Republic of the
Supreme
Court
THIRD DIVISION
ZENON
R. PEREZ, G.R. No. 164763
Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus
- AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.
PEOPLE OF THE
and SANDIGANBAYAN,
Respondents. February
12, 2008
x - -
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D E C I S I O N
REYES, R.T., J.:
PETITIONER
Zenon R. Perez seeks a review[1]
of his conviction by the Sandiganbayan[2]
for malversation of public funds[3]
under Article 217 of the Revised Penal Code.
This is not a big case but its
implications are wide-ranging and the issues We resolve include the rights to
speedy trial and speedy disposition of a criminal case, the balancing test, due
process, and cruel and unusual punishment.
On
Petitioner
was absent on the first scheduled audit at his office on P21,331.79
was found in the safe of petitioner.
The
audit team embodied their findings in the Report of Cash Examination,[5]
which also contained an inventory of cash items. Based on the said audit, petitioner was
supposed to have on hand the total amount of P94,116.36, instead of the P21,331.79,
incurring a shortage of P72,784.57.[6]
The
report also contained the Cash Production Notice[7]
dated P72,784.57, and the cash count sheet signed and acknowledged
by petitioner indicating the correctness of the amount of P21,331.79
found in his safe and counted in his presence.
A separate demand letter[8]
dated
When asked
by the auditing team as to the location of the missing funds, petitioner
verbally explained that part of the money was used to pay for the loan of his
late brother, another portion was spent for the food of his family, and the
rest for his medicine.[9]
As a result
of the audit, Arlene R. Mandin prepared a memorandum[10]
dated
On P10,000.00
and P15,000.00, respectively. On P35,000.00, followed by
remittances made on P2,000.00 and P2,784.00.
An
administrative case was filed against petitioner on
On P8,000.00 to the Provincial
Treasurer of P72,784.57. The full restitution of the missing money was
confirmed and shown by the following receipts:[12]
Official Receipt No. Date Issued and Received
Amount
8266659 P10,000.00
8266660 P15,000.00
8266662 P35,000.00
8266667 P 2,000.00
8266668 P 2,784.00
8266675 P 8,000.00
TOTAL
- P72,784.57
Later,
petitioner was charged before the Sandiganbayan with malversation of public
funds, defined and penalized by Article 217 of the Revised Penal Code in an
Information that read:
That
on or about the period covering from P72,784.57), which said fund was appropriated and converted
by the said accused to his own personal use and benefit to the damage and prejudice
of the government in the aforementioned amount.
CONTRARY TO LAW.[13] (Underscoring supplied)
On
Pre-trial was
initially set on
On said date, the Sandiganbayan dispensed with pre-trial and allowed the prosecution to present its witness. Arlene R. Mandin testified as narrated above.
The defense
presented evidence through petitioner Zenon R. Perez himself. He denied the contents of his first Answer[15]
to the administrative case filed against him by the audit team. He claimed it was prepared without the
assistance of counsel and that at the time of its preparation and submission,
he was not in peak mental and physical condition, having been stricken with diabetes
mellitus.[16]
He then
revoked his Answer dated P72,784.57.
According
to petitioner, the alleged shortage was in the possession and custody of his
accountable personnel at the time of the audit examination. Several amounts totalling P64,784.00
were remitted to him on separate dates by his accountable officer, starting P8,000.00
as of P8,000.00 on
Petitioner
further testified that on
Petitioner
completed his testimony on
On
WHEREFORE, judgment is hereby rendered
finding the accused ZENON R. PEREZ, GUILTY
beyond reasonable doubt of the crime of Malversation of Public Funds as defined
in and penalized by Article 217 of the Revised Penal Code and, there being one
mitigating circumstance without any aggravating circumstance to offset the
same, is hereby sentenced to suffer an indeterminate penalty of from P72, 784.57).
SO ORDERED.[22] (Emphasis in the original)
On
On
I.
THE
II. THE LAW RELIED UPON IN CONVICTING THE
PETITIONER
Our Ruling
Before
addressing petitioner’s twin assignment of errors, We first tackle the propriety
of petitioner’s conviction for malversation of public funds.
I. Petitioner
was correctly convicted of malversation.
Malversation
is defined and penalized under Article 217 of the Revised Penal Code. The acts
punished as malversation are: (1) appropriating public funds or property, (2) taking or misappropriating
the same, (3) consenting, or through abandonment or negligence, permitting any other person to take such public funds
or property, and (4) being otherwise guilty
of the misappropriation or malversation of such funds or property.[28]
There are
four elements that must concur in order that one may be found guilty of the
crime. They are:
(a) That the offender be a public officer;
(b) That he had the custody or control of funds or property by reason of the duties of his office;
(c) That those funds or property involved were public funds or property for which he is accountable; and
(d) That he has appropriated, took or misappropriated or consented or, through abandonment or negligence, permitted another person to take them.[29]
Evidently,
the first three elements are present in the case at bar. At the time of the commission of the crime
charged, petitioner was a public officer, being then the acting municipal
treasurer of Tubigon,
The
question then is whether or not petitioner has appropriated, took or
misappropriated, or consented or through abandonment or negligence, permitted
another person to take such funds.
We rule in
the affirmative.
In
malversation, all that is necessary to prove is that the defendant received in
his possession public funds; that he could not account for them and did not
have them in his possession; and that he could not give a reasonable excuse for
its disappearance. An accountable
public officer may be convicted of malversation even if there is no direct
evidence of misappropriation and the only evidence is shortage in his
accounts which he has not been able to explain satisfactorily.[30]
Verily, an
accountable public officer may be found guilty of malversation even if there is
no direct evidence of malversation because the law establishes a presumption
that mere failure of an accountable officer to produce public funds which have
come into his hands on demand by an officer duly authorized to examine his
accounts is prima facie case of
conversion.[31]
Because of
the prima facie presumption in
Article 217, the burden of evidence is shifted to the accused to adequately
explain the location of the funds or property under his custody or control in
order to rebut the presumption that he has appropriated or misappropriated for
himself the missing funds. Failing to do
so, the accused may be convicted under the said provision.
However,
the presumption is merely prima facie and
a rebuttable one. The accountable
officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact,
he has not put said funds or property to personal use, then that presumption is
at end and the prima facie case is destroyed.[32]
In the case
at bar, petitioner was not able to present any credible evidence to rebut the
presumption that he malversed the missing funds in his custody or control. What is extant in the records is that the
prosecution, through witness Arlene R. Mandin, was able to prove that
petitioner malversed the funds under his custody and control. As testified by Mandin:
Atty. Caballero:
Q: Was Mr. Zenon Perez actually and physically present during the time of your cash examination?
Witness:
A. Yes, Sir.
Q: From December 28, to
A: He was present on
Q: Did
he not make any verbal explanation as the reason why he was short of about P72,000.00,
after you conducted the cash count on
A: Yes,
Sir, he did.
Q: What
did he tell you?
A: He told us that he used some of the money to pay for the loan of his brother and the other portion was spent for food of his family; and the rest for his medicine.[33] (Emphasis supplied)
Petitioner
gave himself away with his first Answer filed at the Office of the Provincial
Treasurer of
In that
Answer, petitioner narrated how he disposed of the missing funds under his
custody and control, to wit: (1) about P30,000.00 was used to pay the
commercial loan of his late brother; (2) he spent P10,000.00 for the
treatment of his toxic goiter; and (3) about P32,000.00 was spent for
food and clothing of his family, and the education of his children. He there stated:
1. That the circumstances surrounding the
cash shortage in the total amount of P72,784.57 during the examination
of the respondent’s cash accounts by the Commission on Audit on
(a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perez using respondent’s house and lot as collateral
thereof. If the interests would not be
paid, the loan would be foreclosed to respondent’s great prejudice and
disadvantage considering that he and his family are residing in said house used
as collateral;
(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;
(c) That the rest of the amount amounting to about P32,000.00 was spent by
him for his family’s foods, clothings (sic), and education of his children because his monthly salary is not
enough for the needs of his family.[34]
By the explicit admission of petitioner, coupled with the testimony of Arlene R. Mandin, the fourth element of the crime of malversation was duly established. His conviction thus stands in terra firma.
True it is
that petitioner filed another Answer on
3. That the truth of the matter is that
the alleged total cash shortage of P72,784.57 were still in the
possession and custody of his accountable personnel at the time of the
examination held by the auditor of the Commission on Audit;
4. That out of the alleged cash shortage
of P72,784.57, almost all of said amount were already remitted to him by
his accountable personnel after P8,000.00 remains to be remitted to him by his accountable personnel.[35]
The sudden
turnaround of petitioner fails to convince Us.
To Our mind, petitioner only changed his story to exonerate himself,
after realizing that his first Answer put him in a hole, so to speak.
It is
contended that petitioner’s first Answer of
There is no
law, jurisprudence or rule which mandates that an employee should be assisted
by counsel in an administrative case. On
the contrary, jurisprudence is in unison in saying that assistance of
counsel is not indispensable in administrative proceedings.
Walang
batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani ay dapat
may tulong ng abogado sa isang kasong administratibo. Sa katunayan, ang hurisprudensiya ay iisa ang
sinasabi na ang pagtulong ng isang abogado ay hindi kailangang-kailangan sa
kasong administratibo.
The right
to counsel, which cannot be waived unless the waiver is in writing and in the
presence of counsel, is a right afforded a suspect or accused during custodial
investigation. It is not an absolute
right and may be invoked or rejected in a criminal proceeding and, with more
reason, in an administrative inquiry.[37]
Ang
karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay
sa suspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na karapatan at maaring hingin
o tanggihan sa isang prosesong kriminal, at lalo na sa isang administratibong
pagsisiyasat.
While
investigations conducted by an administrative body may at times be akin to a
criminal proceeding, the fact remains that under existing laws, a party in an
administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the charges and of
respondent’s capacity to represent himself, and no duty rests on such body to
furnish the person being investigated with counsel.[38]
Thus, the
right to counsel is not imperative in administrative investigations because
such inquiries are conducted merely to determine whether there are facts that
merit disciplinary measures against erring public officers and employees, with
the purpose of maintaining the dignity of government service.[39]
Kung gayon,
ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang
administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang malaman
kung may sapat na batayan na patawan ng disiplina ang nagkasalang opisyal o
empleyado, para mapanatili ang dignidad ng paglilingkod sa pamahalaan.
There is
nothing in the Constitution that says that a party in a non-litigation
proceeding is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable,
is not indispensable. The legal
profession was not engrafted in the due process clause such that without the
participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless
that he cannot validly act at all except only with a lawyer at his side.[40]
More than
that, petitioner’s first Answer may be taken against him, as he executed it in
the course of the administrative proceedings below. This is pursuant to Rule 130, Section 26 of
the Rules of Court which provides that the “act, declaration or omission of a
party as to a relevant fact may be given against him.” In People v. Lising,[41]
the Court held:
Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the rule that the act, declaration or omission of a party as to a relevant fact may be given against him. This is based upon the presumption that no man would declare anything against himself, unless such declarations were true. A man’s act, conduct and declarations wherever made, provided they be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth and it is his fault if they are not.
There is
also no merit in the contention that petitioner’s sickness affected the
preparation of his first Answer. He
presented no convincing evidence that his disease at the time he formulated that
answer diminished his capacity to formulate a true, clear and coherent response
to any query. In fact, its contents
merely reiterated his verbal explanation to the auditing team on
II. There is no violation of the rights to a speedy disposition of the case
and to due process of law.
We now discuss the right to a speedy
trial and disposition, the balancing test, due process, and cruel and unusual
punishment.
Petitioner asserts that his right to
due process of law and to speedy disposition of his case was violated because
the decision of the Sandiganbayan was handed down after the lapse of more than
twelve years. The years that he had to wait for the outcome of his case were allegedly
spent in limbo, pain and agony.[42]
We are not persuaded.
Due process of law as applied to judicial proceedings has
been interpreted to mean “a law which hears before it condemns, which proceeds
on inquiry, and renders judgment only after trial.”[43]
Petitioner cannot complain that his right to due process has been
violated. He was given all the chances
in the world to present his case, and the Sandiganbayan rendered its decision
only after considering all the pieces of evidence presented before it.
Petitioner’s claim of violation of his right to a speedy
disposition of his case must also fail.
The 1987 Constitution[44]
guarantees the right of an accused to speedy trial. Both the 1973 Constitution in Section 16 of
Article IV and the 1987 Constitution in Section 16 of Article
In Barker v. Wingo,[46]
the United States Supreme Court was confronted for the first time with two
“rigid approaches” on speedy trial as “ways of eliminating some of the
uncertainty which courts experience protecting the right.”[47]
The first approach is the “fixed-time period” which holds the view that “the Constitution
requires a criminal defendant to be offered a trial within a specified time
period.”[48] The second approach is the “demand-waiver rule” which provides that
“a defendant waives any consideration of his right to speedy trial for any
period prior to which he has not demanded trial. Under this rigid approach, a prior demand is
a necessary condition to the consideration of the speedy trial right.”[49]
The fixed-time period was rejected because there is “no
constitutional basis for holding that the speedy trial can be quantified into a
specific number of days or months.”[50] The demand-waiver rule was likewise rejected
because aside from the fact that it is “inconsistent with this Court’s
pronouncements on waiver of constitutional rights,”[51]
“it is insensitive to a right which we have deemed fundamental.”[52]
The Court went on to adopt a middle ground: the “balancing test,” in which “the conduct
of both the prosecution and defendant are weighed.”[53] Mr. Justice Powell, ponente, explained
the concept, thus:
A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendant’s responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.[54] (Emphasis supplied)
Philippine
jurisprudence has, on several occasions, adopted the balancing test.
In 1991, in
Gonzales v. Sandiganbayan,[55]
this Court ruled:
It must be here emphasized that the right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceeding is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed, and such factors as length of the delay, reason for the delay, the defendant’s assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, are considered. (Underscoring supplied)
Subsequently,
in Dela Peña v.
Sandiganbayan,[56] this Court again
enumerated the factors that should be considered and balanced, namely: (1) length of delay; (2) reasons for the
delay; (3) assertion or failure to assert such right by the accused; and (4)
prejudice caused by the delay.[57]
Once more,
in Mendoza-Ong v. Sandiganbayan,[58]
this Court reiterated that the right to speedy disposition of cases, like the
right to speedy trial, is violated only when the proceedings are attended by
vexatious, capricious and oppressive delays.[59] In the determination of whether said right
has been violated, particular regard must be taken of the facts and
circumstances peculiar to each case.[60] The conduct of both the prosecution and
defendant, the length of the delay, the reasons for such delay, the assertion
or failure to assert such right by accused, and the prejudice caused by the
delay are the factors to consider and balance.[61]
Moreover,
the determination of whether the delays are of said nature is relative and
cannot be based on a mere mathematical reckoning of time.[62]
Measured by the foregoing yardstick, We rule that petitioner
was not deprived of his right to a speedy disposition of his case.
More important than the absence of serious prejudice,
petitioner himself did not want a speedy disposition of his case.[63] Petitioner was duly represented by counsel de parte in all stages of the
proceedings before the Sandiganbayan. From
the moment his case was deemed submitted for decision up to the time he was
found guilty by the Sandiganbayan, however, petitioner has not filed a single
motion or manifestation which could be construed even remotely as an indication
that he wanted his case to be dispatched without delay.
Petitioner has clearly slept on his right. The matter could have taken a different
dimension if during all those twelve years, petitioner had shown signs of asserting
his right to a speedy disposition of his case or at least made some overt acts,
like filing a motion for early resolution, to show that he was not waiving that
right.[64]
Currit tempus contra decides et sui juris contempores: Time runs
against the slothful and those who neglect their rights. Ang panahon ay hindi panig sa mga tamad at
pabaya sa kanilang karapatan. Vigilantis
sed non dormientibus jura in re subveniunt. The law aids the
vigilant and not those who slumber in their rights. Ang batas ay tumutulong sa mga mapagbantay
at hindi sa mga humihimbing sa kanilang karapatan.
Pending his conviction by the Sandiganbayan, petitioner may
have truly lived in suspicion and anxiety for over twelve years. However, any prejudice that may have been
caused to him in all those years was only minimal. The supposed gravity of
agony experienced by petitioner is more imagined than real.
This case is analogous to Guerrero
v. Court of Appeals.[65] There, the Court ruled that there was no
violation of petitioner’s right to speedy trial and disposition of his case
inasmuch as he failed seasonably to assert his rights:
In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right – a situation amounting to laches – had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was re-raffled, the accused showed signs of asserting his right which was granted him in 1987 when the new Constitution took effect, or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable to the party involved, at the same time, we hold that a party’s individual rights should not work against and preclude the people’s equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises.
What
constitutes cruel and unusual punishment has not been exactly defined.[66] The Eighth Amendment of the United States
Constitution,[67]
the source of Section 19, Article
Cases
that have been decided described, rather than defined, what is meant by cruel
and unusual punishment. This is
explained by the pronouncement of the United States Supreme Court that “[t]he clause of the Constitution, in the opinion of the learned
commentators, may be therefore progressive, and is not fastened to the
obsolete, but may acquire meaning as public opinion becomes enlightened by a
humane justice.”[70]
In Wilkerson v. Utah,[71] Mr. Justice Clifford of the United States Supreme Court opined that “[d]ifficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, x x x and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the constitution.”[72]
In In Re: Kemmler,[73] Mr. Chief Justice Fuller of that same Court stated that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies x x x something more inhuman and barbarous, something more than the mere extinguishment of life.”[74]
Again, in Weems v. U.S.,[75] Mr. Justice McKenna held for the Court that cadena temporal and its accessory penalties “has no fellow in American legislation. Let us remember that it has come to us from a government of a different form and genus from ours. It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind. And they would have those bad attributes even if they were found in a Federal enactment, and not taken from an alien source.”
In Echegaray v. Executive Secretary,[76] this Court in a per curiam Decision held that Republic Act No. 8177,[77] even if it does not provide in particular the details involved in the execution by lethal injection, is not cruel, degrading or inhuman, and is thus constitutional. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the death penalty and does not fall within the constitutional proscription against cruel, degrading or inhuman punishment.[78]
The Court adopted the American view that what is cruel and unusual is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice and must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.[79]
In his last ditch effort to exculpate himself, petitioner argues that the penalty meted for the crime of malversation of public funds “that ha[ve] been replenished, remitted and/or returned” to the government is cruel and therefore unconstitutional, “as government has not suffered any damage.”[80]
The
argument is specious on two grounds.
First. What is punished by the crime of malversation
is the act of a 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 and 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.[81]
Payment or
reimbursement is not a defense for exoneration in malversation; it may only be
considered as a mitigating circumstance. This is because damage is not an element of
malversation.
Second. There is strong presumption of
constitutionality accorded to statutes.
It is
established doctrine that a statute should be construed whenever possible in
harmony with, rather than in violation of, the Constitution.[82] The presumption is that the legislature
intended to enact a valid, sensible and just law and one which operates no
further than may be necessary to effectuate the specific purpose of the law.[83] It is presumed that the legislature has acted
within its constitutional powers. So, it
is the generally accepted rule that every statute, or regularly accepted act,
is, or will be, or should be, presumed to be valid and constitutional.[84]
He who attacks the constitutionality of a law has the onus probandi to show why such law is repugnant to the Constitution. Failing to overcome its presumption of constitutionality, a claim that a law is cruel, unusual, or inhuman, like the stance of petitioner, must fail.
IV. On the penalty
The Sandiganbayan sentenced petitioner
to an indeterminate sentence of ten (10) years and one (1) day of prision mayor, as minimum, to fourteen
(14) years and eight (8) months of reclusion
temporal, as maximum. In imposing the penalty, it found that petitioner was
entitled to the mitigating circumstance of payment which is akin to voluntary
surrender.
Article 217
penalizes malversation in the following tenor:
Article 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 and 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.
x x x x
4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 but is less than 22,000 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 uses. (Underscoring supplied)
The amount
malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in its maximum period to reclusion perpetua, which has a range of seventeen (17) years, four
(4) months and one (1) day to forty (40) years.
However,
the commission of the crime was attended by the mitigating circumstance akin to
voluntary surrender. As correctly observed by the Sandiganbayan, petitioner
restituted the full amount even before the prosecution could present its
evidence. That is borne by the records.
It bears
stressing that the full restitution of the amount malversed will not in any way
exonerate an accused, as payment is not one of the elements of extinction of
criminal liability. Under the law, the
refund of the sum misappropriated, even before the commencement of the criminal
prosecution, does not exempt the guilty person from liability for the crime.[85]
At most, then, payment of the amount malversed will only serve as a mitigating
circumstance[86]
akin to voluntary surrender, as provided for in paragraph 7 of Article 13[87]
in relation to paragraph 10[88]
of the same Article of the Revised Penal Code.
But the Court also holds that aside
from voluntary surrender, petitioner is entitled to the mitigating circumstance
of no intention to commit so grave a wrong,[89]
again in relation to paragraph 10 of Article 13.[90]
The records bear out that petitioner
misappropriated the missing funds under his custody and control because he was
impelled by the genuine love for his brother and his family. Per his admission, petitioner used part of
the funds to pay off a debt owed by his brother. Another portion of the
misappropriated funds went to his medications for his debilitating diabetes.
Further, as shown earlier, petitioner
restituted all but Eight Thousand Pesos (P8,000.00) of the funds in less than one month and a
half and said small balance in three (3) months from receipt of demand of
Of course,
the end does not justify the means. To
condone what petitioner has done because of the nobility of his purpose or
financial emergencies will become a potent excuse for malefactors and open the
floodgates for more corruption in the government, even from “small fry” like
him.
The bottom
line is a guilty person deserves the penalty given the attendant circumstances
and commensurate with the gravity of the offense committed. Thus, a reduction in the imposable penalty by
one degree is in order. Article 64 of
the Revised Penal Code is explicit:
Art. 64. Rules for the application of penalties which contain three periods. – In cases in which the penalties prescribed by law contains three periods, whether it be a single divisible penalty or composed of three difference penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the courts shall observe for the application of the penalty, the following rules, according to whether there are no mitigating or aggravating circumstances:
x x x x
5. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. (Underscoring supplied)
Considering
that there are two mitigating circumstances, the prescribed penalty is
reduced to prision mayor in its
maximum period to reclusion temporal
in its medium period, to be imposed in any of its periods. The new penalty has
a range of ten (10) years and one (1) day to seventeen (17) years and four (4)
months. Applying the Indeterminate
Sentence Law,[91]
the maximum term could be ten (10) years and one (1) day of prision mayor maximum, while the minimum
term is again one degree lower[92]
and could be four (4) years, two (2) months and one (1) day of prision correccional maximum.
In the 1910 case of U.S. v. Reyes,[93]
the trial judge entered a judgment of conviction against the accused and meted to
him the penalty of “three years’ imprisonment, to pay a fine of P1,500.00,
and in case of insolvency to suffer subsidiary imprisonment at the rate of one
day for every P2.50 that
he failed to pay, which subsidiary imprisonment, however, should not exceed one
third of the principal penalty” and to be “perpetually disqualified for public
office and to pay the costs.” This was
well within the imposable penalty then under Section 1 of Act No. 1740,[94]
which is “imprisonment for not less than two months nor more than ten years
and, in the discretion of the court, by a fine of not more than the amount of
such funds and the value of such property.”
On appeal
to the Supreme Court, the accused’s conviction was affirmed but his sentence
was modified and reduced to six months.
The court, per Mr. Justice Torres, reasoned thus:
For
the foregoing reasons the several unfounded errors assigned to the judgment
appealed from have been fully refuted, since in conclusion it is fully shown
that the accused unlawfully disposed of a portion of the municipal funds,
putting the same to his own use, and to that of other persons in violation of
Act. No. 1740, and consequently he has incurred the penalty therein established
as principal of the crime of misappropriation; and even though in imposing
it, it is not necessary to adhere to the rules of the Penal Code, the court in
using its discretional powers as authorized by law, believes that the
circumstances present in the commission of crimes should be taken into
consideration, and in the present case the amount misappropriated was refunded
at the time the funds were counted.[95]
(Underscoring supplied)
We opt to
exercise an analogous discretion.
WHEREFORE, the Decision of the Sandiganbayan
dated P72,784.57, the
amount equal to the funds malversed.
Costs against petitioner.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA
AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
A T T E S T A T I O N
I
attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Pursuant to Section 13, Article
VIII of the Constitution and the Division Chairperson’s Attestation, I certify
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
REYNATO S. PUNO
Chief Justice
*
Vice Associate Justice Minita V. Chico-Nazario.
Justice Nazario is on official leave per Special Order No. 484 dated
[1] Under Rule 45 of the Rules of Court per A.M. No. 00-5-03-SC.
[2] Penned by Associate Justice Diosdado M. Peralta, with Associate Justices Teresita Leonardo-De Castro (now a member of this Court) and Francisco H. Villaruz, Jr., concurring; rollo, pp. 25-38.
[3] Criminal Case No. 14230.
[4] Pursuant to Office Order No. 88-55 dated
[5] Exhibit “C.”
[6] Exhibit “E.”
[7] Exhibit “D.”
[8] Exhibit “F.”
[9]
[10] Exhibit “E.”
[11] Exhibit “G.”
[12] Exhibits “H” & “H-1” to “H-5.”
[13] Rollo, pp. 25-26.
[14]
[15] Exhibit “G.”
[16] Exhibits “1” to “3.”
[17] Exhibit “5-B.”
[18] Exhibit “5.”
[19] Exhibit “7.”
[20] Exhibits “7-a” to “7-f.”
[21] Rollo, p. 26.
[22]
[23]
[24]
[25]
[26]
[27]
[28] Reyes, L.B., The Revised Penal Code (Book
II), 15th ed., rev. 2001, pp. 393-394.
[29] Id. at 394. See also Nizurtado
v. Sandiganbayan, G.R. No. 107838,
[30] De Guzman v. People, G.R. No. L-54288,
[31] Quizo v. Sandiganbayan, supra at 113, citing U.S. v. Catolico, 18 Phil. 504 (1911).
[32]
[33]
[34] Exhibit “G.”
[35] Exhibit “5.”
[36]
[37] Lumiqued v. Exevea, G.R. No. 117565,
[38]
[39]
[40] Nera v. The Auditor General, G.R. No.
L-24957,
[41]
G.R. Nos. 106210-11,
[42] Rollo, p. 19. Petitioner claims that he had to wait for
more than thirteen (13) years. However,
this is erroneous. The records would
show that he rested his case on
[43] 16C C.J.S. Constitutional Law, Sec. 946.
[44] Bill of Rights of the Constitution (1987), Art.
(1) No
person shall be heard to answer for a criminal offense without due process of law.
(2) In all
criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witness face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable. (Emphasis supplied)
[45] “All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.”
[46]
407
[47] Barker v. Wingo, id. at 112.
[48]
[49]
[50]
[51]
[52]
[53]
[54]
[55]
G.R. No. 94750,
[56] G.R. No. 144542,
[57] Dela Peña v. Sandiganbayan, id. at 485,
citing Blanco v. Sandiganbayan, G.R.
Nos. 136757-58,
[58] G.R. Nos. 146368-69,
[59] Mendoza-Ong v.
Sandiganbayan, id., citing Dimayacyac v.
Court of Appeals, G.R. No. 136264,
[60] Id., citing Rodriguez v. Sandiganbayan, G.R. No. 141710,
[61]
[62] Id., citing Binay v.
Sandiganbayan, G.R. Nos. 120681-83 & 128136,
[63] See Barker v. Wingo, supra note 46.
[64] See Dela Peña v. Sandiganbayan, supra note 56, at 488.
[65]
G.R. No. 107211,
[66] Weems v.
[67] The Eighth Amendment of the United States Constitution provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (Emphasis supplied)
[68] Bill of Rights of the Constitution (1987), Art.
Sec. 19.
(1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman
punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua.
(2) The
employment of physical, psychological, or degrading punishment against any
prisoner or detainee, or the use of substandard or inadequate penal facilities
under subhuman condition shall be dealt with by law. (Emphasis supplied)
[69] See note 43.
[70] Weems v. U.S., supra note 66, citing Mackin v. U.S., 117 US 348, 350, 29 L. Ed. 909, 910, 6 S. Ct. Rep. 777; Ex parte Wilson, 114 US 417, 427, 29 L. Ed. 89, 92.
[71] 99 US 130.
[72] Wilkerson v.
[73]
136
[74] In Re: Kemmler, id. at 524.
[75] Supra note 66.
[76] G.R.
No. 132601,
[77] An Act Designating Death by Lethal Injection as the Method of Carrying Out Capital Punishment, Amending For the Purpose Article 81 of the Revised Penal Code, As Amended by Section 24 of Republic Act No. 7659. Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 were, however, declared INVALID: (a) Section 17 because it “contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659;” and (b) Section 19 because it “fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence, unavailable to interested parties including the accused/convict and counsel.”
[78] Echegaray v. Executive Secretary, supra at 777.
[79]
[80] Rollo, p. 22.
[81] See Revised Penal Code, Art. 217.
[82] Cruz v.
Secretary of Environment and Natural Resources, G.R. No. 135385,
[83]
[84] 16A C.J.S. Constitutional Law, Sec. 96(a).
[85]
[86] Estamos con el. Hon. Procurador General en
que ha lugar a estimar la devolución hecha por e apelante de la cantidad
defraudada
[87] Revised Penal Code, Art. 13, Par. 7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.
[88]
[89] Revised Penal Code, Art. 13, Par. 3. That the offender had no intention to commit so grave a wrong as that committed.
[90] Supra note 88.
[91] Act No. 4103, as amended, otherwise known as the
Indeterminate Sentence Law, provides:
Section 1. Hereafter, in imposing a prison sentence
for an offense punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum of which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the maximum term
of which shall not exceed the maximum fixed by said law and shall not be less
than the minimum term prescribed by the same. (As
amended by Act. No. 4225)
[92] Guevarra v. Court of Appeals, G.R. No.
41061,
[93] 14 Phil. 718, 721 (1910).
[94] Enacted
on
[95]