Republic of the
Supreme Court
THIRD DIVISION
|
CAROLINA R.
JAVIER,
Petitioner, - versus - THE FIRST DIVISION OF THE SANDIGANBAYAN
and the PEOPLE OF THE Respondents. |
G.R. Nos. 147026-27 Present:
Ynares-Santiago,
J., Chairperson, chico-nazario, VELASCO, Jr., nachura, and PERALTA, JJ. Promulgated: September
11, 2009
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I O N PERALTA, J.: |
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Before
the Court is a petition for certiorari[1]
under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in
Criminal Case Nos. 25867 and 25898, entitled “People of the Philippines,
Plaintiff versus Carolina R. Javier, Accused,” seeking to nullify
respondent Sandiganbayan's: (1) Order[2]
dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to
Quash Information; (2) Resolution[3]
dated January 17, 2001 in Criminal
Case No. 25898,
which denied her
Motion for Reconsideration and Motion to
Quash Information; and (3) Order[4]
dated February 12, 2001, declaring that a motion for reconsideration in
Criminal Case No. 25898 would be superfluous as the issues are fairly simple
and straightforward.
The
factual antecedents follow.
On
To
achieve this purpose, the law provided for the creation of the National Book
Development Board (NBDB or the Governing Board, for brevity), which shall be
under the administration and supervision of the Office of the President. The Governing Board shall be composed of
eleven (11) members who shall be appointed by the President of the Philippines,
five (5) of whom shall come from the government, while the remaining six (6)
shall be chosen from the nominees of organizations of private book publishers,
printers, writers, book industry related activities, students and the private
education sector.
On
P139,199.00[10]
as her travelling expenses.
Unfortunately,
petitioner was not able to attend the scheduled international book fair.
On
P220,349.00. Despite said notice, no action was
forthcoming from the petitioner.
On
The
Ombudsman found probable cause to indict petitioner for violation of Section
3(e) of R.A. No. 3019,[14]
as amended, and recommended the filing of the corresponding information.[15] It, however, dismissed for insufficiency of
evidence, the charge for violation of R.A. No. 6713.
In
an Information dated
That
on or about October 8, 1997, or for sometime prior or subsequent thereto, in
the City of Quezon, Philippines and within the jurisdiction of this Honorable
Court, the aforenamed accused, a public officer, being then a member of the
governing Board of the National Book Development Board (NBDB), while in the
performance of her official and administrative functions, and acting with
evident bad faith or gross inexcusable negligence, did then and there
willfully, unlawfully and criminally, without any justifiable cause, and
despite due demand by the Resident Auditor and the Executive Director of NBDB,
fail and refuse to return and/or liquidate her cash advances intended for
official travel abroad which did not materialize, in the total amount of P139,199.00
as of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA
Circular No. 97-002 thereby causing damage and undue injury to the Government.
CONTRARY TO LAW.[16]
The case was docketed as Criminal Case No. 25867 and raffled
to the First Division.
Meanwhile,
the Commission on Audit charged petitioner with Malversation of Public Funds,
as defined and penalized under Article 217 of the Revised Penal Code, for not
liquidating the cash advance granted to her in connection with her supposed
trip to
Thus,
an Information dated
That on or
about and during the period from October 8, 1997 to February 16, 1999, or for
sometime prior or subsequent thereto, in Quezon City, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a high
ranking officer, being a member of the Governing Board of the National Book
Development Board and as such, is accountable for the public funds she received
as cash advance in connection with her trip to Spain from October 8-12, 1997,
per LBP Check No. 10188 in the amount of P139,199.00, which trip did not
materialize, did then and there willfully, unlawfully and feloniously take,
malverse, misappropriate, embezzle and convert to her own personal use and benefit
the aforementioned amount of P139,199.00, Philippine currency, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.[18]
During
her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to the
First Division the money subject of the criminal cases, which amount was
deposited in a special trust account during the pendency of the criminal cases.
Meanwhile,
the Third Division set a clarificatory hearing in Criminal Case No. 25898 on
That on or about and during the period from October 8,
1997 to February 16, 1999, or for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, a high ranking officer, being a member of the Governing
Board of the National Book Development Board equated to Board Member II with
a salary grade 28 and as such, is accountable for the public funds she
received as case advance in connection with her trip to Spain from October
8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which
trip did not materialize, did then and there willfully, unlawfully and
feloniously take, malverse, misappropriate, embezzle and convert to her own
personal use and benefit the aforementioned amount of P139,199.00, Philippine
currency, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.[21]
In
its Resolution dated
On
In an Order[24]
dated
The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be the case, is not the sole qualification for being in the government service or a public official. The National Book Development Board is a statutory government agency and the persons who participated therein even if they are from the private sector, are public officers to the extent that they are performing their duty therein as such.
Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her capacity as Director of the National Book Development Board for purposes of official travel. While indeed under ordinary circumstances a member of the board remains a private individual, still when that individual is performing her functions as a member of the board or when that person receives benefits or when the person is supposed to travel abroad and is given government money to effect that travel, to that extent the private sector representative is a public official performing public functions; if only for that reason, and not even considering situation of her being in possession of public funds even as a private individual for which she would also covered by provisions of the Revised Penal Code, she is properly charged before this Court.
On
On
The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
x x x x
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;
x x x x
The offense is office-related because the money for her travel abroad was given to her because of her Directorship in the National Book Development Board.
Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. – The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached , seized or deposited by public authority, even if such property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of which precludes prosecution of the other.
Petitioner
hinges the present petition on the ground that the Sandiganbayan has committed
grave abuse of discretion amounting to lack of jurisdiction for not quashing the
two informations charging her with violation of the Anti-Graft Law and the
Revised Penal Code on malversation of public funds. She advanced the following arguments in
support of her petition, to wit: first, she is not a public officer, and
second, she was being charged under two (2) informations, which is in
violation of her right against double jeopardy.
A
motion to quash an Information is the mode by which an accused assails the
validity of a criminal complaint or Information filed against him for
insufficiency on its face in point of law, or for defects which are apparent in
the face of the Information.[28]
Well-established
is the rule that when a motion to quash in a criminal case is denied, the
remedy is not a petition for certiorari,
but for petitioners to go to trial, without prejudice to reiterating the
special defenses invoked in their motion to quash. Remedial measures as regards interlocutory
orders, such as a motion to quash, are frowned upon and often dismissed. The
evident reason for this rule is to avoid multiplicity of appeals in a single
action.[29]
The
above general rule, however admits of several exceptions, one of which is when
the court, in denying the motion to dismiss or motion to quash, acts without or
in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to
require the defendant or accused to undergo the ordeal and expense of a trial
if the court has no jurisdiction over the subject matter or offense, or is not
the court of proper venue, or if the denial of the motion to dismiss or motion
to quash is made with grave abuse of discretion or a whimsical and capricious
exercise of judgment. In such cases,
the ordinary remedy of appeal cannot be plain and adequate.[30]
To
substantiate her claim, petitioner maintained that she is not a public officer
and only a private sector representative, stressing that her only function
among the eleven (11) basic purposes and objectives provided for in Section 4,
R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD
Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for
the crimes imputed against her, and in turn, she is outside the jurisdiction of
the Sandiganbayan.
The
NBDB is the government agency mandated to develop and support the Philippine
book publishing industry. It is a
statutory government agency created by R.A. No. 8047, which was enacted into
law to ensure the full development of the book publishing industry as well as
for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of
the NBDB was created to supervise the implementation. The Governing Board was vested with powers
and functions, to wit:
a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well
as operational policies and guidelines for undertaking activities relative to
promoting book development, production and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines
and mechanisms to ensure that editors, compilers and especially authors are
paid justly and promptly royalties due them for reproduction of their works in
any form and number and for whatever purpose;
d) conduct or contract research on
the book publishing industry including monitoring, compiling and providing data
and information of book production;
e) provide a forum for interaction
among private publishers, and, for the purpose, establish and maintain liaison
will all the segments of the book publishing industry;
f) ask the appropriate government
authority to ensure effective implementation of the National Book Development
Plan;
g) promulgate rules and regulations
for the implementation of this Act in consultation with other agencies
concerned, except for Section 9 hereof on incentives for book development,
which shall be the concern of appropriate agencies involved;
h) approve, with the concurrence of
the Department of Budget and Management (DBM), the annual and supplemental
budgets submitted to it by the Executive director;
i) own, lease, mortgage, encumber or
otherwise real and personal property for the attainment of its purposes and
objectives;
j) enter into any obligation or
contract essential to the proper administration of its affairs, the conduct of
its operations or the accomplishment of its purposes and objectives;
k) receive donations, grants,
legacies, devices and similar acquisitions which shall form a trust fund of the
Board to accomplish its development plans on book publishing;
l) import books or raw materials
used in book publishing which are exempt from all taxes, customs duties and
other charges in behalf of persons and enterprises engaged in book publishing
and its related activities duly registered with the board;
m) promulgate rules and regulations
governing the matter in which the general affairs of the Board are to be
exercised and amend, repeal, and modify such rules and regulations whenever
necessary;
n) recommend to the President of the
o) adopt rules and procedures and
fix the time and place for holding meetings: Provided, That at least one (1)
regular meeting shall be held monthly;
p) conduct studies, seminars,
workshops, lectures, conferences, exhibits, and other related activities on
book development such as indigenous authorship, intellectual property rights,
use of alternative materials for printing, distribution and others; and
q) exercise such other powers and
perform such other duties as may be required by the law.[31]
A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.[32]
Notwithstanding that petitioner came from the
private sector to sit as a member of the NBDB, the law invested her with some
portion of the sovereign functions of the government, so that the purpose of
the government is achieved. In this
case, the government aimed to enhance the book publishing industry as it has a
significant role in the national development.
Hence, the fact that she was appointed from the public sector and not
from the other branches or agencies of the government does not take her
position outside the meaning of a public office. She was appointed to the Governing Board in
order to see to it that the purposes for which the law was enacted are
achieved. The Governing Board acts
collectively and carries out its mandate as one body. The purpose of the law for appointing
members from the private sector is to ensure that they are also properly
represented in the implementation of government objectives to cultivate the
book publishing industry.
Moreover, the Court is not unmindful
of the definition of a public officer pursuant to the Anti-Graft Law, which
provides that a public officer includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or unclassified or
exempt service receiving compensation, even nominal, from the government.[33]
Thus,
pursuant to the Anti-Graft Law, one is a public officer if one has been elected
or appointed to a public office.
Petitioner was appointed by the President to the Governing Board of the
NDBD. Though her term is only for a year
that does not make her private person exercising a public function. The fact that she is not receiving a monthly
salary is also of no moment. Section 7,
R.A. No. 8047 provides that members of the Governing Board shall receive per
diem and such allowances as may be authorized for every meeting actually
attended and subject to pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature
of one's appointment, and whether the compensation one receives from the
government is only nominal, is immaterial because the person so elected or
appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, 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 classes, shall be deemed to be a public officer.[34]
Where,
as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in
the performance of public functions in the government whether as an employee,
agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took
part in the drafting and promulgation of several rules and regulations
implementing R.A. No. 8047. She was
supposed to represent the country in the canceled book fair in
In
fine, We hold that petitioner is a public officer. The next question for the Court to resolve is
whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Presently,[35]
the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade “27” and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including:
x x x x
(2) Members of Congress and officials thereof classified as Grade “Grade '27'” and up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade “Grade '27'” and higher under the Compensation and Position Classification Act of 1989.
x x x x
Notably,
the Director of Organization, Position Classification and Compensation Bureau,
of the Department of Budget and management provided the following information
regarding the compensation and position classification and/or rank equivalence
of the member of the Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) members represent the private sector. The said five members of the Board do not receive any salary and as such their position are not classified and are not assigned any salary grade.
For purposes
however of determining the rank equivalence of said positions, notwithstanding
that they do not have any salary grade assignment, the same may be equated to
Board Member II, SG-28.[36]
Thus,
based on the Amended Information in Criminal Case No. 25898, petitioner belongs
to the employees classified as SG-28, included in the phrase “all other
national and local officials classified as ‘Grade 27' and higher under the Compensation and Position
Classification Act of 1989.”
Anent
the issue of double jeopardy, We can not likewise give in to the contentions
advanced by petitioner. She argued that
her right against double jeopardy was violated when the Sandiganbayan denied
her motion to quash the two informations filed against her.
We
believe otherwise. Records show that the
Informations in Criminal Case Nos. 25867 and 25898 refer to offenses penalized
by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double
jeopardy to attach, the case against the accused must have been dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon valid information sufficient in form and substance and the
accused pleaded to the charge.[37] In the instant case, petitioner pleaded not
guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal
case for malversation of public funds because she had filed a motion to quash
the latter information. Double
jeopardy could not, therefore, attach considering that the two cases remain
pending before the Sandiganbayan and that herein petitioner had pleaded to only
one in the criminal cases against her.
It
is well settled that for a claim of double jeopardy to prosper, the following
requisites must concur: (1) there is a complaint or information or other formal
charge sufficient in form and substance to sustain a conviction; (2) the same is filed before
a court of competent jurisdiction; (3)
there is a valid arraignment or plea to the charges; and (4) the accused is
convicted or acquitted or the case is otherwise dismissed or terminated without
his express consent.[38] The third and fourth requisites are not
present in the case at bar.
In
view of the foregoing, We hold that the present petition does not fall under
the exceptions wherein the remedy of certiorari may be resorted to after the
denial of one's motion to quash the information. And even assuming that petitioner may avail
of such remedy, We still hold that the
Sandiganbayan did not commit grave abuse of discretion amounting to lack
of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED.
Costs against petitioner.
SO ORDERED.
DIOSDADO
M. PERALTA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA
V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice
ANTONIO EDUARDO
B. NACHURA
Associate Justice
ATTESTATION
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,
Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson’s Attestation, I certify that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
REYNATO
S. PUNO
[1] Rollo, pp. 3-24.
[2]
[3] Id at 27-28.
[4]
[5] “AN ACT PROVIDING FOR THE DEVELOPMENT OF THE BOOK PUBLISHING INDUSTRY THROUGH THE FORMULATION AND IMPLEMENTATION OF A NATIONAL BOOK POLICY AND A NATIONAL BOOK DEVELOPMENT PLAN;” records, Vol. I (Crim. Case No. 25867), pp. 101-107.
[6] Records, Vol. I (Crim. Case No. 25867), p. 90.
[7] Records, Vol. I (Crim. Case No. 25867), pp. 91-92.
[8]
[9]
[10] Per Check No. 10188-AY; id. at 125.
[11]
[12]
[13]
Otherwise known as the “Code of Conduct and Ethical Standards for Public
Officials and Employees.”
[14] Otherwise known as the “Anti-Graft and Corrupt Practices Act.”
[15] Resolution dated
[16] Records, Vol. II (Crim. Case No. 25867), pp. 1-2.
[17] Resolution dated
[18] Records, Vol. I (Crim Case No. 25898), pp. 1-2.
[19]
[20]
[21]
[22]
[23] Rollo,
pp. 40-50.
[24] Rollo, p. 26.
[25] Composed of then Presiding Justice Francis E. Garchitorena, Associate Justices Catalino R. Castañeda, Jr. and Gregory S. Ong.
[26]
[27] Rollo, pp. 27-28.
[28] Ariel Los Baños, et al. v. Joel
Pedro, G.R. No. 173588,
[29] Serana v. Sandiganbayan,
G.R. No. 162059,
[30]
Newsweek, Inc. v. Intermediate Appellate Court, No. L-63559,
[31] R.A. 8047, Sec. 8; records, Vol. I (Crim. Case No. 25867), pp. 103-104.
[32]
F.R. Mechem, A Treatise on the Law of Public Offices and Officers, Sec.
1.
[33] R.A. No. 3019, Sec. 2 (b).
[34] Revised Penal Code, Art. 203.
[35] On
[36] Records, Vol. I (Crim Case No. 25898), p. 36.
[37] Cabo v. Sandiganbayan, G.R. No.
169509,
[38]