THIRD DIVISION
|
OFELIA C. CAUNAN, Petitioner, - versus - PEOPLE OF THE Respondents. X - - - - - - - - - - - - - - - - - - - - - - - -
- - - - X JOEY P. MARQUEZ, Petitioner, - versus - THE SANDIGANBAYAN-FOURTH DIVISION
and PEOPLE OF THE Respondents. |
G.R. Nos. 181999 & 182001-04
G.R. Nos. 182020-24
Present: YNARES-SANTIAGO, J.,
Chairperson, CHICO-NAZARIO, VELASCO, JR., NACHURA, and PERALTA, JJ. Promulgated: September
2, 2009 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
At bar are consolidated
petitions for review on certiorari
under Rule 45 of the Rules of Court which assail the Decision[1]
dated August 30, 2007 and Resolution[2]
dated March 10, 2008 of the Sandiganbayan in Criminal Case Nos. 27944, 27946,
27952, 27953, & 27954, finding petitioners Joey P. Marquez (Marquez) and Ofelia
C. Caunan (Caunan) guilty of violation of Section 3(g) of Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Marquez and Caunan, along with four (4) other local
government officials of
The Information in Criminal Case No. 27944 states:
That
on January 11, 1996 or thereabout, in Parañaque City, Philippines, and within
the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public
official, being the City Mayor of Parañaque City and Chairman, Committee on
Awards, together with the members of the aforesaid Committee, namely: SILVESTRE
DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget Officer (SG 26), OFELIA C. CAUNAN, the OIC General
Services Office (SG 26) and AILYN ROMEA,
the Head Staff, Office of the Mayor (SG
26), acting as such and committing the offense in relation to their official
duties and taking advantage of their official positions, conspiring,
confederating and mutually helping one another and with the accused private
individual ANTONIO RAZO, the owner
and proprietor of ZARO Trading, a business entity registered with the Bureau of
Domestic Trade and Industry, with evident bad faith and manifest partiality (or
at the very least, with gross inexcusable negligence), did then and there
willfully, unlawfully and criminally enter into manifestly and grossly
disadvantageous transactions, through personal canvass, with said ZARO Trading,
for the purchase of 5,998 pieces of “walis ting-ting” at P25 per piece
as per Disbursement Voucher No. 101-96-12-8629 in the total amount of ONE
HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIFTY PESOS (P149,950.00),
without complying with the Commission on Audit (COA) Rules and Regulations and
other requirements on Procurement and Public Bidding, and which transactions
were clearly grossly overpriced as the actual cost per piece of the “walis
ting-ting” was only P11.00 as found by the Commission on Audit (COA) in
its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00
per piece or a total overpriced amount of EIGHTY THREE THOUSAND NINE HUNDRED
SEVENTY TWO PESOS (P83,972.00), thus, causing damage and prejudice to
the government in the aforesaid sum.
The Information in Criminal Case No. 27946 states:
That on June 30, 1997 or thereabout,
in P15.00
per piece as per Disbursement Voucher No. 101-98-02-447 in the total amount of
THREE HUNDRED FIFTY THOUSAND TEN PESOS (P350,010.00), without complying
with the Commission on Audit (COA) Rules and Regulations and other requirements
on Procurement and Public Bidding, and which transactions were clearly grossly
overpriced as the actual cost per piece of the “walis ting-ting” was only P11.00
as found by the Commission on Audit (COA) in its Decision No. 2003-079 dated
May 13, 2003 with a difference, therefore, of P4.00 per piece or a total
overpriced amount of NINETY THREE THOUSAND THREE HUNDRED THIRTY SIX PESOS (P93,336.00),
thus causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27952 states:
That [in] September 1997, or thereabout,
in Parañaque City, Philippines and within the jurisdiction of this Honorable
Court, accused Public Officers JOEY P.
MARQUEZ, a high ranking public official, being the City Mayor of Parañaque
City and Chairman, Committee on Awards, together with members of the aforesaid
committee, namely: SILVESTRE DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG
26), FLOCERFIDA M. BABIDA, the City
Budget officer (SG 26), OFELIA C. CAUNAN,
the OIC General Services Office (SG 26) and AILYN ROMEA, the Head Staff, Office of the Mayor (SG 26), acting as
such and committing the offense in relation to their official duties and taking
advantage of their official positions, conspiring, confederating and mutually
helping one another and with accused private individual ANTONIO RAZO, the owner and proprietor of ZAR[O] Trading, a
business entity registered with the Bureau of Domestic Trade and Industry, with
evident bad faith and manifest partiality (or at the very least, with gross
inexcusable negligence), did then and there willfully, unlawfully and
criminally enter into manifestly and grossly disadvantageous transactions,
through personal canvass, with ZAR[O] Trading for the purchase of 8,000 pieces
of “walis ting-ting” at P15.00 per piece as per Disbursement Voucher No.
101-98-02-561 in the total amount of ONE HUNDRED TWENTY THOUSAND PESOS (P120,000.00),
without complying with the Commission on Audit (COA) Rules and Regulations and
other requirements on Procurement and Public Bidding, and which transactions
were clearly grossly overpriced as the actual cost per piece of the ”walis
ting-ting” was only P11.00 as found by the Commission on Audit (COA) in
its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P4.00
per piece or a total overpriced amount of THIRTY TWO THOUSAND PESOS (P32,000.00),
thus causing damage and prejudice to the government in the aforesaid sum.
The Information in Criminal Case No. 27953 states:
That during the period from February
11, 1997 to February 20, 1997, or thereabout, in Parañaque City, Philippines
and within the jurisdiction of this Honorable Court, accused Public Officers JOEY P. MARQUEZ, a high ranking public
official, being the City Mayor of Parañaque City and Chairman, Committee on
Awards, together with members of the aforesaid committee, namely: SILVESTRE
DE LEON, being then the City Treasurer, MARILOU TANAEL, the City Accountant (SG 26), FLOCERFIDA M. BABIDA, the City Budget officer (SG 26), OFELIA C. CAUNAN, the OIC General Services
office (SG 26) and AILYN ROMEA, the
Head Staff, Office of the Mayor (SG 26), acting as such and committing the
offense in relation to their official duties and taking advance of their
official positions, conspiring, confederating and mutually helping one another
and with accused private individual ANTONIO
RAZO, the owner and proprietor of ZAR[O] Trading, a business entity
registered with the Bureau of Domestic Trade and Industry, with evident bad
faith and manifest partiality (or at the very least, with gross inexcusable
negligence), did then and there willfully, unlawfully and criminally enter into
manifestly and grossly disadvantageous transactions, through personal canvass,
with ZAR[O] Trading for the purchase of 10,100 pieces of “walis ting-ting” on
several occasions at P25.00 per piece without complying with the
Commission on Audit (COA) Rules and Regulations and other requirements on
procurement and Public Bidding and which purchases are hereunder enumerated as
follows:
|
Date
of Transaction |
Voucher
No. |
Amount |
Quantity |
|
February 20, 1997 |
101-97-04-1755 |
|
120 pcs. |
|
February 12, 1997 |
101-97-04-1756 |
|
4,000 pcs. |
|
February 11, 1997 |
101-97-04-1759 |
|
5,980 pcs. |
in the total amount of
TWO HUNDRED FIFTY TWO THOUSAND PESOS (P252,000.00), and which
transactions were clearly overpriced as the actual cost per piece of the “walis
ting-ting” was only P11.00 as found by the Commission on Audit (COA) in its
Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00
per piece or a total overpriced amount of ONE HUNDRED FORTY ONE THOUSAND FOUR
HUNDRED PESOS (P141,400.00), thus, causing damage and prejudice to the
government in the aforesaid sum.
The Information in Criminal Case No. 27954 states:
That during the period from October
15, 1996 to October 18, 1996 or thereabout, in P25.00 per piece without
complying with the Commission on Audit (COA) Rules and Regulations and other
requirements on procurement and Public Bidding and which purchases are
hereunder enumerated as follows:
|
Date
of Transaction |
Voucher
Number |
Amount |
Quantity |
|
|
|
|
|
|
October 15, 1996 |
101-96-11-7604 |
|
4,000 pcs. |
|
October 18, 1996 |
101-96-11-7605 |
|
4,000 pcs. |
in the total amount
of TWO HUNDRED THOUSAND PESOS (P200,000.00), and which transactions were
clearly grossly overpriced as the actual cost per piece of the “walis
ting-ting” was only P11.00 as found by the Commission on Audit (COA) in
its Decision No. 2003-079 dated May 13, 2003 with a difference, therefore, of P14.00
per piece or a total overpriced amount of ONE HUNDRED TWELVE THOUSAND PESOS (P112,000.00),
thus, causing damage and prejudice to the government in the aforesaid sum.[4]
The
five (5) Informations were filed based on the findings of the Commission on
Audit (COA) Special Audit Team that there was overpricing in certain purchase
transactions of
In
connection with the walis tingting purchases
audit, the audit team gathered the following evidence:
1. Documents furnished by the Office of the
City Mayor of Parañaque City upon request of the audit team;
2. Sample walis tingting with handle likewise submitted by the Office of the
City Mayor of Parañaque City;
3. Samples of walis tingting without handle actually utilized by the street
sweepers upon ocular inspection of the audit team;
4. Survey forms accomplished by the street
sweepers containing questions on the walis
tingting;
5. Evaluation by the Technical Services
Department[5] of
the reasonableness of the walis tingting procurement
compared to current prices thereof;
6. A separate
canvass by the audit team on the prices of the walis tingting, including purchases thereof at various
merchandising stores;[6]
and
7. Documents on the conduct and process of
procurement of walis tingting by the
neighboring city of
Parenthetically,
to ascertain the prevailing price of walis
tingting for the years 1996 to 1998, the audit team made a canvass of the
purchase prices of the different merchandise dealers of
As
previously adverted to, the audit team made a report which contained the
following findings:
1. The purchase of walis tingting was undertaken without public bidding;
2. The
purchase of walis tingting was
divided into several purchase orders and requests to evade the requirement of
public bidding and instead avail of personal canvass as a mode of procurement;
3. The purchase of walis tingting through personal canvass was attended with irregularities;
and
4. There was glaring overpricing in the
purchase transactions.
Consequently,
the COA issued Notices of Disallowance Nos. 01-001-101 (96) to 01-006-101 (96),
01-001-101 (97) to 01-011-101 (97), and 01-001-101 (98) to 01-004-101 (98) covering
the overpriced amount of P1,302,878.00 for the purchases of 142,612 walis tingting, with or without handle,
by Parañaque City in the years 1996-1998.[7]
Objecting
to the disallowances, petitioners Marquez and Caunan, along with the other
concerned local government officials of
Aggrieved,
petitioners and the other accused appealed to the COA which eventually denied
the appeal. Surprisingly, on motion for reconsideration, the COA excluded
petitioner Marquez from liability for the disallowances based on our rulings in
Arias v. Sandiganbayan[8] and Magsuci
v. Sandiganbayan.[9]
On
the other litigation front, the criminal aspect subject of this appeal, the
Ombudsman found probable cause to indict petitioners and the other local
government officials of
After
trial and a flurry of pleadings, the Sandiganbayan rendered judgment finding
petitioners Caunan and Marquez, along with Silvestre de Leon and Marilou
Tanael, guilty of violating Section 3(g) of R.A. No. 3019. As for accused
Flocerfida Babida, Ailyn Romea and private individual Razo, the Sandiganbayan
acquitted them for lack of sufficient evidence to hold them guilty beyond
reasonable doubt of the offenses charged. The Sandiganbayan ruled as follows:
1. The prosecution evidence, specifically
the testimony of Bermudez and the Special Audit Team’s report, did not
constitute hearsay evidence, considering that all the prosecution witnesses
testified on matters within their personal knowledge;
2. The defense failed to question, and
timely object to, the admissibility of documentary evidence, such as the Las
Piñas City documents and the Department of Budget and Management (DBM) price
listing downloaded from the Internet, which were certified true copies and not
the originals of the respective documents;
3. The Bids and Awards Committee was not
properly constituted; the accused did not abide by the prohibition against
splitting of orders; and Parañaque City had not been afforded the best possible
advantage for the most objective price in the purchase of walis tingting for failure to observe the required public bidding;
4. The contracts for procurement of walis tingting in Parañaque City for the
years 1996-1998 were awarded to pre-selected suppliers; and
5. On the whole, the transactions undertaken
were manifestly and grossly disadvantageous to the government.
Expectedly,
the remaining accused, Caunan, Marquez and Tanael, moved for reconsideration of
the Sandiganbayan decision. Caunan and Tanael, represented by the same counsel,
collectively filed a Motion for Reconsideration (with Written Notice of Death
of Accused Silvestre S. de Leon). Marquez filed several motions,[10]
including a separate Motion for Reconsideration.
All
the motions filed by Marquez, as well as Caunan’s motion, were denied by the
Sandiganbayan. However, with respect to Tanael, the Sandiganbayan found reason
to reconsider her conviction.
Hence,
these separate appeals by petitioners Marquez and Caunan.
Petitioner
Caunan posits the following issues:
1. [WHETHER]
THE PROSECUTION’S PROOF OF OVERPRICING [IS] HEARSAY.
2. [WHETHER
THE] RESPONDENT SANDIGANBAYAN [ERRED] IN ADMITTING WITNESS FATIMA V. BERMUDEZ’
TESTIMONY DESPITE THE FACT THAT ITS SOURCES ARE THEMSELVES ADMITTEDLY AND
PATENTLY HEARSAY.
3. [WHETHER
THE] RESPONDENT SANDIGANBAYAN GRAVELY [ERRED] IN APPLYING AN EXCEPTION TO THE
HEARSAY RULE[.] UNDER THIS EXCEPTION, “PUBLIC DOCUMENTS CONSISTING OF ENTRIES
IN PUBLIC RECORDS, ETC.,” x x x ARE PRIMA FACIE EVIDENCE OF THE FACTS STATED
THEREIN.
4. CONSEQUENTLY,
[WHETHER] RESPONDENT SANDIGANBAYAN GRAVELY ERRED IN NOT ACQUITTING [CAUNAN].[11]
For
his part, petitioner Marquez raises the following:
1. WHETHER
[MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES BASED ON THE
DOCTRINES LAID DOWN IN THE ARIAS AND MAGSUCI CASES EARLIER DECIDED BY THIS
HONORABLE COURT AND THE PERTINENT PROVISIONS OF THE LOCAL GOVERNMENT CODE AND
OTHER EXISTING REGULATIONS[;]
2. WHETHER
[MARQUEZ] MUST BE ACQUITTED FROM THE SUBJECT CRIMINAL CASES SINCE HE WAS
ALREADY EXCLUDED FROM LIABILITY BY THE COMMISSION ON AUDIT[;]
3. WHETHER
THE ACQUITTAL OF CO-ACCUSED 1) SUPPLIER ANTONIO RAZO WHO WAS THE OTHER PARTY
TO, AND RECEIVED THE TOTAL AMOUNT OF, THE QUESTIONED CONTRACTS OR TRANSACTIONS,
2) CITY ACCOUNTANT MARILOU TANAEL WHO PRE-AUDITED THE CLAIMS AND SIGNED THE
VOUCHERS, 3) CITY BUDGET OFFICER FLOCERFIDA M. BABIDA, AND 4) HEAD OF STAFF
AILYN ROMEA CASTS A BIG CLOUD OF DOUBT ON THE FINDING OF [MARQUEZ’S] GUILT BY
THE SANDIGANBAYAN – FOURTH DIVISION[;]
4. WHETHER
[MARQUEZ] CAN BE CONVICTED ON PLAIN HEARSAY, IF NOT DUBIOUS EVIDENCE OF
OVERPRICING OR ON MERE CIRCUMSTANTIAL EVIDENCE THAT DO NOT AMOUNT TO PROOF OF
GUILT BEYOND REASONABLE DOUBT IN THE SUBJECT CRIMINAL CASES[;]
5. WHETHER
THE ALLEGED OVERPRICING WHICH WAS THE BASIS FOR CLAIMING THAT THE CONTRACTS OR
TRANSACTIONS ENTERED INTO BY [MARQUEZ] IN BEHALF OF PARAÑAQUE CITY WERE
MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT WAS ASCERTAINED OR
DETERMINED WITH REASONABLE CERTAINTY IN ACCORDANCE WITH THE REQUIREMENTS OR
PROCEDURES PRESCRIBED UNDER COA MEMORANDUM NO. 97-012 DATED MARCH 31, 1997[;]
6. WHETHER
THE QUANTUM OF PROSECUTION EVIDENCE HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION
OF INNOCENCE WHICH [MARQUEZ] ENJOYS IN THE SUBJECT CRIMINAL CASES[;]
7. WHETHER
THE RIGHT OF [MARQUEZ] TO DUE PROCESS WAS VIOLATED WHEN THE CHAIRMAN (JUSTICE
GREGORY ONG) OF THE SANDIGANBAYAN – FOURTH DIVISION REFUSED TO INHIBIT DESPITE
SERIOUS CONFLICT OF INTEREST[;]
8. WHETHER
[MARQUEZ] IS ENTITLED TO THE REOPENING OF THE SUBJECT CRIMINAL CASES[;]
9. WHETHER
THE RIGHT OF [MARQUEZ] TO BE INFORMED OF THE NATURE OF THE ACCUSATION AGAINST
HIM WAS VIOLATED WHEN INSTEAD OF ONLY ONE OFFENSE, SEVERAL INFORMATION HAD BEEN
FILED IN THE TRIAL COURT ON THE THEORY OF OVERPRICING IN THE PROCUREMENT OF
BROOMSTICKS (WALIS TINGTING) BY WAY
OF SPLITTING CONTRACTS OR PURCHASE ORDERS[; and]
10. WHETHER
[MARQUEZ] IS ENTITLED TO NEW TRIAL SINCE HIS RIGHT TO AN IMPARTIAL TRIAL WAS
VIOLATED IN THE SUBJECT CRIMINAL CASES WHEN THE CHAIRMAN (JUSTICE GREGORY ONG)
REFUSED TO INHIBIT DESPITE THE EXISTENCE OF SERIOUS CONFLICT OF INTEREST RAISED
BY THE FORMER BEFORE THE JUDGMENT BECAME FINAL.[12]
In
a Resolution dated February 23, 2009, we directed the consolidation of these
cases. Thus, we impale petitioners’ issues for our resolution:
1. First
and foremost, whether the Sandiganbayan erred in finding petitioners guilty of
violation of Section 3(g) of R.A. No. 3019.
2. Whether
the testimony of Bermudez and the report of the Special Audit Team constitute
hearsay and are, therefore, inadmissible in evidence against petitioners.
3. Whether
petitioner Marquez should be excluded from liability based on our rulings in Arias v. Sandiganbayan[13] and Magsuci
v. Sandiganbayan.[14]
Both petitioners insist that the fact
of overpricing, upon which the charge against them of graft and corruption is
based, had not been established by the quantum of evidence required in criminal
cases, i.e., proof beyond reasonable
doubt.[15]
Petitioners maintain that the evidence of overpricing, consisting of the report
of the Special Audit Team and the testimony thereon of Bermudez, constitutes
hearsay and, as such, is inadmissible against them. In addition, petitioner
Marquez points out that the finding of overpricing was not shown to a reliable
degree of certainty as required by COA Memorandum No. 97-012 dated March 31,
1997.[16]
In all, petitioners asseverate that, as the overpricing was not sufficiently
established, necessarily, the last criminal element of Section 3(g) of R.A. No.
3019 — a contract or transaction grossly
and manifestly disadvantageous to the government — was not proven.
Section 3(g) of R.A. No. 3019
provides:
Section
3. Corrupt practices of public officers—In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
x
x x x
(g) Entering on behalf of the Government,
into any contract or transaction, manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit thereby.
For
a charge under Section 3(g) to prosper, the following elements must be present:
(1) that the accused is a public officer; (2) that he entered into a contract
or transaction on behalf of the government; and (3) that such contract or
transaction is grossly and manifestly disadvantageous to the government.[17]
The
presence of the first two elements of the crime is not disputed. Hence, the
threshold question we should resolve is whether the walis tingting purchase contracts were grossly and manifestly
injurious or disadvantageous to the government.
We
agree with petitioners that the fact of overpricing is embedded in the third
criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of
this case, the subject contracts would be grossly and manifestly
disadvantageous to the government if characterized by an overpriced
procurement. However, the gross and manifest disadvantage to the government was
not sufficiently shown because the conclusion of overpricing was erroneous
since it was not also adequately proven. Thus, we grant the petitions.
In
criminal cases, to justify a conviction, the culpability of an accused must be
established by proof beyond a reasonable doubt.[18]
The burden of proof is on the prosecution, as the accused enjoys a
constitutionally enshrined disputable presumption of innocence.[19]
The court, in ascertaining the guilt of an accused, must, after having
marshaled the facts and circumstances, reach a moral certainty as to the
accused’s guilt. Moral certainty is that degree of proof which produces
conviction in an unprejudiced mind.[20]
Otherwise, where there is reasonable doubt, the accused must be acquitted.
In
finding that the walis tingting purchase
contracts were grossly and manifestly disadvantageous to the government, the
Sandiganbayan relied on the COA’s finding of overpricing which was, in turn, based
on the special audit team’s report. The audit team’s conclusion on the standard
price of a walis tingting was pegged
on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually
used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices
from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the
DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Piñas City. These documents were
then compared with the documents furnished by petitioners and the other accused
relative to
Notably,
however, and this the petitioners have consistently pointed out, the evidence
of the prosecution did not include a signed price quotation from the walis tingting suppliers of
On
the issue of hearsay, the Sandiganbayan hastily shot down petitioners’
arguments thereon, in this wise:
We
find no application of the hearsay rule here. In fact, all the witnesses in
this case testified on matters within their personal knowledge. The
prosecution’s principal witness, Ms. Bermudez, was a State Auditor and the
Assistant Division Chief of the Local Government Audit Office who was tasked to
head a special audit team to audit selected transactions of
The
reasoning of the Sandiganbayan is specious and off tangent. The audit team
reached a conclusion of gross overpricing based on documents which, at best,
would merely indicate the present market price of walis tingting of a different
specification, purchased from a non-supplier
of
As
pointed out by petitioner Caunan, not all of the contents of the audit team’s
report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez
could very well testify thereon since the conclusions reached therein were made
by her and her team. However, these conclusions were based on incompetent
evidence. Most obvious would be the market price of walis tingting in Las Piñas City which was used as proof of
overpricing in
We
are not unmindful of the fact that petitioners failed to conduct the requisite
public bidding for the questioned procurements. However, the lack of public
bidding alone does not automatically equate to a manifest and gross
disadvantage to the government. As we had occasion to declare in Nava v. Sandiganbayan,[22]
the absence of a public bidding may mean that the government was not able to
secure the lowest bargain in its favor and may open the door to graft and
corruption. However, this does not satisfy the third element of the offense
charged, because the law requires that the disadvantage must be manifest and
gross. After all, penal laws are strictly construed against the government.
With
the foregoing disquisition, we find no necessity to rule on the applicability
of our rulings in Arias and Magsuci to petitioner Marquez.
Nonetheless, we wish to reiterate herein the doctrines laid down in those
cases. We call specific attention to the
sweeping conclusion made by the Sandiganbayan that a conspiracy existed among
petitioners and the other accused, most of whom were acquitted, particularly
private individual Razo, the proprietor of Zaro Trading.
Our
ruling in Magsuci, citing our holding
in Arias, should be instructive, viz.:
The
Sandiganbayan predicated its conviction of [Magsuci] on its finding of
conspiracy among Magsuci, Ancla and now deceased Enriquez.
There
is conspiracy “when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.” Conspiracy is not presumed.
Like the physical acts constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. While conspiracy need not be
established by direct evidence, for it may be inferred from the conduct of the
accused before, during and after the commission of the crime, all taken
together, however, the evidence therefore must reasonably be strong enough to
show a community of criminal design.
x
x x x
Fairly
evident, however, is the fact that the actions taken by Magsuci involved the
very functions he had to discharge in the performance of his official duties.
There has been no intimation at all that he had foreknowledge of any
irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner
might have indeed been lax and administratively remiss in placing too much
reliance on the official reports submitted by his subordinate (Engineer
Enriquez), but for conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is not the product of
negligence but of intentionality on the part of cohorts.
In
Arias v. Sandiganbayan, this Court,
aware of the dire consequences that a different rule could bring, has aptly concluded:
“We
would be setting a bad precedent if a head of office plagued by all too common
problems—dishonest or negligent subordinates, overwork, multiple assignments or
positions, or plain incompetence—is suddenly swept into a conspiracy conviction
simply because he did not personally examine every single detail, painstakingly
trace every step from inception, and investigate the motives of every person
involved in a transaction before affixing his signature as the final approving
authority.
“x
x x x
“x
x x. 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. x x x. 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 of papers
that must be signed. There are hundreds of documents, letters, memoranda,
vouchers, and supporting papers that routinely pass through his hands. The
number in bigger offices or department is even more appalling.”[23]
WHEREFORE, premises considered, the
Decision dated August 30, 2007 and Resolution dated March 10, 2008 of the
Sandiganbayan in Criminal Case Nos. 27944, 27946, 27952, 27953, & 27954 are REVERSED and SET ASIDE. Petitioners Joey P. Marquez in G.R. Nos. 182020-24 and
Ofelia C. Caunan in G.R. Nos. 181999 and 182001-04 are ACQUITTED of the charges against them. Costs de oficio.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
|
MINITA V. CHICO-NAZARIO Associate
Justice |
PRESBITERO J. VELASCO, JR. Associate
Justice |
DIOSDADO M. PERALTA
Associate
Justice
A T T E S T A T I O N
I attest 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.
CONSUELO
YNARES-SANTIAGO
Associate
Justice
Chairperson,
Third Division
C E R T I F I C A T I O N
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
[1] Penned by Associate Justice Jose R. Hernandez, with Associate Justices Gregory S. Ong and Rodolfo A. Ponferrada, concurring; rollo (G.R. No. 182020-24), pp. 106-135.
[2]
[3] Used to be a municipality and became an incorporated city on February 15, 1998.
[4] Rollo (G.R. No. 182020-24), pp. 106-110.
[5] A department in the Commission on Audit tasked to monitor prices of goods procured by the different agencies of the government.
[6] (i) SM Sta. Mesa Branch, (ii) Welcome Supermarket (Welcome Rotanda), (iii) Shopwise Makati, (iv) Celina Store in Fairview Wet and Dry Market, (v) Edith Store (Parañaque), and (vi) Central Parañaque Construction Supply and General Merchandise.
[7] Rollo, p. 566.
[8] G.R. No. 81563, December 19, 1989, 180 SCRA 309.
[9] G.R. No. 101545, January 3, 1995, 240 SCRA 13.
[10] (i) Motion for New Trial and Motion for Reconsideration Ad Cautelam;
(ii) Supplement to the Motion for New Trial and Motion for Reconsideration Ad Cautelam;
(iii) Motion to Recuse;
(iv) Manifestation and Motion to Adopt Motion to Recuse;
(v) Motion to Reopen Proceedings; and
(vi) Motion for Reconsideration.
[11] Petition in G.R. Nos. 181999 and 182001-04, rollo, p. 22.
[12] Memorandum of petitioner in G.R. Nos. 182020-24; rollo, pp. 915-916.
[13] Supra note 8.
[14] Supra note 9.
[15] See RULES OF COURT, Rule 133, Sec. 2.
[16] Items 3.1 and 3.2 respectively read:
3.1) When the price/prices of a transaction under audit is found beyond the allowable ten percent (10%) above the prices indicated in par. 2.1 as market price indicators, the auditor shall secure additional evidence to firm-up the initial findings to a reliable degree of certainty.
3.2) To firm up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in par. 2.1 above have to be supported with canvass sheets and/or price quotations indicating:
a) The identities/names of the suppliers or sellers;
b) The availability of stock sufficient in quantity to meet the requirements of the procuring agency;
c) The specifications of the items which should match those involved in the finding of overpricing; and
The purchase/contract terms and conditions which should be the same as those of the questioned transaction.
[17] Dans, Jr. v. People, G.R. Nos. 127073 and 126995, January 29, 1998, 285 SCRA 504; Luciano v. Estrella, No. L-31622, August 31, 1970, 34 SCRA 769.
[18] Supra note 14.
[19] See Rule 131, Sec. 1, in relation to Rule 133, Sec. 2; Rule 115, Sec. 2(a); CONSTITUTION, Art. III, Sec. 14(2).
[20] Supra note 14.
[21] Rollo (G.R. Nos. 182020-24), p. 121.
[22] Nava v. Palattao, G.R. No. 160211, August 28, 2006, 499 SCRA 745, 772.
[23] Magsuci v. Sandiganbayan, supra note 9, at 17-19. (Citations omitted.)