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.

I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and righteousness happily intersecting each other. I am, however, constrained to write this brief dissent in view of the impact of the majority decision to our criminal justice system which many perceive leaves much to be desired.

It should be immediately stressed that petitioners were convicted of the crime of malversation by negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa). According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, lack of skill. Justice J.B.L Reyes explains the difference between a felony committed by deceit and that committed by fault in this wise: “x x x In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible."1

In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners’ good faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the majority should strive to show that petitioners did not commit any imprudence, negligence, lack of foresight or lack of skill in obeying the order of former President Marcos. This is nothing less than mission impossible for the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty as public officials. The evidence and their interstices are adequately examined in the dissent of Madame Justice Romero and they need not be belabored.

For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to aquit petitioners. It found as a fact that “ x x x Tabuena acted under the honest belief that the P55 million was due and demandable debt x x x .“ This court has never applied the doctrine of mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong,2 Mr. Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charge (e.g., in larceny animus furendi, in murder, malice, etc.), cancels the presumption of intent and works an acquittal, except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the evidenced showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of the petitioners screams from page to page of the records of the case. Petitioners themselves admitted that the payments they made were “out of the ordinary” and “not based on normal procedure.”

As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding a good faith The violation of auditing rules are too many yet the majority merely winks at them by ruling that petitioner Tabuena “ x x x did not have luxury of time to observe all auditing procedures of disbursement considering the fact that the Marcos Memorandum enjoined ‘immediate compliance’ with the directive that he forward to the President’s office the P55 million cash.” With due respect, I am disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no longer under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also ought to be obvious that the order for immediate compliance even if made by the former Presidentcannot be interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even the President can order the violation of our laws under any excuse whatsover. The first and foremost duty of the President is to uphold the sanctity of our laws. Thus, the Constitution requires the President to take an oath or affirmation where he makes the solemn pledge to the people: “I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. x x x.3 To be sure, the need for petitioners to make an immediate payment is really not that immediate. The facts shows that former President Marcos first called petitioner Tabuena by telephone and asked him to make the payment. One week after or on January 8, 1986, the former President issued a written memorandum reiterating the order to pay. Payments were made in three tranches – first on January 10, 1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took petitioner one month to comply with the Order. Given the personnel of petitioner Tabuena in his office, one month provides enough time to comply with the rules. In any event, petitioner did not request former President Marcos for additional time to comply with the rules if they felt in good faith that they need more time. Petitioner short-circuited the rules by themselves. Nothing in the Marcos Memorandum compelled them to disregard the rules. The Memorandum merely stated “Your immediate compliance is appreciated”. The language of the Memorandum was as polite as it could be. I fail to discern any dures in the request as the majority did.

The determination of the degree of participation that should be allowed to a judge in the questioning of a witness is a slippery slope in constitutional law. To a certain extent, I agree with the majority that some of the questions propounded by the justices of the respondent Court crossed the limits of propriety. Be that as it may, I am not prepared to conclude with certainty that the next and tone of the questions denied petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the basis of the evidence before us we cannot hold that we have plumbed the depth of prejudice of the justices and have unearthed their partiality. The more telling evidence against the petitioners are documentary in nature. They are not derived from the answers elicited by questions from the justices which the majority, sua sponte, examined and condemned as improper.

Finally, I can not but view with concern the probability that the majority decision will chill complaints against graft pending before the respondent Court. From the majority decision, it is crystalline that petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial flaws. The majority even quotes these inculpatory admissions of petitioner Tabuena, viz:4

"Q If it was for the payment of such obligation why was there no voucher to cover such payment? In other words, why was the delivery of the money not covered by any voucher?

"A The instruction to me was to give it to the Office of the President, your Honor.

"Q Be that as it may, why was there no voucher to cover this particular disbursement?

"Q Was that normal procedure for you to pay in cash to the office of the President for obligations of the MIAA in payment of its obligation to another entity?

"Q Did you file any written protest with the manner with which such payment was being ordered?

"Q Why were you not made to pay directly to the PNCC considering that you are the manager of MIA at that time and the PNCC is separate corporation, not an adjunct of Malacañang?

"A I was just basing it from the Order of the Malacañang to pay PNCC through the Office of the President, your Honor.ℒαwρhi৷

"A You agreed to the order of the President notwithstanding the fact that this was not the regular course of Malacañang was not the creditor?

"A I saw nothing wrong with that because that is coming from the President, your Honor.”

In effect, petitioners’ shocking submission is that the President is always right, a frightening echo of the antediluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has validated petitioners’ belief that the President should always be obeyed as if the President is above and beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of the gospels in constitutional law is that the President is powerful but not more paramount than the law. And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any man. Let us not bid goodbye to these sacrosanct principles.