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.

Obedience, rightly directed, is a virtue well-worth cultivating - obedience of children to their elders; obedience to lawful authority by citizens; obedience to the behests of what is highest and finest in one's self.

Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from authoritative figures whose slightest whisper and scribbled orders are law, this can lead man to perdition.

In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal directives from "above" is easily corrupted and can only bring disrepute to the entire system. In this context, can subordinate public officials like herein petitioner escape criminal prosecution by the simple expedient of claiming that they were merely following orders from a superior? This disquisition will demonstrate that certain requisites are indispensable before anyone can claim immunity from penal sanctions for seemingly justifiable acts.

This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have overlooked or glossed over vital circumstances which make the conclusion embodied herein irresistible.

Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged malversation of a total of P55 million from the public funds of the Manila International Airport Authority (MIAA). The informations filed on three separate dates in 1986 accused them, as accountable officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-existent obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they misappropriated and converted for their personal use and benefit.

In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later , a written order from no less than the former President Ferdinand E. Marcos. In a Presidential Memorandum (the Marcos Memorandum) dated January 8, 1986, the latter allegedly commanded petitioner Tabuena, in his capacity as General Manager of MIAA, " to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said company mentioned in a Memorandum of (Trade and Industry) Minister Roberto Ongpin to this Office dated January 7, 1985…."1 (The Ongpin Memorandum). On the assumption that MIAA indeed had a due and demandable debt to PNCC for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M. Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager, respectively, made three withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P25 million, then on January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million. The three manager's check covering the withdrawals were all applied for and issued in the name of Tabuena. Curiously, while the checks were issued by the MIA extension office of PNB, they were encashed at the Villamor airbase branch. Each time the cash was delivered directly to the office of Marcos' private secretary, Fe Roa-Gimenez. The latter issued a receipt2 signed by her but only after the last delivery. No PNCC receipt was ever given to petitioners.

On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners guilty.ℒαwρhi৷

Petitioners raise two issues, namely, that they were charged with intentional malversation (which they labelled as malversation by direct appropriation) but were convicted of malversation by negligence, and that they acted in good faith.

As regards the first argument, the variance between the crime charged and that proved by the prosecution is immaterial, as stated by the ponente.

As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates criminal intent. Petitioners claim that when they committed the acts complained of, they were merely following then President Marcos' oral and written directives. They rely on Article 11, paragraph 6 of the Code which states, inter alia:

"ART. 11. Justifying circumstances. - the following do not incur any criminal liability:

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose."

For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the means used by the subordinate in carrying out such order must itself be lawful.3

In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's fund, thus ostensibly meeting the first requirement but not the others. For there is a qualification which significantly changes the picture. The payment was to be in cash and immediately made through the Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due and demandable obligation; it is another to make such payment to someone other than the lawful obligee and worse, when the subordinate is forced to breach official channels to comply with the order.

It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating procedures in following the President's order. As observed by the Sandiganbayan, "there were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million." Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No. 1445), while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the Administrative Code of 19874 and Sec. 344 of the Local Government Code of 1991.5 To compound the duplicity, the checks, issued by one branch of PNB were encashed in another - all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior approval or authority of the Commission on Audit.6 Finally, the last two payment were made despite the non-issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even issued by the PNCC, the legal Obligee and avowed recipient of the money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the alleged contract between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the mystery, the money was even delivered to her office, not in Malacanang, but at nearby Aguado Street. The entire process, done with haste and with a total disregard of appropriate auditing requirements was , in the words of petitioners themselves, "an extraordinary transaction,"7 admittedly "out of the ordinary" and "not based on normal procedure."8

Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a complex process, unlike the basic over-the-counter transactions that they purportedly made it to appear. Far from being lawful, the payment of the alleged obligation of MIAA to PNCC through the Office of the President may at best be labelled as irregular. "The term 'irregular expenditure' signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or practices that have gained recognition in law. Irregular expenditures are incurred without conforming with prescribed usages and rules of discipline. There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an irregular expenditure….."9

Specifically, disbursement of public funds must conform with the following principles:

Assuming arguendo that petitioners acted in good faith in following the President’s order, undeniably, they were negligent as found by the trial court. The instructions in the President’s order should have sufficed to put any accountable head of an office, Tabuena included, on guard. Why was he being required to pay MIAA’s obligation to the PNCC, if needed there were any, and not directly to he latter but through the Office of the President? Why was the entire transaction not coursed through proper channels, viz., the accounting office? Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only safer, faster, and more convenient, but in accord with auditing requirements?

Obedience to a superior’s order does not connote blind obedience. Being the general manager of such a mamoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by verifying with the proper official under him whether the agency had indeed an outstanding indebtedness to the PNCC before ordering any payment to be made through official channels. Such routines measures were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.

As evidence later revealed, PNCC’s receivables from MIAA amounted to P102,475,392.35, the bulk which comprised escalation charges. From that time until Corazon C. Aquino assumed the Presidency, a total of P44.4 million was paid, but only P2 million of this in cash; the rest was set off or compensated against other debts, or assigned to other creditors. The financial records did not show that PNCC received any sums of money from MIAA during the period January to June, 1986 when the block payments were being made in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was an assignment of P23 million actually made by MIAA in favor of PNCC.18

Even the Ongpin memorandum, which is the basis of the Marcos Memorandum, failed to show where the amount of P55 million cropped up. The former contained, inter alia, the following matters: (a) it requested the President’s approval of Minister Ongpin’s recommendation “for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP…”;19 (b) it informed the President that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference between the accomplishment billings on the MIADP totalling to P98.4 million and PNCC’s advances of P93.9 million; and (c) it informed the President that PNCC had potential escalation claims against MIAA in the amount of P99 million, “potential” because they have yet to be approved by the Price Escalation Committee (PEC).

The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of the Marcos Memorandum is MIAA’s balance sheet,20 which indicates its liability to PNCC as of December 31, 1985 to be P27,931,000.00.21 How can petitioners claim to have acted in good faith when they withdrew the P55 million from MIAA’s fund knowing fully well that the amount due PNCC was only a little over half the amount, as shown by their own evidence?

The ponencia states that “. . . . the good faith of Tabuena . . . . was not at all affected even if it later turned out that PNCC never received the money.”

It is precisely our thesis that Tabuena did not act in good faith in complying with the President’s orders because of the reasons aforestated, summarized as follows:

(a) The President’s order was “out of the ordinary” and “not based on normal procedure,” which would have entailed making an “extraordinary transaction,” as admitted by petitioners themselves. This proves that they were at the time they received the order, aware that paying MIAA’s supposed P55 million obligation to PNCC through the Office of the President in cash was questionable.

(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not even stop to think about the legality of the entire process even when he did not receive any kind of receipt for the first two deliveries of money worth P50 million. When he did get a receipt, it was not an official receipt from PNCC, the legal creditor, but from the President’s private secretary. It must also be noted that the cash was all delivered to Gimenez’ office at Aguado St., not ot her office at Malacañang.

(c) Tabuena breached official channels to procure the money. There was no vounchers not bills to authorize or support the disbursements. There was also no certificate of availability of funds. The payment was made in cash without COA’s approval, at a time when the ceiling for cash payments was merely P5,000.00. As stated earlier, no official receipt from PNCC supported the payment. The entire process was “done with haste and with a total disregard of appropriate auditing requirements.”

As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever “authority” she claimed to have emanated, not from the creditor PNCC but from the President. Petitioners were required by law to settle their indebtedness with PNCC directly, the Party whose in favor th eobligation was constituted.22 The only instance when such questionable payments could have been valid was if it had redounded to PNCC’s benefit, which was not proved at all in this case.23 As creditor, the PNCC was not even bound to accept payment, if any, from the President’s private secretary, the latter being a third person who had no interest whatsoever in the discharge of MIAA’s obligation.24

The ponencia states that the Marcos Memorandum was “patently lawful for no law makes the payment of an obligation illegal.”

This statement is premised on the existence of an established creditor-debtor relationship between the payor and the payee. In this, case, however, the obligor was being made to pay to a party other that the legal obligee when no novation of the obligation has taken place. How can such an arrangement be possibly accord with law?

The preceeding established facts clearly show that petitioners were remiss in discharging their duties as accountable officers. As correctly observed by the court a quo:

". . . (T)he Ongpin Memorandum could not justify Pres. Marcos’ memorandum of January 8, 1986; this in turn could not justify Luis Tabuena’s payment of P55 million to Fe Roa Gimenez.

. . . (T)he amount which could be payable by Tabuena in his capacity as the head of MIAA in January of 1986 could not be in excess of P27.931 million – until other claims had been duly approved. This approva, on the other hand, could not come from the President but from the Price Escalation Committee (PEC) before which, accoriding to the Ongpin Memorandum itself, these claims for escalation had been submitted for approval.

The PEC was not shown to have approved these amounts as of the time Tabuena made any of the withdrawals for P55 million.

Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAA’s funds. By this Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres. Ferdinand Marcos.

Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to received or issue acquittance for a debt in favor of the PNCC. Tabuena’s claim, therefore, that he delivered the P55 million to her is not properly accounting for P55 million.

In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the P55 million paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was incumbent upon him to show a receipt from or in behalf of PNCC. Tabuena has shown no receipt.

When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena was paying government funds to persons not entitled to receive those funds. He was therefore, guilty of malversation of those funds.

Tabuena says he has accounted for the money because he has told us where the money went. But to account, on more prolper use of the term, injects a sense of responsibility for the disposition of funds for which one is answerable.

So when one asks if Tabuena has accounted for the P55 million belonging to MIAa, the question really is whether accused Tauena disposed of the sum in a responsible manner consistent with his duty. The answer must be in negative.

Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC or to someone authorized by the PNCC to accepts payments for it. Neither Pres. Marcos not Fe Roa Gimenez are show to have been authorized to accept money for the PNCC nor to deliver money to the PNCC (or to any creditor of th MIAA for that matter). In fact, though Pres. Marcos may have been the Supreme Magistrate of the land and the chief enforcer of the law, the law neither authorized him to pay for the MIAA not to accept money for the PNCC.

Accused Tabuena’s statement therefore, that he represented overwhelming evidence of the delivery of the P55 million to Pres. Marcos’ private secretary does not prove that he has accounted for the money, that is, that he has properly disposed of that sum according to law.

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permited through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 million of public funds.”25

Time and again, this Court has deferred to the findings of fact of the trial court, owing its enviable position of having seent the physical evidence and observed the witnesses as they testified. We see no reason to depart now from this policy.

Tabuena was also personally accountable for the funds in his custody, being the head of a governmetn agency such as MIAA and discharging fiscal functions as such. In this regard, the Manual on Certificate of Settlement and Balances (Rev. 1993) (The Manual) states, inter alia:

"TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND PROPERTY

Government officials and employees, in the discharge of fiscal functions, shall ensure that all government resources are managed, expanded and utilized in accordance with law, rules and regulations and safeguard against loss or wastage thru illegal or improper disposition.

In the implementation of the above functions, they shall be guided by the following provisions:

26.1 Every officer of any government agency whose duties permit or require the possession or custody of government funds or property shall be accountable therefor and for safekeeping thereof in conformity with law.

The head of any agency of the government is immediately and primarily responsible for all government funds and properly pertaining to his agency.

Persons entrusted with the possession or custody of the funds or property under the agency head shall be immediately responsible to him without prejudice to the liability of either party to the government.

The head of any agency or instrumentality of the national government or any government-owned or controlled corporation and any other self-governing board or commission of the government shall exercise the diligence of a good father of family in supervising the accountable officers under his control to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and severally liable with the person primarily accountable therefor. x x x.

SECTION 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR GOVERNMENT FUNDS

29.1 Every officer accountable for government funds shall be liable for all losses resulting from the unlawful deposit, use, or application therof and for all losses attributable to negligence in the keeping of the funds.

29.2 Liability of Superior Officers. – A public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

29.5 Liability of Subordinate Officers. – No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors.

SECTION 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS.

30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor.

30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual budgetary measure shall be void. Every payment made in violation thereof shall be illegal and every official or employee authorizing or making such payment or taking part therein, and every person receiving such payment shall be jointly and severally liable for the full amount so paid or received.” (underscoring supplied)

The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly liable.

This is a misappreciation of the entire sense of the dissent. It must be borne in mind tha said reference was made after the conclusion was reached that Tabuena was indeed criminally liable for his acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when, as in this case, the latter arose from the former. Hence, the statement: “Tabuena was also personally accountable for the funds in his custody, . . .”

Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes exceptions to the grant of immunity from civil liability of a public officer for acts done in the performance of his official duties: (a) The preceding statement itself says that the acts must be done “in the performance of his official duties;” (b) Sec. 29.2 exempts him from civil liability, “unless there is a clear showing of bad faith, malice or gross negligence;” and (c) Sec. 29.5 states that “he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors.” The quoted provision have been once more underscored herein.

The ponencia futher states that “(t)here is no showing that Tabuena has anything to do whatsoever with the execution of the MARCOS memorandum.” But very clearly, the admitted facts show that it was precisely Tabuena who implemented or executed the said Memorandum.

The ponencia cites Acebedo where the accused was acquitted afterit was shown that it was actually the latter’s secretary who collected and converted the money. Tabuena’s case is starkly different, for her it was Tabuena himself who personally turned over the money to the President’s secretary. It was done with his full knowledge and consent, the obvious irregularity thereof notwithstanding.

In petitioner Peralta’s case, we again yield to the factual findings of the trial court. It said:

". . . . The question is wheter or not Peralta properly signed the third application for the issuance of a Manager’s Check drawn against the MIAA’s savings account with the Villamor Office of the Philippine National Bank.

At the time that accused Peralta signed the request for the issuance of a Manager’s Check, he was the Acting Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.

The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to seve as a counter check for the propriety of the disbursement.

While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to cisburse its funds, this authority was not absolute. It had to be for properly subsisting obligations and the disbursement had to be against funds existing for that purpose. This is one reason for the need of supporting documentation before disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo Peralta, as Financial Services Manager, to be co-signatories (sic): to particular instance, the existence of the balance to be covered by the manager’s check the application for which had been presented for his co-signature.

In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985. As finance officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date of the application for a manager’s check which he signed, two previous manager’s checks worth P25 million each had already been applied for and the total amount of P50 million had already been withdrawn….

It was only two weeks after these two withdrawals when Peralta, as Finance Service Manager, participated in the authorization for the disbursement of another P5 million. This last withdrawal brought up the total of withdrawals to P55 million for the payment of a P27.9 million obligation.

Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no way Peralta could disclaim the responsibility for the excessive withdrawals to the extent of P5 million thereof allegedly to pay that liability. There was no way Peralta could justify his co-signing the application for a manager’s check for P5 million on January 29, 1986.”

The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v. Pandogar to uphold his ponencia. Need we remind our respected colleague that the corroborative value of a dissenting opinion is minimal? Precisely, it supports a position contrary to, and obviously unacceptable to the majority.

Petitioners were found guilty of malversation by negligence which is possible even if the charge was for intentional malversation. This does no negate, however, their criminal liability; it merely declares that negligence takes the place of malice. Article 3 of the Code provides the rationale when it explicitly states that “felonies are committed not only by means of deceit but also by means of fault.”

The Sandiganbayan’s finding that petitioners converted and misappropriated the P55 million cannot simply be brushed aside upon’s petitioner’s claim that the money was delivered in good faith to the office of the President under the mistaken assumption that the President was entitled to receive the same. They rely on the case of People v. Fabian,26 which declared that “(g)ood faith in the payment of public funds relieves a public officer from the crime of malversation.” But the very same decision also cites Article 217 to the effect that malversation may be committed by an accountable public officer by negligence if he permits any other person to take the public funds or property in his custody. It is immaterial if petitioners actually converted or misappropriated MIAA’s funds for their own benefit, for by their very negligence, they allowed another person to appropriate the same.

The fact that no conspiracy was established between petitioners and the true embezzlers of the P55 million is likewise no moment. The crime of malversation, as defined under Article 217 of the Code,27 was consummated the moment petitioners deliberately turned over and allowed the President’s private secretary to take custody of public funds intended as payment of MIAA’s obligation to the PNCC, if obligation there was at all. That petitioner Tabuena who was then the General Manager of MIAA personally and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be etched in the minds of public officials that the underside of privileges is responsibilities.

As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the pretest of obeying a superior’s seemingly legitimate orders, their actuations can hardly be justified. To rule otherwise would set an alarming precedent where all that public officials who have unlawfully enriched themselves at the people’s expense and those accused of graft and corruption would have to exculpate themselves from any wrong doing would to be invoke Article 11, paragraph 6 of the Code, thus gaining instant immunity from criminal prosecution.

Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude power and authority but pay blind obeisance to orders of those higher up in the bureaucratic hierarchy regardless of the illegality, impropriety or immorality of such orders, would do well to internalize this prayer for national leaders delivered by former Senate President Jovito R. Salonga in Malacanang on November 24, 1996:

When they begin to think of how much power they can possess, help them to know the many things that are beyond their power – the change of season, sum and rain, moonlight and starlight and all the wonders of Your creation;

When they are led to believe that they are exempt from public accountability, help them to know that they are ultimately accountable to You, the God of truth and justice and mercy;

The ponencia makes the final observation that the limitations on the right of judges to ask questions during the trial were not observed by respondent court; that the three Justices who heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peralta – more than what the prosecutors and defense counsels propounded.

While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the member of the First Division of respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but likewise legally acceptable.

In the first place, even the ponente makes the observation that petitioners did not raise this matter as error. In other words, they did not fell prejudiced by the respondent court’s actuations; nor did they construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality violative of their right to due process.

Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system, like that obtaining in the Philippines, to question witness or parties themselves, and that of a judge in a jury trial. The bulk of jurisprudence used in the ponencia was decided in the United States, where the jury system is extensively utilized in civil as well as in criminal trials. In this regard, “(I)t has been noted that the opinion of the judge, on account of his position and respect and confidence reposed in him and in his learning and assumed impartiality, is likely to have great weight with the jury and such fact of necessity requires impartial conduct on his part. The judge is a figure of overpowering influence, whose every change in facial espression is noted, and whose every word is received attentively and acted upon with alacrity an without question.”28

Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs of partiality, he “is not, however, required to remain silent and passive throughout a jury trial;”29 he should, instead, “conduct a trial in an orderly way with a vies to eliciting the truth and to attaining justice between the parties.”30

Inasmuch as it is the jury which has the burden of meting our justice, it is acceptable for a judge in a jury trial to “ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard fairness and impartiality.”31 “Questions designed to clarify points and to elicit additional relevant evidence, particularly in a non-jury trial, are not improper.”32

The numerous questions asked by the court a quo should have been scrutinized for any possible influence it may have had in arriving at the assailed decision. The true test for the appropriateness or inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant was prejudiced by the trial court’s actions; otherwise, they would have raised this issue in the instant petition.

The ponencia states that he is “well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking “good faith”. Our position has been either misinterpreted or misread for we do not merely speak of “good faith”. In fact, our main trust is that such a breed of people who enriched themselves the expense of the public might handily use as an excuse or a justifying circumstance to escape liability their having obeyed the “lawful orders” of their superior under Article 11, paragraph 6 of the Revised Penal Code.

The ponente makes a plea towards the close of his decision, that we should not act impulsively in the instant case. “In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.”

In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless to say, under our system of laws, they must be meted out the corresponding penalty. We draw attention to the fact that nowhere in this dissent do we single out the so-called “malefactors of the Marcos Regime” alone. We addressed ourselves to all who commit venalities at the expense of the people, as defined and punished by law but who try to justify their actions by invoking the very law which they violated.

For the reasons stated above, I vote to affirm petitioners’ conviction by respondent court.