Further, the Government must be immediately informed or advised if any person claims to be entitled to an
office or a position in the civil service as against another actually holding it, so that the Government may
not be faced with the predicament of having to pay the salaries, one, for the person actually holding the
office, although illegally, and another, for one not actually rendering service although entitled to do so.xx
x."67 (Citations omitted and emphasis ours)

The long line of cases decided by this Court since the l 900's, which specifically explained the spirit behind the rule
providing a prescriptive period for the filing of an action for quo warranto, reveals that such limitation can be applied
only against private individuals claiming rights to a public office, not against the State.

Indeed, there is no proprietary right over a public office. Hence, a claimed right over a public office may be waived.
In fact, even Constitutionally-protected rights may be waived. Thus, We have consistently held that the inaction of a
person claiming right over a public office to assert the same within the prescriptive period provided by the rules, may
be considered a waiver of such right. This is where the difference between a quo warranto filed by a private
individual as opposed to one filed by the State through the Solicitor General lies. There is no claim of right over a
public office where it is the State itself, through the Solicitor General, which files a petition for quo warranto to
question the eligibility of the person holding the public office. As We have emphasized in the assailed Decision,
unlike Constitutionally-protected rights, Constitutionally-required qualifications for a public office can never be
waived either deliberately or by mere passage of time. While a private individual may, in proper instances, be
deemed to have waived his or her right over title to public office and/or to have acquiesced or consented to the loss
of such right, no organized society would allow, much more a prudent court would consider, the State to have
waived by mere lapse of time, its right to uphold and ensure compliance with the requirements for such office, fixed
by no less than the Constitution, the fundamental law upon which the foundations of a State stand, especially so
when the government cannot be faulted for such lapse.

On another point, the one-year prescriptive period was necessary for the government to be immediately informed if
any person claims title to an office so that the government may not be faced with the predicament of having to pay
two salaries, one for the person actually holding it albeit illegally, and another to the person not rendering service
although entitled to do so. It would thus be absurd to require the filing of a petition for quo warranto within the one-
year period for such purpose when it is the State itself which files the same not for the purpose of determining who
among two private individuals are entitled to the office. Stated in a different manner, the purpose of the instant
petition is not to inform the government that it is facing a predicament of having to pay two salaries; rather, the
government, having learned of the predicament that it might be paying an unqualified person, is acting upon it head-
on.

Most importantly, urgency to resolve the controversy on the title to a public office to prevent a hiatus or disruption in
the delivery of public service is the ultimate consideration in prescribing a limitation on when an action for quo
warranto may be instituted. However, it is this very same concern that precludes the application of the prescriptive
period when it is the State which questions the eligibility of the person holding a public office and not merely the
personal interest of a private individual claiming title thereto. Again, as We have stated in the assailed Decision,
when the government is the real party in interest and asserts its rights, there can be no defense on the ground of
laches or limitation, 68 otherwise, it would be injurious to public interest if this Court will not act upon the case
presented before it by the Republic and merely allow the uncertainty and controversy surrounding the Chief Justice
position to continue.

Worthy to mention is the fact that this is not the first time that this Court precluded the application of the prescriptive
period in filing a petition for quo warranto. In Cristobal v. Melchor,69 the Court considered certain exceptional
circumstances attending the case, which took it out of the rule on the one-year prescriptive period. Also,
in Agcaoiliv. Suguitan, 70 the Court considered, among others, therein petitioner's good faith and the injustice that he
suffered due to his forcible ouster from office in ruling that he is not bound by the provision on the prescriptive period
in filing his action for quo warranto to assert his right to the public office. When the Court in several cases exercised
liberality in the application of the statute of limitations in favor of private individuals so as not to defeat their personal
interests on a public position, is it not but proper, just, reasonable, and more in accord with the spirit of the rule for
this Court to decide against the application of the prescriptive period considering the public interest involved?
Certainly, it is every citizen's interest to have qualified individuals to hold public office, especially which of the
highest position in the Judiciary.

From the foregoing disquisition, it is clear that this Court's ruling on the issue of prescription is not grounded upon
provisions of the Civil Code, specifically Article 1108(4)71 thereof. Instead, the mention thereof was intended merely
to convey that if the principle that "prescription does not lie against the State" can be applied with regard to property
disputes, what more if the underlying consideration is public interest.

To be clear, this Court is not abolishing the limitation set by the rules in instituting a petition for quo warranto. The
one-year prescriptive period under Section 11, Rule 66 of the Rules of Court still stands. However, for reasons
explained above and in the main Decision, this Court made distinctions as to when such prescriptive period applies,
to wit: (1) when filed by the State at its own instance, through the Solicitor General, 72 prescription shall not apply.
This, of course, does not equate to a blanket authority given to the Solicitor General to indiscriminately file
baseless quo warranto actions in disregard of the constitutionally-protected rights of individuals; (2) when filed by
the Solicitor General or public prosecutor at the request and upon relation of another person, with leave of
court, 73 prescription shall apply except when established jurisprudential exceptions 74 are present; and (3) when filed
by an individual in his or her own name, 75 prescription shall apply, except when established jurisprudential
exceptions are present. In fine, Our pronouncement in the assailed Decision as to this matter explained that certain
circumstances preclude the absolute and strict application of the prescriptive period provided under the rules in filing
a petition for quo warranto.

Thus, this Court finds no reason to reverse its ruling that an action for quo warranto is imprescriptible if brought by
the State at its own instance, as in the instant case.

In any case, and as aptly discussed in the main Decision, the peculiarities of the instant case preclude strict
application of the one-year prescriptive period against the State. As observed by Justice Perlas-Bernabe in her
Separate Opinion, "x x x if there is one thing that is glaringly apparent from these proceedings, it is actually the lack
of respondent's candor and forthrightness in the submission of her SALNs."76 Respondent's actions prevented the
State from discovering her disqualification within the prescriptive period. Most certainly, thus the instant case is one
of those proper cases where the one-year prescriptive period set under Section 11, Rule 66 of the Rules of Court
should not apply.

VI

Respondent reiterates her argument that her case should be treated similarly as in Concerned Taxpayer v. Doblada
Jr. 77

As extensively discussed in the main Decision, respondent, unlike Doblada, did not present contrary proof to rebut
the Certifications from U.P. HRDO that respondent's SALNs for 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003,
2004, 2005 and 2006 are not in its possession and from the Ombudsman that based on its records, there is no
SALN filed by respondent except that for 1998. Being uncontroverted, these documents suffice to support this
Court's conclusion that respondent failed to file her SALNs in accordance with law.

In Doblada, the contrary proof was in the form of the letter of the head of the personnel of Branch 155 that the SALN
for 2000 exists and was duly transmitted and received by the Office of the Court Administrator as the repository
agency. In respondent's case, other than her bare allegations attacking the credibility of the aforesaid certifications
from U.P. HR.DO and the Ombudsman, no supporting proof was presented. It bears to note that these certifications
from the aforesaid public agencies enjoy a presumption that official duty has been regularly performed. These
certifications suffice as proof of respondent's failure to file her SALN until contradicted or overcome by sufficient
evidence. Consequently, absent a countervailing evidence, such disputable presumption becomes conclusive. 78

As what this Court has stated in its May 11, 2018 Decision, while government employees cannot be required to
keep their SALNs for more than 10 years based from the provisions of Section 8, paragraph C(4) of Republic Act
No. 6713,79 the same cannot substitute for respondent's manifest ineligibility at the time of her application. Verily,
even her more recent SALNs, such as those in the years of 2002 to 2006, which in the ordinary course of things
would have been easier to retrieve, were not presented nor accounted for by respondent.

Respondent attempts to strike a parallelism with Doblada by claiming that she, too, religiously filed her SALNs. The
similarity however, ends there. Unlike in Doblada, respondent failed to present contrary proof to rebut the evidence
of non-filing. If, indeed, she never missed filing her SALNs and the same were merely lost, or missing in the records
of the repository agency, this Court sees nothing that would prevent respondent from securing a Certification which
would provide a valid or legal reason for the copies' non-production.

VII

Respondent insists that the filing of SALNs bears no relation to the Constitutional qualification of integrity. For her,
1âw phi1

the measure of integrity should be as what the JBC sets it to be and that in any case, the SALN laws, being malum
prohibitum, do not concern adherence to moral and ethical principles.

Respondent's argument, however, dangerously disregards that the filing of SALN is not only a requirement under
the law, but a positive duty required from every public officer or employee, first and foremost by the
Constitution. 80The SALN laws were passed in aid of the enforcement of the Constitutional duty to submit a
declaration under oath of one's assets, liabilities, and net worth. This positive Constitutional duty of filing one's SALN
is so sensitive and important that it even shares the same category as the Constitutional duty imposed upon public
officers and employees to owe allegiance to the State and the Constitution. 81 As such, offenses against the SALN
laws are not ordinary offenses but violations of a duty which every public officer and employee owes to the State
and the Constitution. In other words, the violation of SALN laws, by itself, defeats any claim of integrity as it is
inherently immoral to violate the will of the legislature and to violate the Constitution.

Integrity, as what this Court has defined in the assailed Decision, in relation to a judge's qualifications, should not be
viewed separately from the institution he or she represents. Integrity contemplates both adherence to the highest
moral standards and obedience to laws and legislations. Integrity, at its minimum, entails compliance with the law.

In sum, respondent has not presented any convincing ground that would merit a modification or reversal of Our May
11, 2018 Decision. Respondent, at the time of her application, lacked proven integrity on account of her failure to file
a substantial number of SALNs and also, her failure to submit the required SALNs to the JBC during her application
for the position. Although deviating from the majority opinion as to the proper remedy, Justice Antonio T. Carpio
shares the same finding:

Since respondent took her oath and assumed her posit10n as Associate Justice of the Supreme Court on 16 August
2010, she was required to file under oath her SALN within thirty (30) days after assumption of office, or until 15
September 2010, and the statements must be reckoned as of her first day of service, pursuant to the relevant
provisions on SALN filing.

However, respondent failed to file a SALN containing sworn statements reckoned as of her first day of
service within thirty (30) days after assuming office. While she allegedly submitted an "entry SALN" on 16
September 2010, it was unsubscribed and the statements of her assets, liabilities and net worth were reckoned as
of 31 December 2009, and not as of her first day of service, or as of 16 August 2010. x x x

xxxx

The Constitution, law, and rules clearly require that the sworn entry SALN "must be reckoned as of his/her first day
of service" and must be filed "within thirty (30) days after assumption of office." Evidently, respondent failed to file
under oath a SALN reckoned as of her first day of service, or as of 16 August 2010, within the prescribed period of
thirty (30) days after her assumption of office. In other words, respondent failed to file the required SALN upon
her assumption of office, which is a clear violation of Section 17, Article XI of the Constitution. In light of her
previous failure to file her SALNs for several years while she was a UP College of Law Professor, her failure to file
her SALN upon assuming office in 2010 as Associate Justice of this Court constitutes culpable violation of the
Constitution, a violation committed while she was already serving as an impeachable office.82 (Citation omitted and
emphasis ours)

Having settled respondent's ineligibility and ouster from the position, the Court reiterates its directive to the JBC to
immediately commence the application, nomination and recommendation process for the position of Chief Justice of
the Supreme Court.

WHEREFORE, respondent Maria Lourdes P. A. Sereno's Ad Cautelam Motion for Reconsideration

is DENIED with FINALITY for lack of merit. No further pleadings shall be entertained. Let entry of judgment be made
immediately.

The Court REITERATES its order to the Judicial and Bar Council to commence the application and nomination
process for the position of the Chief Justice without delay. The ninety-day (90) period83 for filling the vacancy shall be
reckoned from the date of the promulgation of this Resolution.

SO ORDERED.

2. G.R. No. 185224 July 29, 2015

AMELIA CARMELA CONSTANTINO ZOLETA, Petitioner,

vs.
THE HONORABLE SANDIGANBAYAN [FOURTH DIVISION] and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 filed by petitioner Amelia Carmela Constantino Zoleta assailing the
November 5, 2008 decision2 of the Sandiganbayan (Fourth Division) in Criminal Case No. 28326.

The case stemmed from an anonymous complaint filed against the petitioner, Mary Ann Gadian, and Sheryll
Desiree Tangan before the Office of the Ombudsman-Mindanao (Ombudsman) for participating in the scheme of
questionable grants and donations to fictitious entities using provincial funds. As a result of this complaint, the
Commission on Audit (COA) conducted a special audit in Sarangani Province. Among the irregularities discovered
by the Special Audit Team was a ₱20,000.00 financial assistance given to Women in Progress (WIP), a cooperative
whose members were mostly government personnel or relatives of the officials of Sarangani Province.

The COA Special Audit Team submitted its report to the Ombudsman which, in turn, conducted a preliminary
investigation. Thereafter, the Ombudsman, through the Office of the Special Prosecutor, charged the petitioner,
Vice-Governor Felipe Constantino, Violeta Bahilidad, Maria Camanay, and Teodorico Diaz with malversation of
public funds by falsification of public documents defined and penalized under Article 217 in relation to Article 171(2)
and Article48 of the Revised Penal Code, as amended, before the Sandiganbayan in an Information which reads:
That on January 24, 2002 or prior or subsequent thereto in Sarangani, Philippines, and within the jurisdiction of this
Honorable Court, accused Felipe Katu Constantino, a high-ranking public officer, being the Vice-Governor of the
Province of Sarangani, Maria D. Camanay, Provincial Accountant, Teodorico F. Diaz, Provincial Board Member,
Amelia Carmela C. Zoleta, Executive Assistant III, all accountable public officials of the Provincial Government of
Sarangani, by reason of the duties of their office, conspiring and confederating with Violita Bahilidad, private
individual, the public officers, while committing the offense in relation to office, taking advantage of their respective
positions, did then and there wilfully, unlawfully and feloniously take, convert and misappropriate the amount of
TWENTY THOUSAND PESOS (₱20,000.00), Philippine Currency, in public funds under their custody, and for which
they are accountable, by falsifying or causing to be falsified the corresponding Disbursement Voucher No. 101-
2002-01-822 and its supporting documents, making it appear that financial assistance had been sought by Women
In Progress, Malungon, Sarangani, represented by its President, Amelia Carmela C. Zoleta, when in truth and in
fact, the accused knew fully well that no financial assistance had been requested by the said group and her
association, nor did Amelia Carmela C. Zoleta and her association receive the aforementioned amount, thereby
facilitating the release of the above-mentioned public funds in the amount of TWENTY THOUSAND PESOS
(₱20,000.00)through encashment by the accused at Land Bank of the Philippines (LBP) Check No. 36481 dated
January 24, 2002 issued in the name of the Violeta Bahilidad, which amount they subsequently misappropriated to
their personal use and benefit and despite demand, the said accused failed to return the said amount to the damage
and prejudice of the government and the public interest of the aforesaid sum.

CONTRARY TO LAW.3 (Emphasis in the original.)

On arraignment, the petitioner, Vice-Governor Constantino and Bahilidad pleaded "not guilty." Diaz and Camanay,
on the other hand, remained at large.

On March 22, 2006, the Sandiganbayan issued a Pre-trial Order.4 The People of the Philippines, though the Office
of the Special Prosecutor, filed its Comment and Ex Parte Motion to Include Testimonial Evidence and Issue to Pre-
trial Order5 essentially claiming that the Pre-trial Order did not reflect certain testimonial evidence "as stated during
the Pre-Trial."6

In its Order7 dated April 5, 2006, the Sandiganbayan amended certain portions of the Pre-trial Order.

On April 25, 2006, Vice-Governor Constantino died in a vehicular accident, resulting in the dismissal of the case
against him.

In its decision dated November 5,2008, the Sandiganbayan found the petitioner and Bahilidad guilty beyond
reasonable doubt of the crime charged, and sentenced them to suffer the indeterminate penalty of fourteen (14)
years, eight (8) months and one (1) day, as minimum, to sixteen (16) years, five (5) months, and eleven (11) days of
reclusion temporal, as maximum. It also imposed on them the additional penalty of perpetual disqualification from
holding any public office. The Sandiganbayan likewise directed them to pay back the Province of Sarangani
₱20,000.00 plus interest, computed from January 2002 until fully paid.8

The Sandiganbayan held that Vice-Governor Constantino had control and custody of the funds by reason of his
office, and that his signature was needed before a grant, donation, or assistance could be released to a requesting
party. According to the Sandiganbayan, Vice-Governor Constantino approved the ₱20,000.00 disbursement despite
the lack of the required documentation.

The Sandiganbayan further ruled that Vice-Governor Constantino conspired with the other accused in using a
dummy organization WIP to facilitate the malversation. It explained that the petitioner, who was Vice-Governor
Constantino’s own daughter and who held the position of Executive Assistant III in his office, committed the
following acts: (a) ordered Mary Ann Gadian, a computer operator at the Office of the Sangguniang Panlalawigan of
Sarangani, to make a letter-request for financial assistance using a nonexistent cooperative; (b) directed Jane
Tangan, the Local Legislative Staff Officer of the Office of the Vice-Governor, to falsify the signature of WIP’s
secretary, Melanie Remulta, on the request-letter; and (c) certified and approved the disbursement voucher; and
then presented it to Diaz, Camanay, and Vice-Governor Constantino for their respective signatures.

The Sandiganbayan likewise ruled that falsification was a necessary means to commit the crime of malversation.

THE PETITION FOR REVIEW ON CERTIORARI

In the present petition, the petitioner argued that: (a) the Sandiganbayan’s November 5, 2008 decision in Criminal
Case No. 28326 was void because one of its signatories, Justice Gregory Ong, was not a natural-born Filipino
citizen per Kilosbayan Foundation v. Exec. Sec. Ermita,9 and hence not qualified to be a Sandiganbayan justice; (b)
the totality of evidence presented by the prosecution was insufficient to overcome the petitioner’s presumption of
innocence; and (c) the Sandiganbayan denied her due process when it issued its Order dated April 5, 2006,
amending certain portions of the pre-trial order without any hearing.

In its Comment,10 the People countered that Kilosbayan merely required Justice Ong to complete "all necessary
steps, through the appropriate adversarial proceedings in court, to show that he is a natural born Filipino citizen and
correct the records of his birth and citizenship." It added that Kilosbayan did not categorically rule that Justice Ong
was not a natural-born Filipino who was disqualified from accepting an appointment to the position of Associate
Justice of this Court. The People further pointed out that the Court in Topacio v. Ong11 already acknowledged Justice
Ong’s actual physical possession and exercise of the functions of the office of an Associate Justice of the
Sandiganbayan.

The People likewise argued that the issue of sufficiency of the prosecution evidence is a question of fact which is
beyond the province of a petition for review on certiorari. It nonetheless maintained that the Sandiganbayan’s
findings were supported by the evidence on record.

On the third issue, the People maintained that a person charged with willful malversation can validly be convicted of
malversation through negligence.

OUR RULING

We DENY the petition.

I. The Sandiganbayan’s November 5, 2008 decision is valid

The petitioner’s reliance in Kilosbayan to challenge the validity of the Sandiganbayan’s decision is misplaced.

We point out that Kilosbayana rose from a petition for certiorari filed by both Kilosbayan Foundation and Bantay
Katarungan – both non-governmental organizations engaged in public and civic causes – assailing then President
Gloria Macapagal-Arroyo’s appointment of Justice Ong as an Associate Justice of the Court on the ground that the
latter was not a natural born citizen. Contrary to the petitioner’s claim, Kilosbayan did not rule that Justice Ong was
not a natural-born Filipino (and hence unqualified to assume the position of a Sandiganbayan Justice). The Court
merely stated that Justice Ong cannot accept an appointment to the position of Associate Justice of the Supreme
Court or assume the position of that office, "until he shall have successfully completed all the necessary steps,
through the appropriate adversarial proceedings in court to show that he is a natural-born Filipino citizen and correct
the records of his birth and citizenship."12

At any rate, the Court has long settled the issue of Justice Ong’s citizenship. After the Court promulgated
Kilosbayan, Justice Ong immediately filed with the Regional Trial Court (RTC), Branch 264, Pasig City, a petition for
the amendment/ correction/ supplementation or annotation of an entry in [his] Certificate of Birth, docketed as S.P.
Proc No. 11767-SJ. In its decision of October 24, 2007, the RTC13 granted Justice Ong's petition to be recognized as
a natural-born Filipino. Consequently, the RTC directed the Civil Registrar of San Juan, Metro Manila to annotate in
the Certificate of Birth of Justice Ong its (RTC’s) decision.

The RTC denied the motions moving for a reconsideration of its decision.

In its six-page resolution in 2013, the Court En Banc also held that Justice Ong was a natural-born citizen, thus:

The pronouncements of the Court in both GR No. 179895 and GR No. 180543, and the finality of the decision
rendered by the RTC on October 24, 2007,in S.P. No. 11767-SJrecognizing Justice Ong as a natural born citizen of
the Philippines and directing the correction of the existing records of his birth and citizenship have already
definitively settled the subject of the query posed by SP Villa-Ignacio.14

Even without this ruling, we hold that Justice Ong was a de facto officer during the period of his incumbency as a
Sandiganbayan Associate Justice. A de facto officer is one who is in possession of an office and who openly
exercises its functions under color of an appointment or election, even though such appointment or election may be
irregular.15 It is likewise defined as one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or informal, so that the
incumbent be not a mere volunteer.16 Consequently, the acts of the de facto officer are as valid for all purposes as
those of a de jure officer, in so far as the public or third persons who are interested therein are concerned.17

In the light of these considerations, we find no basis to invalidate the November 5, 2008 decision of the
Sandiganbayan in Criminal Case No. 28326.

II. Only questions of law should be raised in a Rule 45 petition

It is settled that the appellate jurisdiction of the Supreme Court over decisions and final orders of the Sandiganbayan
is limited only to questions of law; it does not review the factual findings of the Sandiganbayan which, as a general
rule, are conclusive upon the Court.

A question of law exists when there is doubt or controversy as to what the law is on a certain state of facts. On the
other hand, a question of fact exists when the doubt or controversy arises as to the truth or falsity of the alleged
facts. The resolution of a question of fact necessarily involves a calibration of the evidence, the credibility of the
witnesses, the existence and the relevance of surrounding circumstances, and the probability of specific situations.18

In the present petition, the petitioner alleges that the presented evidence were insufficient to support a conviction.
She thus seeks a re-evaluation of the Sandiganbayan’s appreciation of the evidence presented, including the
credibility of witnesses and the probative value of their testimonies. The petitioner likewise wants the Court to take a
closer look into her claim that the charges against them were politically motivated.

To our mind, the Sandiganbayan’s findings that: the testimonies of Gadian and Tangan were credible and worthy of
belief; WPI was an unregistered cooperative; the signatures of the petitioner and her co-accused on the
disbursement voucher were authentic; Remulta’s signature had been forged; and the charges against the accused
were not politically motivated, are questions of fact, as these matters were resolved after a calibration of the pieces
of evidence presented during trial. The Court will not anymore weigh these pieces of evidence in the absence of a
clear showing that these findings had been arrived at arbitrarily or are devoid of support in the records.

At any rate, we hold that the Sandiganbayan correctly convicted the petitioner of the complex crime of malversation
of public funds through falsification of public documents.

Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same;
by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or
property; or by being otherwise guilty of the misappropriation or malversation of such funds or property.19

The elements common to all acts of malversation under Article 217 of the Revised Penal Code, as amended, are
the following: (a) that the offender be a public officer; (b) that he had custody or control of funds or property by
reason of the duties of his office; (c) that those funds or property were public funds or property for which he was
accountable; and (d) that he appropriated, took, misappropriated or consented, or through abandonment or
negligence, permitted another person to take them. All these elements have been established by the prosecution.

First, it is undisputed that all the accused, except Bahilidad, are all public officers. A public officer is defined in the
Revised Penal Code as "any person who, by direct provision of the law, popular election, or appointment by
competent authority, shall take part in the performance of public functions in the Government of the Philippine
Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or
subordinate official, of any rank or class. Constantino was the Vice-Governor of Sarangani Province, while the
petitioner, Camanay, and Diaz were occupying the positions of Executive Assistant (at the Office of the Vice-
Governor), Provincial Accountant, and Provincial Board Member, respectively.

Second, the funds misappropriated are public in character, as they were funds belonging to the Province of
Sarangani.

Third, Vice-Governor Constantino and Camanay were accountable public officers. Under the Government Auditing
Code of the Philippines, an accountable public officer is a public officer who, by reason of his office, is accountable
for public funds or property. The Local Government Code expanded this definition with regard to local government
officials. Section 340 of the LGC reads:

Section 340. Persons Accountable for Local Government Funds. – Any officer of the local government unit whose
duty permits or requires the possession or custody of local government funds shall be accountable and responsible
for the safekeeping thereof in conformity with the provisions of this title. Other local officials, though not accountable
by the nature of their duties, may likewise be similarly held accountable and responsible for local government funds
through their participation in the use or application thereof. (Emphasis ours.)

Local government officials become accountable public officers either (1) because of the nature of their functions; or
(2) on account of their participation in the use or application of public funds.20

As a required standard procedure, the signatures of, among others, the Vice-Governor and the Provincial
Accountant are needed before any disbursement of public funds can be made. No checks can be prepared and no
payment can be effected without their signatures on a disbursement voucher and the corresponding check. In other
words, any disbursement and release of public funds require their approval. Thus, Constantino and Camanay, in
their capacities as Vice-Governor and Provincial Accountant, had control and responsibility over the subject funds.

Finally, Vice-Governor Constantino and Camanay appropriated, took, misappropriated or consented, or through
abandonment or negligence, permitted another person to take the public funds when they signed Disbursement
Voucher No. 101-2002-01-822. The term voucher, when used in connection with disbursement of money, implies
some instrument that shows on what account or by what authority a particular payment has been made, or that
services have been performed which entitle the party to whom it is issued to payment. Corollarily, when an
authorized person approves a disbursement voucher, he certifies to the correctness of the entries therein, among
others: that the expenses incurred were necessary and lawful, the supporting documents are complete, and the
availability of cash therefor. He also attests that the person who performed the services or delivered the supplies,
materials, or equipment is entitled to payment.21

Notably, the signatures of Camanayand Vice-Governor Constantino also appeared on the Allotment and Obligation
Slip (ALOBS) and in Land Bank Check No. 0000036481, respectively. Their respective signatures in these
documents allowed Bahilidad to encash ₱20,000.00. We also point out that although the purported request was
made by the WIP, the check was made payable to a private person, that is, Bahilidad. According to Helen Cailing,
the leader of the COA Special Audit Team, there were no supporting documents attached to this disbursement
voucher proving that Bahilidad was indeed the treasurer of WIP.

We also agree with the Sandiganbayan’s ruling that falsification was a necessary means to commit the crime of
malversation. Article 171, paragraphs (2) and (5) of the Revised Penal Code, provides:

ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prision mayor
and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking
advantage of his official position, shall falsify a document by committing any of the following acts:

xxxx

2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so
participate;

xxxx

In the present case, the records showed that the petitioner ordered Tangan to sign above the name of Remulta in
the letter-request to make it appear that the latter, as WIP Secretary, consented to the request for financial
assistance. We note, too, that this letter-request was made on January 24, 2002, but Gadianante dated it to January
7, 2002, so that the transaction would not look suspicious (considering that both the disbursement voucher and
check were also dated January 24, 2002).

The Presence of Conspiracy

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it. Conspiracy does not need to be proven by direct evidence and may be inferred from the conduct
―before, during, and after the commission of the crime ― indicative of a joint purpose, concerted action, and concurrence
of sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one concurs with the criminal
design of another, as shown by an overt act leading to the crime committed. It may be deduced from the mode and
manner of the commission of the crime.22

In the present case, the records established with moral certainty that the petitioner and her co-accused acted in
concert to achieve a common objective. The presence of conspiracy between the petitioner and her co-accused was
explained by the Sandiganbayan as follows:

xxxx

Moreover, the testimony of Gadian and Tangan indubitably established that accused Constantino and Zoleta took
advantage of their official positions. Zoleta ordered Gadian to make a request using a nonexistent cooperative. She
ordered Tangan to falsify the signature of Remulta in the request letter. Both followed the directive of Zoleta, being
their superior, the Executive Assistant and the daughter of the Vice-Governor who places her initials before the
Vice-Governor affixes his own signature. Despite the irregularity, accused Constantino approved the disbursement.
The facts taken together would prove the existence of conspiracy. Zoleta, as president of an in existent association
and a co-terminous employee at the office of her father, initiated the request for obligation of allotments and certified
and approved the disbursement voucher. There is no doubt that Constantino facilitated the illegal release of the fund
by signing the questioned voucher. Without the signatures of accused Constantino, Zoleta, and Bahilidad, the
amount could not have been disbursed on that particular day. When the voucher with its supporting documents was
presented to accused Constantino, Diaz, and Camanay for approval and signature, they readily signed them without
further ado, despite the lack of proper documentation and noncompliance of the rules. Zoleta had contact with the
payee of the check, Bahilidad, and received the amount. Their combined acts, coupled with the falsification of the
signature of Remulta, all lead to the conclusion that the accused conspired to defraud the government.

The concurrence of wills or unity of purpose and action between the accused is indubitable. A careful scrutiny of
1âw phi 1

the records revealed that indeed: (a) the petitioner signed the letter-request for financial assistance, and this was
approved by Diaz and Vice-Governor Constantino; (b) the ALOBS was signed by Camanay; (c) Disbursement
Voucher No. 101-2002-01-822 was signed by Vice-Governor Constantino, Diaz and Camanay; and (d) Land Bank
Check No. 0000036481 was signed by Vice-Governor Constantino.
The connivance between the accused is made more glaring by the fact that the entire transaction – from the letter-
request, to the approval of the disbursement voucher, until the processing and release of the check – was
completed in only one day. We note, too, that the disbursement had been approved even without the required
supporting documents such as the Articles of Cooperation and Certificate from the Cooperative Development
Authority. There was also noncompliance with the COA-prescribed auditing and accounting guidelines on the
release of fund assistance to NGOs, such as the required monitoring and inspection report either by the Office of the
Provincial Agriculturist or the Provincial Engineering Office. As earlier stated, the purported request was made by
WIP, but the check was made payable to Bahilidad (despite the COA’s findings that there were no supporting
documents proving that she was WIP’s treasurer). We are aware that Bahilidad was acquitted by this Court in G.R.
No. 18519523 – a case where she questioned her conviction by the Sandiganbayan. This does not preclude us,
however, from ruling that the other accused, i.e., Vice-Governor Constantino, Diaz, Camanay, and the petitioner,
conspired with each other to attain a common objective. We point out that Bahilidad’s acquittal was anchored on the
fact that she had no hand in the preparation, processing or disbursing of the check issued in her name. It cannot be
denied in the present case that the petitioner, Vice-Governor Constantino, Diaz, and Camanay, all participated in the
preparation and processing of Disbursement Voucher No. 101-2002-01-82224 as evidenced by their respective
signatures affixed there. Sanggunian Panlalawigan Bookbinder25 Gadian, in fact, witnessed Vice-Governor
Constantino, Camanay, and Diaz sign these documents.

In Barriga v. Sandiganbayan,26 we ruled that:

It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official
position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such
public officer or private individual conspires with an accountable public officer to commit malversation or illegal use
of public funds or property.

III. No denial of due process

The petitioner claims that he was denied due process when the Sandiganbayan granted the prosecution’s motion to
amend certain portions of the pre-trial order without any hearing. In essence, the petitioner argues that she could not
be convicted of malversation through consent, abandonment, or negligence because this allegation was not
contained in the Information.

The petitioner’s argument lacks merit.

Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense
of malversation is involved and conviction thereof is proper. All that is necessary for conviction is sufficient proof that
the accountable officer had received public funds, that he did not have them in his possession when demand
therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the
shortage in his accounts.27

In People v. Consigna, et al.,28 the Court first ruled that an accused charged with wilful malversation can be validly
convicted of malversation through negligence where the evidence sustains the latter mode of perpetrating the
offense.

Similarly, in People v. Ochoa,29 the Court stated that [e]ven when the Information charges wilful malversation,
conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of
commission of the offense.

In Tubola, Jr. v. Sandiganbayan,30 we affirmed the accused’s conviction of malversation of public funds under Article
217 of the Revised Penal Code, and reasoned out as follows:

Besides, even on the putative assumption that the evidence against petitioner yielded a case of malversation by
negligence but the information was for intentional malversation, under the circumstances of this case his conviction
under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by
negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if
the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof
is proper. A possible exception would be when the mode of commission alleged in the particulars of the indictment is
so far removed from the ultimate categorization of the crime that it may be said due process was denied by deluding
the accused into an erroneous comprehension of the charge against him. That no such prejudice was occasioned
on petitioner nor was he beleaguered in his defense is apparent from the records of this case. (Underscoring and
emphasis in the original.)

The Proper Penalty

We modify the maximum term of the penalty imposed on the petitioner by the Sandiganbayan, from sixteen (16)
years, five (5) months, and eleven (11) days to eighteen (18) years, two (2) months, and twenty one (21) days of
reclusion temporal, in accordance with Articles 48 and 21 7 of the Revised Penal Code, as amended, in relation to
the Indeterminate Sentence Law.31 WHEREFORE, in the light of all the foregoing, we DENY the petition.
Accordingly, we AFFIRM the November 5, 2008 decision of the Sandiganbayan (Fourth Division) in Criminal Case
No. 28326 with the MODIFICATION that the maximum term of the penalty imposed on the petitioner be increased
from sixteen ( 16) years, five ( 5) months, and eleven (11) days to eighteen (18) years, two (2) months and twenty
one (21) days of reclusion temporal.

SO ORDERED.

3. G.R. No. 184908 July 3, 2013

MAJOR JOEL G. CANTOS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

VILLARAMA, JR., J.:

Petitioner Major Joel G. Cantos appeals the Decision1 of the Sandiganbayan in Criminal Case No. SB-07-A/R-0008,
which affirmed with modification the judgment2 of the Regional Trial Court (RTC) of Manila, Branch 47, convicting
him of the crime of Malversation of Public Funds under Article 217 of the Revised Penal Code, as amended.

In an Information3 dated February 19, 2003, Major Cantos was charged as follows:

That on or about December 21, 2002 or sometime prior or subsequent thereto, in the City of Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the
Commanding Officer of the 22"d Finance Service Center, based in the Presidential Security Group, Malacañang
Park, Manila and as such is accountable for public funds received and/or entrusted to him by reason of his office,
acting in relation to his office and taking advantage of the same, did then and there, willfully, unlawfully and
feloniously take, misappropriate and convert to his personal use and benefit the amount of THREE MILLION TWO
HUNDRED SEVENTY THOUSAND PESOS (₱3,270,000.00), Philippine Currency, from such public funds received
by him by reason of his Office to the damage and prejudice of the Government in the aforestated amount.

CONTRARY TO LAW.

Upon motion by the prosecution, the trial court issued an Order4 granting the amendment of the date of the
commission of the offense from December 21, 2002 to December 21, 2000, the error being merely clerical. When
arraigned, Major Cantos entered a plea of not guilty.5

At the trial, the prosecution presented as witness Major Eligio T. Balao, Jr.6 He testified that on December 21, 2000,
he reported for duty as Disbursing Officer at the 22nd Finance Service Unit (FSU), Presidential Security Group
(PSG), Malacañang Park, Manila. At that time, he did not notice any unusual incident in the office. He picked up
some Bureau of Internal Revenue (BIR) forms which he filed with the BIR Office at the Port Area, Manila. He
returned to the office at around 10:00 a.m. At around 12:00 noon, his commanding officer, Major Cantos, called him
to his office and informed him that the money he (Major Cantos) was handling, the Special Duty Allowance for the
month of December, and other Maintenance Operating Expenses in the amount of more or less ₱3 Million was
missing from his custody. Shocked, he asked Major Cantos where he kept the money, to which the latter replied that
he placed it in the steel cabinet inside his room. He then inquired why Major Cantos did not use the safety vault, but
Major Cantos did not reply.7

Major Balao further testified that Major Cantos asked him to get a screwdriver so he went out of the office and got
one from his vehicle. He gave the screwdriver to Major Cantos, who used it to unscrew the safety vault. Then, he left
the office and handed the screwdriver to Sgt. Tumabcao.

After a few minutes, Major Cantos instructed him to go to the house of Major Conrado Mendoza in Taguig to get the
safety vault’s combination number. However, Major Mendoza was not around. When he returned to the office at
around 4:00 p.m., the National Bureau of Investigation (NBI) personnel took his fingerprints. He learned that all the
personnel of the 22nd FSU were subjected to fingerprinting. Thereafter, Col. Espinelli tried to force him to admit that
he took the money, but he maintained that he was not the one who took it.8

In his defense, Major Cantos testified that on July 2000, he was assigned as the Commanding Officer of the 22nd
FSU of the PSG, Malacañang Park, Manila. His duty was to supervise the disbursement of funds for the PSG
personnel and to perform other finance duties as requested by the PSG Commander, Gen. Rodolfo Diaz. On
December 19, 2000, he received a check from Director Aguas in the amount of ₱1,975,000 representing the Special
Allowance of PSG personnel. Accompanied by two personnel, he went to the Land Bank branch just across Pasig
River and encashed the check. He placed the money in a duffel bag and kept it inside the steel cabinet in his office
together with the ₱1,295,000 that was earlier also entrusted to him by Gen. Diaz. Major Cantos added that as far as
he knows, he is the only one with the keys to his office. Although there was a safety vault in his office, he opted to
place the money inside the steel cabinet because he was allegedly previously informed by his predecessor, Major
Conrado Mendoza, that the safety vault was defective. He was also aware that all personnel of the 22nd FSU had
unrestricted access to his office during office hours.9

Major Cantos also narrated that on December 20, 2000, he arrived at the office at around 9:00 a.m. and checked
the steel filing cabinet. He saw that the money was still there. He left the office at around 4:00 p.m. to celebrate with
his wife because it was their wedding anniversary. On the following day, December 21, 2000, he reported for work
around 8:30 a.m. and proceeded with his task of signing vouchers and documents. Between 9:00 a.m. to 10:00
a.m., he inspected the steel cabinet and discovered that the duffel bag which contained the money was missing. He
immediately called then Capt. Balao to his office and asked if the latter saw someone enter the room. Capt. Balao
replied that he noticed a person going inside the room, but advised him not to worry because he is bonded as
Disbursing Officer.10

In a state of panic, Major Cantos asked for Capt. Balao’s help in finding the money. Capt. Balao asked him how the
money was lost and why was it not in the vault, to which he replied that he could not put it there because the vault
was defective. Capt. Balao then suggested that they should make it appear that the money was lost in the safety
vault. In pursuit of this plan, Capt. Balao went out of the office and returned with a pair of pliers and a screwdriver.
Upon his return, Capt. Balao went directly to the vault to unscrew it. At this point, Major Cantos told him not to
continue anymore as he will just inform Gen. Diaz about the missing funds. Major Cantos was able to contact Gen.
Diaz through his mobile phone and was advised to just wait for Col. Espinelli. When Col. Espinelli arrived at the
office, Col. Espinelli conducted an investigation of the incident.11

Lt. Col. Al I. Perreras, Executive Officer of the Judge Advocate General Office (JAGO), likewise conducted an
investigation of the incident. His testimony was however dispensed with as the counsels stipulated that he prepared
the Investigation Report, and that if presented, the same would be admitted by defense counsel.12 It likewise
appears from the evidence that Police Inspector Jesus S. Bacani of the Philippine National Police (PNP)
administered a polygraph examination on Major Cantos and the result showed that he was telling the truth.13

On April 27, 2007, the RTC rendered a decision convicting Major Cantos of the crime charged, to wit:

WHEREFORE, in view of the foregoing premises, the Court finds the accused Major Joel G. Cantos GUILTY
beyond reasonable doubt of the crime of Malversation of Public Funds, under paragraph 4 of Article 217 of the
Revised Penal Code, and, there being no mitigating or aggravating circumstance present, hereby sentences him to
an indeterminate penalty of imprisonment for a period of ten (10) years and one (1) day of Prision Mayor, as
minimum, to Eighteen (18) Years, eight (8) months and one (1) day of Reclusion Temporal, as maximum; to
reimburse the AFP Finance Service Center, Presidential Security Group, Armed Forces of the Philippines the
amount of Three Million Two Hundred Seventy Thousand Pesos (₱3,270,000.00); to pay a fine of Three Million Two
Hundred Seventy Thousand Pesos (₱3,270,000.00); to suffer perpetual special disqualification from holding any
public office; and to pay the costs.

SO ORDERED.14

In rendering a judgment of conviction, the RTC explained that although there was no direct proof that Major Cantos
appropriated the money for his own benefit, Article 217 of the Revised Penal Code, as amended, provides that the
failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property
to personal uses. The RTC concluded that Major Cantos failed to rebut this presumption.

Aggrieved, Major Cantos appealed to the Sandiganbayan questioning his conviction by the trial court.

On July 31, 2008, the Sandiganbayan promulgated the assailed Decision, the dispositive portion of which reads as
follows:

IN VIEW OF THE FOREGOING, the Decision promulgated on May 3, 2007 in Criminal Case No. 03-212248 of the
Regional Trial Court, National Capital Judicial Region, Branch 47, Manila finding the accused-appellant Major Joel
G. Cantos GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds under Article 217 of the
Revised Penal Code is hereby AFFIRMED, with the modification that instead of being convicted of malversation
through negligence, the Court hereby convicts the accused of malversation through misappropriation. The penalty
imposed by the lower court is also likewise AFFIRMED.

SO ORDERED.15

The Sandiganbayan sustained the ruling of the RTC. It held that in the crime of malversation, all that is necessary
for conviction is proof that the accountable officer had received public funds and that he did not have them in his
possession when demand therefor was made. There is even no need of direct evidence of personal
misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same.
In this case, the Sandiganbayan found petitioner liable for malversation through misappropriation because he failed
to dispute the presumption against him. The Sandiganbayan noted that petitioner’s claim that the money was taken
by robbery or theft has not been supported by sufficient evidence, and is at most, self-serving.
Contending that the Sandiganbayan Decision erred in affirming his convicting, Major Cantos filed a motion for
reconsideration. In its Resolution16 dated October 6, 2008, however, the Sandiganbayan denied the motion.

Hence, the present petition for review on certiorari. Petitioner assails the Decision of the Sandiganbayan based on
the following grounds:

I.

THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION FOR

MALVERSATION DESPITE ABSENCE OF EVIDENCE SHOWING THAT THE FUNDS WERE CONVERTED TO
THE PERSONAL USE OF PETITIONER.

II.

THE HONORABLE SANDIGANBAYAN ERRED IN AFFIRMING PETITIONER'S CONVICTION ON THE BASIS OF

THE MERE PRESUMPTION CREATED BY ARTICLE 217, PARAGRAPH 4, OF THE REVISED PENAL CODE IN
VIEW OF THE ATTENDANT CIRCUMSTANCES IN THE PRESENT CASE.17

Essentially, the basic issue for our resolution is: Did the Sandiganbayan err in finding petitioner guilty beyond
reasonable doubt of the crime of malversation of public funds?

Petitioner argues that mere absence of funds is not sufficient proof of misappropriation which would warrant his
conviction. He stresses that the prosecution has the burden of establishing his guilt beyond reasonable doubt. In this
case, petitioner contends that the prosecution failed to prove that he appropriated, took, or misappropriated, or that
he consented or, through abandonment or negligence, permitted another person to take the public funds.

On the other hand, the People, represented by the Office of the Special Prosecutor (OSP), argues that petitioner, as
an accountable officer, may be convicted of malversation of public funds even if there is no direct evidence of
misappropriation. The OSP asserts that the only evidence required is that there is a shortage in the officer’s account
which he has not been able to explain satisfactorily.

The petition must fail.

The Sandiganbayan did not commit a reversible error in its decision convicting petitioner of malversation of public
funds, which is defined and penalized under Article 217 of the Revised Penal Code, as amended, as follows:

Art. 217. Malversation of public funds or property. – Presumption of malversation. – Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property shall suffer:

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be
reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a
fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable,
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or
property to personal use. (Emphasis and underscoring supplied.)

Thus, the elements of malversation of public funds under Article 217 of the Revised Penal Code are:

1. that the offender is a public officer;

2. that he had the custody or control of funds or property by reason of the duties of his office;

3. that those funds or property were public funds or property for which he was accountable; and

4. that he appropriated, took, misappropriated or consented or, through abandonment or negligence,

permitted another person to take them.18

We note that all the above-mentioned elements are here present. Petitioner was a public officer occupying the
position of Commanding Officer of the 22nd FSU of the AFP Finance Center, PSG. By reason of his position, he
was tasked to supervise the disbursement of the Special Duty Allowances and other Maintenance Operating Funds
of the PSG personnel, which are indubitably public funds for which he was accountable. Petitioner in fact admitted in
his testimony that he had complete control and custody of these funds. As to the element of misappropriation,
indeed petitioner failed to rebut the legal presumption that he had misappropriated the fees to his personal use.

In convicting petitioner, the Sandiganbayan cites the presumption in Article 217 of the Revised Penal Code, as
amended, which states that the failure of a public officer to have duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such
missing fund or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if petitioner is able
to present adequate evidence that can nullify any likelihood that he put the funds or property to personal use, then
that presumption would be at an end and the prima facie case is effectively negated.

In this case, however, petitioner failed to overcome this prima facie evidence of guilt. He failed to explain the
1âwphi 1

missing funds in his account and to restitute the amount upon demand. His claim that the money was taken by
robbery or theft is self-serving and has not been supported by evidence. In fact, petitioner even tried to unscrew the
safety vault to make it appear that the money was forcibly taken. Moreover, petitioner’s explanation that there is a
possibility that the money was taken by another is belied by the fact that there was no sign that the steel cabinet
was forcibly opened. We also take note of the fact that it was only petitioner who had the keys to the steel
cabinet.19Thus, the explanation set forth by petitioner is unsatisfactory and does not overcome the presumption that
he has put the missing funds to personal use.

Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense
of malversation is involved and conviction thereof is proper.20 All that is necessary for conviction is sufficient proof
that the accountable officer had received public funds, that he did not have them in his possession when demand
therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the
shortage in his accounts.21 To our mind, the evidence in this case is thoroughly inconsistent with petitioner's claim of
innocence. Thus, we sustain the Sandiganbayan's finding that petitioner's guilt has been proven beyond reasonable
doubt.

WHEREFORE, the petition is DENIED. The Decision dated July 31, 2008 of the Sandiganbayan in Criminal Case
No. SB-07-A/R-0008 convicting Major Joel G. Cantos of the crime of Malversation of Public Funds is AFFIRMED
and UPHELD.

With costs against the petitioner.

SO ORDERED.

4. G.R. No. 192330 November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those suffering from
malnutrition to the beneficiaries of reconsideration projects affecting the homes of victims of calamities.

The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the Sandiganbayan in
Criminal Case 28228 of violation of illegal use of public propertry (technical malversation) under Article 220 of the
Revised Penal Code.1

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte, operated a
Core Shelter Assistance Program (CSAP) that provided construction materials to indigent calamity victims with
which to rebuild their homes. The beneficiaries provided the labor needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70% done, the
beneficiaries stopped reporting for work for the reason that they had to find food for their families. This worried Lolita
Garcia (Garcia), the CSAP Officer-in-Charge, for such construction stoppage could result in the loss of construction
materials particularly the cement. Thus, she sought the help of Cristina Polinio (Polinio), an officer of the MSWDO in
charge of the municipality’s Supplemental Feeding Program (SFP) that rationed food to malnourished children.
Polinio told Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had
already distributed food to the mother volunteers, what remained could be given to the CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his approval.
After explaining the situation to him, Ysidoro approved the release and signed the withdrawal slip for four sacks of
rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor Ysidoro instructed Garcia and Polinio, however, to
consult the accounting department regarding the matter. On being consulted, Eldelissa Elises, the supervising clerk
of the Municipal Accountant’s Office, signed the withdrawal slip based on her view that it was an emergency
situation justifying the release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries.
Afterwards, Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present complaint
against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified that the subject SFP goods were
intended for its target beneficiaries, Leyte’s malnourished children. She also pointed out that the Supplemental
Feeding Implementation Guidelines for Local Government Units governed the distribution of SFP goods.3 Thus,
Ysidoro committed technical malversation when he approved the distribution of SFP goods to the CSAP
beneficiaries.

In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the poor of the
municipality was valid since they came from the savings of the SFP and the Calamity Fund. Ysidoro also claims
good faith, believing that the municipality’s poor CSAP beneficiaries were also in urgent need of food. Furthermore,
Ysidoro pointed out that the COA Municipal Auditor conducted a comprehensive audit of their municipality in 2001
and found nothing irregular in its transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical malversation.
But, since his action caused no damage or embarrassment to public service, it only fined him P1,698.00 or 50% of
the sum misapplied. The Sandiganbayan held that Ysidoro applied public property to a pubic purpose other than
that for which it has been appropriated by law or ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s
motion for reconsideration. On June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation. He
particularly raises the following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose different from their
originally intended purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that could be used to
augment the other authorized expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code4 has three
elements: a) that the offender is an accountable public officer; b) that he applies public funds or property under his
administration to some public use; and c) that the public use for which such funds or property were applied is
different from the purpose for which they were originally appropriated by law or ordinance.5 Ysidoro claims that he
could not be held liable for the offense under its third element because the four sacks of rice and two boxes of
sardines he gave the CSAP beneficiaries were not appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution 00-133
appropriating the annual general fund for 2001.6 This appropriation was based on the executive budget7 which
allocated P100,000.00 for the SFP and P113,957.64 for the Comprehensive and Integrated Delivery of Social
Services8 which covers the CSAP housing projects.9 The creation of the two items shows the Sanggunian’s intention
to appropriate separate funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used for SFP’s
needs, observing the rules prescribed for identifying the qualified beneficiaries of its feeding programs. The target
clientele of the SFP according to its manual10 are: 1) the moderately and severely underweight pre-school children
aged 36 months to 72 months; and 2) the families of six members whose total monthly income is P3,675.00 and
below.11 This rule provides assurance that the SFP would cater only to the malnourished among its people who are
in urgent need of the government’s limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing free labor for
the rebuilding of their own homes. This is technical malversation. If Ysidoro could not legally distribute the
construction materials appropriated for the CSAP housing beneficiaries to the SFP malnourished clients neither
could he distribute the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore, the same
could already be diverted to the CSAP beneficiaries. He relies on Abdulla v. People12 which states that funds
classified as savings are not considered appropriated by law or ordinance and can be used for other public
purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran throughout the year.
Consequently, no one could say in mid-June 2001 that SFP had already finished its project, leaving funds or goods
that it no longer needed. The fact that Polinio had already distributed the food items needed by the SFP
beneficiaries for the second quarter of 2001 does not mean that the remaining food items in its storeroom
constituted unneeded savings. Since the requirements of hungry mouths are hard to predict to the last sack of rice
or can of sardines, the view that the subject goods were no longer needed for the remainder of the year was quite
premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply funds,
already appropriated for a determined public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the specific purpose
for which they have been appropriated. No ordinance shall be passed authorizing any transfer of appropriations
from one item to another. However, the local chief executive or the presiding officer of the sanggunian concerned
may, by ordinance, be authorized to augment any item in the approved annual budget for their respective offices
from savings in other items within the same expense class of their respective appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives the
Sanggunian the power to determine whether savings have accrued and to authorize the augmentation of other items
on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the subject goods,
such finding should be respected. The SB ruled, however, that since Ysidoro failed to present the municipal auditor
at the trial, the presumption is that his testimony would have been adverse if produced. Ysidoro argues that this
goes against the rule on the presumption of innocence and the presumption of regularity in the performance of
official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his testimony
would have been adverse to the mayor. The municipal auditor’s view regarding the transaction is not conclusive to
the case and will not necessarily negate the mayor’s liability if it happened to be favorable to him. The Court will not,
therefore, be drawn into speculations regarding what the municipal auditor would have said had he appeared and
testified.

Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP
beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the accounting
department if the goods could be distributed to those beneficiaries. Having no criminal intent, he argues that he
cannot be convicted of the crime. 1âwphi 1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting public property
earmarked by law or ordinance for a particular public purpose to another public purpose. The offense is mala
prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive
law forbids its commission based on considerations of public policy, order, and convenience.13 It is the commission of
an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision
has been violated. Hence, malice or criminal intent is completely irrelevant.14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the crime of
technical malversation. The law and this Court, however, recognize that his offense is not grave, warranting a mere
fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in Criminal Case
28228 dated February 8, 2010.

SO ORDERED.

5. G.R. No. 197567 November 19, 2014

GOVERNOR ENRIQUE T. GARCIA, JR., Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, LEONARDO B. ROMAN, ROMEO L. MENDIOLA, PASTOR P. VICHUACO,
AURORA J. TIAMBENG, and NUMERIANO G. MEDINA, Respondents.

DECISION

PERLAS-BERNABE, J.:
Assailed in this petition for certiorari1 are the Resolution2 dated May 30, 2006 and the Order3 dated October 9, 2009
of the Office of the Ombudsman (Ombudsman) in OMB-L-C-05-0084-A, which dismissed the criminal complaint
against herein respondents for lack of probable cause.

The Facts

The present case stemmed from a Complaint-Affidavit4 filed by herein petitioner Enrique T. Garcia, Jr. (Garcia),
incumbent Provincial Governor of the Province of Bataan (Province), before the Ombudsman, docketed as OMB-L-
C-05-0084-A, against respondents former Provincial Governor Leonardo B. Roman (Roman), former Executive
Assistant Romeo L. Mendiola (Mendiola), former Provincial Treasurer Pastor P. Vichuaco (Vichuaco), former Budget
Officer Aurora J. Tiambeng (Tiambeng), and incumbent5 Provincial Accountant Numeriano G. Medina (Medina), all
of the Provincial Capitol of Bataan, charging them with Malversation of Public Funds through Falsification of Public
Documents under Article 217 in relation to Article 171 of the Revised Penal Code (RPC) and violation of Section 3,
paragraphs (a) and (e) of Republic Act No. (RA) 3019, or the "Anti-Graft and Corrupt Practices Act," inter alia.

Also charged were incumbent6 Provincial Engineer Amelia R. De Pano (De Pano), Assistant Provincial Engineer
Angelito A. Rodriguez (Rodriguez), Engineer Noel G. Jimenez (Jimenez), and Architect Bernardo T. Capistrano
(Capistrano), as well as Noel Valdecañas7 (Valdecañas), the owner and manager of V.F. Construction of Balanga
City.

The essential allegations in the Complaint-Affidavit are as follows:

On November 3, 2003, Roman, being the Provincial Governor at that time, entered into a contract8 with V.F.
Construction, as represented by Valdecañas, for the construction of a mini-theater at the Bataan State College -
Abucay Campus, Abucay, Bataan (project) for the contract price of ₱3,660,000.00.9

Thereafter, or on February 23, 2004, Roman signed and issued a Certificate of Acceptance,10 stating that the project
was "100% completed in accordance with plans and specification[s]" per the Accomplishment Report11 and
Certification,12 both dated February 20, 2004, prepared and signed by Capistrano, Jimenez, Rodriguez, and De
Pano. Valdecañas also affixed his signature on the said Accomplishment Report and later executed an
Affidavit13dated May 26, 2004 stating that the project was 100% completed.

In view of the project’s purported completion, two (2) Land Bank of the Philippines checks14 (Land Bank checks) –
each in the amount of ₱1,655,318.18 (or ₱3,310,636.36 in total) – were respectively issued by Roman and Vichuaco
on April 30 and June 2, 2004 in favor of V.F. Construction. The issuances were made pursuant to two (2) separate
Disbursement Vouchers15 prepared and issued by De Pano, Medina, and Vichuaco, and approved for payment by
Roman. In addition, an Allotment and Obligation Slip16 (ALOBS) was issued, prepared, and signed by De Pano,
Tiambeng, and Medina to reimburse V.F. Construction for the cost of the labor and materials utilized for the
construction of the project. Tiambeng also certified in the ALOBS the "existence of [an] appropriation" for the said
project.17 Meanwhile, Mendiola prepared all the supporting documents for the approval and release of the funds
therefor, and submitted the same to Roman for his signature.18

The receipts issued by V.F. Construction dated May 5, 200419 and June 3, 200420 show that it received the payments
for the project.

Notwithstanding the various documents attesting to the project’s supposed completion, as well as the disbursement
of funds in payment therefor, Garcia – Roman’s successor as Provincial Governor – authorized the inspection of the
project sometimein August 2004 and discovered that while its construction was indeed commenced, it remained
unfinished as reflected in a Memorandum Report21 dated August 24, 2004.

Hence, Garcia filed the above-mentioned Complaint-Affidavit against, among others, respondents, who, in
response, proffered their individual defenses.22

For his part, Roman cited political enmity between him and Garcia as the reason for the filing of the complaint.23 He
defended the genuineness of the project, averring that it was not a "ghost project" as, in fact, substantial work had
been done thereon.24 He ascribed the falsehood in this case to the Accomplishment Report and Certification dated
February 20, 2004, as well as Valdecañas’s Affidavit, which all stated that the project was 100% completed,
claiming that he had no participation in their preparation and execution25 and that he only signed the Disbursement
Vouchers after finding no irregularities on the said documents.26

Similarly, Mendiola denied any participation in the preparation and execution of any of the documents involved in the
project.27

On the other hand, Vichuaco admitted having signed the Disbursement Vouchers and Land Bank checks, from
which the project was funded, but denied having any knowledge that the construction thereof was not yet
completed.28 He claimed to have signed the Disbursement Vouchers only after having ascertained that De Pano and
Medina, in their official capacities, had already signed the same, and ventured that he would not have done so had
he known that the project was not yet complete.29
Medina also admitted having signed the Disbursement Vouchers and ALOBS, but claimed that he did so after a
thorough examination of the supporting documents, i.e., the Accomplishment Report and Certification. He stated
that he was not informed that the project was not yet completed when he signed the Disbursement Vouchers and
the ALOBS, adding that the project was already substantially completed when Garcia prevented further work on the
same.30 He further insisted that the project was covered by a corresponding appropriation.31

Meanwhile, Tiambeng claimed that, as the Budget Officer of Bataan at the time, she verified that there was a
corresponding appropriation for the project. Thus, she signed the ALOBS, which she claimed was a ministerial duty
on her part.32 In this regard, she posited that she would not have signed the same had she known that there was no
appropriation for the project.33

As for the other officials charged, namely, De Pano, Rodriguez, Jimenez, and Capistrano, they collectively admitted
having signed the Accomplishment Report and Certification, but maintained that they did so only after the same had
been reviewed by the other provincial engineers.34 Valdecañas, for his part, denied35 the allegations against him and
claimed that Medina borrowed his contractor’s accreditation in order to participate in the bidding for the project. He
pointed out that it was Medina who actually participated in the bidding process and that his signature appearing on
the documents pertaining to the project was falsified.36 He added that he was out of the country when payments for
the project were made.37

The Ombudsman Ruling

In a Resolution38 dated May 30, 2006, the Ombudsman found probable cause to indict De Pano, Rodriguez,
Jimenez, and Capistrano for the crime of Falsification of Public Documents by making it appear through the
aforesaid Certification and Accomplishment Report that the project had already been completed when the same was
only partially constructed. The Ombudsman held that their report was necessary for the issuance of a certification
for the disbursement of funds therefor.39

On the other hand, the Ombudsman cleared respondents from liability on the ground of insufficiency of evidence,
reasoning that "mere signature on a voucher or certification is not enough" to establish any conspiracy among them
which would warrant their conviction.40 Relying on the doctrine enunciated in the case of Arias v.
Sandiganbayan41(Arias) which states that "[a]ll heads of offices have to rely to a reasonable extent on their
subordinates and on the good faith ofthose who prepare bids, purchase supplies, or enter into negotiations,"42 the
Ombudsman held that there was "no direct and strong evidence that [Roman] participated in the fraudulent
act/transaction"43 and that his act, together with that of the other respondents, was protected by the "legal
presumption of good faith and regularity,"44 which Garcia failed to overcome.

Oddly, no pronouncement was made with regard to the criminal charges against Valdecañas.45

Dissatisfied, Garcia moved for reconsideration,46 citing the Commission on Audit’s (CoA) Audit Observation
Memorandum (AOM) No. 2005-004-100 (2004)47 dated April 21, 2005 (CoA Memo), which stated that the project
had no source of funds, thus rendering the contract therefor void and the payments made therefor illegal.48Moreover,
by approving and effecting the payment of the project despite its non-completion and the absence of an allotment
therefor, Garcia claimed that respondents, who acted in conspiracy with each other, should beheld liable this time
for the crime of Technical Malversation under Article 22049 of the RPC.50

In an Order51 dated October 9, 2009, the Ombudsman denied Garcia’s motion for reconsideration, hence, this
certiorari petition.

The Issue Before the Court

The central issue for the Court’s resolution is whether or not the Ombudsman gravely abused its discretion in
dismissing all the criminal charges against respondents for lack of probable cause. In his certiorari petition, Garcia
maintains that the findings in the CoA Memo are sufficient to establish probable cause and to hold respondents for
trial for the crimes of Technical Malversation, Malversation of Public Funds through Falsification of Public
Documents, and for Violation of Section 3 (e) of RA 3019.52 As it appears, the other criminal and administrative
charges contained in his complaint-affidavit53 were not anymore discussed in the said petition.Thus, the Court is
constrained to confine its analysis only to what has been alleged therein.

The Court's Ruling

The petition is partly meritorious.

I.

The present Constitution and RA 6770,54 otherwise known as the "Ombudsman Act of 1989," have endowed the
Office of the Ombudsman with wide latitude, in the exercise ofits investigatory and prosecutorial powers, to pass
upon criminal complaints involving public officials and employees.55 Hence, as a general rule, the Court does not
interfere with the Ombudsman’s findings and respects the initiative and independence inherent in its office, which
"beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service."56
The foregoing principle does not, however, apply when the Ombudsman’s ruling is tainted with grave abuse of
discretion, subjecting the same to certiorari correction. Among other instances, the Ombudsman may be deemed to
have gravely abused its discretion when it unjustifiably fails to take essential facts and evidence into consideration in
the determination of probable cause.57 It may also be committed when the Ombudsman patently violates the
Constitution, the law or existing jurisprudence. Indeed, any decision, order or resolution of a tribunal tantamount to
overruling a judicial pronouncement of the highest Court is unmistakably grave abuse of discretion.58

Legally classified, such misdeeds fall squarely within the concept of grave abuse of discretion which is defined as
the capricious and whimsical exercise of judgment on the part of the public officer concerned, which is equivalent to
an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of
a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where
the poweris exercised in an arbitrary and despotic manner by reason of passion or hostility.59

Applying these principles to thiscase, the Court finds that the Ombudsman gravely abused its discretion when it
disregarded the CoA Memo and patently misapplied existing jurisprudence – particularly, the Ariascase – in ruling
that there was no probable cause for the crime of Violation of Section 3 (e),60 RA 3019. Accordingly, respondents
should be indicted for such. However, the same does not hold true for the other crimes of Technical Malversation
and Malversation of PublicFunds through Falsification of Public Documents for reasons that will be hereinafter
discussed.

II.

Probable cause, for the purpose of filing a criminal information, exists when the facts are sufficient to engender a
well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. To engender
a well-founded belief that a crime has been committed, and to determine if the suspect is probably guilty of the
same, the elements of the crime charged should, in all reasonable likelihood, be present. This is based on the
principle that every crime is defined by its elements, without which there should be, at the most, no criminal
offense.61

The elements of the crime of Violation of Section 3 (e),62 RA 3019 are as follows: (a) the offender must be a public
officer discharging administrative,judicial, or official functions; (b) he must have acted with manifest partiality, evident
bad faith or gross inexcusable negligence; and (c) his action caused any undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his
functions.63

Considering the findings contained in the CoA Memo, which the Ombudsman, however, disregarded, it is quite clear
that all the foregoing elements are, in all reasonable likelihood, present with respect to respondents’ participation in
this case.

Respondents, who were all public officers at the time of the alleged commission of the crime – particularly, as
provincial officials of Bataan discharging administrative functions (first element) – apparently acted with manifest
partiality, evident bad faith – or, at the very least, gross inexcusable negligence – when they issued the pertinent
documents and certifications that led to the diversion of public funds to a project that had no proper allotment, i.e.,
the mini-theater project (second element). The absence of such allotment not only renders invalid the release of
funds therefor but also taints the legality of the project’s appropriation64 as well as the Province’s contract with V.F.
Construction. As the CoA Memo pertinently explains:

Four contracted infrastructure projects and a financial assistance extended to [the] barangay by your administration
amounting to ₱5,404,000 and ₱100,000, respectively, were found devoid of valid appropriations. Of the amounts,
₱4,992,750 was already paid while the remaining balance of ₱511,250 was lodged to Accounts Payable. The non-
existence of valid appropriations rendered the contracts void and the payments illegal.

The said projects were among the 19 provided with appropriations totalling ₱14,005,000 in the [P]rovince’s 2003
Closing Budgets embodied under Ordinance No. A-6 and approved by the Sangguniang Panlalawigan in its
Resolution No. 54 on February 23, 2004.

The validity of the appropriations and the subsequent transactions were not considered in audit due tolack of legal
basis, to wit:

a. No sources of funds for the ₱14.005M appropriation rendering it invalid

The ₱43,487,527.16 computed source/available balance for the ₱14,005,000 appropriation was already used as the
beginning available balance in the computation of the Estimated Revenues and Receipts considered in the earlier
approved CY 2004 Annual General Fund Budget contained in Appropriation Ordinance No. 2 and passed under
S.P. Resolution No. 6 on January 12, 2004 (Please see Annex A [with the heading "Supplemental Appropriations of
₱14,005,000. CY 2003 Closing Budget]). Sec. 321 of RA 7160 provides, among others, that:

"No ordinance providing for a supplemental budget shall be enacted, except when supported by funds actually
available as certified by the local treasurer or by new revenue sources."
b. Non-release of allotments for the ₱14.005 M appropriation

Allotment is the authorizationissued by the Local Chief Executive (LCE) to a department/office of the LGU, which
allows it to incur obligations, for specified amounts, within the appropriation ordinance. (Sec. 08, Manual on the
NGAS for LGUs, Volume I).

As verified from the Accounting and Budget offices, no allotments were released for the projects, hence the
incurrence of the obligations were not authorized. In spite of this, the amount of ₱14,005,000 was taken up among
the continuing appropriations/allotments in CY 2004. Also, Allotment and Obligation Slips (ALOBS) which serve as
the LGU commitments to pay were certified for eight of the projects in the amount of ₱7,816,000.65 (Emphases and
underscoring supplied)

To be clear, the nineteen (19) projects mentioned in the CoA Memo were listed under "Annex B"66 thereof entitled
"Schedule of Contracted Projects and Financial Assistance Out ofInvalid Appropriations, CY 2004," all of which had
no allotments issued. First and foremost on the list is the construction of the mini-theater project. A similar CoA
memorandum, AOM No. 2004-2667 dated September 6, 2004, which was also ignored by the Ombudsman, contains
the same audit results with regard to the lack of a valid allotment for the project. Thus, absent compliance with this
basic requirement, the authorizations made by respondents in relation to the project were therefore prima facie
tainted with illegality, amounting to either manifest partiality, evident bad faith, or, at the very least, to gross
inexcusable negligence. Indeed, it is reasonable to expect that respondents – being the Province’s accountable
officers at that time – had knowledge of the procedure on allotments and appropriations. Knowledge of basic
procedure is part and parcel of respondents’ shared fiscal responsibility under Section 305 (l) of RA 7160, viz.:

Section 305. Fundamental Principles.- The financial affairs, transactions, and operations of local government units
shall be governed by the following fundamental principles:

xxxx

(l) Fiscal responsibility shall beshared by all those exercising authority over the financial affairs, transactions, and
operations of the local government units; x x x.

Hence, unless the CoA’s findings are substantially rebutted, the allotment’s absence should have roused
respondents’ suspicions, as regards the project’s legality, and, in consequence, prevented them from approving the
disbursements therefor. This is especially true for Roman, who, as the Local Chief Executive of the Province at that
time, was primarily charged with the issuance of allotments.68 As such, he was in the position to know if the allotment
requirement had, in the first place, been complied with, given that it was a pre-requisite before the project could
have been contracted.

In addition, the Court observes the same degree of negligence on the part of respondents in seemingly attesting to
the project’s 100% completion when such was not the case. The erroneous certification rendered the disbursements
made by the Province suspect as V.F. Construction had still to fulfill its contractual obligations to the Province and
yet were able to receive full payment.

Considering that the illegal diversion of public funds for the mini theafter project would undermine the execution of
other projects legitimately supported by proper allotments, it is quite obvious that undue injury on the part of the
Province and its residents would be caused. Likewise, considering that V.F. Construction had already received full
payment for a project that had yet to be completed,it also appears that a private party was given unwarranted
benefits by respondents inthe discharge of their functions (third element).

Thus, with the elements of the crime of Violation of Section 3 (e), RA 3019 herein ostensibly present, the Court
hereby holds that the Ombudsman committed grave abuse of discretion whenit dismissed said charge against
respondents.

That the Ombudsman had not, in any manner, mentioned the two (2) CoA AOMs, i.e., AOM Nos. 2005-004-100
(2004) (i.e., the CoA Memo) and 2004-26, in its ruling leads the Court to believe that it deliberately failed to consider
the same. As the Court sees it, these are significant pieces of evidence which should not have been casually
ignored. This stems from a becoming respect which all government agencies should accord to the CoA’s findings.
Verily, being the constitutionally-mandated audit arm of the government, the CoA is vested with broad powers over
all accounts pertaining to government revenue and expenditures and the uses of public funds and property.69 As
held in the case of Belgica v. Ochoa, Jr.:70

[I]t is the general policy of the Court to sustain the decisions of administrative authorities, especially onewhich is
constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of powers but also for
their presumed expertise in the laws they are entrusted to enforce. Findings of administrative agencies are accorded
not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings.71
With the weight accorded to the CoA’s findings, the Ombudsman should have, at the very least, explained its
reasons as to why the two (2) CoA AOMs had no bearing in this case. However, no such explanation was herein
made. As such, the Court holds that the Ombudsman committed grave abuse of discretion in this respect.

Palpable too is the Ombudsman’s grave abuse of discretion by its misplaced reliance on the Arias doctrine. 1âw phi 1

The factual circumstances which led to the Court’s ruling in Arias were such that there was nothing else in the
documents presented before the head of office therein that would haverequired the detailed examination of each
paper or document, viz.:

We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures,
and questioned persons. It is doubtful if any auditor for a fairly-sized office could personally do all these things in all
vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely
to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or
enter into negotiations. If a department secretary entertains important visitors, the auditor isnot ordinarily expected
to call the restaurant aboutthe amount of the bill, question each guest whether he was present at the luncheon,
inquire whether the correct amount of food was served, and otherwise personally look into the reimbursement
voucher’s accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each
voucher in such detail. Any executive head of even small government agencies or commissions can attest to the
volume ofpapers that must be signed. x x x.72 (Emphasis supplied)

Simply put, when a matter is irregular on the document’s face, so much so that a detailed examination becomes
warranted, the Arias doctrine is unavailing.

Here, it cannot be denied that the absence of an allotment for the project already rendered all related
documents/transactions irregular on their face. By this fact alone, respondents ought to have known that something
was amiss. To echo the CoA Memo, Section 321 of RA 7160 provides, among others, that "[n]o ordinance providing
for a supplemental budget shall be enacted, except when supported by funds actually availableas certified by the
local treasurer or by new revenue sources." Section 8, Chapter 3 of the Manual on the NGAS for LGUs, Volume I
further defines an "[a]llotment [as] the authorizationissued by the Local Chief Executive (LCE) to a department/office
of the LGU, which allows it to incur obligations, for specified amounts, within the appropriation ordinance." Since the
mini-theater project was an appropriation made in a supplemental budget, then there should have been funds
certified to be actually available for such appropriation to even be made. However, as the CoA found, no such funds
were certified as available. Likewise, the project had no supporting allotment, which means thatthere was basically
no authority for the provincial officials, i.e., respondents, to even incur the obligations under the V.F. Construction
contract, much morefor them to disburse the funds in connection therewith. Section 344 of RA 7160 provides:

Section 344. Certification on, and Approval of, Vouchers.- No money shall be disbursed unless the local budget
officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant
has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. x x x.

xxxx

With these apparent irregularities, it is quite perplexing how the Ombudsman could have applied the Arias doctrine
in support of its ruling, especially with respect to the charge of Violation of Section 3 (e), RA 3019. Thus, by patently
misapplying existing jurisprudence, the Court finds that the Ombudsman also committed a grave abuse of discretion
on this score and its ruling, in these aspects, must bereversed and set aside. In fine, the Ombudsman is ordered to
file in the proper court the necessary Information against respondents for violating Section 3 (e), RA 3019.

That being said, the Court proceeds to discuss the other charges contained in Garcia’s petition. III.

As earlier stated, Garcia, in his petition, also seeks that respondents be indicted for the crimes of Technical
Malversation, and Malversation of Public Funds through Falsification of Public Documents. However, unlike the
charge for the crime of Violation of Section 3 (e), RA 3019, the Court is unable to render the same disposition.

First, while Garcia insists upon the sufficiency of his evidence to indict respondents for Technical Malversation, the
Court cannot pass upon this issue, considering that the Complaint-Affidavit filed before the Ombudsman originally
charged respondents not with Technical Malversation under Article 22073 of the RPC, but with Malversation of Public
Funds through Falsification of Public Documents, defined and penalized under Article 217,74 in relation to Article
17175 of the RPC, a complex crime.76 It bears stressing that the elements of Malversation of Public Funds are
distinctly different from those of Technical Malversation. In the crime of Malversation of Public Funds, the offender
misappropriates public funds for his own personal useor allows any other person to take such public funds for the
latter’s personal use. On the other hand, in Technical Malversation, the public officer applies public funds under his
administration not for his or another’s personal use, but to a public use other than that for which the fund was
appropriated by law or ordinance.77 Technical Malversation does not include, or is not necessarily included in the
crime of Malversation of Public Funds.78

Since the acts supposedly committed by respondents constituting the crime of Technical Malversation were not
alleged in the Complaint Affidavit and the crime for which respondents raised their respective defenses was not
Technical Malversation, the petition must perforce be denied on this score. Otherwise, the Court would be
sanctioning a violation of respondents’ constitutionally-guaranteed right to be informed of the nature and cause of
the accusation against them, so as to deny them a reasonable opportunity to suitably prepare their defense.79

Finally, with respect to the chargeof Malversation of Public Funds through Falsification of Public Documents, the
Court observes that there lies no evidence which would give a prima facieindication that the funds disbursed for the
project were misappropriated for any personal use. The CoA Memo shows that the Province’s funds were used for a
public purpose, i.e., the mini-theater project, albeit without any allotment issued therefor. Garcia also fails to
convince the Court that the Province’s funds were diverted to some personal purpose. Failing in which, the Court
cannot pronounce that the Ombudsman committed a grave abuse of discretion in dismissing such charge.

As it stands, Garcia’s petition is granted only in part as respondents should be indicted for the lone crime of Violation
of Section 3 (e), RA 3019 for the reasons above-discussed. It must, however, be clarified that the dismissal of the
charge of Technical Malversation is without prejudice to its proper re-filing unless barred by prescription, considering
that such dismissal was based merely on procedural grounds and is not, in any way, tantamount to an acquittal.
WHEREFORE, the petition is PARTLY GRANTED. The Resolution dated May 30, 2006 and the Order dated
October 9, 2009 of the Office of the Ombudsman in OMB-L-C-05-0084-A, insofar as they dismissed the criminal
charge against respondents Leonardo B. Roman, Romeo L. Mendiola, Pastor P. Vichuaco, Aurora J. Tiambeng, and
Numeriano G. Medina (respondents), for Malversation of Public Funds through Falsification of Public Documents,
are AFFIRMED. However, the said Resolution and Order, insofar as they dismissed the criminal charge against
respondents for violation of Section 3 (e), Republic Act No. (RA) 3019 or the "Anti-Graft and Corrupt Practices Act"
are REVERSED and SET ASIDE. The Ombudsman is ORDERED to file in the proper court the necessary
Information for violation of Section 3 (e), RA 3019 against respondents. Finally, for reasons herein discussed, the
criminal charge against respondents for Technical Malversation is DISMISSED, without prejudice to its proper re-
filing.

SO ORDERED.

6. G.R. No. 194368 April 2, 2013

CIVIL SERVICE COMMISSION, Petitioner,

vs.
ARLIC ALMOJUELA, Respondent.

PERLAS-BERNABE,*

DECISION

BRION, J.:

We resolve the Civil Service Commission's (CSC) appeal by certiorari seeking the reversal of the Court of Appeals'
(CA) amended decision1 in CA-G.R. SP No. 106258. The assailed decision partly granted the respondent SJO2
Arlic Almojuela's (SJO2 Almojuela) Motion for Reconsideration from the CA’s original decision,2 affirming its finding
that SJO2 Almojuela is guilty of gross misconduct.

Factual Antecedents

The present administrative case, filed against Desk Officer/ Supervisor SJO2 Almojuela, sprang from the escape of
a detention prisoner in the Makati City Jail.

Tony Lao’s escape

At six’o clock in the morning of December 13, 2003, Ding Cang Hui a.k.a. Tony Lao / Tony Ling (Lao), a Chinese
inmate charged with violation of Republic Act No. 6425 (the Dangerous Drugs Act) was discovered to have escaped
from his cell at the Makati City Jail. The following officers of the Bureau of Jail Management and Penology (BJMP) –
National Capital Region Office (NCRO) were on third shift custodial duty when Lao escaped: J/C INSP Pepe
Quinones (J/C INSP Quinones); SJO2 Arvie Aquino JMP (SJO2 Aquino), officer of the day; SJO2 Arlic Almojuela
JMP (SJO2 Almojuela), desk officer / supervisor; SJO1 Jose Rodney Lagahit JMP (SJO1 Lagahit), desk reliever;
JO1 Eric Manuel Palileo (JO1 Palileo), duty nurse; JO1 Rommel Robles JMP (JO1 Robles), gater; JO1 Manuel
Loyola, Jr. (JO1 Loyola), gater; JO1 Reynaldo Pascual JMP (JO1 Pascual), cell guard and JO1 Jaime Ibarra (JO1
Ibarra), roving guard.3

Based on testimonies cited in Civil Service Resolution No. 0807014 and the Court of Appeals’ decision, the facts
outlined below led to Lao’s escape.

At about 11:00 p.m., SJO2 Aquino made a headcount of the inmates in the Makati City Jail, ensured every cell was
padlocked, and instructed SJO2 Almojuela (the desk officer on duty) to dispatch the personnel to their respective
areas of responsibilities.5
Thirty minutes later, inmate Florencio Jacinto (Jacinto) saw Cabidoy, an inmate charged with opening and closing
the cell gates, open Cell Number 8. Lao came out and Jacinto never saw him return to his cell.6

Soon after Jacinto saw Lao walk out of Cell Number 8, JO1 Loyola (the gater at the Main Gate) saw Lao at the front
desk talking to SJO2 Almojuela and JO1 Pascual. According to JO1 Loyola, SJO2 Almojuela ordered him and JO1
Pascual to buy food outside the jail premises.7 SJO1 Robles, another gater at the main gate, saw the two leave the
compound at around 11:45PM. SJO1 Robles then saw Lao, Cabidoy and another inmate conversing at the Desk
Area. SJO1 Robles were about to approach the three inmates to caution them, but upon seeing SJO1 Lagahit at the
desk area, he went back to his post. JO1 Pascual and JO1 Loyola returned to the compound at around 12:30 a.m.;
upon arrival, JO1 Loyola asked JO1 Robles "nandyan na si Warden (Chief Inspector Quinones)?", to which the
latter replied "tulog na si sir." JO1 Robles observed that JO1 Pascual was hiding something bulky in his uniform.8

In his defense, SJO2 Almojuela asserted that JO1 Loyola and JO1 Pascual went out of the jail compound without
his permission. He also testified seeing JO1 Pascual and Lao together at around 12 midnight, while Lao was using
JO1 Pascual’s celfone.9 Lao’s use of JO1 Pascual’s celfone was corroborated by SJO1 Robles’s testimony, who
also said that JO1 Loyola’s phone kept on ringing or alerting for text messages. It was not clear from SJO1 Robles’s
testimony if JO1 Loyola was with JO1 Pascual and Lao at that time.

Roughly twenty minutes after Lao was seen using JO1 Pascual’s celfone, JO1 Loyola ordered inmate Cabidoy to go
to sleep, while JO1 Pascual took the keys to the jail cells from Cabidoy.10

At around 1:15 a.m., inmate Juan Mogado, Lao’s former cellmate, saw Lao for the last time, when the latter bought
₱20.00 worth of Marlborro cigarettes from the store he was tending.11

Fifteen minutes later, at about 1:30 a.m., SJO1 Robles testified that JO1 Loyola took the gate keys for the vehicular
and visitor entrance and told him "Sige pahinga ka muna, mamaya ko na ibigay sa iyo mga 3:00."12

Between 1 to 1:30 a.m., Joan Panayaman, Almojuela’s househelp, saw JO1 Loyola and JO1 Pascual together while
she was heading for the comfort room. As she approached them, Panayaman overheard JO1 Pascual talking over
the cellphone saying "Bago namin ilabas ito, magdagdag muna kayo ng isang milyon." JO1 Pascual then toned
down his voice and entered his room, while JO1 Loyola walked towards the jail area. She went up to SJO2
Almojuela’s room, but found it locked. While going downstairs, she saw JO1 Loyola walking towards the gate with a
man; a few minutes later, JO1 Loyola returned without the man.13

According to SJO2 Almojuela, he went to his barracks at around 1:20 a.m. and returned at around 1:30 a.m.14 This
is contradicted by SJO1 Lagahit’s testimony, which asserts that SJO2 Almojuela left the front desk at around 1 a.m.
and returned only at 3 a.m.15 At around the same time, inmate Jerwin Mingoy (Mingoy) testified that SJO2 Almojuela
ordered him to get food at cell number 8 and set the table for the 3rd shift personnel.16 It must be noted, however,
that SJO1 Loyola saw the members of the 3rd shift personnel take their meal some time between 12 a.m. to 1
a.m.,17 while inmate Cabidoy cooked their meal at around 11:45 a.m.18

Between 2:00 to 3:00 a.m., JO1 Loyola said he saw that the desk area was unmanned and the control gate of the
detention cells open; he then gave the keys in his possession to JO1 Robles and went to the infirmary.19 JO1 Loyola
did not explain his whereabouts between 1:00 to 2:00 a.m.

SJO1 Lagahit testified that he conducted a roving inspection at around 2:30 a.m., and saw JO1 Loyola going to the
infirmary where JO1 Palileo was assigned. He also saw SJO1 Pascual sitting in front of the gate of Cell Number 8,
where Lao was billeted.20 By 2:45 a.m., JO1 Robles said he woke up to find that the keys earlier taken by JO1
Loyola were already on his belly.21

At around 3 a.m., inmate Mingoy saw Lao talking to JO1 Palileo at the Desk Area.22 By 3:30 a.m., SJO2 Aquino left
the female brigade area; while on her way to the Desk Officer’s lounge, she saw the following: (1) SJO2 Almojuela
sleeping on a folding chair; (2) JO1 Palileo sleeping in the infirmary; (3) SJO1 Lagahit watching TV; 4) both control
gates 1 and 2 were open; and (5) JO1 Pascual was standing inside control gate number 2.23

By 5:30 a.m., several BJMP officers saw Chief Inspector Quinones leave the jail compound aboard his car. News
broke out in the jail facility that Lao was missing at around the same time.24 Lao surreptitiously left the Makati City
Jail and brought along with him his possessions, including a trophy he won at a pingpong match inside the prison.25

Two days after Lao’s escape, Supt. Edgar C. Bolcio, who replaced Chief Inspector Quinones, conducted a search
and inspection of the barracks of the jail personnel suspected to be involved in Lao’s escape. This resulted in the
recovery of 10 keys from SJO2 Almojuela’s barracks, one of which matched the padlock of the main gate.26

The National Bureau of Investigation (NBI) subsequently conducted polygraph tests on JO1 Pascual and SJO2
Almojuela. According to the NBI, JO1 Pascual and SJO2 Almojuela’s responses were "indicative of deceptions
occurred at relevant questions". When confronted and interrogated by the NBI, the two could not satisfactorily
explain the polygraph tests’ results.27

The BJMP’s Investigation Report

A BJMP Investigation Report conducted on the incident concluded that SJO2 Almojuela and the rest of the jail
officers on third shift custodial duty all colluded to facilitate Lao’s getaway.28 Based on the report’s recommendation,
the Intelligence and Investigation Division of the BJMP filed an administrative complaint against the abovementioned
BJMP/NCRO members.29 In Administrative Case No. 04-11, CESO IV Director Arturo Walit, the BJMP hearing
officer, rendered his decision dated December 13, 2005,30 finding the following liable:

First, SJO2 Almojuela and JO1 Loyola were found guilty of Grave Misconduct and were meted the penalty of
dismissal from the service.

Second, SJO2 Aquino, SJO1 Lagahit and JO1 Robles were found guilty of Less Serious Neglect of Duty and were
meted the penalty of Suspension with forfeiture of salaries and allowances for six months.

Third, CINSP Quinones was found guilty of Neglect of Duty and was meted the penalty of Fine equivalent to four
months salary; he had since retired from the service.

Fourth, JO1 Pascual, while not absolved of administrative liability, could no longer be penalized as the
administrative proceedings began long after his separation from the service.

Fifth, JO1 Palileo and JO1 Ibarra were exonerated.

SJO2 Almojuela and JO1 Loyola moved for the reconsideration of Director Walit’s decision, which the latter denied
for lack of merit in a Joint Resolution dated June 21, 2006. SJO2 Almojuela then appealed his conviction before the
Civil Service Commission (CSC), which affirmed Director Walit’s decision in its Resolution No. 080701. The CSC
subsequently denied SJO2 Almojuela’s motion for reconsideration.31

The Appellate Court’s ruling

SJO2 Almojuela’s next recourse was a petition for review before the Court of Appeals. He assailed the CSC’s
decision for the following reasons: First, SJO2 Almojuela claimed to have been denied due process because he was
not accorded the benefit of a full-blown trial. Second, SJO2 Almojuela asserted that he was denied equal protection
of the laws because lesser penalties were imposed on his co-workers. Third, SJO2 Almojuela argued that the
evidence on record was insufficient to support his dismissal from the service.32

The CA denied SJO2 Almojuela’s petition.33 According to the CA, SJO2 Almojuela was provided the due process
required in administrative proceedings when he was given the opportunity to answer the accusations against him.
He was fully informed of the charges against him, and did file a counter-affidavit, motions for reconsideration, a
notice of appeal, and a memorandum of appeal, where he narrated his side of the story.

Further, SJO2 Almojuela’s claim that he was denied equal protection of the laws because his co-workers were
sentenced to lesser penalties has no legal basis. Citing Abakada Guro Partylist v. Purisima,34 the CA pointed out
that the equality guaranteed under the equal protection clause is equality under the same conditions and among
persons similarly situated; when persons are under different factual circumstance, they may be treated differently.

In this case, the CA held that SJO2 Almojuela was handed the proper penalty, because next only to the warden, he
was the highest-ranking officer in the Makati City Jail at the time Lao escaped. It was incumbent upon him to
oversee the whole jail compound’s security, and ensure that all jail personnel performed their respective tasks. His
failure to do so deserved a greater penalty than those who were under his command.

Lastly, the CA gave no credit to SJO2 Almojuela’s claim that the lack of a hearing and the BJMP’s bias against him
rendered his dismissal illegal. It held that the presumption of regularity in the performance of Director Alit’s duty as
disciplining authority should prevail over SJO2 Almojuela’s bare and unsupported allegations. Further, Director Alit’s
decision was based on substantial evidence – testimonies of SJO2 Almojuela’s colleagues on duty that night
showed the following laxities in the implementation of jail rules:

(1) SJO2 Almojuela was seen sleeping in a folding chair;

(2) Control gates 1 and 2 were open;

(3) SJO2 Almojuela and JO1 Pascual were seen conversing with Lao at the desk area;

(4) SJO2 Almojuela ordered JO1 Loyola and JO1 Pascual to go out of the compound and to buy food;

(5) Lao and the other inmates were seen loitering around the jail premises when all of them should have been inside
their respective cells;

(6) The recovered keys from SJO2 Almojuela’s makeshift cubicle fit the padlock in the main gate for vehicles;
(7) Persons other than gatekeepers JO1 Robles and JO1 Loyola had access to the keys of the respective gates
assigned to them.

The Appellate Court’s Amended Decision

The appellate court partially granted35 SJO2 Almojuela’s motion for reconsideration, and lowered his liability from
grave to simple misconduct. Applying Section 54(b), Rule IV of the Uniform Rules on Administrative Cases in Civil
Service,36 SJO2 Almojuela was meted the penalty of three months suspension as there was neither any attendant
mitigating nor aggravating circumstance.

Citing Civil Service Commission v. Lucas,37 the CA held on reconsideration that misconduct, to be considered grave,
must involve the additional elements of corruption or willful intent to violate the law or disregard of established rules;
otherwise, the misconduct is only simple.

The CA found no corrupt motive or willful intent on SJO2 Almojuela’s part to violate the BJMP Rules and
Regulations. No clear evidence was presented to show that SJO2 Almojuela was directly involved in the prison
break, nor was it proven that he benefited from it. SJO2 Almojuela likewise did not willfully trifle with the BJMP Rules
and Regulations. While Lao was allowed to leave his cell, he was accompanied by the roving guard, JO1 Pascual,
at all times. Considering the presumption that JO1 Pascual was regularly performing his duty, SJO2 Almojuela had
no reason to believe that Lao would escape because he was under the jail guard’s watch. Further, SJO2 Almojuela
was seen sleeping on duty only once; since SJO2 Aquino and SJO1 Lagahit (who were with him) were awake at
that time, his lapse could not be considered to be sufficiently grave or serious to warrant his dismissal from the
service.

The Present Petition

The CSC asserts in its present petition that the CA should not have had disturbed the CSC’s findings, as
conclusions of administrative bodies charged with their specific field of expertise are generally afforded great weight
by the courts.38 SJO2 Almojuela’s conviction is supported by evidence on record, and sufficiently satisfied the
substantial evidence standard. Taken together, the testimonies submitted during the BJMP investigation establish
that SJO2 Almojuela connived with JO1 Pascual, JO1 Loyola and Lao to facilitate the latter’s escape. Even
assuming that SJO2 Almojuela had no knowledge of the plan, he could have easily discovered and prevented the
escape had he been awake and alert.

According to the CSC, a jail guard’s act of sleeping while at his post on night-shift duty constitutes grave misconduct
because it is a flagrant disregard of BJMP’s policy that a jail officer should stay vigilant during his shift. In SJO2
Almojuela’s case, this was aggravated by his rank – next only to the warden, he was the highest-ranking jail officer
on duty. As shift supervisor, it was incumbent upon him to be awake at all times to fully oversee the jail compound’s
security and to ensure that all the other jail officers were performing their tasks.

Lastly, the CSC pointed out that Grave Misconduct could not be mitigated by the accused’s first time offender status
or by his length of service. Section 52, Rule IV the of Civil Service Commission Memorandum Circular No. 19-
9939provides that the first offense constituting grave misconduct already warrants the penalty of dismissal.

In his Comment,40 SJO2 Almojuela reiterated the line the Court of Appeals took in its amended decision, and
additionally raised the following arguments: first, the certificate of non-forum shopping, instead of having been
signed by the CSC, was signed by the assistant solicitor general, in violation of the rule on certification against
forum shopping; second, the CSC is not the proper party to appeal the CA’s decision; and third, SJO2 Almojuela
had been deprived of due process during the BJMP investigation, as he was not given the opportunity to submit his
evidence and to present his witnesses while the prosecution was allowed to adduce its evidence under a trial-type
arrangement.

Issues

The parties’ arguments, properly joined, present to us the following issues:

1) Whether the CSC’s petition for review on certiorari should be dismissed for failure to comply with Section 4, Rule
45 of the Rules of Court;

2) Whether the CSC’s petition for review on certiorari should be dismissed as the CSC is not the proper party to
appeal the CA’s amended decision;

3) Whether SJO2 Almojuela had been deprived of due process when he was not allowed to present his evidence
and witnesses during the BJMP investigation;

4) Whether SJO2 Almojuela connived with JO1 Loyola and JO1 Pascual to facilitate Lao’s escape from the Makati
City Jail; and

5) Whether SJO2 Almojuela’s actions constitute gross misconduct.

The Court’s Ruling

We first rule on the procedural issues SJO2 Almojuela posed.

The CSC’s petition failed to comply with

Section 4, Rule 45 of the Rules of Court

As SJO2 Almojuela correctly pointed out, the CSC’s petition failed to comply with Section 4, Rule 45 of the Rules of
Court,41 when its certificate against forum shopping was signed by Associate Solicitor General Sharon E. Millan-
Decano; it was not signed by the CSC nor by the BJMP’s authorized representatives.

The consequences of this mistep are prejudicial to the party filing the pleading. Section 5, Rule 45 of the Rules of
Court provides that a petition for review that does not comply with the required certification against forum shopping
is a ground for its dismissal.42 This certification must be executed by the petitioner, not by counsel. It is the
petitioner, and not always the counsel whose professional services have been retained only for a particular case,
who is in the best position to know whether he or it actually filed or caused the filing of a petition in that case. Hence,
a certification against forum shopping by counsel is a defective certification. It is equivalent to non-compliance with
the requirement under Section 4, Rule 45 and constitutes a valid cause for dismissal of the petition.43

In Pascual v. Beltran,44 we affirmed the CA’s dismissal of the petition for certiorari before the appellate court
because it was the Solicitor General, not the petitioner, who signed the certification against forum shopping.

However, there have been instances when the demands of substantial justice convinced us to apply the Rules
liberally by way of compliance with the certification against forum shopping requirement;45 the rule on certification
against forum shopping, while obligatory, is not jurisdictional. Justifiable cirsumtances may intervene and be
recognized, leading the Court to relax the application of this rule.46

In People of the Philippines v. de Grano et. al.,47 for instance, we permitted the private prosecutor to sign the
certification in behalf of his client who went into hiding after being taken out of the witness protection program. This
is the case that the OSG invoked in the certification against forum shopping signed by Associate Solicitor Millan-
Decano who stated in her footnote that "Pursuant to People v. de Grano (G.R. No. 167710, June 5, 2009), the
handling lawyers of the OSG may sign verification and certificate of non-forum shopping."48

A reading of People of the Philippines v. de Grano et. al., a decision from the Third Division of the Supreme Court,
shows that it cannot be used to support the OSG’s conclusion.

De Grano affirms a long line of Supreme Court decisions where the Court allowed the liberal application of the rules
on certification against forum shopping in the interest of substantial justice. But to merit the Court’s consideration,
the petitioner(s) must show reasonable basis for its/their failure to personally sign the certification. They must
convince the Court that the petition’s outright dismissal would defeat the administration of justice. One of the cases
cited in Grano was City Warden of the Manila City Jail v. Estrella, a case decided by the Second Division of this
Court, which allowed the Solicitor General to sign the verification and certification of non-forum shopping in a
petition before the CA or with this Court. The decision held that certification by the OSG constitutes substantial
compliance with the Rules, considering that the OSG is the legal representative of the Government of the Republic
of the Philippines and its agencies and instrumentalities.

In Hon. Constantino-David et. al. v. Pangandaman-Gania,49 an En Banc decision, we clarified the application of City
Warden of the Manila City Jail v. Estrella,50 and held that this case does not give the OSG the license to sign the
certification against forum shopping in behalf of government agencies at all times. We explained that the reason we
authorized the Solicitor General to sign the certification against forum shopping is because it was then acting as a
‘People’s Tribune,’ an instance when the Solicitor takes a position adverse and contrary to the Government’s
because it is incumbent upon him to present to the Court what he considers would legally uphold government’s best
interest, although the position may run counter to a client's position; in this case, the Solicitor General appealed the
trial court’s order despite the City Warden’s apparent acquiesance to it and in the process took a position contrary to
the City Warden’s.

The rule is different when the OSG acts as a government agency’s counsel of record. It is necessary for the
petitioning government agency or its authorized representatives to certify against forum shopping, because they,
and not the OSG, are in the best position to know if another case is pending before another court. The reason for
this requirement was succinctly explained in Hon. Constantino-David et. al. v. Pangandaman-Gania:

The fact that the OSG under the 1987 Administrative Code is the only lawyer for a government agency wanting to
file a petition or complaint does not automatically vest the OSG with the authority to execute in its name the
certificate of non-forum shopping for a client office. In some instances, these government agencies have legal
departments which inadvertently take legal matters requiring court representation into their own hands without the
OSG’s intervention. Consequently, the OSG would have no personal knowledge of the history of a particular case
so as to adequately execute the certificate of non-forum shopping; and even if the OSG does have the relevant
information, the courts on the other hand would have no way of ascertaining the accuracy of the OSG’s assertion
without precise references in the record of the case. Thus, unless equitable circumstances which are manifest from
the record of a case prevail, it becomes necessary for the concerned government agency or its authorized
representatives to certify for non-forum shopping if only to be sure that no other similar case or incident is pending
before any other court.51

To be sure, there may be situations when the OSG would have difficulty in securing the signatures of government
officials for the verification and certificate of non-forum shopping. But these situations cannot serve as excuse for
the OSG to wantonly undertake by itself the verification and certification of non-forum shopping. If the OSG is
compelled by circumstances to verify and certify the pleading in behalf of a client agency, the OSG should at least
endeavor to inform the courts of its reasons for doing so, beyond simply citing cases where the Court allowed the
OSG to sign the certification. In Hon. Constantino-David et. al. v. Pangandaman-Gania, the Court dealt with this
situation and enumerated the following requirements before the OSG can undertake a non-forum shopping
certifications as counsel of record for a client agency:

(a) allege under oath the circumstances that make signatures of the concerned officials impossible to obtain within
the period for filing the initiatory pleading; (b) append to the petition or complaint such authentic document to prove
that the party-petitioner or complainant authorized the filing of the petition or complaint and understood and adopted
the allegations set forth therein, and an affirmation that no action or claim involving the same issues has been filed
or commenced in any court, tribunal or quasi-judicial agency; and, (c) undertake to inform the court promptly and
reasonably of any change in the stance of the client agency.52

Under these principles, the CSC’s petition for review on certiorari before this Court is defective for failure to attach a
proper certification against forum shopping. In the certificate, the associate solicitor merely stated that she has
prepared and filed the petition in her capacity as the petition’s handling lawyer, and citing People v. Grano, claimed
that the OSG’s handling lawyers are allowed to verify and sign the certificate of non-forum shopping. No explanation
was given why the signatures of the CSC’s authorized representatives could not be secured.

Despite this conclusion, we cannot turn a blind eye to the meritorious grounds that the CSC raised in its petition, and
to the reality that the administration of justice could be derailed by an overly stringent application of the rules. Under
the present situation and in the exercise of our discretion, we resolve to overlook the procedural defect in order to
consider the case on the merits. We carefully note in doing this that our action does not substantially affect the due
process rights of the respondent, nor does it involve a jurisdictional infirmity that leaves the Court with no discretion
except to dismiss the case before us.53 In other words, no mandatory duty on the part of the Court is involved; we
are faced with a situation that calls for the exercise of our authority to act with discretion. In the exercise of this
discretion, we have deemed it more prudent, as a matter of judicial policy in the present situation, to encourage the
hearing of the appeal on the merits rather than to apply the rules of procedure in a very rigid, technical sense that
impedes the cause of justice.54

Our approach is a reminder that the rules of procedure are mere tools designed to facilitate the attainment of justice.
Their strict and rigid application tending to frustrate, rather than promote substantial justice, must always be
avoided.55 The emerging trend in the rulings of this Court is to afford every party litigant with a facially meritorious
case the amplest opportunity for the proper determination of his or her cause, free from the constraints of
technicalities.56 It is a far better and more prudent course of action for the court to excuse a technical lapse and
afford the parties the review of a meritorious case on appeal rather than dispose of the case on technicalities and
cause a grave injustice; the latter course of action may give the impression of speedy disposal of cases, but can
only result in more delay and even miscarriage of justice.57

Our liberal application of the Rules of Court in this case does not however mean that the OSG can cite this Decision
as authority to verify and sign the certification for non-forum shopping in behalf of its client agencies. The OSG
should take note of our decision in the cited Hon. Constantino-David et. al. v. Pangandaman-Gania for the requisites
to be satisfied before it can verify and sign the certificate of non-forum shopping for its client agencies. Rather than
an authority in its favor, this Decision should serve as a case showing that the OSG had been warned about its
observed laxity in following the rules on the certification for non-forum shopping. Only the substantive merits of the
CSC’s case saved the day in this case for the OSG.

The CSC is the proper party to raise an

appeal against the CA’s amended petition

SJO2 Almojuela asserts that the CSC has no legal personality to challenge the CA’s amended decision because it
must maintain its impartiality as a judge and disciplining authority in controversies involving public officers. He
implores the Court to reconsider its ruling in Civil Service Commission v. Dacoycoy,58 citing the arguments from
Justice Romero’s dissenting opinion.

More than ten years have passed since the Court first recognized in Dacoycoy the CSC’s standing to appeal the
CA’s decisions reversing or modifying its resolutions seriously prejudicial to the civil service system. Since then, the
ruling in Dacoycoy has been subjected to clarifications and qualifications,59 but the doctrine has remained the
same:60 the CSC has standing as a real party in interest and can appeal the CA’s decisions modifying or reversing
the CSC’s rulings, when the CA action would have an adverse impact on the integrity of the civil service. As the
government’s central personnel agency, the CSC is tasked to establish a career service and promote morale,
efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service;61 it has a stake in ensuring
that the proper disciplinary action is imposed on an erring public employee, and this stake would be adversely
affected by a ruling absolving or lightening the CSC-imposed penalty. Further, a decision that declares a public
employee not guilty of the charge against him would have no other appellant than the CSC. To be sure, it would not
be appealed by the public employee who has been absolved of the charge against him; neither would the
complainant appeal the decision, as he acted merely as a witness for the government.62 We thus find no reason to
disurb the settled Dacoycoy doctrine.

In the present case, the CSC appeals the CA’s amended decision, which modified the liability the former meted
against SJO2 Almojuela from grave misconduct to simple misconduct, and lowered the corresponding penalty from
dismissal to three months suspension. Applying the Dacoycoy principles, the CSC has legal personality to appeal
the CA’s amended decision as the CA significantly lowered SJO2 Almojuela’s disciplinary sanction and thereby
prevented the CSC from imposing the penalty it deemed appropriate to impose on SJO2 Almojuela. The findings
and conclusions below fully justify our liberal stance.

SJO2 Almojuela was afforded due process

in the BJMP investigations

In his Comment, SJO2 Almojuela argued that he had been deprived of due process during the BJMP investigation
because he was not allowed to present his evidence and his witnesses, and was not accorded the trial-type
proceedings that the prosecution panel enjoyed. Since he elected a formal investigation, SJO2 Almojuela asserts
that he should have been permitted to require the attendance of witnesses through compulsory processes.

We support the CA’s conclusion that SJO2 Almojuela was accorded the right to due process during the BJMP
investigation. The essence of due process in administrative proceedings (such as the BJMP investigation) is simply
the opportunity to explain one’s side, or an opportunity to seek a reconsideration of the action or ruling complained
of.63 Where a party has been given the opportunity to appeal or seek reconsideration of the action or ruling
complained of, defects in procedural due process may be cured.64

In SJO2 Almojuela’s case, he was informed of the charges against him, and was given the opportunity to refute
them in the counter-affidavit and motion for reconsideration he filed before the BJMP hearing officer, in the appeal
and motion for reconsideration he filed before the CSC, in his petition for review on certiorari, in his memorandum
on appeal, and, finally, in the motion for reconsideration he filed before the CA.

In particular, SJO2 Almojuela admitted in his comment that he narrated in his counteraffidavit the circumstances
that, to his knowledge, transpired immediately before Lao’s breakout.65 The Motion for Reconsideration to the CA’s
original decision contained the additional piece of evidence that SJO2 Almojuela claimed would have exculpated
him from liability: Captain Fermin Enriquez’s testimony during his cross-examination in Criminal Case No. 3320236,
filed against SJO2 Almojuela for conniving with or consenting to evasion under Article 223 of the Revised Penal
Code.66 This piece of evidence was reiterated in the comment SJO2 Almojuela filed before this Court.67 Notably,
SJO2 Almojuela repeteadly mentioned ‘other witnesses and other documentary exhibits’ that he would have
presented to absolve him from liability,68 but the only piece of evidence he submitted in his Motion for
Reconsideration and Comment was Captain Enriquez’s testimony.

These circumstances sufficiently convince us that SJO2 Almojuela had been given ample opportunity to present his
side, and whatever defects might have intervened during the BJMP investigation have been cured by his
subsequent filing of pleadings69 before the CSC, the CA, and before this Court.

SJO2 Almojuela’s consent to Lao’s

escape from the Makati City Jail has been

satisfactorily proven by substantial evidence

We now proceed to the substantive issues.

We differ from the CA’s conclusion in its amended decision finding no clear evidence that SJO2 Almojuela had been
directly involved in Lao’s escape. SJO2 Almojuela adopted this stance, and added that Criminal Case No. 3320236,
which was filed against him for facilitating Lao’s escape, has been dismissed. He also pointed out Captain
Enriquez’s (one of the investigating officers) testimony in Criminal Case No. 3320236, where Captain Enriquez
admitted that JO1 Pascual was the last person seen in possession of the maingate’s keys, and that the gatekeepers
JO1 Loyola and JO1 Robles should have been safekeeping the keys. Lastly, SJO2 Almojuela sought to discredit the
testimonies of SJO2 Aquino, JO1 Loyola, SJO1 Lagahit and JO1 Robles for being hearsay, and questioned the
admissability of their affidavits as they were never offered as part of the BJMP prosecutors’ documentary evidence.

According to the BJMP report, Lao most likely exited the jail compound through the main gate, considering that he
was discovered to have disappeared at about the same time the warden left the jail on board his car (the BJMP
report pegged the discovery of Lao’s escape 30 minutes after the warden left, while the jail officers’ affidavits
estimated it to have transpired 30 minutes before). A search and inspection of the barracks of suspected jail
personnel resulted in the recovery of ten keys from SJO2 Almojuela’s barracks, one of which matched the main
gate’s padlock. This piece of evidence, when considered along with other pieces of evidence presented before the
BJMP investigation and the CSC, is sufficient to conclude that SJO2 Almojuela knew and consented to Lao’s
getaway.

True, the CSC failed to present direct evidence proving that SJO2 Almojuela had been involved in facilitating Lao’s
escape. But direct evidence is not the sole means of establishing guilt beyond reasonable doubt since circumstantial
evidence, if sufficient, can supplant the absence of direct evideence.70 Under Section 4, Rule 133 of the Rules of
Court:

SEC. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

While this provision appears to refer only to criminal cases, we have applied its principles to administrative
cases.71To fulfill the third requisite, this Court in RE: AC NO. 04-AM-2002 (JOSEJINA FRIA V. GEMILIANA DE LOS
ANGELES),72 an En Banc decision, required that the circumstantial evidence presented must constitute an
unbroken chain that leads one to a fair and reasonable conclusion pointing to the person accused, to the exclusion
of others, as the guilty person.73 The circumstantial evidence the CSC presented leads to a fair and reasonable
conclusion that, at the very least, SJO2 Almojuela consented to Lao’s getaway. The keys found in SJO2 Almojuela’s
room fit the padlock in the maingate, Lao’s most possible point of egress. The fact that these keys should be in the
safekeeping of JO1 Pascual and JO1 Robles does not clear SJO2 Almojuela from liability; on the contrary, it should
convince us of his involvement in Lao’s escape. It leads us to ask why the keys were found in SJO2 Almojuela’s
room, when the last person seen to possess the keys, and the personnel who were supposed to safekeep them,
was not SJO2 Almojuela. SJO2 Almojuela’s bare allegations that he was set up cannot stand up against the
presumption of regularity in the performance of the investigating officers’ duty. This presumption, when considered
with the following pieces of evidence, leads us to no other conclusion than SJO2 Almojuela’s implied consent to
Lao’s escape. First, SJO2 Almojuela’s lax attitude regarding Lao, whom he admitted seeing loittering around the
jail’s premises at night and even using JO1 Pascual’s celfone, both in contravention of BJMP rules and regulations.
Second, SJO2 Almojuela lied when he stated in his affidavit that he only left the desk area at around 1:20 to 1:40
AM, when the testimonies of two other jail officers, SJO1 Lagahit and JO1 Loyola, show otherwise. Third, when
Panayaman overheard the negotiations for Lao’s release between JO1 Pascual and the person he was talking to in
his celfone, Panayaman went to SJO2 Almojuela’s room but found that the door was locked.

Finally, we do not agree with SJO2 Almojuela’s assertion that the statements of SJO2 Aquino, JO1 Loyola, SJO1
Lagahit and JO1 Robles in their affidavits should be disregarded for being hearsay as he failed to cross-examine
them. It is well-settled that a formal or trial-type of hearing is not indespensible in administrative proceedings, and a
fair and reasonable opportunity to explain one’s side suffices to meet the requirements of due process.74 Technical
rules applicable to judicial proceedings need not always apply.75 In Erece v. Macalingay et. al.,76 we affirmed the
CA’s ruling finding the petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service
despite his contention that he had been denied his right to cross-examine the witnesses against him. We held that
the right to cross-examine the other party’s witnesses is not an indispensable aspect of due process in
administrative proceedings. Due process in these proceedings is not identical with "judicial process;" a trial in court
is not always essential in administrative due process.77 Moreover, we have consistently held that in reviewing
administrative decisions, the findings of fact made must be respected as long as they are supported by substantial
evidence.78 We find no reason in this case to depart from these principles.

In consenting to Lao’s escape, SJO2

Almojuela is guilty of gross misconduct in

the performance of his duties as Senior Jail

Officer II

We find SJO2 Almojuela guilty of gross misconduct in the performance of his duties as Senior Jail Officer II.
Misconduct has been defined as "a transgression of some established and definite rule of action, more particularly,
unlawful behavior or gross negligence by a public officer."79 Misconduct becomes grave if it "involves any of the
additional elements of corruption, willful intent to violate the law or to disregard established rules, which must be
established by substantial evidence."80 In SJO2 Almojuela’s case, we hold it established by substantial evidence that
he consented to Lao’s escape from the Makati City Jail. Thus, there was willful violation of his duty as Senior Jail
Officer II to oversee the jail compound’s security, rendering him liable for gross misconduct.
SJO2 Almojuela is guilty of gross

negligence in the performance of his duties

as Senior Jail Officer II

Even assuming that SJO2 Almojuela had not consented to Lao’s getaway, adequate evidence shows that SJO2
Almojuela had been grossly negligent in the performance of his duties. Gross neglect of duty or gross negligence
refers to negligence characterized by the want of even slight care, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar
as other persons may be affected. In cases involving public officials, there is gross negligence when a breach of
duty is flagrant and palpable.81

First, SJO2 Almojuela left the desk area from 1:30 a.m. to 3:00 a.m., with no explanation as to where he went or
why he had to leave his post. His contention that he stepped out from the desk area at 1:20 a.m. and returned at
1:30 a.m. to take a snack is belied by the testimony of SJO1 Lagahit (the desk reliever) who testified that SJO2
Almojuela returned at 3 a.m.; and by the testimony of JO1 Loyola that the desk area was unmanned between 2:00
to 3:00 a.m. At 3 a.m., when he was established to be at the desk area, SJO2 Almojuela was even seen sleeping on
a folding chair. The situation was thus one of compounded neglect.

As shift supervisor and one of the highest ranking jail officers on duty at the time of the prison break, SJO2
Almojuela had the responsibility to oversee the security of the jail compound and to ensure that all members of the
shift were performing their tasks. SJO2 Almojuela’s acts of leaving his post for two hours, without any adequate
reason, and sleeping afterwards show a wanton disregard for his responsibilities as shift supervisor. SJO2
Almojuela’s neglect of his duties considerably contributed to the lax prison environment that allowed Lao not only to
escape, but to even bring his belongings with him. During SJO2 Almojuela’s absence, JO1 Loyola saw that the
control gates for the detention cells were open, and the desk area was unmanned.

Second, SJO2 Almojuela tolerated the blatant disregard of BJMP rules and regulations by the jail officers under his
supervision. He admitted that he saw Lao loittering in the jail compound in the wee hours of the night, and did
nothing about it. Worse, SJO2 Almojuela was even seen talking to Lao and JO1 Pascual at the desk area, and other
inmates have been seen conversing at the desk area. The fact that JO1 Pascual accompanied Lao could not
absolve SJO2 Almojuela from liability. According to BJMP rules and regulations, all inmates must be kept inside
their cells after visiting hours. During night time, compelling reasons and I or emergency situations must exist before
the inmates can be allowed to leave their cells. Thus, contrary to the conclusion in the CA's amended decision, it
was highly irregular for Lao to be outside his cell, regardless of whether he is accompanied by a jail officer.

These circumstances show that SJ02 Almojuela, as the desk officer and shift supervisor, was grossly negligent in
discharging his duties, which contributed in Lao's surreptitious escape from the Makati City Jail.

Under Section 52 (A)(2) and (3), Rule IV of the Revised Uniform Rules on Administrative Cases in the Civil
Service,82 both gross misconduct and gross neglect of duty are grave offenses punishable by dismissal from the
service for the first offense. Our conclusions fully justify the imposition of this penalty and the reinstatement of the
CA's original penalty of dismissal from the service.

WHEREFORE, all premises considered, we hereby GRANT the petition. The amended decision of the Court of
Appeals is REVERSED and SET ASIDE. Respondent Arlie Almojuela is found guilty of gross misconduct and gross
neglect of duty, and is hereby D DISMISSED from the service.

SO ORDERED.

7. G.R. No. 199907

ANITA CAPULONG, Petitioner

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERALTA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to annul the November 12,
2010 Decision1 and December 22, 2011 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 28713, the
dispositive portion of which states:

WHEREFORE, premises considered, the Decision dated August 1, 2003 of the Regional Trial Court (RTC), Third
Judicial Region, Branch 86 of Cabanatuan City, convicting Appellant Anita Capulong of the crime of Estafa as
defined and penalized under Article 315, par. 3(c) of the Revised Penal Code is hereby AFFIRMED with
MODIFICATION, in that the Appellant is sentenced to an indeterminate prison term of four (4) years and two (2)
months of prision correccional, as minimum, to twenty years (20) of reclusion temporal, as maximum.

SO ORDERED.3

In an Information filed on February 28, 1995, petitioner Anita Capulong (Anita) and her husband, Fernando
Capulong (Fernando), (Spouses Capulong) were accused of the crime of Estafa, committed as follows:

That on or about the 10th day of December, 1990, in Cabanatuan City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused Spouses Fernando Capulong and Anita M. Capulong, having
previously chattel mortgaged their Isuzu truck with Plate No. PLV-227 in the amount of ₱700,000.00 in favor of one
FRANCISCA P. DE GUZMAN, with grave abuse of confidence, with intent to defraud and in conspiracy with each
other, did then and there willfully, unlawfully and feloniously induce, thru false representation, said Francisca P. de
Guzman to lend back to them the Registration Certificate and the Official Receipt of Payment of registration fees of
the above mortgaged truck under the pretext that they would use said documents in applying for additional loan
and/or show said documents to somebody interested to buy said truck, but said accused once in possession of said
documents, instead of doing so and with intent to cause damage, concealed or destroyed the above-described
registration certificate and the official receipt, thereby preventing Francisca P. de Guzman from registering said
chattel mortgage with the Land Transportation Office; that thereafter, herein accused even replaced the motor of
subject truck with a different one, to the damage and prejudice of Francisca P. de Guzman in the aforestated
amount of ₱700,000.00 as she was unable to register, much less foreclose, said chattel mortgage with the LTO
because the motor number of the mortgaged truck indicated in the chattel mortgage was already different from the
number of the new motor installed in said truck.

CONTRARY TO LAW.4

The Spouses Capulong pleaded not guilty in their arraignment.5 Trial on the merits ensued.

Private complainant Francisca P. de Guzman (De Guzman), who was a relative6 and neighbor of the Spouses
Capulong, was presented as the lone witness for the prosecution. She testified that, on August 7, 1990, the accused
obtained from her an amount of ₱700,000.00. As stipulated in the Promissory Note,7 said amount, plus an agreed
interest of 3% per month, would be paid by June 7, 1991. As a security for the loan, the Spouses Capulong
executed a Chattel Mortgage with Power of Attorney8 over their ten-wheeler Isuzu cargo truck, the original Official
Receipt and Certificate of Registration (OR-CR)9 of which were likewise delivered to De Guzman. On December 10,
1990, Anita requested to borrow the OR-CR for a week, excusing that she would apply for the amendment of the
registration certificate to increase the weight or load capacity of the truck and show it to a prospective buyer. De
Guzman was hesitant at first since the chattel mortgage was not yet registered, but she later on acceded. She gave
the ORCR in Cabanatuan City, where the same were being kept in a bank's safety deposit box. As proof of receipt,
Anita issued a handwritten note.10 Despite the expiration of the one-week period and De Guzman's repeated
demands, the documents were not returned by Anita who countered that the loaned amount was already paid.

On the other hand, Anita admitted that she and her husband received from De Guzman the amount of ₱700,000.00;
that they executed a chattel mortgage over their Isuzu cargo truck and delivered its OR-CR; and, that she borrowed
the OR-CR and issued a handwritten receipt therefor. However, she claimed that the OR-CR were borrowed in De
Guzman's house in Talavera, Nueva Ecija; that the words "Cab. City" and "12/10/90" in the upper righthand comer
of the receipt were not written by her; and, that the OR-CR were returned to De Guzman a week after.

Due to the repeated absence of counsel for the defense, Anita did not finish her testimony and was not cross-
examined. The case was submitted for decision based on evidence on record.11

On August 1, 2003, only Anita was convicted of the crime charged. Applying the lndetenninate Sentence Law, she
was sentenced to suffer the penalty of prision mayor in its minimum period which has a range of six (6) years and
one (1) day to 8 years imprisonment. In addition, she and Fernando were held jointly and severally liable to pay De
Guzman the sum of Php700,000.00, plus 12% interest per annum from the date of its maturity until fully paid.

The trial court opined:

The defense interposed by the accused is a mere denial. They are denying the allegation of the private complainant
that the documents were never returned. Accused Anita Capulong, when asked during [her] direct examination
testified:

"Question: It says here, 'to be returned after one week from date,' were you able to return the said Registration
Certificate and Official Receipt as promised by you in accordance with this document?

Answer: Yes, sir.

Question: To whom did you return?

Answer: To Tia Pacing, sir."12

The denial of the accused cannot overcome the positive assertion of the complainant, coupled with a document
which was even in the own handwriting of accused Anita Capulong .. If it is true that the documents were returned,
herein accused should have asked for the document evidencing her receipt of the Certificate of Registration and
Official Receipt. Furthermore, it is highly improbable that herein private complainant would undergo the expense,
trouble and inconvenience of prosecuting the instant case, which lasted for several years, if her allegation is a mere
fabrication.

The denials interposed by the accused are shallow and incredible. It is proven that accused Anita Capulong failed to
comply with her obligation to return the borrowed documents, as promised. She concealed the documents after she
received them from herein private [complainant]. Now the accused are even concealing the cargo truck subject of
the chattel mortgage despite orders from this Court to give information about the truck. These facts established the
first essential [element] of the crime charged.

The Certificate of Registration and Official Receipt were delivered to herein private complainant as security to the
indebtedness of the two accused. Meaning, if in case the accused fail to pay their obligation, the private complainant
is assured that she will recover what was loaned after foreclosing on the mortgaged truck. Without the
aforementioned documents, the chattel mortgage is of no effect considering that the evidence of ownership of the
accused over the cargo truck were no longer in the possession of Mrs. De Guzman. The concealment of the
Certificate of Registration and Official Receipt caused a positive injury to herein private complainant considering that
she could not register the chattel mortgage with the Land Transportation Office and neither could she exercise her
right to foreclose the truck because of what the accused did. Clearly, herein private complainant was deprived of a
means to collect from the accused. The accused made it difficult for the private complainant to collect the obligation
from them. The second element is therefore, fully proven.

As to the words "Cab. City" written in the document marked as Exhibit D for the prosecution, the private complainant
admitted that she wrote the same and she was able to explain why she did that. She testified during her direct
examination:

"Question: On the uppermost right portion of this document, there appears two words 'Cab. City', do you know who
wrote this?

Answer: Yes, sir.

Question: Who?

Answer: Me, sir.

Question: Why did you write these words, 'Cab. City’?

Answer: Because such place was not written, so I wrote it, sir."

As to the extent of the injury, it was held by the Supreme Court in the case of United States vs. Tan Jenjua, 1 Phil.
Rep. 38, "must be based upon the amount which such a note represents without regard to whether or not the
amount is actually collected subsequent to the destruction."13

Anita moved for a new trial on the alleged ground of incompetence and negligence of her former counsel.14 It was
denied in the Order15 dated February 26, 2004. In her motion for reconsideration, she added that a new and material
evidence, particularly Solidbank Check No. PA074896 dated September 8, 1992 in the amount of ₱700,000.00,had
been discovered as proof of payment of the amount subject of this case.16 However, in its Order dated May 17,
2004, the trial court denied the motion reasoning that the check is actually a forgotten, not a newly discovered,
evidence "as it was all along readily available to [the] accused."17 Consequently, a Notice of Appeal18 was filed.

On November 12, 2010, the CA affirmed Anita's conviction, but modified her sentence to an indeterminate prison
term of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion
temporal, as maximum.

We paraphrase the CA's pronouncements:

Contrary to Anita's interpretation, the documents or papers referred to in Article 315, Paragraph 3 (c) of the RPC are
not limited to those emanating from the courts or government offices. Based on the rulings in United States v. Tan
Jenjua,19 United States v. Kilayko,20 and People v. Dizon,21 it is clear that the OR-CR fall within the purview of said
article. The fact that the motor vehicle is nowhere to be found only leads to the conclusion that Anita concealed the
borrowed documents. Besides, if she really returned the same, she should have caused the cancellation of the note
when she borrowed the OR-CR or, at the very least, made an entry therein of the date of return of the documents.
With the concealment of the OR-CR, Anita clearly had the intention to defraud De Guzman, who was effectively
deprived of the convenient way of foreclosing the chattel mortgage absent the evidence of ownership of the chattel
itself.
Further, Anita was not denied of her constitutional right to due process. While her counsel failed to object to the
prosecution's verbal motion to strike out her testimonies from the records, which was granted on May 23, 2002, her
counsel filed a petition to lift the trial court's Order. The petition was granted per Order dated October 17, 2002,
which likewise allowed Anita to testify at the next scheduled hearing. Despite due notice, Anita's counsel, however,
again failed to appear at the March 21, 2003 hearing scheduled for the presentation of further evidence. Prior
thereto, the trial court, in its Order dated January 31, 2003, already warned that the case would be deemed
submitted for resolution if Anita and her counsel fail to appear on March 21, 2003.

Finally, Solidbank Check No. PA074896 dated September 8, 1992 does not satisfy the requisites of a newly-
discovered evidence as it already existed long before the filing of the Information on February 28, 1995. Had Anita
exercised reasonable diligence, she could have produced said check during the trial. It is too unbelievable for her
not to have searched and produced the check considering that it was for the payment of a ₱700,000.00
indebtedness. Even if the check qualifies as a newly-discovered evidence, the same would still be inconsequential
since reimbursement or belated payment does not extinguish criminal liability in estafa.

Anita filed a motion for reconsideration of the CA Decision, but it was denied.

Before Us, Anita pleads for an acquittal or, in the alternative, the remand of the case to the court a quo for new trial.
The following issues are raised:

I. WHETHER OR NOT THE COURT OF APPEALS COMMITTED SUCH A SEVERE DEGREE OF SERIOUS
REVERSIBLE ERROR AND GRAVE ABUSE OF DISCRETION THAT WARRANTS THE RELAXATION OF THE
RESTRICTION OF RAISING ONLY QUESTIONS OF LAW IN PETITIONS FOR REVIEW UNDER RULE 45 OF
THE RULES OF COURT;

II. WHETHER OR NOT THE COURT OF APPEALS COMMITTED SERIOUS ERROR AND GRAVELY ABUSED
ITS DISCRETION IN NOT ACQUITTING THE PETITIONER OUTRIGHT ON ACCOUNT OF THE FACT THAT THE
ELEMENTS OF EST AF A UNDER ARTICLE 315, PARAGRAPH 3 (C), PERTAINING TO PREJUDICE ARE
MARKEDLY ABSENT;

III. WHETHER OR NOT THE COURT OF APPEALS COMMITTED SERIOUS ERROR AND GRAVELY ABUSED
ITS DISCRETION IN NOT ACQUITTING THE PETITIONER OUTRIGHT DESPITE THE FACT THAT IT WAS
SUFFICIENTLY ESTABLISHED THAT SHE HAD ALREADY PAID HER OBLIGATIONS IN FULL; AND

IV. WHETHER OR NOT THE COURT OF APPEALS COMMITTED SERIOUS ERROR AND GRAVELY ABUSED
ITS DISCRETION IN NOT GRANTING THE REMAND OF THE CASE TO THE COURT OF ORIGIN FOR RE-
TRIAL AT THE MINIMUM AS THE PETITIONER WAS CLEARLY DEPRIVED OF HER DAY IN COURT. 22

The appeal is unmeritorious.

Fraud and injury are the two essential elements in every crime of estafa.

The elements of estafa in general are:

1. That the accused defrauded another (a) by abuse of confidence, or (b) by means of deceit; and

2. That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.

The first element covers the following ways of committing estafa:

1. With unfaithfulness or abuse of confidence;

2. By means of false pretenses or fraudulent acts;

3. Through fraudulent means.

The first way of committing estafa is known as estafa with abuse of confidence, while the second and the third ways
cover by means of deceit. 23

The elements of estafa by means of deceit are as follows:

a. That there must be a false pretense, fraudulent act or fraudulent means

b. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to ot simultaneously
with the commission of the fraud.

c. That the offended party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he was
induced to part with his money or property because of the fraudulent act or fraudulent means.
d. That as a result thereof, the offended party suffered damage.24

Anita is convicted of estafa under Article 315, paragraph 3 (c) of RPC, which provides:

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:

x x xx

x x x the fraud be committed by any of the following means:

x x xx

3. Through any of the following fraudulent means:

xxx

(c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other
papers.25

This provision originated from Article 535, paragraph 9 of the Spanish Penal Code,26 which stated:

The following shall incur the penalties of the preceding articles:

Those who shall commit fraud by withdrawing, concealing, or destroying, in whole or in part, any process, record,
document, or any other paper of any character whatsoever.

If the crime should be committed without the intent to fraud, a fine of from 325 to 3,250 pesetas shall be imposed on
the author.27

The old penal law was applied in the cases of Tan Jenjua (concealment of a private document evidencing a
deposit), Kilayko (destruction of a promissory note), and Dizon (destruction of chits for articles bought on credit).
Likewise, in United States v. Gomez Ricoy,28 this Court held that the maker of a promissory note, which was given to
cover losses incurred at monte in a gambling house, who obtained possession of his note and concealed or
destroyed it, is prima facie guilty of estafa.

Justice Charles E. Willard, however, dissented from the majority ruling in Ricoy. He asserted that if ever there was a
binding obligation, the one liable should be the casino because it was the one which issued the chips and checks,
as well as promised to redeem them. Nevertheless, there was no obligation that could be validly enforced
considering that, by express terms of Article 1305 of the Old Civil Code,29 the casino and the private complainant
were engaged in illegal gambling. He further opined:

Was the concealment or destruction of the vale by Ricoy an offense punished by Article 535, 9 of the PENAL Code?

It represented no obligation. It did not prove or tend to prove the existence or extinction of any right. It was simply a
small piece of paper with writing on it. As a mere piece of paper, its intrinsic value is too small to be appreciable. Its
destruction could not injure Angeles, for it had no value extrinsic or intrinsic.

The words of Article 535, 9, are "any process, record, document, or any other paper of any character whatsoever."
While this language is broad, it cannot be construed as including the destruction of any kind of a paper regardless of
what it is in itself or what it represents. A letter of friendship, a card of invitation, a note of regret, which have no
value extrinsic or intrinsic, cannot be covered by it.

The constant doctrine of the Supreme Court has been that no person could be convicted of estafa unless damage
has resulted. It matters not that there may have been deceit or that the defendant thought he was causing damage.
If the act which he did was from the nature of the object incapable of causing that damage, there can be no
conviction. (Judgment of February 4, 1874.)30

In this case, Anita contends that there is no competent proof that she actually removed, concealed or destroyed any
of the papers contemplated in Article 315, paragraph 3 (c) of the RPC. Allegedly, pursuant to Tan Jenjua,
Kilayko, and Dizon, the document removed, concealed or destroyed must contain evidence of indebtedness so as to
cause prejudice, and the OR-CR are not of this nature.

Contrary to Anita's supposition, neither Article 315, paragraph 3 (c) of the RPC nor Article 535, paragraph 9 of the
old penal code requires that the documents or papers are evidence of indebtedness. Notably, while the old provision
broadly covered "any process, record, document, or any other paper of any character whatsoever," the new
provision refers to "documents or any other papers." Indeed, there is no limitation that the penal provision applies
only to documents or papers that are evidence of indebtedness.
Assuming, for the sake of argument, that Article 315, paragraph 3 (c) of the RPC merely penalizes the removal,
concealment or destruction of documents or papers that are evidence of indebtedness, still Anita cannot be
acquitted. In Our mind, the promissory note, the chattel mortgage, and the checks that she executed are not the
only proof of her debt to De Guzman. In a chattel mortgage of a vehicle, the OR-CR should be considered as
evidence of indebtedness because they are part and parcel of the entire mortgage documents, without which the
mortgage's right to foreclose cannot be effectively enforced.

In case of default in payment, the mortgaged property has to be sold at public auction so that its proceeds would
satisfy, among others, the payment of the obligation secured by the mortgage. Prior to the foreclosure, however, the
encumbrance must be annotated in the Chattel Mortgage Registry of the Register of Deeds and the LTO, where the
OR-CR must be presented. The LTO requires, among others, not just the original copy of the CR and the latest OR
of the payment of motor vehicle user's charge and other fees but even the actual physical inspection of the motor
vehicle by the District Office accepting the annotation. As a businesswoman, Anita knows or is expected to know
these procedures. In fact, the Spouses Capulong initially surrendered the OR-CR of the cargo truck precisely to give
effect to the chattel mortgage they executed in favour of De Guzman.

Based on records, it cannot be doubted that the subject OR-CR were never returned by Anita. Her testimony, aside
from not having been subject to cross-examination, is self-serving and not corroborated by testimonial or
documentary evidence. As correctly opined by the courts below, if it is true that the OR-CR were returned, Anita
should have taken possession of the document evidencing her receipt of the OR-CR, or caused its cancellation, or
made an entry therein of the date of return of the subject documents. Further, it is highly improbable that De
Guzman would undergo the expense, trouble, and inconvenience of prosecuting this case, which has dragged on for
more than 20 years already, if her accusation is just a made-up story. In like manner, We held in Tan Jenjua:

x x x The latter's refusal to return the document is shown in the record solely by the testimony of the complaining
witness. No other witness testifies upon this point nor has any attempt been made to introduce evidence on the
subject. Nevertheless, we can entertain no reasonable doubt as to the truth of this fact. Supposing that the
complainant had had no difficulty in recovering possession of the document, unquestionably she would not have
failed to do so when it is considered that the recovery of the document was a matter of great interest to her as
evidence of a deposit of a considerable sum of money. Furthermore, if this fact was not true, the defendant could
have shown such to be the case from the first by simply returning the document; it was to his interest to do so, but
nevertheless he has not done it. The failure to return the document up to the present time, notwithstanding the
criminal prosecution brought against him on this account, conclusively shows his determination to conceal the
paper. There are some facts which do not require proof because they are self-evident; and the unvarying attitude of
the defendant in this case is the most complete and convincing proof of his refusal to return the document.31

Fraudulent intent, being a state of mind, can only be proved by unguarded expressions, conduct and circumstances,
and may be inferred from facts and circumstances that appear to be undisputed.32 For failure to comply with her
promise to return the original OR-CR, or even furnish new ones in lieu thereof, and in misrepresenting that she
already gave De Guzman the subject documents, Anita's intent to defraud is shown beyond question. Such
malicious intent was even made more prominent with the replacement of the truck's engine without De Guzman's
knowledge and the unknown whereabouts of the vehicle.

With the concealment of the OR-CR, Anita's act certainly caused a positive injury to De Guzman. The absence of
1âwphi1

the OR-CR practically rendered useless the chattel mortgage. Since the mortgage could not be properly registered
with the LTO, the right to foreclose the truck could not be exercised. Anita made it difficult for De Guzman to collect
the unpaid debt as the latter would be forced to file a collection suit instead of conveniently going through the
foreclosure proceedings. It is of judicial notice that, as opposed to a civil case for sum of money, a foreclosure of
mortgage involves much less time, effort and resources.

Justice Willard's dissent in Ricoy finds no application in this case, on the grounds that: (1) unlike in Tan Jenjua,
Kilayko, and Dizon, the decision in Ricoy is not a final and executory judgment on the merits;33 (2) the parties
involved therein are engaged in an illicit transaction which cannot give rise to a cause of action enforceable before
the courts of law; and (3) in contrast with the OR-CR, the vale was considered as a mere piece of paper with no
extrinsic or intrinsic value and, therefore, incapable of causing damage.

For the purpose of proving the existence of injury or damage, it is unnecessary to inquire whether, as a matter of
fact, the unpaid debt could be or had been successfully collected.34 The commission of the crime is entirely
independent of the subsequent and casual event of collecting the amount due and demandable, the result of which,
whatever it may be, can in no wise have any influence upon the legal effects of the already consummated
concealment of documents.

The extent of a fraud, when it consists of the concealment of a document, should be graded according to the
amount which the document represents, as it is evident that the gravity of the damage resulting therefrom would not
be the same.35 Here, the OR-CR concealed pertains to the loan amount of ₱700,000.00; consequently, this must
serve as the basis for grading the penalty corresponding to the crime. The damage results from the deprivation
suffered by De Guzman of the concealed documents which are indispensable parts of the chattel mortgage, not the
loss of the loan value itself.
The CA correctly modified Anita's sentence to an indeterminate prison term of four (4) years and two (2) months
of prision correccional, as minimum, to twenty (20) years of reclusion temporal, as maximum. It erred, however, in
not eliminating that part of the RTC judgment wherein the Spouses Capulong were likewise sentenced to jointly and
severally pay De Guzman the sum of ₱700,000.00, plus twelve percent (12%) interest per annum from the date of
its maturity until fully paid. No indemnity for the injury caused is allowed notwithstanding the fact that the sentence of
imprisonment is exactly the same as if the defendant had received the amount and appropriated it to his or her own
use.36 The reason being that the concealment of the document does not necessarily involve the loss of the money
loaned, and for this reason, it would not be just to give judgment against the defendant for the payment of that
amount.37

With regard to the other issues raised by Anita, the Court deems it wise not to dwell on the same. It would be
superfluous to discuss since the matters were satisfactorily passed upon by the RTC and the CA.

WHEREFORE, premises considered, the petition is DENIED. The November 12, 2010 Decision and December 22,
2011 Resolution of the Court of Appeals in CA-G.R. CR No. 28713, which affirmed with modification the August 1,
2003 Decision of the Regional Trial Court, Branch 86, Cabanatuan City, Nueva Ecija, convicting appellant Anita
Capulong of the crime of Estafa as defined and penalized under Article 315, Paragraph 3 (c) of the Revised Penal
Code, are AFFIRMED. The Regional Trial Court judgment, which ordered the Spouses Capulong to jointly and
severally pay De Guzman the sum of ₱700,000.00, plus twelve percent (12%) interest per annum from the date of
its maturity until fully paid, is DELETED.

SO ORDERED.