Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 12 2005.

G.R. No. 165978 (Carlos P. Doble vs. Hon. Sandiganbayan, First Division, Hon. Simeon V. Marcelo, in his capacity as Ombudsman, the Special Panel of Prosecutors, headed by Prosecutor Dennis M. Villa-Ignacio; and representing the private complainants are Suficio O. Tagud, Jr., Plunderwatch, Bagong Alyansang Makabayan (Bayan), Kairos Philippines, Equal Justice for all Movement, Citizens National Network against Poverty and Corruption, Council on Philippine Affairs (COPA), Anakbayan, Gabriela, Concerned Lawyers for Moral and Effective Leadership (CLAMOR), Confederation for Unity, Recognition, Advancement of Government Employees (COURAGE), Ngayon na Bayan Crusaders, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), KATAPAT and OUSTER.)

The instant petition assails the Resolution of the Sandiganbayan dated 16 April 2004 denying petitioner's Motion to Quash Information filed against him for violation of Section 3(e) of Republic Act No. 3019 (R.A. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act, and the Resolution dated 30 September 2004 denying petitioner's Motion for Reconsideration.

The complaint in OMB-C-C-02-0667-J and supplemental complaint in OMB-C-C-03-0001-A were instituted by private respondent Sulficio Tagud, Jr., a former member of the Board of Directors of the Public Estates Authority (PEA), against herein petitioner and the other members of the Board of Directors and officers of PEA, auditors of the Commission on Audit, and Jesusito D. Legaspi, President of J.D. Legaspi Construction, for the alleged overpricing of the President Diosdado Macapagal Boulevard Project in the amount of more than P600 million pesos. Petitioner and his co-accused purportedly misrepresented the contract cost to be P584 million when it was only P298 million in order to bring up the adjustments or overruns to the allowable exemptions under the law.

The complaints alleged that the accused conspired to favor J.D. Legaspi Construction, one of the bidders/contractors invited to bid. No re-bidding was allegedly conducted despite the reduction in the scope of work of J.D. Legaspi Construction. Furthermore, the PEA management subsequently requested the PEA Board for the appropriation of funds for variation orders nos. 1, 2, 3, 4 and 5 supposedly for price adjustments and overruns and cost escalations.

On 4 July 2003, petitioner filed an Omnibus Motion to Determine Probable Cause and to Quash Information. The Sandiganbayan with the conformity of petitioner treated his Omnibus Motion as a motion for reconsideration/reinvestigation, and the prosecution was directed to resolve the same within thirty (30) days from 3 July 2003, together with the motions for reconsideration filed by his co-accused.

In a consolidated Resolution dated 1 September 2003, the special panel of prosecutors denied the motions for reconsideration filed by the accused.

On 19 November 2003, petitioner filed before the Sandiganbayan a Motion to Quash the Information filed against him on the following grounds:

1. There is lack of probable cause where the prosecution is under an invalid implementing rules and regulation for lack of publication and undue delegation of power.

2. Contrary to the intransigent stand of the Ombudsman, the findings of the Special Audit Team of the Commission on Audit found no sufficient basis to support the allegation of overpricing, thus effectively negating its position that there was undue injury to the government.

3. The Ombudsman misunderstood the financial mechanism of PEA in its appropriation and disbursement of funds.

4. The Ombudsman erred when it ruled that PEA failed to comply with the mandatory conditions imposed by the President. The COA report very clearly stated that the act or omission was a result of a misconception of a contentious and difficult question of law.

5. The Ombudsman failed to establish movant Doble's personal and deliberate participation in the alleged conspiracy.

Petitioner argued that since the provision of the law that deals with government infrastructure projects, i.e., P.D. 1594, was a constitutive element of Section 3(e) of R.A. 3019 under which he was prosecuted, a declaration of the unconstitutionality of P.D. 1594 would affect the very core of the information which should cause the dismissal thereof. He posited that since at the time then President Ferdinand Marcos enacted P.D. 1594 he merely possessed limited legislative powers, his power as such could only be exercised in two specified occasions, namely: (1) when in his judgment a grave emergency existed or there was a threat or imminence thereof and (2) when the interim Batasang Pambansa or the regular National Assembly failed or was unable to act adequately on any matter for any reason that in his judgment requires immediate action. Petitioner then theorized that there was no such emergency and urgency sufficient for President Marcos to exercise his extraordinary powers at the time he enacted P.D. 1594. Assuming arguendo, that there was such an emergency and urgency, petitioner argued that President Marcos could not validly delegate to his subordinates the power to issue the Implementing Rules and Regulations of P.D. 1594.

In its assailed Resolution, the Sandiganbayan denied petitioner's Motion to Quash the Information. The Sandiganbayan ruled that it is unnecessary to delve into the constitutionality of P.D. 1594. Absent a clear and unmistakable showing of breach which is anchored on unsubstantiated factual allegations, the presumption of constitutionality of the legislative act of the former President logically stands.

Hence, this petition.

The petition must as it is hereby dismissed.

The well-established rule is that the Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.[1]

Furthermore, the issue of constitutionality of a statute, executive order or proclamation must be the very lis mota presented in a case. By this term is meant a dispute which has arisen upon a point or question which afterwards forms the issue upon which legal proceedings are instituted.[2] The Court does not decide questions of a constitutional nature unless that question is properly raised and presented in an appropriate case and is necessary to its determination.[3]

The Information filed against petitioner and his co-accused alleges that petitioner and his co-accused —

. . . did then and there, willfully, unlawfully and criminally give unwarranted benefits, advantage and preference to accused JESUSITO D. LEGASPI, through the commission of numerous illegal acts all pertaining to the President Diosdado Macapagal Boulevard Project, such as (but not limited to) the bidding out of the said project and illegally awarding the same to accused JESUSITO D. LEGASPI's J.D. Legaspi Construction and approving the award of the project to, as well as the Construction Agreement with, J.D. Legaspi Construction despite the lack of compliance with the mandatory requirements and procedure for bidding, even if no funds are yet available to finance the project, without the requisite certificate of availability of funds and without complying with the mandatory conditions imposed by the Office of the President for the approval thereof, per Memorandum dated 29 January 2000 from the Office of the Executive Secretary, Malacañang, and approving/allowing several improper variation/change orders and overruns to be implemented without the requisite presidential approval and the appropriate funds, recognizing, affirming and causing the implementation of the just-mentioned void contract, allowing and paying or causing the allowance and payment of several claims of accused JESUSITO D. LEGASPI for initial contract price, contract price adjustment variation orders, overruns and other claims even when the same were clearly improper, illegal and without the requisite presidential approval, thereby, paving the way for accused JESUSITO D. LEGASPI to claim and receive undue payments from the Government totaling millions of pesos in improper overprice, thereby causing undue injury and grave damage to the government in the aggregate amount of at least FIVE HUNDRED THIRTY TWO MILLION NINE HUNDRED TWENTY-SIX THOUSAND FOUR HUNDRED TWENTY AND 39/100 (P532,926,420.39) more or less, constituting the total illegal overprice paid to accused JESUSITO D. LEGASPI for the subject Project.[4]

A careful reading of the Information filed against petitioner and his co-accused would readily reveal that they were not charged under P. D. No. 1594 or its Implementing Rules and Regulations but for violation of Section 3(e) of R.A. No. 3019.

As correctly pointed out by the prosecution, the guilt of the accused hinges on whether he acted with evident bad faith and manifest partiality in causing undue injury to the government and/or in giving unwarranted benefits to the private contractor. The constitutionality of P.D. 1594 and its Implementing Rules and Regulations is immaterial and need not necessarily be resolved for purposes determining the guilt or innocence of the accused.

Thus, the Sandiganbayan committed no grave abuse of discretion in issuing the assailed Resolution dated 16 April 2004, denying petitioner's Motion to Quash the Information, and its Resolution dated 30 September 2004 denying petitioner's Motion for Reconsideration of the 16 April 2004 Resolution.

WHEREFORE, the instant Petition is hereby DISMISSED for lack of merit. Costs against petitioner.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court

[1] Dumlao v. Comelec, G.R. No. L-52245, January 22, 1980, 95 SCRA 392.

[2] BLACK’S LAW DICTIONARY, Sixth Edition, p. 932.

[3] Lagmay v. Court of Appeals, G.R. No. 84929, July 23, 1991, 199 SCRA 501, Filipinas Marble Corporation v. Intermediate Appellate Court, 226 Phil. 109 (1986); Dumlao v. Commission on Elections, G.R. No. L-52245, January 22, 1980, 95 SCRA 392; People v. Vera, 65 Phil. 56 [1937].