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]

EN BANC

[ G.R. No. 103501-03, February 17, 1997 ]

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

[G.R. NO. 103507. FEBRUARY 17, 1997]

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

DISSENTING OPINION

PANGANIBAN, J.:

In the main, majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted because they were merely obeying the order of then President Ferdinand E. Marcos to deliver “thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA’s account” with the Philippine National Construction Company. In their Dissenting Opinion, Justices Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under applicable Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just stress three more points:

(1) The defense of “obedience to superior’s order” as already obsolete. Fifty years ago, the Nazi war criminals tried to justify genocide against the Jews and their other crimes against humanity by alleging they were merely following the orders of Adolf Hitler, their adored fuehrer. However, the International Military Tribunal at Nuremberg in its Judgment dated October 1, 1946,1 forcefully debunked this Nazi argument and clearly ruled that (t)he true test x x x is not the existence of the order but whether moral choice was in fact possible.”

In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of moral choice, inter alia, as follows:2

"The fact that a person acted pursuant to an order of his government or of superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound to obey direct orders on pain of court martial and death at a time when their country was at war. Nonetheless, they were meted out death sentence by hanging or long-term imprisonments. In the present case, the accused are civilian officials purportedly complying with a memorandum of the Chief Executive when martial law had already been lifted and the nation was in fact just about to vote in the “snap” presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment ranging from seventeen years and one day to twenty years. Certainly a moral choice was not only possible. It was in fact available to the accused. They could have opted to defy the illegal order, with no risk of court martial or death. Or they could have resigned. They knew or should have known that the P55 million was to be paid for debt that was dubious3 and in a manner that was irregular. That the money was to be remitted in cold cash and delivered to the private secretary of the President, and not by the normal crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury.

(2) resurring this internationally discredited Nazi defense will , I respectfully submit, set a dangerous precedent in this country.1aшphi1 Allowing the petitioners to walk deprives this Court of the moral authority to convict any subaltern of the martial law dictator who was merely “following orders.” This ludicrous defense can be invoked in all criminal cases pending not only before this Court but more so before inferior courts, which will have no legal option but to follow this Court’s doctrine.4

(3) Mercy and compassion are virtues which are cherished in every civilized society. But before they can invoked, there must first be justice. The Supreme Court’s duty is to render justice. The power to dispense pardon lies elsewhere. Verily, the Constitution ordains a final conviction by the courts before the President can exercise his power to wipe away penalty.5 Such is the legal and natural precedence and order of things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and reforms his life deserves forgiveness and mercy.

I therefore vote to AFFIRM the assailed Sandiganbayan Decision convicting the petitioners of malversation.


Footnotes

1 41 AJIL 172, 221 (1947).

2 For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third Edition, p. 235-236.

3 Submitted before the Sandiganbayan was Memorandum of then Minister of Trade Roberto Ongpin dated January 7, 1985, stating that the MIAA had total account of P98.4 million due the PNCC. Subtracting however the “outstanding advances totalling P93.9 x x x will leave a net amount due to PNCC of only P4.5 million,” explained Mr. Ongpin. Even if the P30 million advances which Pres. Marcos is claimed to have authorized PNCC to retain, is added ti this “net amount due” of P4.5 million, the total would run up to only P34.5 million – still P20.5 million shy of the P55 million actually disbursed.

4 In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow “established laws, doctrines and precedents.” Hence, “once a case has been decide one way, then another case involving exactly the same point at issue should be decided in the same manner.” Tay Chun Suy vs. Court of Appeals, 299 SCRA 151, 163, January 7, 1994.

5 In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that Section 19, Article VII of the present Constitution prohibits the presidential grant of pardon unless there is “conviction by final judgment” of the accused.
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