G.R. No. 103501-03 - Dissenting Opinion

G.R. No. 103501-03, February 17, 1997,
♦ Decision, Francisco, [J]
♦ Dissenting Opinion, Davide, [J]
♦ Dissenting Opinion, Panganiban, [J]
♦ Dissenting Opinion, Puno, [J]
♦ Dissenting Opinion, Romero, [J]

LUIS A. TABUENA, PETITIONER, VS. HONORABLE SANDIGANBAYAN, AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

ADOLFO M. PERALTA, PETITIONER, VS. HON. SANDIGANBAYAN (FIRST DIVISION), AND THE PEOPLE OF THE PHILIPPINES, REPRESENTED BY THE OFFICE OF THE SPECIAL PROSECUTOR, RESPONDENTS.

Last 20 September 1996 in Regala v. Sandiganbayan,1 this Court erected a barrier to the constitutionally mandated task to recover ill-gotten wealth and in the punishment of those who dirtied their hands with it. This the Court did by impliedly granting immunity from civil suit or liability under an expanded interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-conspirators or dummies of certain parties in the acquisition of such wealth.

The acquittal decreed by the majority in the cases under consideration places another obstacle to such recovery and punishment by granting immunity from any criminal liability those who were ordered by then President Marcos to disburse government funds for alleged payment of obligations. This is the immediate impression anyone can get from the following sweeping pronouncement in the ponencia:2

In the case at bench, the order emanated from the office of the President and bears the signature of the President himself, the highest official of the land. It carries with the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. The fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia…

What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent with the quotation of the dissenting opinion of Mr. Justice Cruz in Development Bank of the Philippines v. Pundogar.3 That dissent cannot be used to justify the petitioner’s “obedience,” otherwise, this Court would thus overturn the majority opinion in the said case and adopt the dissent as the new rule.

Henceforth, all those similarly situated as the appellants or those who could simply provide any reason for their compelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA and its message for history would thus be obliterated. The acquittal then perpetuates a sad day for this Court – a day of mourning for those who fought against the dictatorship and of triumph and joy for the dictator’s collaborators, nominees, associates and friends.

My analysis of the ponencia indicates that the acquittal is based on the following:

1. The accused-appellants merely acted in obedience to an order by a superior for some lawful purpose; hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal Code.

2. Even granting that the order was not for a lawful purpose, they acted in good faith.

3. Their basic constitutional right to due process was violated by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves.

The ponencia admits that the appellants did not raise as an issue the Sandiganbayan’s violation of their right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of the violation “as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not”4

First, there is no showing at all that the extensive participation by the Justices of Sandiganbayan in questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have only exercised one of the inherent rights of a judge in the exercise of judicial function. What this Court stated eighty-three years ago in United States v. Hudieres5 needs repeating:

It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in propounding these questions was to endeavor as far as possible to get the truth a to the facts to which the witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides is too well established to need discussion. The trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material fact upon which the judgement of the case should turn. So in a case where a trial judge sees that the degree of credit which he is to give the testimony of a given witness may have an important bearing upon the outcome, there can be no question that in the exercise of a sound discretion he may put such questions to the witness as will enable him to formulate a sound opinion as to the ability or willingness of the witness to tell the truth. The question asked by the trial judge in the case at bar were in our own opinion entirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are inclined to agree with counsel that some of the observations of the trial judge in the course of his examination might as well have been omitted, there is no reason whatever to believe that the substantial rights of the defendants were in anywise prejudiced thereby.

The appellants themselves did not find any impropriety in the conduct of the Justices, or that if they did find nothing therein to prejudice their right to due process is best proven by their failure to assign it as error.

Second, even granting arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped from raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the appellants were it to give them the premium for their torpor and then reward them with acquittal. Such waiver is conclusively proven in these cases. From the quoted portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or cross examination) of the witnesses. Nothing could have prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the matter.

In our jurisdiction, rights maybe waved unless the waiver is contrary to law, public order, public policy, morals, or good customs, or is prejudicial to a third person with a right recognized by law.6

In People v. Donato,7 this Court made the following statement on what rights may be waived:

x x x the doctrine of waiver extends to rights and privileges of any character, and, since the word ‘waiver’ covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringed on the rights of other, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquish without infringing on any public right, and without detriment the community at large.x x x

Although the general rule is any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in the derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes in the rights of others, or would be against public policy or moral in the public interest maybe waived.

While it has been stated generally that all personal rights conferred by statute or guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver.8

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be.

It is “competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will..10

This court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures;11 the right to counsel and to remain silent;12 and the right to be heard.13

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12 (1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states:

x x x These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived.ᇈWᑭHIL It is right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to third person with a right recognized by law.

In the cases below, the perceived violation, if at all existed, was not of the absolute totality of due process, but more appropriately of the right to an impartial trial, which is but an aspect of the guarantee of due process.14 I submit that the right to an impartial trial is waivable.

I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in Article 11 of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of President Marcos can by no means be considered “lawful” order to pay P55 Million to the PNCC as alleged partial payment of the MIAA’s account to the former. The alleged basis of such memorandum is the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even conforms the absence of any factual basis for the order of payment of P55 Million:

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million, thus:

At the same time, PNCC has potential escalation claims amounting to P99 million in the following states of approved/evaluation:

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency’s approval for a deferment of the repayment of PNCC’s advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of fundings.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

If Ongpin’s memorandum is given full faith, it is clear that PNCC’s “accomplishment billings” for work accomplished, including accomplishments on the “supplemental contracts” (whose authority therefor was just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only P4.5 million.

However, in view of the approval by President Marcos of Ongpin’s request “for deferment of the repayment of PNCC’s advances to extent of 30 million,” only P63.9 million of PNCC’s advances was to be deducted from the accomplishment billings of P98.4 million. The net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpin’s Memorandum, they would only be for that amount (P34.5 million). The Order of then President Marcos to withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no factual and legal basis and was thereful unlawful.

Being responsible accountable officers of the MIAA, they were presumed to know that, in light of “the undeferred portion of the repayment” of PNCC’s advances in the amount of P63.9 million, the MIAA’s unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the payment of contractual obligations. First and foremost there were the submission by the PNCC of its claims with the required supporting documents and the approval of the claims by the appropriate approving authority of MIAA. When the President Marcos ordered immediate payment, he should not have been understood as to order suspension of the accepted budgeting, accounting and auditing rules on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he was reported to be and even projected himself as, a “faithful” advocate of the rule of law. As a matter of fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any planned actions or activities to give the latter the façade or semblance of legality, wisdom, or propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to order the money. There was no way for Tabuena to entertain any fear that disobedience to the order because of its lawfulness or delay in the execution of the order due to compliance with the requirements would cause his head or life. He offered no credible evidence for such fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end of the latter’s regime and even beyond only proved a loyalty not based on fear but on other considerations.

Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous. He has not shown any evidence that what he did was the usual practice in his office.

What happened in this case showed the appellants’ complicity as principal by direct participation in the malversation of the MIAA’s funds. The appellants should, therefore, be thankful to the Sandiganbayan for holding them liable therefor only through negligence.