DISSENTING OPINION
SERENO, CJ:
Given the records and pleadings in these cases, I register my dissent from the ponencia. Contrary to the ponencia's conclusion, I find that the prosecution has sufficiently alleged and established conspiracy in the commission of the crime of plunder involving, among others, petitioners Gloria Macapagal Arroyo (Arroyo) and Benigno B. Aguas (Aguas). I therefore find no grave abuse of discretion in the Sandiganbayan rulings, which denied petitioners' demurrers and motions for reconsideration.
In sum, my strong objection to the Majority Opinion is impelled by at least five (5) doctrinal and policy considerations.
1. The ponencia completely ignores the stark irregularities in the Confidential/Intelligence Fund (CIF) disbursement process and effectively excuses the breach of budget ceilings by the practice of commingling of funds;
2. The ponencia retroactively introduces two additional elements in the prosecution of the crime of plunder - the identification of a main plunderer and personal benefit to him or her - an effect that is not contemplated in the law nor explicitly required by any jurisprudence;
3. The ponencia denies efficacy to the concept of implied conspiracy that had been carefully laid down in Alvizo v. Sandiganbayan;1
4. The ponencia creates an unwarranted certiorari precedent by completely ignoring the evidentiary effect of formal reports to the Commission on Audit (COA) that had been admitted by the trial court; and
5. The ponencia has grossly erred in characterizing the prosecution's evidence as not showing "even the remotest possibility that the CIFs of the PCSO had been diverted to either [Arroyo] or Aguas or Uriarte,"2 when petitioner Aguas himself reported to COA that P244 million of nearly P366 million controverted Philippine Charity Sweepstakes Office (PCSO) funds had been diverted to the Office of the President.
I
The prosecution has sufficiently alleged and established
conspiracy among the accused specifically petitioners
Arroyo and Aguas.
Preliminarily, the ponencia states that the prosecution did not properly allege conspiracy. I disagree.
Estrada v. Sandiganbayan3 (2002 Estrada) is instructive as to when the allegations in the Information may be deemed sufficient to constitute conspiracy. In that case, We stated:
[I]t is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by allegation of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.4
In the Information5 in this case, all the accused public officers were alleged to have "connived and conspired" in unlawfully amassing, accumulating and acquiring ill-gotten wealth in the total amount of P365,997,915 through (a) "diverting funds from the operating budget of PCSO to its [CIF] x x x and transferring the proceeds to themselves x x x for their personal gain and benefit; (b) "raiding the public treasury by withdrawing and receiving x xx and unlawfully transferring or conveying the same into their possession and control;" and (c) "taking advantage of their respective official positions x x x to unjustly enrich themselves x x x at the expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines."
Contrary to the ponencia, I find the allegations above consistent with Our pronouncement in 2002 Estrada,6 wherein conspiracy was successfully proven.
On another point, the ponencia declares that the prosecution failed to establish or prove conspiracy. A review of the records before us contradicts this position.
The prosecution's theory of the conspiracy to commit plunder is that PCSO funds were repeatedly siphoned off purportedly to fund activities which were not actually conducted - a 3-year process which could not have been accomplished without the indispensable acts of accused public officers who took advantage of their positions to amass nearly P366 million.
To appreciate the prosecution's theory of conspiracy, it is necessary to have a bird's eye view of the procedure for disbursement of CIF funds. The testimony before the Sandiganbayan of prosecution witness, Atty. Aleta Tolentino, Chairperson of the PCSO Audit Committee, provides the procedure briefly outlined below:
1. Provision or allotment of a budget for the CIF in the Corporate Operating Budget;7
2. Approval of the release of the CIF by the President of the Philippines;8
3. Designation of a disbursing officer who will have custody of the amounts received as cash advances for the confidential/intelligence (CI) operation;
4. Issuance of the check for the cash advance and disbursement thereof;
5. Liquidation of the CIF cash advances with the documents sent directly by sealed envelope to the COA chairperson or his/her representative;9 and
6. Clearing of accountability on the basis of the Credit Notice issued by the COA chairperson or his/her representative.10
The PCSO funds are comprised of the Prize Fund (PF), Charity Fund (CF) and the Operating Fund (OF). These have specific allotments from PCSO net receipts: 55o/o for prizes, 30% for charity and only 15% are allotted for operating expenses and capital expenditures.11 However, the CIF expenditures are by nature operating expenses. Therefore, the funding is and must be sourced from the Operating Fund.
Expenditures for prizes and charity follow strict disbursement, accounting, and liquidation procedures.12 In contrast, procedures for CIF expenditures are less strict because of their confidential nature.
Funds for confidential or intelligence projects are usually released as cash advances. Under COA rules, the liquidation documents therefor are sent in sealed envelopes directly to the COA chairperson (or his/her representative).
Given the prosecution's claim that PCSO funds were all commingled in one account, it is easier to see the significance of using the CIF route in diverting funds for personal gain. Utilizing that route minimizes the risks of discovery and the tracking of any anomaly, irregularity, or illegality in the withdrawal of funds.
The lax process of disbursement, accounting, and liquidation has been identified in the field of financial management as a possible, if not perfect, locus for fraud. In Fraud and Corruption Awareness Handbook, How It Works and What to Look For: A Handbook for Staff,13the World Bank states that fraud thrives in accounting systems with vulnerabilities.14
Fraud in financial management (FM) can take the form of either individuals taking advantage of system vulnerabilities to redirect funds for their own purposes, or working with other parties in a collusive set-up. xxx
Theft may range from very small amounts to sophisticated schemes involving large sums of money. More often than not, theft is performed in a manner that is premeditated, systematic or methodical, with the explicit intent to conceal the activities from other individuals. Often, it involves a trusted person embezzling only a small proportion or fraction of the funds received, in an attempt to minimize the risk of detection. The method usually involves direct and gradual transfers of project funds for personal use or diversion of payments for legitimate expenses into a personal account.15 (Emphases ours)
To my mind, the prosecution has successfully established the conspiracy scheme through the various irregularities in the CIF disbursement. These irregularities or red flags clearly spell a conspiracy to commit plunder when the amounts involved and the processes of requesting, approval, and liquidating the amounts are holistically considered.
The irregularities in the
approval, disbursement, and
liquidation of the funds
First, when Arroyo approved the requests, the PCSO was operating on a deficit.16 This situation means that it is irregular to authorize additional CIF when the fund source is negative. It is tantamount to authorizing the use of other PCSO funds - that of the Prize Fund and Charity Fund – for purposes other than those allowed by law.
In 2005, the PCSO had a deficit of P916 million.17 In 2006, the deficit was Pl,000,078,683.23, P215 million of which comprised the CIF expenses. For that year, the CIF budget was only P 10 million.18 Otherwise stated, the CIF expense exceeded the budget by P205 million.
On the other hand, the CIF disbursements amounted to P77,478,70519 in 2007 when the CIF budget was only P25,480,550.20 The CIF expenditure exceeded its budget by almost P52 million.
In 2008, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of P25 million in April and another P50 million in August.21 In its Corporate Operating Budget (COB) approved in May, the PCSO board allocated P28 million for the CIF.22 The actual disbursement amounted to P86,555,06023 so CIF expenditures were P58 million more than its allocated budget.24
Four times in 2009, Uriarte asked for and received approval from Arroyo for additional CIF in the total amount of P90 million - P50 million in January, P10 million in April, another P10 million in July and then P20 million in October.25 The board allocated P60 million in its Corporate Operating Budget approved in March.26 The actual CIF disbursement was P138,420,875,27 so the overspending was more than P78 million.
For 2010, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of Pl50 million in January.28 The board allocated P60 million for the CIF in its Corporate Operating Budget, which was approved in March. The CIF disbursement, as of June 2010, was Pl41,021,980,29 so overspending was by more than P81 million.
It is worth noting that from previous allocations of P10 million (P5 million each for the Office of the Chairperson and for the Office of the Vice-Chairperson), the CIF budget was gradually but significantly increased to P60 million in 2009 and 2010. Still, additional amounts were requested and authorized, reaching very significant CIF expenditures in the years when the PCSO was on a deficit, from 2004 to 2009. For a fuller context, the information is tabulated:
|
Year |
CIF Allocation in PCSO COB |
Actual CIF Disbursements |
CIF Disbursement Over Budget |
Additional CIF approved by Arroyo |
|
2006 |
P10,000,000 |
P215,000,000 |
P205,000,000 |
No information |
|
2007 |
P25,480,550 |
P77,478,705 |
P51,998,155 |
No information |
|
2008 |
P28,000,000 |
P86,555,060 |
P58,555,060 |
P75,000,000 |
|
2009 |
P60,000,000 |
P138,420,875 |
P78,420,875 |
P90,000,000 |
|
2010 |
P60,000,000 |
P141,021,98030 |
P81,021,980 |
P150,000,000 |
|
Total |
P183,480,550 |
P658,476,620 |
P474,996,070 |
P315,000,000 |
From the above, various irregularities can already be noted. The repeated and unqualified approval of additional CIF was made even when there were no more operating funds left. The requests were made and approved even before the Corporate Operating Budget was approved by the PCSO Board. And the amounts requested were significantly large amounts.
Despite the above facts and figures culled from the records, the ponencia remarks that commingling was far from illegal.31 The ponencia downplays the fact that there was no longer any budget when Arroyo approved the requests and considers the approval justified "considering that the funds of the PCSO were commingled into one account x x x." While the act of commingling may not by itself be illegal, the fact that it continued to be successfully maintained despite the COA advice to stop the practice means that it was deliberately used to facilitate the raid of government coffers. The majority should not have downplayed the viciousness of this practice. It is a critical red flag of financial fraud.
Second, the prosecution witness testified that for 2009, the recorded CIF expense was only P24,968,300, while actual vouchers for the CIF cash advances totalled P138,420,875.32 This discrepancy is another red flag.
The CIF cash advances remain as accountabilities of the special disbursing officers until liquidated. After they are properly liquidated and cleared by the COA chairperson or his/her representative, the Confidential/Intelligence expenses are then recorded as such.
The witness found, however, that receivables from Uriarte and Valencia for the CIF disbursements amounting to Pl06,386,800 and P90,428,780, respectively, were removed. These were instead recorded as expenses under the Prize Fund and Charity Fund.33 For 2008, another P63.75 million was obtained from the Charity Fund and the Prize Fund.34
These facts and figures are the most compelling evidence of a fraudulent scheme in this case - cash advances being taken as CIF expenses for withdrawal purposes and thereafter being passed off as PF and CF expenses for recording purposes. Apparently, the reason for taking cash advances from the common (commingled) account as CIF expenses was the relative ease of withdrawal and subsequent liquidation of the funds. On the other hand, the apparent purpose of recording the same cash advances in the books as PF and CF expenses was to avoid detection of the lack of CIF.
Red flags are again readily noticeable here in the form of missing funds and apparent misuse. Missing funds occur when cash appears to be missing after a "review of transaction documentation and financial documents," while apparent misuse happens when funds are spent on "personal or non-business-related" matters.35
The prosecution witness pointed out these red flags as follows:
The witness also related that she traced the records of the CIF fund (since such was no longer stated as a receivable), and reviewed whether it was recorded as an expense in 2008. She found out that the recorded CIF fund expense, as recorded in the corporate operating budget as actually disbursed, was only P21,102,000. As such, she confronted her accountants and asked them "Saan tinago itong amount na to?"The personnel in the accounting office said that the balance of the P86 million or the additional P21 million was not recorded in the operating fund budget because they used the prize fund and charity fund as instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31, 2008, signed by Elmer Camba, Aguas (Head of the Accounting Department), and Hutch Balleras (one of the staff in the Accounting Department), showed that this procedure was done.x x x
Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and Intelligence Fund Expenses," and was the basis of Camba in doing the Journal Entry Voucher. In the same document, there was a written annotation dated 12-31-2008 which reads that the adjustments of CIF, CF and IF, beneficiary of the fund is CF and PF and signed by Aguas.
The year 2009 was a similar case x x x.36 (Emphases ours)
From the foregoing, the participation of petitioner Aguas is established. He was intimately privy to the transactions and to the scheme. His participation was necessary for diverting the funds from the Prize Fund and the Charity Fund to underwrite the lack of Operating Fund for the CIF cash advances. He is thus proven to have committed an indispensable act in covering the tracks of Uriarte and Valencia, as will be explained further.
Third, witness Tolentino reported that for their respective cash advances, Uriarte and Valencia approved the vouchers certifying the necessity and the legality of the disbursement and thereafter authorized the payment thereof. They also co-signed with the treasurer the checks payable to their own names.
Thus, a situation in which the same person approved the disbursement and signed the check for payment to that same person is readily observed. This situation is irregular. In the usual course of things, payees do not get to approve vouchers and sign checks payable to themselves.
The witness further found that while Uriarte was authorized by the Board of Directors37 to be the Special Disbursing Officer (SDO), Valencia designated himself as the SDO for his own cash advances, upon the recommendation of COA Auditor Plaras.38 Under COA rules, the Board of Directors, not the Chairperson, has authority to designate SDOs.
The usual check-and-balance mechanism for the segregation of duties was therefore totally ignored. The disregard of that mechanism strongly indicates an intention to keep knowledge of the transactions to as few people as possible. In fraudulent schemes, risks of detection are avoided by keeping the conspiracy or connivance known to as few people as necessary. This is therefore another red flag.
Fourth, the accountabilities of Uriarte and Valencia for the CIF cash advances they availed of were removed from the records on the basis of the issuance of a Credit Notice. And this issuance of credit notice by COA CIF Unit Head Plaras is also marked by irregularities.39
The relevant testimony of prosecution witness Atty. Aleta Tolentino is summed up by the Sandiganbayan in its Resolution dated 5 November 2013 as follows:
As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice is a settlement or an action made by the COA Auditors and is given once the Chairman, in the case of CIF Fund, finds that the liquidation report and all the supporting papers are in order. In this case, the supporting papers and the liquidation report were not in order, hence, the credit notice should not have been issued. Further, the credit notice has to follow a specific form. The COA Chairman or his representative can: 1) settle the cash advance when everything is in order; 2) suspend the settlement if there are deficiencies and then ask for submission of the deficiencies; or 3) out rightly disallow it in case said cash advances are illegal, irregular or unconscionable, extravagant or excessive. Instead of following this form, the COA issued a document dated January 10, 2011, which stated that there is an irregular use of the price fund and the charity fund for CIF Fund. The document bears an annotation which says, "wait for transmittal, draft" among others. The document was not signed by Plaras, who was the Head of the Confidential and Intelligence Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas to submit the supplemental budget." This document was not delivered to PCSO General Manager J.M. Roxas. They instead received another letter dated January 12, 2011 which was almost identical to the first document, except it was signed by Plaras, and the finding of the irregular use of the prize fund and the charity fund was omitted. Instead, the word "various" was substituted and then the amount of P137,500,000. Therefore, instead of the earlier finding of irregularity, suddenly, the COA issued a credit notice as regards the total of P140,000,000. The credit notice also did not specify that the transaction has been audited, indicating that no audit was made.40 (Emphases ours)
In effect, Uriarte and Valencia were cleared of the responsibility to liquidate their CIF cash advances, thereby rendering the funds fully in their control and disposition.
The clearance made by COA Auditor Plaras, despite the presence of several irregularities, is another red flag - a species of approval override which ignores an irregularity with respect to payment.41
Finally, the purposes for the amounts were supposedly for the conduct of CIF activities as reflected in the accomplishment report but these activities were subsequently belied by testimonial evidence. The prosecution in this regard sufficiently established an aspect of the conspiracy scheme by showing that the final destination of the amount was linked to petitioner Arroyo and her Office as admitted by a co-conspirator.
In its Resolution dated 6 April 2015, the Sandiganbayan stated the following:
In an attempt to explain and justify the use of these CIF funds, Uriarte, together with Aguas, certified that these were utilized for the following purposes:
a) Fraud and threat that affect integrity of operation.
b) Bomb threat, kidnapping, destabilization and terrorism.
c) Bilateral and security relation.
According to Uriarte and Aguas, these purposes were to be accomplished through "cooperation" of law enforcers which include the military, police and the NBI. The second and third purposes were never mentioned in Uriarte's letter-requests for additional CIF funds addressed to Arroyo. Aguas, on the other hand, issued an accomplishment report addressed to the COA, saying that the "Office of the President" required funding from the CIF funds of the PCSO to achieve the second and third purposes abovementioned. For 2009 and 2010, the funds allegedly used for such purposes amounted to P244,500,000.
Such gargantuan amounts should have been covered, at the very least, by some documentation covering fund transfers or agreements with the military, police or the NBI, notwithstanding that these involved CIF funds. However, all the intelligence chiefs of the Army, Navy, Air Force, the PNP and the NBI, testified that for the period 2008-2010, their records do not show any PCSO-related operations involving any of the purposes mentioned by Uriarte and Aguas in their matrix of accomplishments. Neither were there any memoranda of agreements or any other documentation covering fund transfers or requests for assistance or surveillance related to said purposes. x x x As it stands, the actual use of these CIF funds is still unexplained.42 (Citations omitted and emphases ours)
These statements made by the anti-graft court are not without any legal or factual basis.
In the Formal Offer of Exhibits for the Prosecution dated 4 June 2014 in addition to the Exhibits previously offered in evidence on the Formal Offer of Exhibits for the Prosecution dated 26 February 2013, various pieces of documentary evidence were presented. Among them are the certifications made by Uriarte and Aguas. The most pertinent of these are the following:
|
Ex Exhibit "Z7-14" |
PCSO Matrix of Intelligence Accomplishments for the period of January 2009 to December 2009 dated March 9,2010 |
|
Exhibit "Z7-17" |
PCSO Matrix of Intelligence Accomplishments for the period of January 2009 to December 2009 |
|
Exhibit "Z7-42" |
Letter dated February 8, 2010 addressed to Reynaldo A. Villar, Chairman, COA, from Rosario C. Uriarte, showing the amount of P73,993,846.00 as the Total IF advanced and liquidated covering the period of July 1 to December 31, 2009 |
|
Exhibit "Z7-72" |
Letter dated February 8, 2010 addressed to Reynaldo A. Villar, Chairman, COA, from Sergio O. Valencia, PCSO Chairman, re: cash advances and liquidation made from the Intelligence/Confidential Fund in the amount of P2,394,654.00 |
|
Exhibit "Z7-84" |
Letter dated October 19, 2009 addressed to Reynaldo A. Villar, Chairman, COA, from Sergio O. Valencia, re: various cash advances and liquidation made from the Intelligence/Confidential Fund in the amount of P2498,300.00 |
|
Exhibit "A8 -16" |
Matrix of Intelligence Accomplishment period covered January 2010 to June 2010 dated 06.29.10 prepared by OIC, Manager, Budget and Accounting Department and Reviewed by Vice Chairman and General Manager dated 06.29.10 |
|
Exhibit "A8 -35" |
PCSO Matrix of Intelligence Accomplishment from January 2010 to June 2010 |
|
Exhibit "A8 -55" |
PCSO Matrix of Intelligence Accomplishment from January 2010 to June 2010 |
Exhibit "Y7 -68," the Accomplishment Report on the Utilization of the CIF of the PCSO, is most crucial. In this report, petitioner Aguas specifically stated:
But what is more pronounce (sic) in the disposition and handling of the CIF was those activities and programs coming from the Office of the President which do not only involved the PCSOs (sic) operation but the national security threat (destabilization, terrorist act, bomb scare, etc.) in general which require enough funding from available sources coming from different agencies under the Office of the President.
These pieces of documentary evidence were used as basis by the Sandiganbayan to conclude that the Office of the President had required and received the CIF funds of the PCSO to purportedly achieve the second and third purposes, i.e. bomb threat, kidnapping, destabilization and terrorism and bilateral and security relation, respectively. The testimonies of all the intelligence chiefs of the Army, Navy, Air Force, the Philippine National Police and the National Bureau of Investigation, however, all prove that for the period 2008-2010, there never was any PCSO-related or funded operation.
The conspiracy is thus sufficiently shown through the repeated approvals of Arroyo of additional CIF requests in the course of three years; the irregularities in the disbursement, accounting, and liquidation of the funds and the active participation therein of the accused; and finally, a showing that the Office of the President, which Arroyo controlled, was the final destination of the amounts. The CIF releases would not have been made possible without the approval of Arroyo. The funds could not have been disbursed without the complicity and overt act of Aguas. Uriarte (the one who received the amounts) was definitely part of the scheme. Aguas could not have cleared Uriarte (and Valencia) without the credit notice of Plaras. Thus, the connivance and conspiracy of Arroyo, Uriarte, Valencia, Aguas and Plaras are clearly established.
Relevant Plunder Law
provisions and jurisprudence
in relation to the case
Section 4 of the Plunder Law states:
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
For purposes of proving the crime of plunder, proof of each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth is not required. Section 4 deems sufficient the establishment beyond reasonable doubt of "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Estrada v. Sandiganbayan43 (2001 Estrada) provides an instructive discussion on "pattern" by using the provisions of the Anti-Plunder Law:
(A] 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him, follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.44
By "series," Estrada teaches that there must be at least two overt or criminal acts falling under the same category of enumeration found in Section 1, paragraph (d) of the Anti-Plunder Law, such as misappropriation, malversation and raids on the public treasury, all of which fall under Section 1, paragraph (d), subparagraph (1) of the law.45
With respect to "combination," Estrada requires at least two acts that fall under the different categories of the enumeration given by Section 1, paragraph (d) of the Plunder Law. Examples would be raids on the public treasury under Section 1, paragraph (d), subparagraph (1), and fraudulent conveyance of assets belonging to the National Government under Section 1, paragraph (d), subparagraph (3).
For ease of reference, Section 1 (d) is quoted below:
SECTION 1. . . . . (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
It is well to note, too, that conspiracy may be made by evidence of a chain of circumstances.46 It may be established from the "mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest."47
Our pronouncement in Alvizo v. Sandiganbayan48is instructive:
Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved. Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only. (citations omitted)49
The indispensable role of
petitioner Arroyo
In this regard, Arroyo's approval now assumes greater significance. Petitioner Arroyo's act - her repeated and unqualified approval - represented the necessary and indispensable action that started the "taking" process. The repeated approval of the requests in the course of three years is the crucial and indispensable act without which the amount of nearly P366 million could not have been plundered.
The ponencia rules that the prosecution failed to establish an overt act in furtherance of the conspiracy, either on the part of petitioner Arroyo or Aguas. It reasons that Arroyo's "mere approval"50 of Vice Chairman and General Manager Uriarte's requests for CIF did not make her part of any criminal conspiracy. On the other hand, as regards petitioner Aguas, the ponencia explains that "without GMA's participation, he could not release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to any conspiracy to commit plunder."51
These pronouncements, however, are perceptibly conflicted. Contrary to the pronouncements of the ponencia, Arroyo's manner of approving requests for additional CIFs, seven times in the course of three years, reveals the initial, indispensable act in the conspiracy to commit plunder. All the individual acts of the conspirators from the time the requests were approved until the moment the amounts were finally in the Office of the President indicate a complete whole. The intent to accumulate, amass, or acquire the PCSO funds is thus shown through the successive acts which at first appear to be independent but, in fact, are connected and cooperative. The chain of circumstances from the inscription of a mere "ok" of petitioner Arroyo on all the requests, up to the time the amounts were proven to be with the Office of the President as indicated in the accomplishment report (Exhibit "Y7-68") sufficiently proves the conspiracy to commit plunder.
In other words, Arroyo's approval of Uriarte's request cannot be simply downplayed as an innocent, legal, common and valid practice, as the ponencia would want, to exonerate Arroyo and Aguas. As aptly stated by the Sandiganbayan:
While it is true that Arroyo was never involved in the actual withdrawals/cash advances and release of the CIF or in their disbursements and its liquidation, Arroyo's approval of the grant and release of these funds facilitated Uriarte' s commission of the series of raids on PCSO coffers because without Arroyor's approval of the release, Uriarte could not have succeeded in accumulating the same.52
The power of control over the
PCSO of petitioner Arroyo
Given the totality of the circumstances discussed above, the prosecution's claim that Arroyo had known that Uriarte would raid the public treasury and misuse the funds the latter had disbursed, owing to the fact that the former President had the power of control over the PCSO, consequently appears to be correct.
The ponencia, however, misses this point and deliberately chooses to reject the prosecution's claim by stating that the doctrine of command responsibility does not apply since this case does not involve Arroyo's functions as Commander-in-Chief of the Armed Forces of the Philippines, or a human rights issue.
Contrary to that statement of the ponencia, however, the control of the President, not only over the PCSO, but also over the intelligence funds, is clearly mandated by Letter of Instruction No. (LOI) 1282 which sheds light on the role of the President when it comes to the expenditure of intelligence funds. LOI 1282 provides:
In recent years intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was often left unaware of how these funds had been utilized.
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the Presidents in order to avoid such duplication of expenditures as has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.
Full compliance herewith is desired. (Emphases ours)
The foregoing shows the nature of the control of the President over the intelligence funds. Unless Arroyo were to demonstrate in her defense, the responsibility and control of intelligence funds is direct and personal. The irregularities that transpired should therefore be within the knowledge of Arroyo as President of the Philippines, considering the fact that this case involves not one but repeated and unqualified approval of seven requests for release of CIF funds in a span of three years. Even the ponencia admits: "[w]ithout GMA's participation, he (Aguas) could not release any money because there was then no budget available for the additional CIFs."53
II
There is evidence to show that Uriarte, Arroyo, or Aguas
amassed, accumulated, or acquired ill-gotten wealth.
The ponencia states that "the Prosecution adduced no evidence showing that either Arroyo or Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any amount. It also did not present evidence, testimonial or otherwise, showing even the remotest possibility that the CIFs of the PCSO had been diverted to Arroyo, Aguas, or Uriarte."54 I must disagree.
As held by this Court in 2001 Estrada,55 the only elements of the crime of plunder are the following:
1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.
To emphasize, the prosecution, as previously discussed, presented evidence proving that Uriarte had made several cash advances. The Sandiganbayan quoted pertinent parts of its Resolution dated 5 November 2013 denying the petitions for bail in its Resolution dated 6 April 2015 denying the petitioners' demurrers. The Sandiganbayan stated therein that "Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646;" that "Uriarte looted government funds and appears to have not been able to account for it;" and that "the encashment of the checks, which named her as the 'payee,' gave Uriarte material possession of the CIF funds that she disposed of at will."56
From January 2008 to June 2010, the following cash advances were made:
| |
2008 |
2009 |
2010 |
Total |
|
CIF in the COB from the previous 10M CIF
in 2000 |
P28,000,000 |
P60,000,000 |
P60,000,000 |
P148,000,000 |
|
Additional CIF requested by Uriarte and granted by Arroyo |
P75,000,000 |
P90,000,000 |
Pl50,000,000 |
P315,000,000 |
|
Cash advances by Uriarte
Cash advances by
Valencia
TOTAL |
P81 ,698,060
P4,857,000
P86,555,060 |
P132,760,096
P5,660,779
P138,420,875 |
P138,223,490
P2,798,490
P141,021,980 |
P352,681,646
P13,316,269
P365,997 ,915 |
Again, in its 6 April 2015 Resolution, the Sandiganbayan considered the accomplishment report that was submitted by petitioner Aguas to COA. He said therein that the Office of the President required funding from the CIF funds of the PCSO to achieve the second and the third purposes, i.e., bomb threat, kidnapping, destabilization and terrorism; and bilateral and security relation.57
The act of amassing, accumulating, or acquiring CIF funds is thus evident. I agree with the Sandiganbayan' s pronouncement that Arroyo was rightly charged as a co-conspirator of Uriarte who received the cash advance for most of the amounts.58
It had been argued that receipt by the Office of the President is not necessarily receipt of the moneys by Arroyo. This however is a matter of defense, considering that Arroyo controls the Office of the President.
III
Personal benefit need not be proven.
The ponencia harps on the failure of the prosecution to allege in the Information and prove that the amount amassed, accumulated, and acquired was for the benefit of an identified main plunderer.
In particular, the ponencia leans on this Court's pronouncement that what is required in a conspiracy charge is not that every accused must have performed all the acts constituting the crime of plunder, but that "each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. "59
The ponencia also takes issue with the Sandiganbayan's statement that all that is required is that the public officer must have raided the public coffers, without need to prove personal benefit on the part of the public officer.
It cites the deliberations on Senate Bill No. 733, which later on became Republic Act No. 7080, to support the thesis that personal benefit on the part of the main plunderer, or the co-conspirators by virtue of their plunder, is still necessary. It then concludes that the prosecution failed to show not only where the money went but, more important, whether Arroyo and Aguas had personally benefited therefrom.
To begin with, the failure of the Information to name the main plunderer in particular is not crucial.
Section 2 of the Plunder Law does not require a mastermind or a main recipient when it comes to plunder as a collective act:
Section 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (Emphasis ours)
On the other hand, as can be seen from above, all that is required by Section 2 is that there is a public officer who acts in connivance with other offenders in a common design to amass, accumulate or acquire ill-gotten wealth, the aggregate amount of which is at least P50 Million. In other words, it is only the conspiracy that needs to be alleged in an Information.
In a conspiracy, the act of one is the act of all.60 Every conspirator becomes a principal even if the person did not participate in the actual commission of every act constituting the crime.61 Hence, it is not material if only Uriarte among all the accused is proven or shown to have taken material possession of the plundered amount.
It is thus not crucial to identify the main plunderer in the Information, so long as conspiracy is properly alleged and established. Identification in the Information of the main plunderer or the accused who acquires the greatest loot is immaterial, as it suffices that any one or two of the conspirators are proven to have transfen-ed the plundered amount to themselves.
In this case, there is ample evidence to show that Uriarte gained material possession of the amounts through cash advances facilitated by the repeated and unqualified approval of the requests by An-oyo and that a large portion of the amount received as cash advance was later certified by Aguas to have been used by the Office of the President.
What should be underscored at this juncture is that in prosecution for plunder, it is enough that one or more of the conspirators must be shown to have gained material possession of at least P50 million through any or a combination or a series of overt criminal acts, or similar schemes or means enumerated in the law and stated in the Information.
Our ruling in Valenzuela v. People,62 a theft case, is instructive:
The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. x x x To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.
x x x it is immaterial to the product of the felony that the off ender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquino's commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.
x x x x
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.
So it is with plunder. How the money was disposed of and who inevitably benefited the most therefrom among all the accused need not be shown for as long as material possession of at least P50 million was shown through the unlawful acts mentioned in the law.
I quote with approval the Sandiganbayan in its pronouncement, as follows:
It should be noted that in both R.A. No. 7080 and the PCGG rules the enumeration of the possible predicate acts in the commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse, misappropriation or conversion, without need of establishing gain or profit to the raider. Otherwise stated, once a "raider" gets material possession of a government asset through improper means and has free disposal of the same, the raid or pillage is completed. x x x
x x x x
It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646. x x x
x x x x
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to "misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic v. Sandiganbayan. The encashment of the checks, which named her as "payee," gave Uriarte material possession of the CIF funds which she disposed of at will.
x x x x
x x x These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete freedom to dispose of, but was not able to account for. (Emphases ours)
These matters considered, I find the pronouncements in the ponencia unwarranted.
IV
Arroyo and Aguas failed to show evidence that the
Sandiganbayan gravely abused its discretion.
Section 23 of Rule 119 states:
SECTION 23. Demurrer to Evidence. -After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)63 (Emphases supplied)
Jurisprudence has affirmed the rule, subject to the recognized exception that the denial of a demurrer may be the proper subject of a Rule 65 petition when the denial is tainted with grave abuse of discretion.64
Certiorari therefore is not the proper recourse against a denial of a demurrer to evidence. Under the Rules of Court, the appropriate remedy is for the court to proceed with the trial, after which the accused may file an appeal from the judgment rendered by the lower court.
Consequently, I am not prepared to impute grave abuse of discretion on the part of the Sandiganbayan. For reasons already discussed, the prosecution's evidence has satisfactorily established the elements of the crime of plunder.
Further, it must be emphasized that access to this Court through a Rule 65 petition is narrow and limited. That recourse excludes the resolution of factual questions.65 In the present case, the question of whether a denial of the demurrer to evidence is proper is factual in nature, as it involves a test of the sufficiency of evidence.
This Court has made a pronouncement on the nature of a demurrer to evidence in this wise:
[A d]emurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.66
What constitutes sufficient evidence has also been defined as follows:
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.67
When there is no showing of such grave abuse, certiorari is not the proper remedy. Rather, the appropriate recourse from an order denying a demurrer to evidence is for the court to proceed with the trial, after which the accused may file an appeal from the judgment of the lower court rendered after such trial. In the present case, I am not prepared to rule that the Sandiganbayan has gravely abused its discretion when it denied petitioners' demurrer to evidence. The Sandiganbayan found that the prosecution's evidence satisfactorily established the elements of the crime charged. There is nothing in the records of this case, nor in the pleadings of petitioners that would show otherwise.
Further, it must be borne in mind that the Sandiganbayan is a constitutionally-mandated tribunal designed to resolve cases involving graft and corruption. As such, it is the expert in the field of graft cases. On the other hand, this Court is not a trier of facts. The Sandiganbayan must be allowed to complete the entire course of the trial as it sees fit.
A final note. The crime charged, the personalities involved, the amount in question, and the public interest at stake - are considerations that should prompt us to demonstrate an even hand, conscious that the benefits of the Decision would cascade to the least powerful accused in all future proceedings. We must be mindful of the potentially discouraging impact of a grant of this particular demurrer on the confidence of trial courts.
Nearly P366 million of the People's money is missing. Direct documentary evidence whereby petitioner Aguas states that a large part of this or P244.5 million to be exact was diverted to the Office of the President under petitioner Arroyo was considered sufficient by the Sandiganbayan to require both petitioners herein to proceed with the presentation of their defense evidence. This cogent conclusion by the constitutionally-mandated court that has tried the prosecution's evidence on plunder cannot be overridden willy-nilly by this Court.
I further fully agree with Justice Marvic Mario Victor F. Leonen in his Separate Dissenting Opinion.
I therefore vote to DISMISS the petitions.
MARIA LOURDES P.A. SERENO
Chief Justice
Footnotes
1 454 Phil. 34 (2003).
2 Decision, p. 42.
3 G.R. No. 148965, 26 February 2002, 377 SCRA 538.
4 Id. at 563, 565.
5 Annex "D" of the Petition.
6 G.R. No. 148965, 26 February 2002, 377 SCRA 538.
7 Rollo (G.R. No. 220598), p. 466; see also COA Circular 92-385.
8 Id.; see also COA Circular 92-385 and Letter oflnstruction No. 1282 (1983).
9 Id. at 466-469; see also COA Circulars 92-385 and 2009-02.
10 Id. at 471.
11 See Section 2, Batas Pambansa Big. 42, An Act Amending the Charter of the Philippine Charity Sweepstakes Office.
12 See for example, PCSO's answers to Frequently Asked Questions on how to claim prizes and request for medical assistance (http://www.pcso.gov.ph/index.php/rrequently-ask-questions/) and its Prize Payment workflow chart (http://www.pcso.gov.ph/wp-content/uploads/2015/03/44.-functional-chart-treas.pdf), both accessed on 6 July 2016).
13 Fraud and Corruption Awareness Handbook, How it Works and What to Look For: A Handbook for Staff. http://siteresources.worldbank.org/INTDOII/Resources/INT_inside_rraud_text_090909.pdf (last accessed on 15 July 2016).
14 Id.
15 Id.
16 Rollo (G.R. No. 220598), p. 463; "They were working on a deficit from 2004 to 2009."
17 Id. at 464.
18 Id.
19 Id.
20 Id.
21 Id. at 157.
22 Id.
23 Id. at 466.
24 Or P10 million if the budget was P28 million.
25 Rollo (G.R. No. 220598), p. 158.
26 Id.
27 Id. at. 470.
28 Id. at 158.
29 Id. at 466.
30 For six months, up to June 2010 only.
31 Decision, p. 29.
32 Rollo (G.R. No. 220598), p. 476.
33 Id.
34 Id.
35 See note 13.
36 Rollo (G.R. No. 220598), p. 475.
37 Id. at 467.
38 Id.
39 Id. at 471.
40 Id.
41 See note 13.
42 Id. at 163-164.
43 421 Phil. 290, 515.
44 Id.
45 Id.
46 People v. Bergonia, 339 Phil. 284 (1997).
47 Salapuddin v. Court of Appeals, 704 Phil. 577 (2013).
48 454 Phil. 34 (2003).
49 Id. at 106.
50 Decision, p. 27.
51 Id. at 40.
52 Rollo (G.R. No. 220598), p. 502.
53 Decision, p. 40.
54 Id. at 42.
55 421 Phil. 290, 515.
56 Id. at 160; Sandiganbayan Resolution dated 6 April 2015, p. 31.
57 Id. at 163.
58 Rollo (G.R. No. 220598), p. 205; Sandiganbayan Resolution dated 10 September 2015.
59 Id.
60 U.S. v. Ipil, 27 Phil. 530 (1914).
61 Id.
62 G. R. No. 160188, 21June2007.
63 Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC, 3 October 2000.
64 People v. Go, G.R. No. 191015, 6 August 2014, 732 SCRA 216, and Alarilla v. Sandiganbayan, 393 Phil. 143 (2000).
65 Don Orestes Romualdez Electric Cooperative, Inc. v. NLRC, 377 Phil. 268 (1999).
66 Gutib v. CA, 371Phil.293 (1999).
67 Id. at 305.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
LEONEN, J:
With respect, I dissent.
Gloria Macapagal-Arroyo was a highly intelligent President who knew what she was doing. Having had an extraordinary term of nine (9) years as President of the Philippines, she had the experience to make her wise to many, if not all, of the schemes perpetrated within the government bureaucracy that allowed the pilferage of public coffers especially if these were repeated acts in ever-increasing amounts reaching millions of pesos. As President, it was her duty to stop-not abet or participate-in such schemes.
Gloria Macapagal-Arroyo, as a highly intelligent and experienced President, was aware that the power to increase the allocation and, therefore, disbursement of additional confidential and intelligence funds (CIF) of the Philippine Charity and Sweepstakes Office (PCSO) was hers alone. She was aware that this power was discretionary on her part. She did not have to approve any request for increase if it was not properly supported by adequate funds and the enumeration of specific activities.
She was also aware that, as President who occupied the highest office imbued with public trust, it was her duty under the Constitution and our laws that all the financial controls supported by audit observations be complied with to ensure that all funds be disbursed in a regular manner and for legitimate purposes. She knew that it was her duty to scrutinize if repeated requests for increases in these funds especially in ever-increasing amounts in the millions of pesos were done regularly and for legitimate ends.
After all, the President is the Chief Executive. Along with the awesome powers and broad discretions is likewise the President's duty to ensure that public trust is respected. The regular and legitimate allocation, disbursement, and use of funds-even confidential and intelligence fundsare matters of grave public trust.
It is not possible to assume that Gloria Macapagal Arroyo, the President of the Philippines, was not intelligent, not experienced and, at the time she held office, powerless to command the huge bureaucracy once under her control and to stop schemes that plundered our public coffers.
Increases in the allocation of CIF of PCSO were made possible only with the approval of Gloria Macapagal-Arroyo as President. Within the period from 2008 to 2010, there was not only one increase. There were several. The additional allocations for CIF were of increasing amounts running into the hundreds of millions of pesos. In 2010 alone, it was One Hundred Fifty Million Pesos (Pl50,000,000.00). The General Manager of the PCSO was able to disburse more than One Hundred Thirty Eight Million Pesos (P138,000,000.00) to herself. That disbursement remains unaccounted.
There was testimony that during these years, the PCSO was in deficit. Despite continued annual warnings from the Commission on Audit with respect to the illegality and irregularity of the co-mingling of funds that should have been allocated for the Prize Fund, the Charitable Fund, and the Operational Fund, this co-mingling was maintained. This made it difficult to ensure that the CIF will only be charged to the Operational Fund and that the Operational Fund would be kept at the required percentage of the revenues of the PCSO.
Gloria Macapagal-Arroyo, as President, approved the increases in the allocation and thus facilitated the disbursement of CIF despite the irregular co-mingling of funds. She approved the ever-increasing additions to the CIF of PCSO even without a showing that this government corporation had savings. She approved the additional allocation in increasing amounts on the strength of pro-forma requests without anything on record to show that she required explanation why the regular budget for CIF was insufficient. There was nothing to show that her repeated approval of ever-increasing amounts running into the millions of pesos was preceded with her inquiry as to why there was really a need to continue to increase the allocations and the disbursements in those amounts.
In 2008, 2009, and 2010, she approved increases in allocation for the CIF in millions of pesos even before the PCSO Board was able to approve its regular corporate budget (COB).
All these are supported by the evidence presented by the prosecution.
The scheme to amass and accumulate P365,997,9l5.00 in cash of CIF required the indispensable participation of the President in its approval and its actual disbursement in cash by the General Manager of the PCSO. The raid on public coffers was done in a series or combination of acts. The use of the funds was not properly accounted.
The Information filed against petitioners and their co-accused unequivocally charged them with conspiring to commit this type of plunder.
The demurrers to evidence of petitioners Gloria Macapagal-Arroyo and Benigno B. Aguas were properly denied as the prosecution's evidence showed that, as part of a conspiracy, they engaged in acts constituting plunder. The evidence demonstrated that they participated in a protracted scheme of raiding the public treasury aimed at amassing ill-gotten wealth.
It is of no consequence, as the ponencia harps on, that petitioners' specific and direct personal benefit or enrichment is yet to be established with unmitigated certainty. I echo the position taken by Associate Justice Estela Perlas-Bernabe: "raids on the public treasury"--as articulated in Section 1 (d) of Republic Act No. 7080, the law penalizing plunder—does not require "that personal benefit be derived by the [persons] charged."1
The rule on demurrer to evidence in criminal proceedings is clear and categorical.2 If the demurrer to evidence is denied, trial must proceed and, thereafter, a judgment on the merits rendered. If the accused is convicted, he or she may then assail the adverse judgment, not the order denying demurrer to evidence.
It is true that we have the power of judicial review. This power, however, must be wielded delicately. Its exercise must be guided by a temperament of deference. Otherwise, the competence of trial courts will be frustrated. We will likewise open ourselves to the criticism that we use our power to supplant our own findings of fact with those of the Sandiganbayan.
The extraordinary power of certiorari granted under Article VIII, Section I of the Constitution allows the exercise of judicial review of other branches and constitutional organs. With respect to courts under our supervision, the use of certiorari is covered by our Rules.
Certainly, we cannot grant certiorari and annul the denial of the demurrer to evidence when we ourselves, through our Rules of Court, prohibit the review or appeal of any denial of the demurrer to evidence.
The unique circumstances of this case provide us with the temptation of an inopportune, overzealous intervention by a superior court. We have the potential to frustrate the unique competence of specially designed public instrumentalities. In this case, it is the Sandiganbayan.3 This can similarly entail the undermining of mechanisms for exacting public accountability. In this case, it is for the criminal prosecution of what is possibly the most severe offense that public officers may commit, and of charges that are raised against the highest official of the executive branch of government.
This Court's principal task is to preserve the rule of law. Animated by this purpose, we should exercise the better part of restraint, defer to the original jurisdiction of the constitutionally mandated "anti-graft court,"4 and prudently bide for a more opportune time to involve ourselves with the factual and evidentiary intricacies of the charges against petitioners.
We should allow the Sandiganbayan to proceed with trial, weigh the evidence, and acquit or convict on the basis of its evaluation of evidence received over the course of several months. Only after final judgment and in the proper course of an appeal should we intervene, if warranted.
I
At the core of these criminal proceedings is the charge of conspiracy. Petitioners and their co-accused are charged with "conniving, conspiring and confederating with one another ... to amass, accumulate and/or acquire, directly or indirectly, ill-gotten wealth."5
This allegation of conspiracy is as pivotal to these proceedings as the basic requisites of the offense with which petitioners were charged.
Plunder is defined in Section 2 of Republic Act No. 70806 as amended:
Section 2. Definition of the Crime of Plumier; Penalties. – Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section I (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.
Estrada v. Sandiganbayan7 has clarified the elements that must be established for a successful prosecution of this offense:
Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus –
I. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasmy; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniaiy benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or unde1iaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.8
The definition of plunder in Section 2 makes explicit reference to Section l(d)9 of Republic Act No. 7080 and the six (6) "means or similar schemes" enumerated in it. It is these means which Section 2 's second element describes as "overt or criminal acts." The statutory text's use of the disjunctive "or" indicates a distinction between "overt" acts and "criminal" acts.
It is a distinction critical to appreciating the nature of the predicate means or schemes enumerated in Section 1 (d). While some of these means or schemes may coincide with specific offenses (i.e., "criminal" acts) defined and penalized elsewhere in our statutes, it is not imperative that a person accused of plunder be also shown to have committed other specific criminal offenses by his or her predicate acts. That there be an overt showing of engaging in such means or schemes suffices.
The Information filed against petitioners and their co-accused properly alleged the elements of plunder.
First, it stated that petitioners were public officers. Petitioner Gloria Macapagal-Arroyo (Former President Arroyo) is Former President of the Republic, and petitioner Benigno B. Aguas (Aguas) was former Budget and Accounts Manager of PCSO.10
Second, it alleged that the accused, in conspiracy with each other, transferred a total amount of P365,997,9 l 5.00 from PCSO's 2008 to 2010 Confidential and Intelligence Fund (CIF) in PCSO's accounts to their control and possession.11
Third, it stated that this diversion or transfer of funds was accomplished through three (3) of the six (6) acts enumerated in Section l(d) of Republic Act No. 7080:
(a) diverting, in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restriction, and conve1iing, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit;
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures; and
(c) taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and to the damage and prejudice of the Filipino people and the Republic of the Philippines.12
As expressly stated in the Information, the charge against petitioners is grounded on the assertion that there was a conspiracy.13 On this assertion, petitioners' claim that the Information, let alone the evidence presented, fails to substantiate the charged offense-as it allegedly fails to specify who among the accused amassed, accumulated, or acquired the amount of P365,997,9l5.0014-crumbles.
By definition, plunder may be a collective act, just as well as it may be an individual act. Section 2 of Republic Act No. 7080 explicitly states that plunder may be committed "in connivance":
Section 2. Definition of the Crime of Plunder; Penalties. – Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons[.] (Emphasis supplied)
In stating that plunder may be committed collectively, Section 2 does not require a central actor who animates the actions of others or to whom the proceeds of plunder are funneled.
It does, however, speak of "[a]ny public officer."15 This reference is crucial to the determination of plunder as essentially an offense committed by a public officer. Plunder is, therefore, akin to the offenses falling under Title VII of the Revised Penal Code. Likewise, this reference highlights the act of plundering as essentially one that is accomplished by taking advantage of public office or other such instrumentalities.
Contrary to what the ponencia postulates, there is no need for a "main plunderer."16 Section 2 does not require plunder to be centralized, whether in terms of its planning and execution, or in terms of its benefits. All it requires is for the offenders to act out of a common design to amass, accumulate, or acquire ill-gotten wealth, such that the aggregate amount obtained is at least P50,000,000.00. Section 1 (d) of Republic Act No. 7080, in defining "ill-gotten," no longer even speaks specifically of a "public officer." In identifying the possessor of ill-gotten wealth, Section l(d) merely refers to "any person":
Section I. Definition of Terms. - As used in this Act, the term –
. . . .
d) "Ill-gotten wealth" means any asset, propetiy, business enterprise or material possession of any person[.] (Emphasis supplied)
With the allegation of conspiracy as its crux, each of the accused was charged as a principal. In a conspiracy:
the act of one is the act of all the conspirators, and a conspirator may be held as a principal even if he did not patiicipate in the actual commission of every act constituting the offense. In conspiracy, all those who in one way or another helped and cooperated in the consummation of the crime are considered co-principals since the degree or character of the individual participation of each conspirator in the commission of the crime becomes immaterial.17
From an evidentiary perspective, to be held liable as a co-principal, there must be a showing of an
overt act in furtherance of the conspiracy, either by actively participating in the actual commission of the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy.18
Direct proof, however, is not imperative:
Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved. Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only.19 (Citations omitted)
II
This is not an appeal from definitive findings of fact that have resulted in the conviction or acquittal of the accused. It is only a Petition for Certiorari seeking to supplant the discretion of the Sandiganbayan to hear all the evidence.
Section 4 of Republic Act No. 7080 provides:
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
(Emphasis supplied)
The sufficiency of showing "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" is particularly crucial. It emphasizes how absence of direct proof of every conspirator's awareness of, as well as participation and assent in, every single phase of the overall conspiratorial design is not fatal to a group of conspirators' prosecution and conviction for plunder.
Section 4 was correctly applied in this case.
It would be inappropriate to launch a full-scale evaluation of the evidence, lest this Court-an appellate court, vis-a-vis the Sandiganbayan 's original jurisdiction over plunder-be invited to indulge in an exercise which is not only premature, but also one which may entirely undermine the Sandiganbayan's competence. Nevertheless, even through a prima facie review, the prosecution adduced evidence of a combination or series of events that appeared to be means in a coherent scheme to effect a design to amass, accumulate, or acquire ill-gotten wealth. Without meaning to make conclusions on the guilt of the accused, specifically of petitioners, these pieces of evidence beg, at the very least, to be addressed during trial. Thus, there was no grave abuse of discretion on the part of the Sandiganbayan.
The Resolution of the Sandiganbayan, with respect to Former President Arroyo, deserves to be reproduced:
Pertinent Dates & Facts
2008
On April 2, 2008, accused Uriarte asked accused Arroyo for additional Confidential and Intelligence Funds in the amount of P25 million. This was approved.
On May 14, 2008, the Board issued Resolution No. 305 adopting and approving the PCSO's proposed Corporate Operating Budget (COB). In the COB was an allocation of P28 million as PCSO's CIF for 2008.
On August 13, 2008, Uriarte again asked Arroyo for additional CIF in the amount of P50 million. This was also approved.
2009
On February 18, 2009, the Board confirmed the additional CIF granted by Arroyo and designated Uriarte as Special Disbursing Officer through Resolution No. 217.
On May 11, 2009, Plaras issued Credit Advice Nos. 2009-05-0216-C and 2009-05-0217-C, in relation to the cash advances drawn from PCSO's CIF for 2008 in the amount of P29, 700,000.00 and P55,152,000.00.
On March 31, 2009, the Board approved the 2009 PCSO COB. The allocation in the COB for the CIF was increased to P60 million.
On January 19, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P50 million. This was approved.
On April 27, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P10 million. This was approved.
On July 2, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P10 million. This was approved.
On October 19, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P20 million. This was approved. On the same date, Valencia wrote to Villar to liquidate the CIF under the Office of the Chairman in the amount of P2, 498,300.00. Enclosed in the said letter was the Certification of the Chairman, the original copy of the cash disbursement and liquidation vouchers, Board Resolution No. 469, a copy of the Maintenance and Other Operating Expenses Budget and the Matrix of Expenses incurred from the fund.
On December 9, 2009, the Board confirmed through Resolution No. 2356 the additional CIF approved by Arroyo and designated Uriarte as Special Disbursing Officer.
2010
On January 4, 2010, Uriarte asked Arroyo for an additional CIF in the amount of P 150 million. This was approved.
On January 6, the Board issued Resolution No. 029 confirming the additional CIF and designated Uriarte as Special Disbursing Officer.
On March 10, 2010 the Board approved the proposed PCSO COB for 2010. The allocation of P60 million was made for the CIF.
On July 14, 2010, Plaras issued Credit Advice No. 2010-07-0413-C in relation to cash advances in 2009 from the CIF amounting to P116,386,800.00
On July 15, 2010, Plaras asked Uriarte to submit various documents to support the requested liquidation.
On July 19, 2010, Uriarte submitted an accomplishment report, a single-page matrix of intelligence accomplishments prepared by Aguas and a two-page report on the utilization of the 2010 CIF.
On January I 3, 201 I, Plaras issued Credit Advice Nos. 20 I 1-01-008-C in relation to the cash advances drawn by accused Uriarte and Valencia in 2010.
DISCUSSION
Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court then ascertains whether there is a competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded to accord to circumstances. To be considered sufficient therefore, the evidence must prove (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.
The demurrers of each of the accused should thus be measured and evaluated in accordance with the High Court's pronouncement in the Gutib case. Focus must therefore be made as to whether the Prosecution's evidence sufficiently established the commission of the crime of plunder and the degree of pa1iicipation of each of the accused.
A. Demurrer filed by Arroyo and Aguas:
It must be remembered that in Our November 5, 2013 Resolution, We found strong evidence of guilt against Arroyo and Aguas, only as to the second predicate act charged in the Information, which reads:
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures.
In the November 5, 2013 Resolution, We said:
It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible predicate acts in the commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" is consummated where all the acts necessary for its execution and accomplishment are present. Thus a "raid on the public treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse, misappropriation or conversion, without need of establishing gain or profit to the raider. Otherwise stated, once a "raider" gets material possession of a government asset through improper means and has free disposal of the same, the raid or pillage is completed.
xxx
xxx
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
xxx
xxx It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able accumulate during that period CIF funds in the total amount of P352,681,646. This was through a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed by her, through her authorized representative.
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriat1e as "'raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to "misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic v, Sandiganbayan. The encashment of the checks, which named her as the "payee," gave Uriat1e material possession of the CIF funds which she disposed of at will.
As to the detennination whether the threshold amount of P50 million was met by the prosecution's evidence, the Court believes this to have been established. Even if the computation is limited only to the cash advances/releases made by accused Uriarte alone AFTER Arroyo had approved her requests and the PCSO Board approved CIF budget and the "regular" P5 million CIF budget accorded to the PCSO Chairman and Vice Chairman are NOT taken into account, still the total cash advances through accused Uriarte's series of withdrawals will total P 189, 681,646. This amount surpasses the P50 million threshold.
The evidence shows that for the year 2010 alone, Uriarte asked for P150 million additional CIF funds, and Arroyo granted such request and authorized its use. From January 8, 2010 up to June 18, 2010, Uriarte made a series of eleven (11) cash advances in the total amount of P138,223, 490. According to Uriarte's testimony before the Senate, the main purpose for these cash advances was for the "roll-out'' of the small town lottery program. However, the accomplishment report submitted by Aguas shows that P137, 500,000 was spent on non-related PCSO activities, such as "bomb threat, kidnapping, terrorism and bilateral and security relations." All the cash advances made by Uriarte in 2010 were made in violation of LOI 1282, and COA Circulars 2003-002 and 92-385. These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete freedom to dispose of, but was not able to properly account for.
These findings of the Court clearly point out the commission by Uriarte of the crime of Plunder under the second predicate act charged in the Information. As to Arroyo's participation, the Court stated in its November 5, 2013 Resolution that:
The evidence shows that Arroyo approved not only Uriarte's request for additional CIF funds in 2008-2010, but also authorized the latter to use such funds. Arroyo's "OK" notation and signature on Uriat1e's letter-requests signified unqualified approval of Uriarte's request to use the additional CIF funds because the last paragraph of Uriai1e's requests uniformly ended with this phrase: "With the use of intelligence fund, PCSO can protect its image and integrity of its operations."
The letter-request of Uriarte in 2010 was more explicit because it categorically asked for: "The approval on the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues."
Arroyo cannot, therefore, successfully argue that what she approved were only the request for the grant or allocation of additional CIF funds, because Arroyo's "OK" notation was unqualified and, therefore, covered also the request to use such funds, through releases of the same in favor of Uriarte.
xxx
As to Aguas's involvement, Our June 6, 2013 Resolution said:
In all of the disbursement vouchers covering the case advances/releases to Uriarte of the CIF funds, Aguas certified that:
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P ________________; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.
These certifications, after close scrutiny, were not true because: 1.) there were no documents which lent support to the cash advances on a per project basis. The particulars of payment simply read: 'To draw cash advance from the CIF Fund of the Office of the Vice-Chairman and General Manager." No particular purpose or project was specified contrary to the requirement under COA Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each cash advance, Aguas could not certify that supporting documents existed simply because he would not know what project was being funded by the cash advances; and 2.) There were no previous liquidations made of prior cash advances when Aguas made the certifications. COA Circular 2003-002 required that cash advances be liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If the completion of the projects mentioned were for more than one month, a monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation made was wholesale, i.e. these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation progress report. How then coulde Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:
Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.
There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas's certification, the disbursement vouchers could not have been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have been ale1ied that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is therefore, present in the case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was conformed to by Uriarte, made it self-evident that the bulk of the CIF funds in 2009 and 2010 were allegedly spent for non-PCSO related activities, e.g. bomb threats, kidnapping, terrorism, and others.
With the additional evidence presented by the Prosecution after the bail hearings, the question now before the Court is whether such evidence elevated the quantum and weight of the evidence against the accused from strong evidence to sufficient evidence to convict, thereby justifying denial of their demurrers. Otherwise stated, was the "presumption great" finding in the bail hearings against Arroyo and Aguas further buttressed by the additional evidence presented bu the prosecution or was diluted by the same?
The Court believes that there is sufficient evidence that Uriarte accumulated more than P50 million of CIF funds in violation of COA circulars 92-385 and 2003-02, and LOI 1282, thus characterizing such as ill-gotten wealth. Uriarte used Arroyo's approval to illegally accumulate these CIF funds which she encashed during the period 2008-2010. Uriarte utilized AIToyo's approval to secure PCSO Board confirmation of such additional CIF funds and to "liquidate" the same resulting in the questionable credit advices issued by accused Plaras. These were simply consummated raids on public treasury.
In an attempt to explain and justify the use of these CIF funds, Uriarte together with Aguas, cetiified that these were utilized for the following purposes:
a) Fraud and threat that affect integrity of operation.
b) Bomb threat, kidnapping, destabilization and terrorism
c) Bilateral and security relation.
According to Uriarte and Aguas, these purposes were to be accomplished through "cooperation" of law enforcers which include the military, police and the NBI. The second and third purposes were never mentioned in Uriarte's letter-requests for additional CIF funds addressed to Arroyo. Aguas, on the other hand, issued an accomplishment report addressed to the COA, saying that the "Office of the President" required funding from the CIF funds of the PCSO to achieve the second and third purposes abovementioned. For 2009 and 2010, the funds allegedly used for such purposes amounted to P244, 500,00.00.
Such gargantuan amounts should have been covered, at the very least, by some documentation covering fund transfers or agreements with the military, police or the NBI, notwithstanding that these involved CIF funds. However, all the intelligence chiefs of the Army, Navy, Air Force, the PNP and the NBI, testified that for the period 2008-2010, their records do not show any PCSO-related operations involving any of the purposes mentioned by Uriarte and Aguas in their matrix of accomplishments. Neither were there any memoranda of agreements or any other documentation covering fund transfers or requests for assistance or surveillance related to said purposes. While the defense counsels tried to question the credibility of the intelligence chiefs by drawing our admissions from them that their records were not 100% complete, it seems highly incredulous that not a single document or record exists to sustain Uriarte's and Aguas's report that CIF funds were used for such purposes. Uriarte, who was obliged to keep duplicate copies of her supporting documents for the liquidation of her CIF funds, was unable to present such duplicate copies when she was investigated by the Senate and the Ombudsman. As it stands, the actual use of these CIF funds is still unexplained.
Arroyo and Aguas's degree of participation as co-conspirators of Uriarte are established by sufficient evidence.
In Jose "Jinggoy" Estrada v. Sandiganbayan, the gravamen of conspiracy in plunder cases was discussed by the Supreme Cami, as follows:
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonality - to help the former President amass, accumulate or acquire ill-gotten. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused order the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada.
It seems clear that in a conspiracy to commit plunder, the essence or material point is not the actual receipt of monies or unjust enrichment by each conspirator, but that a conspirator had participated in the accumulation of ill-gotten wealth, directly or indirectly.
In Our February 19, 2014 Resolution, We stated:
The overt act, therefore, which establishes accused Macapagal-Arroyo's conspiracy with accused Uriarte is her unqualified "OK" notation on the letter-requests. All the badges of irregularities were there for accused Macapagal-Arroyo to see, but still she approved the letter-requests. Consider the following: accused Macapagal-Arroyo approved accused Uriarte's requests despite the absence of full details on the specific purpose for which the additional CIF were to be spent for. There was also no concrete explanation of the circumstances which gave rise to the necessity for the expenditures, as required by LOI 1282. Accused Macapagal-Arroyo did not question accused Uriarte's repetitive and simplistic basis for the requests, as she readily approved accused Uriarte 's requests without any qualification or condition. Accused Macapagal-Arroyo apparently never questioned accused Uriarte why the latter was asking for additional CIF funds. All of accused Uriarte's requests did not state any balance or left-over CIF funds which PCSO still had before accused Uriarte made the requests. As President of the Republic, accused Macapagal-Arroyo was expected to be aware of the rules governing the use of CIF. Considering that accused Macapagal-Arroyo's approval also covered the use and release of these funds, it was incumbent upon her to make sure that accused Uriarte followed and complied with the rules set forth by the COA and LOI 1282.
The findings on the conspiratorial acts of Arroyo and Aguas have been strengthened by the testimonies and certifications presented by the intelligence officers. Even granting, arguendo, that their testimonies should not be accorded great weight, the fact that Uriarte and Aguas certified that these CIF funds were used for purposes other than PCSO related activities, sufficiently established the conclusion that CIF monies were diverted to fund activities of the Office of the President. Therefore, Arroyo and Aguas's demmTers must be denied.20 (Emphasis in the original, citations omitted)
The following observations from the evidence bears repeating for emphasis:
First, evidence was adduced to show that there was co-mingling of PCSO's Prize Fund, Charity Fund, and Operating Fund. In the Annual Audit Report of PCSO for 2007, the Commission on Audit already found this practice of having a "combo account" questionable.21 The prosecution further alleged that this co-mingling was "to ensure that there is always a readily accessible fund from which to draw CIF money."22
Section 6 of PCSO's Charter, Republic Act No. 1169,23 as amended by Batas Pambansa Blg. 42 and Presidential Decree No. 1157, stipulates how PCSO's net receipts (from the sale of tickets) shall be allocated. It specifies three separate funds - the Prize Fund, the Charity Fund, and funds for the operating expenses (or operating fund) - and defines the apportionment of gross receipts:
SECTION 6. Allocation of Net Receipts. - From the gross receipts from the sale of sweepstakes tickets, whether for sweepstakes races, lotteries, or similar activities, shall be deducted the printing cost of such tickets, which in no case shall exceed two percent of such gross receipts to arrive at the net receipts. The net receipts shall be allocated as follows:
A. Fifty-five percent (55%) shall be set aside as a prize fund for the payment of prizes, including those for the owners, jockeys of running horses, and sellers of winning tickets.
Prizes not claimed by the public within one year from date of draw shall be considered forfeited, and shall form part of the charity fund for disposition as stated below.
B. Thirty percent (30%) shall be set aside as contributions to the charity fund from which the Board of Directors, in consultation with the Ministry of Human Settlement on identified priority programs, needs, and requirements in specific communities and with approval of the Office of the President (Prime Minister), shall make payments or grants for health programs, including the expansion of existing ones, medical assistance and services and/or charities of national character, such as the Philippine National Red Cross, under such policies and subject to such rules and regulations as the Board may from time establish and promulgate. The Board may apply part of the contributions to the charity fund to approved investments of the Office pursuant Section 1(B) hereof, but in no case shall such application to investments exceed ten percent (10%) of the net receipts from the sale of sweepstakes tickets in any given year.
Any property acquired by an institution or organization with funds given to it under this Act shall not be sold or otherwise disposed of without the approval of the Office of the President (Prime Minister), and that in the event of its dissolution all such property shall be transferred to and shall automatically become the property of the Philippine Government.
C. Fifteen (15%) percent shall be set aside as contributions to the operating expenses and capital expenditures of the Office.
D. All balances of any funds in the Philippine Charity Sweepstakes Office shall revert to and form part of the charity fund provided for in paragraph (B), and shall be subject to disposition as above stated. The disbursements of the allocation herein authorized shall be subject to the usual auditing rules and regulations.
Co-mingling PCSO's funds into a single account runs against the plain text of PCSO's Charter. Accordingly, in 2007, the Commission on Audit's Annual Audit Report of PCSO found the practice of having a "combo account" questionable.24 In this same Report, the Commission on Audit further observed that "said practice will not ensure the use of the fund for its purpose and will not account for the available balance of each fund as of a specified date."25 Thus, it recommended that there be a corresponding transfer of funds to the specific bank accounts created for the different funds of PCS0:26
7. No corresponding transfer of cash was made to prize and charity funds whenever receivables were collected.
. . . .
7. 3 Management commented that it is maintaining a combo (mother) account for the three funds where drawings or transfer of funds are being made as the need arises. Thus, there is no prejudice or danger in financing the charity mandate of the office.
7. 4 In our opinion, said practice will not ensure the use of fund for its purpose and will not account for the available balance of each fund as of a specific date.
7. 5 In order to avoid juggling/ using of one fund to/for another fund, we have recommended that all collections be deposited in on Cash in bank general account. Upon computation of the allocation of net receipts to the three funds, a corresponding transfer of funds to the specific bank accounts created for the prize, charity and operating funds be effected.27(Emphasis supplied)
Second, the prosecution demonstrated-through Former President Arroyo's handwritten notations-that she personally approved PCSO General Manager Rosario C. Uriarte's (Uriarte) "requests for the allocation, release and use of additional [Confidential and Intelligence Fund.]"28 The prosecution stressed that these approvals were given despite Uriarte's generic one-page requests, which ostensibly violated Letter of Instruction No. 1282's requirement that, for intelligence jimds to be released, there must be a specification of: (1) specific purposes for which the funds shall be used; (2) circumstances that make the expense necessary; and (3) the disbursement's particular aims. The prosecution fitrther emphasized that Former President Arroyo's personal approvals were necessary, as Commission on Audit Circular No. 92-385's stipulates that confidential and intelligence funds may only be released upon approval of the President of the Philippines.29Unrefuted, these approvals are indicative of Former President Arroyo's indispensability in the scheme to plunder.
Letter of Instruction No. 1282 states:
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished. (Emphasis supplied)
Uriarte's April 2, 2008 request stated:
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chainnan and General Manager Rosario C. Uriai1e be given additional intelligence fund in the amount of P25 Million Pesos for the year 2008.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales perfonnance, From the sales of P7.32 B registered in 2000, the office has generated actual sales of P18.698 in 2007.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale",
2. Unwarranted or unofficial use of ambulance by beneficiary-donees;
3. Unauthorized expenditures of endowment fund for charity patients and organizations;
4. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
5. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and individual Medical Assistance Program;
6. Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
(sgd.)
ROSARIO C. URIARTE30
The wording and construction of the August 13, 2008 request is markedly similar:
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P50 Million Pesos for the year 2008.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P18.698 in 2007.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale",
2. Unauthorized expenditures of endowment fund for charity patients and organizations;
3. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
4. Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
(sgd.)
ROSARIO C. URIARTE31
The same is true of the January 19, 2009 request:
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uria1ie be given additional intelligence fund in the amount of P50 Million Pesos for the year 2009.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P21 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Unwarranted or unofficial use of ambulance by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
3. Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
(sgd.)
ROSARIO C. URIARTE32
Subsequent requests made on April 27, 2009 and July 2, 2009, respectively, also merely followed the formula employed in previous requests:
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P10 Million Pesos for the year 2009.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P23 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. UnwaiTanted or unofficial use of ambulance by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
3. Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
(sgd.)
ROSARIO C. URIARTE33
. . . .
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P10 Million Pesos for the year 2009.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P23 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Unwarranted or unofficial use of ambulance by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
3. Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
(sgd.)
ROSARIO C. URIARTE34
The request made on January 24, 2010 had some additions, but was still noticeably similar:
The Philippine Charity Sweepstakes Office (PCSO) has been conducting the experimental test run for the Small Town Lottery (STL) Project since February 2006. During the last semester of 2009, the PCSO Board has started to map out the regularization of the STL in 2010.
Its regularization will encounter the illegal numbers game but it will entail massive monitoring and policing using confidential agents in the area to ensure that all stakeholders are consulted in the process.
STL regularization will also require the acceptance of the public. Hence, public awareness campaign will be conducted nationwide. In the process, we will need confidential operations, to wit:
I. Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale",
2. Unauthorized expenditures of endowment fund for charity patients and organizations;
3. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
4. Other fraudulent schemes and activities which put the PCSO in bad light.
In order to save on PCSO operating funds, we suggest that the General Manager's Office be given at most, twenty percent (20%) of the Public Relations Fund or a minimum of 150 Million Pesos, to be used as intelligence/confidential fund. PCSO spent 760 Million pesos for PR in 2009.
The approval on the use of the fifty percent of the PR fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues. PCSO will no longer need to seek approval for additional intelligence fund without first utilizing the amount allocated from the PR fund.
For Her Excellency's approval.
[sgd.]
ROSARIO C. URIARTE35
These similarly worded requests relied on the same justification; that is, "a number of fraudulent schemes and nefarious activities ... which affect the integrity of [PCSO's] operations[.]" The different requests used various permutations of any of the following seven (7) such schemes and activities:
1. Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO- Not for Sale";
2. Unwan-anted or unofficial use of ambulances by beneficiary-donees;
3. Unauthorized expenditures of endowment fund for charity patients and organizations;
4. Lotto and sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
5. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
6. Conduct of illegal gambling games (jueteng) under [the] guise of Small Town lottery; and
7. Other fraudulent schemes and activities which put PCSO in [a] bad light.36
Citing "a number of fraudulent schemes and nefarious activities ... which affect the integrity of [PCSO's] operations"37 hardly seems to be sufficient compliance with Letter of Instruction No. 1282. This Letter of Instruction requires a request's specification of three (3) things: first, the specific purposes for which the funds shall be used; second, circumstances that make the expense necessary; and third, the disbursement's particular aims.38 Citing "fraudulent schemes and nefarious activities" may satisfy the requirement of stating the circumstances that make the expense necessary. It may also imply that the disbursement's overarching (though not its particular) aim is to curtail such schemes and activities. Still, merely citing these fails to account for the first requirement of the specific purposes for which the funds shall be used. There was no mention of specific projects, operations, or activities "for which said funds shall be spent. "39
The requests likewise failed to account for why additional amounts - which ballooned to Pl50,000,000.00, as shown in the January 4, 2010 request-were necessary. Instead, these requests merely relied on the repeated refrain of how "PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities."40 These requests also relied on the claim that "[w]ith the use of intelligence fund, PCSO can protect its image and integrity."41
Commission on Audit Circular No. 92-38542 emphasizes that funds provided for in the General Appropriations Act, which are released for intelligence operations, must be specifically designated as such in the General Appropriations Act. It further identifies the President of the Philippines as the sole approving authority for the release of confidential and intelligence funds:
WHEREAS, no amount appropriated in the General Appropriations Act shall be released or disbursed for confidential and intelligence activities unless specifically identified and authorized as such intelligence or confidential fund in said Act;
WHEREAS, intelligence and confidential funds provided for in the budgets of departments, bureaus, offices or agencies of the national government, including amounts from savings authorized by Special Provisions to be used for intelligence and counter intelligence activities, shall be released only upon approval of the President of the Philippines.
Similarly, Commission on Audit Circular 03-00243 includes the "Approval of the President of the Release of the Confidential and Intelligence Fund"44 as among the documentary requirements for the audit and liquidation of confidential and intelligence funds.
The prosecution presented evidence to show that Former President Arroyo personally approved the release of additional CIF to the PCSO on several occasions from 2008 to 2010. This she did by handwriting the notation "OK, GMA."45 In addition, the prosecution showed that these releases were in excess of amounts initially allocated as such CIF and were facilitated despite PCSO's having had to operate under a deficit.
Prosecution witness, Atty. Aleta Tolentino (Atty. Tolentino), Head of the Audit Committee of PCSO, emphasized that the approval and disbursements of the CIF were irregular as they did not comply with Commission on Audit Circular 92-385's requirement of there being an amount "specifically identified and authorized as such intelligence or confidential fund" before disbursements may be made for confidential and intelligence activities.
Atty. Tolentino noted that, as a consequence of Commission on Audit Circular 03-002, a government-owned and controlled corporation must first have an allocation for the CIF specified in its Corporate Operating Budget or "taken from savings authorized by special provisions."
In 2008, only P28,000,000.00 was allocated as CIF.46 Nevertheless, Former President Arroyo approved the requests of Uriarte-separately, on April 2, 2008 and on August 13, 2008-to increase the budget allotted for PCSO Confidential and Intelligence Expenses, with an amount totaling P75,000,000.00.47 For this year, an amount totaling P86,555,060.00 was disbursed.48
In 2009, the original budget of P60,000,000.0049 was increased by a total of P90,000,000.00, through the approval of separate requests made by Uriarte to increase the budget by P50,000,000.00 on January 19, 2009;50 P10,000,000.00 on April 27, 2009;51 and P10,000,000.00 on July 2, 2009:52 A letter53 dated October 19, 2009 issued by former Executive Secretary Eduardo Ermita showed that Former President Arroyo also approved the release of additional CIF amounting to P20,000,000.00.54 Total 2009 disbursements amounted to P138,420,875.00.55
In 2010, P141,021,980.00 was disbursed as of June 2010,56 even as the CIF allocation for the entire year was only P60,000,000.00.57 This comes at the heels of an increase of P150,000,000.00,58 again through Former President Arroyo's approval of the request made by Uriarte.
It was similarly impossible for PCSO to have sourced these funds from savings. As Atty. Tolentino emphasized, PCSO was running on a deficit from 2004 to 2009.59 She added that the financial statements for the years 2006 to 2009, which she obtained in her capacity as the Head of the Audit Committee of the PCSO, specifically stated that the PCSO was operating on a deficit in 2006 to 2009.
Third, the prosecution demonstrated that Uriarte was enabled to withdraw from the CIF solely on the strength of Former President Arroyo's approval and despite not having been designated as a special disbursing officer, pursuant to Commission on Audit Circulars 92-385 and 03-002.60
Commission on Audit Circular 92-385 provides:
3 - The following must be submitted whenever a new Disbursing Officer is appointed.
A. Certified xerox copy of the designation of Special Disbursing Officers.
B. Certified xerox copy of their fidelity bonds.
C. Specimen signature of officials authorized to sign cash advances and liquidation vouchers. (Emphasis supplied)
In addition, Commission on Audit Circular 2003-02 specifically requires that:
Whenever a new Disbursing Officer is appointed or designated, the following must likewise be submitted:
a. Certified copy of the designation of the Special Disbursing Officer (SDO)
b. Certified copies of the Fidelity Bond of the designated SDO.
c. Specimen signatures of officials authorized to sign cash advances and liquidation reports (formerly liquidation vouchers), patiicularly:
c. l Special Disbursing Officer
c.2 Head of Agency
c.3 Chief Accountant
c.4 Budget Officer
When the Head of Agency is the Special Disbursing Officer, the Head of Agency must make a signed statement to that effect. (Emphasis supplied)
The prosecution pointed out that Uriarte was only designated as Special Disbursing Office on February 18, 2009,61 after several disbursements had already been made.62 Thus, he managed to use the additional CIF at least three (3) times in 2008 and in early 2009, solely through Former President Arroyo's approval.63
Fourth, there were certifications on disbursement vouchers issued and submitted by Aguas, in his capacity as PCSO Budget and Accounts Manager, which stated that: there were adequate funds for the cash advances; that prior cash advances have been liquidated or accounted for; that the cash advances were accompanied by supporting documents; and that the expenses incurred through these were in order.64 As posited by the prosecution, these certifications facilitated the drawing of cash advances by PCSO General Manager Uriarte and Chairperson Sergio Valencia.65
Aguas repeatedly made the certifications in the disbursement vouchers twenty-three (23) times66 in the following tenor:
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P__________ ; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/ accounted for.67
However, as the prosecution pointed out, the certifications were false and irregular because there were no documents that lent support to the cash advances on a per project basis. Moreover, there were no liquidations made of prior cash advances when the certifications were made.68
Fifth, officers from the Philippine National Police, the Armed Forces of the Philippines, and the National Bureau of Investigation gave testimonies to the effect that no intelligence activities were conducted by PCSO with their cooperation, contrary to Uriarte's claims.69
These officers were:
(1) Colonel Ernest Marc P. Rosal of the Intelligence Service of the Armed Forces of the Philippines;70
(2) Captain Ramil Roberto B. Enriquez, Assistant Chief of Naval Staff for Intelligence of the Philippine Navy;71
(3) Colonel Teofilo Reyno Bailon, Jr., Assistant Chief of Air Staff for Intelligence, A2 at the Philippine Air Force;72
(4) Lieutenant Colonel Vince James de Guzman Bantilan, Chief of the Intelligence and Operations Branch of the Office of the Assistant Chief of Staff for Intelligence, G2 at the Philippine Army;73
(5) Colonel Orlando Suarez, Chief of the Operations Control Division of the Office of the Chief of Staff for Intelligence, J2 at the Armed Forces of the Philippines;74
(6) Atty. Ruel M. Lasala, Head of Special Investigation Services of the National Bureau of Investigation;75
(7) Atty. Reynaldo Ofialdo Esmeralda, Deputy Director for Intelligence Services of the National Bureau of Investigation;76
(8) Atty. Virgilio Mendez, former Deputy Director for Regional Operations Services of the National Bureau of Investigation; 77 and
(9) Director Charles T. Calima, Jr., former Director for Intelligence of the Philippine National Police.78
The prosecution added that no contracts, receipts, correspondences, or any other documentary evidence exist to support expenses for PCSO's intelligence operations.79 These suggest that funds allocated for the CIF were not spent for their designated purposes, even as they appeared to have been released through cash advances. This marks a critical juncture in the alleged scheme of the accused. The disbursed funds were no longer in the possession and control of PCSO and, hence, susceptible to misuse or malversation.
Sixth, another curious detail was noted by the prosecution: that Former President Arroyo directly dealt with PCSO despite her having issued her own executive orders, which put PCSO under the direct control and supervision of other agencies.
On November 8, 2004, Former President Arroyo issued Executive Order No. 383, Series of 2004, which placed PCSO under the supervision and control of the Department of Welfare and Development. Section 1 of this Executive Order stated:
SECTION 1. The Philippine Charity Sweepstakes Office shall hereby be under the supervision and control of the Department of Social Welfare and Development.80 (Emphasis supplied)
Amending Executive Order No. 383 on August 22, 2005, Former President Arroyo issued Executive Order No. 455, Series of 2005. This put PCSO under the supervision and control of the Department of Health. Section 1 of this Executive Order stated:
SECTION 1. The Philippine Charity Sweepstakes Office shall hereby be under the supervision and control of the Department of Health.81 (Emphasis supplied)
As Atty. Tolentino emphasized, with the set-up engendered by Executive Orders 383 and 455, it became necessary for PCSO projects to first be approved at the department-level before being referred to the Office of the President for approval. Nevertheless, PCSO General Manager Uriarte made her requests directly to Former President Arroyo, who then acted favorably on them, as shown by her handwritten notations.82
PCSO General Manager Uriarte had intimate access to the Office of the President and was likewise critical in the allocation, disbursement, and release of millions of pesos in cash.
Summing up, the prosecution adduced evidence indicating that Former President Arroyo and Aguas were necessary cogs to a machinery effected to raid the public treasury. It is hardly of consequence, then, that their direct personal gain has not been indubitably established.
For Former President Arroyo, this came through her capacity as the sole and exclusive approving authority. The funds, demarcated as confidential and intelligence funds, would not have been at any prospective plunderer's disposal had their release not been sanctioned. As the prosecution asserted, her own handwriting attests to her assent.
It defies common sense to think that other malevolent actors could have so easily misled Former President Arroyo into giving her assent. The more reasonable inference is that she acted with awareness, especially considering the large amounts involved, as well as the sheer multiplicity in the number of times her assent was sought.
Violations of regulations must necessarily be presumed to not have been made out of ignorance. This is especially true of senior government officials. The greater one's degree of responsibility, as evinced by an official's place in the institutional hierarchy, the more compelling the supposition that one acted with the fullness of his or her competence and faculty. The person involved here was once at the summit of the entire apparatus of government: a former President of the Republic.
These commonsensical and soundly logical suppositions arising from the prosecution's evidence demand a process through which the defendant Former President Arroyo may prove the contrary. Trial, then, must continue to afford her this opportunity.
We cannot assume that the President of the Philippines, the Chief Executive, was ignorant of these regulations and these infractions.
For Aguas, he was in a position to enforce internal control mechanisms to ensure that the PCSO's financial mechanisms comply with the relevant laws and regulations. As the prosecution pointed out, his task was far from merely being perfunctory and ministerial.83 By his certifications on disbursement vouchers, he attested that: "(l) the expenditure for which disbursements are made have been verified; (2) the expenditure for which the disbursements are made are supported by documents; (3) that account codes from which the fund[s] are to be sourced are proper; and (4) the previous cash advance has been liquidated/accounted.84
His very act of making these certifications presume an active effort to verify and make the necessary confirmations. Doing so without these prerequisites is tantamount to knowingly making false declarations. Still, Aguas appears to have proceeded to certify anyway, thereby enabling his co-accused PCSO General Manager Uriarte and Chairperson Sergio Valencia to draw cash advances. This drew the proverbial door open to the larger scheme of plunder, which the Information averred. As the prosecution explained:
5.11. Petitioner, despite committing a falsification knew well that he had to sign and ce1iify the [disbursement vouchers] because he knew that without his false certification, no check to pay for the disbursement vouchers thus prepared can be issued and no money can be withdrawn by Uriarte and Valencia. Petitioner Aguas' certification truly facilitated the release of the checks in favor of Uriaiie and Valencia. Without his false certification, the scheme of repeatedly raiding the coffers of PCSO would not have been accomplished.85
The proof adduced by the prosecution raises legitimate questions. It is well within the reasonable exercise of its competencies and jurisdiction that the Sandiganbayan opted to proceed with the remainder of trial so that these issues could be addressed. Thus, it was in keeping with the greater interest of justice that the Sandiganbayan denied petitioners' demurrers to evidence and issued its assailed resolutions.
III
Parenthetically, even assuming without conceding that petitioners could not be convicted of plunder, the prosecution still adduced sufficient evidence to convict them with malversation of public funds, as penalized by Article 217 of the Revised Penal Code. Hence, trial should still proceed to receive their evidence on this point.
At the heart of the offense of plunder is the existence of "a combination or series of overt or criminal acts." Estrada v. Sandiganbayan86clarified that "to constitute a "series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. I, par.(d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. I, par. (d), subpar. (I)."
Accordingly, this Court has consistently held that the lesser offense of malversation can be included in plunder when the amount amassed reaches at least P50,000,000.00.87 This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate acts of bribery and malversation (if applicable) need not be charged under separate informations when one has already been charged with plunder:
A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple infonnations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. Republic Act No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural problem.
(Emphasis in the original, citations omitted)
In Atty. Serapio v. Sandiganbayan,88 the accused assailed the information for charging more than one offense: bribery, malversation of public funds or property, and violations of Sec. 3(e) of Republic Act No. 3019 and Section 7(d) of Republic Act No. 6713. This Court observed that "the acts alleged in the information are not separate or independent offenses, but are predicate acts of the crime of plunder."89 The Court, quoting the Sandiganbayan, clarified:
It should be stressed that the Anti-Plunder law specifically Section I (d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation,' 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.90
The observation that the accused in these petitions may be made to answer for malversation was correctly pointed out by Justice Ponferrada of the Sandiganbayan in his separate concurring and dissenting opinion:
There is evidence, however, that certain amounts were released to accused Rosario Uriarte and Sergio Valencia and these releases were made possible by certain participatory acts of accused Arroyo and Aguas, as discussed in the subject Resolution. Hence, there is a need for said accused to present evidence to exculpate them from liability which need will warrant the denial of their Demurrer to Evidence, as under the variance rule they maybe held liable for the lesser crimes which are necessarily included in the offense of plunder.91
Significantly, the Sandiganbayan 's Resolution to the demurrers to evidence includes the finding that the PCSO Chairperson Valencia, should still be made to answer for malversation as included in the Information in these cases.92 Since the Information charges conspiracy, both petitioners in these consolidated cases still need to answer for those charges. Thus, the demurrer to evidence should also be properly denied. It would be premature to dismiss and acquit the petitioners.
IV
The sheer absence of grave abuse of discretion is basis for denying the consolidated Petitions. There, however, lies a more basic reason for respecting the course taken by the Sandiganbayan.
Rule 119, Section 23 of the Revised Rules on Criminal Procedure articulates the rules governing demurrers to evidence in criminal proceedings:
RULE 119
TRIAL
SEC. 23. Demurrer to evidence. - After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
A demurrer to evidence is "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue."93
It works by "challeng[ing] the sufficiency of the whole evidence to sustain a verdict."94 In resolving the demurrer to evidence, a trial court is not as yet compelled to rule on the basis of proof beyond reasonable doubt95-the requisite quantum of proof for conviction in a criminal proceeding96-but "is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.97
A demurrer to evidence is a device to effect one's right to a speedy trial98 and to speedy disposition of cases.99 This has been settled very early on in our jurisprudence:
[T]here seems now to be no reason for putting the defendant to the necessity of presenting his proof, if, at the time of the close of the proof of the prosecution, there is not sufficient evidence to convince the lower court that the defendant is guilty, beyond a reasonable doubt, of the crime charged in the complaint. ...
. . . [W]e see no reason now . . . for denying the right of the lower court to dismiss a case at the close of the presentation of the testimony by the prosecuting attorney, if at that time there is not sufficient evidence to make out a prima facie case against the defendant. If, however, the lower court, at that time, in the course of the trial, refuses to dismiss the defendant, his dismissal can not be made the basis of an appeal for the purpose of reversing the sentence of the lower court.100
Indeed, if there is not even "competent or sufficient evidence"101 to sustain a prima facie case, there cannot be proof beyond reasonable doubt to ultimately justify the deprivation of one's life, liberty, and/or property, which ensues from a criminal conviction. There is, then, no need for even burdening the defendant with laying out the entirety of his or her defense. If proof beyond reasonable doubt is so far out of the prosecution's reach that it cannot even make a prima facie case, the accused may as well be acquitted. On the part of the court before which the case is pending, it may likewise then be disburdened of the rigors of a full trial. A demurrer to evidence thereby incidentally serves the interest of judicial economy.
In Spouses Condes v. Court of Appeals:102
The purpose of a demurrer to evidence is precisely to expeditiously terminate the case without the need of the defendant's evidence.1âwphi1 It authorizes a judgment on the merits of the case without the defendant having to submit evidence on his pati as he would ordinarily have to do, if it is shown by plaintiff's evidence that the latter is not entitled to the relief sought.103
V
The competence to determine whether trial must continue and judgment on the merits eventually rendered is exclusively lodged in the trial court:
Whether or not the evidence presented by the prosecuting attorney, at the time he rests his cause, is sufficient to convince the court that the defendant is guilty, beyond a reasonable doubt, of the crime charged, rests entirely within the sound discretion and judgment of the lower court.104
(Emphasis supplied)
This is because it is before the trial court that evidence is presented and the facts are unraveled. By its very nature as a "trial" court, the adjudicatory body has the opportunity to personally observe the demeanor of witnesses delivering testimonial evidence, as well as to peruse the otherwise sinuous mass of object and documentary evidence. It is the tribunal with the capacity to admit and observe and, in conjunction with this case, the principal capacity to test and counterpoise. Thus, it entertains and rules on objections to evidence.
Therefore, it follows that if a demurrer to evidence is denied, the correctness of this denial may only be ascertained when the consideration of evidence has been consummated. There is no better way of disproving the soundness of the trial court's having opted to continue with the proceedings than the entire body of evidence:
Whether he committed an error in denying the [demurrer to evidence], for insufficiency of proof, can only be determined upon appeal, and then not because he committed an error, as such, but because the evidence adduced during the trial of the cause was not sufficient to show that the defendant was guilty of the crime charged.105(Emphasis supplied)
The settled wisdom is that while a demurrer is an available option to the accused so that he may speedily be relieved of an existing jeopardy, it is the tribunal with the opportunity to scrutinize the evidence that can best determine if the interest of justice-not of any particular party-is better served by either immediately terminating the trial (should demurrer be granted) or still continuing with trial (should demurrer be denied). It is this wisdom that animates Rule 119, Section 23's proscription against reviews "by appeal or by certiorari before judgment."
Accordingly, in the event that a demurrer to evidence is denied, "the remedy is . . . to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law."106 The proper subject of the appeal is the trial court's judgment convicting the accused, not its prior order denying the demurrer. The denial order is but an interlocutory order rendered during the pendency of the case,107 while the judgment of conviction is the "judgment or final order that completely disposes of the case"108 at the level of the trial court.
People v. Court of Appeals109involved two assailed Resolutions of the Court of Appeals. The first assailed Resolution granted the accused's Motion to consider the trial court's denial order not as an interlocutory order but as a "judgment of conviction." In granting this Motion, the first assailed Resolution also considered the Petition for Certiorari subsequently filed before the Court of Appeals as an "appeal" from that "judgment of conviction." This Resolution ruled that the Court of Appeals should proceed to rule on the "appeal" as soon as the parties' appeal briefs or memoranda had been filed. The second assailed Resolution considered the "appeal" submitted for resolution.
This Court found grave abuse of discretion on the part of the Court of Appeals in issuing the assailed Resolutions, particularly in "preempt[ing] or arrogat[ing] unto itself the trial court's original and exclusive jurisdiction."110 In making its conclusions, this Court emphasized an appellate court's lack of competence or jurisdiction to render an original judgment on the merits, i.e., one which, at the first instance, is based on the evidence or the facts established. It further explained that the exercise of appellate jurisdiction is contingent on a prior judgment rendered by a tribunal exercising original jurisdiction:
Manifestly, respondent court was bereft of jurisdiction to grant accused's counsel's motion, supra, to by-pass the trial court and itself ''find the accused guilty and impose upon them the requisite penalty provided by law" (with their proposal to consider the trial court's denial order as a "judgment of conviction") and then review its own verdict and imposition of penalty (with the conversion of the certiorari petition into one of review on appeal).
The exclusive and original jurisdiction to hear the case for estafa involving the sum of US$999,000.00 and pass judgment upon the evidence and render its findings of fact and in the.first instance adjudicate the guilt or non-guilt of the accused lies with the trial court i.e. the Court of First Instance concurrently with the Circuit Criminal Court, as in this case.
On the other hand, the certiorari petition before it was filed only in aid of its appellate jurisdiction on the narrow issue of whether the trial court committed a grave abuse of discretion in denying the motion to dismiss the criminal case. Such a petition merited outright dismissal, more so with the accused's motion to consider the denial order as a verdict of conviction as above shown.
There was no judgment of the trial court over which respondent court could exercise its appellate jurisdiction. The mandate of Article X, section 9 of the Constitution requires that "Every decision of' a court of record shall state the facts and the law on which it is based. " Rule 120, section 2 of the Rules of Court requires further that ''The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the defendant and upon which the judgment is based. If it is of conviction the judgment or sentence shall state (a) the legal qualification of the offense constituted by the acts committed by the defendant, and the aggravating or mitigating circumstances attending the commission thereof, if there is any; (b) the participation of the defendant in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the defendant party; and (d) the civil liability or damages caused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved." It is obvious that the denial order was not such a judgment.111(Emphasis supplied, citations omitted)
For the same reason that a denial order is an interlocutory order, it may not be assailed through a petition for certiorari. However, Resoso v. Sandiganbayan112explained that the non-availability of a petition of certiorari is premised not only on the interlocutory nature of a denial order, but more so on how "certiorari does not include the correction of evaluation of evidence":113
Petitioner would have this Court review the assessment made by the respondent Sandiganbayan on the sufficiency of the evidence against him at this time of the trial. Such a review cannot be secured in a petition for certiorari, prohibition, and mandamus which is not available to correct mistakes in the judge’s findings and conclusions or to cure erroneous conclusions of law and fact. Although there may be an error of judgment in denying the demurrer to evidence, this cannot be considered as grave abuse of discretion correctible by certiorari, as certiorari does not include the correction of evaluation of' evidence. When such an adverse interlocutory order is rendered, the remedy is not to resort to certiorari or prohibition but to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law.114 (Emphasis supplied, citations omitted)
The invariable import of the entire body of jurisprudence on demurrer to evidence is the primacy of a trial court's capacity to discern facts. For this reason, the last paragraph of Rule 119, Section 23 is cast in such certain and categorical terms that its text does not even recognize a single exception:
SEC. 23. Demurrer to evidence. - ...
. . . .
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
VI
It is true that the Revised Rules on Criminal Procedure is subordinate to and must be read in harmony with the Constitution. Article VIII, Section 1 of the 1987 Constitution spells out the injunction that "[j]udicial power includes the duty of the courts of justice ... to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Judicial review of a denial order is, therefore, still possible.
However, the review must be made on the narrowest parameters, consistent with the Constitution's own injunction and the basic nature of the remedial vehicle for review, i.e., a petition for certiorari:
Though interlocutory in character, an order denying a demurrer to evidence may be the subject of a certiorari proceeding, provided the petitioner can show that it was issued with grave abuse of discretion; and that appeal in due course is not plain, adequate or speedy under the circumstances. It must be stressed that a writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, not errors of judgment. Where the issue or question involves or affects the wisdom or legal soundness of the decision - not the jurisdiction of the court - the same is beyond the province of a petition for certiorari.115 (Emphasis supplied)
Relief from an order of denial shall be allowed only on the basis of grave abuse of discretion amounting to lack or excess of jurisdiction. At the core of this requirement is the existence of an "abuse." Further, the operative qualifier is "grave." Thus, to warrant the grant of a writ of certiorari, the denial of demurrer must be so arbitrary, capricious, or whimsical as to practically be a manifestation of the trial court's own malevolent designs against the accused or to be tantamount to abject dereliction of duty:
[T]he abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. Mere abuse of discretion is not enough: it must be grave.116
Even then, grave abuse of discretion alone will not sustain a plea for certiorari. Apart from grave abuse of discretion, recourse to a petition for certiorari must be impelled by a positive finding that "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."117
A sweeping reference to the power of judicial review does not sanction an ad hoc disregard of principles and norms articulated in the Rules of Court, such as those on the basic nature and availability of a Rule 65 petition, as well as the availability of relief from orders denying demurrers to evidence. These are Rules which this Court itself promulgated and by which it voluntarily elected to be bound. More importantly, these Rules embody a wisdom that was articulated in an environment removed from the ephemeral peculiarities of specific cases. They are not to be rashly suspended on a provisional basis. Otherwise, we jeopardize our own impartiality.
The power of judicial review through a petition for certiorari must be wielded delicately. The guiding temperament must be one of deference, giving ample recognition to the unique competence of trial courts to enable them to freely discharge their functions without being inhibited by the looming, disapproving stance of an overzealous superior court.
VII
The need for prudence and deference is further underscored by other considerations: first, a policy that frowns upon injunctions against criminal prosecution; and second, the need to enable mechanisms for exacting public accountability to freely take their course.
As a rule, "injunction will not lie to enjoin a criminal prosecution."118 This is because "public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights."119
"What cannot be done directly, cannot be done indirectly."120 The quoted statements were made in jurisprudence and specifically pertained to the issuance of writs of injunction. Nevertheless, granting a petition for certiorari assailing the denial of demurrer to evidence will similarly mean the cessation of proceedings that, in the trial court's wisdom, were deemed imperative. By the stroke of another court's hand, the conduct of trial is peremptorily cast aside, and a full-scale inquiry into the accused's complicity is undercut.
The public interest that impels an uninhibited full-scale inquiry into complicity for criminal offenses, in general, assumes even greater significance in criminal offenses committed by public officers, in particular. If the legal system is to lend truth to the Constitution's declaration that "[p]ublic office is a public trust,"121 all means must be adopted and all obstructions cleared so as to enable the unimpaired application of mechanisms for demanding accountability from those who have committed themselves to the calling of public service.
This is especially true in prosecutions for plunder. It is an offense so debased, it may as well be characterized as the apex of crimes chargeable against public officers:
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office.122(Emphasis supplied)
This is especially true of prosecution before the Sandiganbayan. Not only is the Sandiganbayan the trial court exercising exclusive, original jurisdiction over specified crimes committed by public officers; it is also a court that exists by express constitutional fiat.
The Sandiganbayan was created by statute, that is, Presidential Decree No. 1486. However, this statute was enacted pursuant to a specific injunction of the 1973 Constitution:
SECTION 5. The National Assembly shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.123
Under the 1987 Constitution, the Sandiganbayan continues to exist and operate by express constitutional dictum:
SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.124
Though the Sandiganbayan is not an independent constitutional body, that it owes its existence to an express and specific constitutional mandate is indicative of the uniqueness of its competence. This "expertise-by-constitutional-design" compels a high degree of respect for its findings and conclusions within the framework of its place in the hierarchy of courts.
Guided by these principles, animated by the wisdom of deferring to the Sandiganbayan's competence-both as a trial court and as the constitutionally ordained anti-graft court-and working within the previously discussed parameters, this Court must deny the consolidated Petitions.
This Court is not a trier of facts. Recognizing this Court's place in the hierarchy of courts is as much about propriety in recognizing when it is opportune for this Court to intervene as it is about correcting the perceived errors of those that are subordinate to it.
Prudence dictates that we abide by the established competence of trial courts. We must guard our own selves against falling into the temptation (against which we admonished the Court of Appeals in People v. Court of Appeals) to "preempt or arrogate unto [ourselves] the trial court's original and exclusive jurisdiction."125
We are faced with an independent civil action, not an appeal. By nature, a petition for certiorari does not enable us to engage in the "correction of evaluation of evidence."126 In a Rule 65 petition, we are principally equipped with the parties' submissions. It is true that in such petitions, we may also require the elevation of the records of the respondent tribunal or officer (which was done in this case). Still, these records are an inadequate substitute for the entire enterprise that led the trial court-in this case, the Sandiganbayan-to its conclusions.
The more judicious course of action is to let trial proceed at the Sandiganbayan. For months, it received the entire body of evidence while it sat as a collegiate court. Enlightened by the evidence with which it has intimate acquaintance, the Sandiganbayan is in a better position to evaluate them and decide on the full merits of the case at first instance. It has the competence to evaluate both substance and nuance of this case. Thus, in this important case, what would have emerged is a more circumspect judgment that should have then elevated the quality of adjudication, should an appeal be subsequently taken.
VIII
The cardinal nature of the offense charged, the ascendant position in government of the accused (among them, a former President of the Republic), and the sheer amount of public funds involved demand no less. Otherwise, the immense public interest in seeing the prosecution of large-scale offenders and in the unbridled application of mechanisms for public accountability shall be undermined.
I dissent from the view of the majority that there was insufficient evidence to support a finding beyond reasonable doubt that the accused were in conspiracy to commit a series or combination of acts to amass and accumulate more than Three Hundred Million Pesos within 2008 to 2010 through raids of the public coffers of the PCSO.
If any, what the majority reveals as insufficient may be the ability of the judiciary to correctly interpret the evidence with the wisdom provided by the intention of our laws on plunder and the desire of the sovereign through a Constitution that requires from public officers a high degree of fidelity to public trust. We diminish the rule of law when we deploy legal interpretation to obfuscate rather than to call out what is obvious.
A total of Php 365,997 ,915.00 was disbursed in cash as additional Confidential and Intelligence Fund (CIF) from the PCSO. Where it went and why it was disbursed was not fully explained. It is clear that the cash was taken out by the General Manager and the Chair of the PCSO among others. Its disbursement was made possible only by repeated acts of approval by the former President. The General Manager had intimate access to the President herself. She bypassed layers of supervision over the PCSO. The approvals were in increasing amounts and each one violating established financial controls. The former President cannot plead naivete. She was intelligent and was experienced.
The scheme is plain except to those who refuse to see.
ACCORDINGLY, I vote to DENY the consolidated Petitions for Certiorari. Public respondent Sandiganbayan committed no grave abuse of discretion in issuing the assailed April 6, 2015 and September 10, 2015 Resolutions.
MARVIC M.V.F. LEONEN
Associate Justice
Footnotes
1 J. Bernabe, Separate Opinion, p. 17.
2 RULES OF Courn, Ruic 119, sec. 23 provides:
SEC. 23. Demurrer to evidence. - . . . .
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
3 CONST. (1973 ), art. XII I, sec. 5 provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
4 CONST., art. XI, sec. 4 provides:
SEC. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.
5 Rollo (G.R. No. 220598), p. 24, Petition.
6 An Act Defining and Penalizing the Crime of Plunder (1991).
7 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc].
8 Id. at 343-344.
9 Rep. Act No. 7080 (1991), sec. I provides:
Section I. Definition of Terms. - As used in this Act, the term -
d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse or malvcrsation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or - controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
10 Rollo (G.R. No. 220598), p. 306, Information.
11 Id. at 306-307.
12 Id. at 307.
13 Id. at 306-307.
14 Id. at 51-53, Petition.
15 Rep. Act No. 7080 (1991), sec. 2.
16 Ponencia, p. 34.
17 People v. Medina, 354 Phil. 447, 460 (1998) [Per J. Regalado, En Banc], citing People v. Paredes, 133 Phil. 633, 660 (1968) [Per J. Angeles, En Banc]; Valdez v. People, 255 Phil. 156, 160-161 (1986) [Per J. Cortes, En Banc]; People v. Dela Cruz, 262 Phil. 838, 856 (1990) [Per J. Melencio-Herrera, Second Division]; People v. Camaddo, G.R. No. 97934, January 18, 1993, 217 SCRA 162, 167 [Per J. Bidin, Third Division].
18 People v. Peralta, 134 Phil. 703, 723 (1968) [Per Curiam, En Banc].
19 Alvizo v. Sandiganbayan, 454 Phil. 34, 106 (2003) [Per J. Austria-Martinez, En Banc].
20 Rollo (G.R. No. 220598), p. 157-165.
21 Rollo ·(G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandiganbayan records, Exhibit "E" for the Prosecution.
22Id. at 1644, Comment filed by the Ombudsman in G.R. No. 220598.
23Otherwise known as "An Act Providing for Charity Sweepstakes, Horse Races, and Lotteries",
24 Rollo (G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandiganbayan records, Exhibit "E" for the Prosecution.
25Id. at 1671, Annex I of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
26 Id.
27 Id.
28 Id. at 1644.
29 Id. at 1642, Comment filed by the Ombudsman in G.R. No. 220598.
30 Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
31 Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution.
32 Id. at I 953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
33 Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
34 Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution .
35 Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan Records Exhibit "W" for the Prosecution.
36 Id. at 1591-1611, Comment filed by the Ombudsman in G.R. No. 220598.
37 See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit 'T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
38 L.O.I. No. 1282 (1983), par. 2 provides: "Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."
39 L.O.I. No. 1282 (1983).
40 See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
41 Id.
42 In re: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds (1992).
43 In re: Audit and Liquidation of Confidential and Intelligence Funds For National and Corporate Sectors (2003).
44 The following must be submitted whenever a new Disbursing Officer is appointed.
A. Certified xerox copy of the designation of Special Disbursing Officers.
B. Certified xerox copy of their fidelity bonds.
C. Specimen signature of officials authorized to sign cash advances and liquidation vouchers.
(Emphasis supplied)
45 See Rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
46 Id. at 1829, Annex 4 of the Comment tiled by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "K" for the Prosecution.
47 Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G .R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
48 Ponencia , p. 7.
49 Id. at 1952, Annex 22 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "L" for the Prosecution.
50 Id. at l 953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
51 Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
52Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
53 Id. at 1957, Annex 27 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "V" for the Prosecution.
54 Id.
55 Ponencia, p. 7.
56 Ponencia, p. 7.
57 Id. at 2062, Annex 36 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
58 Id. at 2063, Annex 37 of the Comment tiled by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
59 Ponencia, p.5,
60 Id. at 1652-1653, Comment filed by the Ombudsman in G.R. No. 220598.
61 Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "M" for the Prosecution.
62 At that time, three (3) disbursements were already made based on the approval of the requests of PCSO General Manager Uriarte. These were made on April 2, 2008, August 13, 2008, and January 19, 2009.
63 Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
64 Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibits "JJ" to "H" for the Prosecution.
65 Id.
66 Sandiganbayan records, Exhibits "JJ" to "Hr for the Prosecution.
67 Sandiganbayan records, Exhibits "JJ" to "Hr for the Prosecution.
68 Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
69 Id.
70 TSN, February 12, 2014.
71 TSN, January 29, 2014.
72TSN, February 5, 2014.
73 TSN, February 19, 2014.
74 TSN, February 26, 2014.
75 TSN, March 5, 2014.
76 TSN, March 12, 2014.
77 TSN,March 19,2014.
78 TSN, March 26, 2014.
79 Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
80 Executive Order No. 383, series of 2004.
81 Executive Order No. 455, series of 2005.
82 See Rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
83 Id. at 3476-3479, Comment tiled by the Ombudsman in G.R. No. 220953.
84 Id.
85 Id. at 3478, Comment filed by the Ombudsman in G.R. No. 220953.
86 427 Phil. 820 (2002) [Per J. Puno, En Banc]
87 Estrada v. Sandiganbayan, 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Enrile v. People. G.R. No. 213455, August 11, 2015, 766 SCRA I [Per J. Brion, En Banc]; Serapio v. Sandiganbayan, 444 PHIL. 499 (2003) [Per J. Callejo Sr., En Banc]; Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].
88 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc]
89 Id. at 524-525.
90 Id.
91 Petition, Annex "B", People v Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-crm-0174 Concurring and Dissenting, April 6, 2016, p. 5, per Ponferrada J.
92 Petition, Annex "A", People v Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-CRM-0174, Resolution, April 6, 2016, pp. 44-52, per Lagos J.
93 Choa v. Choa, 441 Phil. 175, 183 (2002) [Per J. Panganiban, Third Division], citing Black's Law Dictionary 433 (6th ed, 1990).
94 Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
95 Cf. Spouses Condes v. Court of Appeals, 555 Phil. 311, 323-324 (2007) [Per J. Nachura, Third Division], on demurrer to evidence in civil cases: "In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence. 'Preponderance of evidence' means evidence which is of greater weight, or more convincing than that which is offered in opposition to it. It is, therefore, premature to speak of 'preponderance of evidence’ in a demurrer to evidence because it is filed before the defendant presents his evidence." (Emphasis supplied)
96 RULES OF Courn, Rule 133, sec. 2 provides:
SEC. 2. Proof beyond reasonable doubt. - In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt docs not mean such a degree of proot: excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.
97 Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division], emphasis supplied.
98 CONST., art. III, sec. 14 provides:
SECTION 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
99 CONST., art. III, sec. 16 provides:
SECTION 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
100 Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division].
101 Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
102 555 Phil. 311 (2007) [Per J. Nachura, Third Division].
103 Id. at 324, citing Heirs of Emilio Santioque v. Heirs of Emilio Calma, 536 Phil. 524, 540-541 (2006) [Per J. Callejo, First Division].
104 Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division]. In the context of this Decision, "lower court" was used to mean "trial court."
105 Id.
106 Soriquez v. Sandiganbayan, 510 Phil. 709, 719 (2005) [Per J. Garcia, Third Division], citing Quiñon v. Sandiganbayan, 338 Phil. 290, 309 (1997) [Per C.J. Narvasa, Third Division].
107 Azor v. Sayo, 273 Phil. 529, 533 (1991) [Per J. Paras, En Banc]: "(A] denial of the demurrer is not a final order but merely an interlocutory one. Such an order or judgment is only provisional, as it determines some point or matter but is not a final decision of the whole controversy."
108 RULES OF COURT, Rule 41, sec. 1 provides:
SECTION I. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
. . . .
(c) An interlocutory order;
109 204 Phil. 511 (1982) [Per J. Teehankee, First Division].
110 Id. at 517.
111 Id. at 528-529.
112 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division].
113 Id. at 256, citing lnterorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].
114 Id.
115 Spouses Condes' v. Court of Appeals, 555 Phil. 311, 322 (2007) [Per J. Nachura, Third Division] citing Choa v. Choa, 441 Phil. 175, 181 (2002) [Per J. Panganiban, Third Division], Deutsche Bank Manila v. Chua Yok See, 517 Phil. 212 (2006) [Per J. Callejo, First Division].
116 Mitra v. Commission on Elections, 636 Phil. 753, 777 (2010) [Per J. Brion, En Banc].
117 RULES OF COURT, Rule 65, sec. l provides:
SECTION l. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
118 Asutilla v. Philippine National Bank, 225 Phil. 40, 43 (1986) [Per J. Melencio-Hcrrera, First Division].
119 Id.
120 Director of Prisons v. Teodoro, 97 Phil. 391, 397 (1955) [Per J. Labrador, First Division].
121 CONST., art. XI, sec. I.
122 Estrada v. Sandiganbayan, 421 Phil. 290, 366-367 (2001) [Per J. Bellosillo, En Banc].
123 CONST. (1973), art. XIII, sec. 5 was subsequently amended to read as:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
124 CONST., art. XI, sec. 4.
125 People v. Court of Appeals. 204 Phil. 511, 517 (1982) [Per J. Teehankee, First Division].
126 Resoso v. Sandiganbayan, 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division], citing Interorient Maritime Enterprises. Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].
The Lawphil Project - Arellano Law Foundation
SEPARATE CONCURRING AND DISSENTING OPINION
PERLAS-BERNABE, J.:
The primordial issue in this case is whether or not respondent the Sandiganbayan gravely abused its discretion in denying the demurrers to evidence of petitioners Gloria Macapagal-Arroyo (Arroyo) and Benigno B. Aguas (Aguas).
The instant petitions stemmed from an Information1 charging Arroyo and Aguas (petitioners), along several others, of the crime of Plunder, defined by and penalized under Section 2 of Republic Act No. (RA) 70802 or the "Plunder Law," as amended by RA 7659,3 filed before the Sandiganbayan and docketed as Criminal Case No. SB-12-CRM-0174. The charge revolved around a series of anomalous transactions with respect to the release of the Confidential and Intelligence Fund (CIF) of the Philippine Charity Sweepstakes Office (PCSO), through which petitioners and other co-accused, all public officers, allegedly conspired to amass, accumulate, or acquire ill-gotten wealth in the aggregate amount of P365,997,915.00.4 After the Sandiganbayan acquired jurisdiction over the persons of petitioners, the latter filed their respective petitions for bail which were, however, denied on the ground that the evidence of guilt against them was strong.5 Thereafter, trial on the merits ensued.
After the prosecution concluded its presentation of evidence, various co-accused, including petitioners, filed, with leave of court, their respective demurrers to evidence, asserting that there was no sufficient evidence to establish a case of Plunder against them.6
In a Resolution7 dated April 6, 2015, the Sandiganbayan denied the demurrers to evidence of petitioners. With respect to Arroyo's demurrer, the Sandiganbayan held that: (a) her repeated "OK" notations in PCSO General Manager Rosario C. Uriarte's (Uriarte) multiple letter-requests8 did not only signify her unqualified approval to Uriarte's requests for additional CIF funds, but also amounted to an authorization of the use thereof; (b) despite the absence of full details on the specific purposes for which the additional CIF funds were to be spent for, Arroyo never questioned Uriarte's requests and still approved them in violation of Letter of Instructions No. 1282,9 series of 1983 (LOI 1282) and Commission on Audit (COA) Circular Nos. 92-38510 and 2003-00211; and (c) such acts resulted in Uriarte illegally amassing, acquiring, or accumulating CIF funds amounting to more than P50 Million. As for Aguas's demurrer, the Sandiganbayan ratiocinated that it was through his certifications in the disbursement vouchers - which all turned out to be false - that Uriarte was able to amass, acquire, or accumulate ill-gotten wealth amounting to more than P50 Million. In view of the foregoing, the Sandiganbayan concluded that petitioners' respective participations as co-conspirators of Uriarte in the plunder of public funds were established by sufficient evidence.12
Aggrieved, petitioners separately moved for reconsideration,13 but were, however, denied in a Resolution14 dated September 10, 2015; hence, the instant petitions for certiorari.
At the outset, the ponencia found no procedural infirmity in the certiorari petitions filed by petitioners against the Sandiganbayan Resolutions denying their respective demurrers, emphasizing that the said orders are interlocutory in nature and, hence, subject to the Court's certiorari jurisdiction. In this relation, it added that the Court has "the duty to strike down grave abuse of discretion whenever and wherever it is committed."15
On the merits, the ponencia proposed to grant petitioners' demurrers to evidence, dismiss Criminal Case No. SB-12-CRM-0174 as against them, and order their release from detention.16 In so ruling, the ponencia held that the Sandiganbayan gravely abused its discretion in denying said demurrers, considering that the prosecution failed to: (a) properly allege and prove the existence of conspiracy among Arroyo, Aguas, and Uriarte17; (b) prove that the co-accused amassed, acquired, or accumulated ill-gotten wealth in the amount of at least P50 Million18; and (c) prove the existence of the predicate act of raiding the public treasury.19
On the insufficiency of the charge, the ponencia observed that the "identification of the main plunderer was not only necessary because the law required such identification[,] but also because it was essential in safeguarding the rights of the accused to be properly informed of the charges they were being made answerable for."20 Thus, it concluded that "the [p]rosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the [petitioners ]."21
Further, the ponencia held that the prosecution failed to prove any overt acts from petitioners that would establish their respective participations in the conspiracy to commit Plunder, reasoning that: (a) Arroyo's mere unqualified approval of Uriarte's requests for additional CIF funds – which was not by any means irregular or illegal - did not make her part of the design to raid the public treasury and thereby amass, acquire, or accumulate ill-gotten wealth22; and (b) Aguas's certifications and signatures on the disbursement vouchers were insufficient bases to conclude that he was involved in any conspiracy to commit Plunder as those would not have meant anything had Arroyo not authorized the release of additional CIF funds.23
Finally, anent the predicate act of raiding the public treasury, the ponencia theorized that a "raid on the public treasury" under Section 1 (d) (I)24 of the Plunder Law "requires the raider to use property taken impliedly for his personal benefit"25 in line with the principle of noscitur a sociis, or "the doctrine of associated words," which postulates that "where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be made clear and specific by considering the company in which it is found or with which it is associated."26 In this regard, it was pointed out that the term "raid on the public treasury" was accompanied by the words "misappropriation," "conversion," and "misuse or malversation" of public funds, all of which - according to the ponencia - are concepts which require the use of the property taken.27 Thus, in view of the prosecution's failure to prove that personal benefit was derived by any of the co-accused from the use of CIF funds, it ruled that the existence of the aforesaid predicate act was not proven.28
I partly agree with the ponencia's findings.
I.
I first address the matters of procedure.
A petition for certiorari is generally prohibited to assail an order denying a demurrer to evidence. Section 23, Rule 119 of the Revised Rules of Criminal Procedure states:
Section 23. Demurrer to evidence. - x x x.
x x x x
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
However, case law has recognized certain exceptions to this rule. For instance, in Nicolas v. Sandiganbayan,29this Court had the occasion to explain:
On whether certiorari is the proper remedy in the consolidated petitions, the general rule prevailing is that it does not lie to review an order denying a demurrer to evidence, which is equivalent to a motion to dismiss, filed after the prosecution has presented its evidence and rested its case.
Such order, being merely interlocutory, is not appealable; neither can it be the subject of a petition for certiorari. The rule admits of exceptions, however. Action on a demurrer or on a motion to dismiss rests on the sound exercise of judicial discretion. In Tadeo v. People [(360 Phil. 914, 919 [1998]), this Court declared that certiorari may be availed of when the denial of a demurrer to evidence is tainted with "grave abuse of discretion or excess of jurisdiction, or oppressive exercise of judicial authority." And so it did declare in Choa v. Choa [(441 Phil. 175, 182-183 [2002]) where the denial is patently erroneous.
Indeed, resort to certiorari is expressly recognized and allowed under Rules 41and65 of the Rules of Court, viz.:
Rule 41:
SEC. 1. Subject of appeal. - x x x
No appeal may be taken from:
x x x x
(c) An interlocutory order;
x x x x
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
Rule 65:
SEC. 1. Petition for certiorari - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.30 (Emphases and underscoring supplied)
As case law shows, despite the prohibition foisted in Section 23, Rule 119 of the Revised Rules of Criminal Procedure, the Court may take cognizance of the petitions for certiorari against orders denying demurrers to evidence if only to correct an "oppressive exercise of judicial authority" which is manifested by patent errors in the assailed ruling amounting to grave abuse of discretion.
Meanwhile, on a separate procedural matter, it is my view that the Information against petitioners, including their co-accused, sufficiently apprised them of the nature and cause of the accusation against them. In order for the accused to be sufficiently apprised of the charge of Plunder, it is essential that the ultimate facts constitutive of the crime's elements be stated in the Information with reasonable particularity. Plunder, as defined in RA 7080, as amended by RA 7659, has the following elements: first, that the offender is a public officer; second, that he amasses, accumulates or acquires ill-gotten wealth through a combination or series31 of overt or criminal acts described in Section 1 (d); and third, that the aggregate amount or total value of the ill-gotten wealth is at least P50,000,000.00.32
The Information in this case clearly alleged the imputed crime of Plunder against all the accused, as well as the fact that they had conspired to commit the same. On its face, the Information states that: (1) petitioners are all public officers; (2) they conspired with each other and the other accused to willfully, unlawfully and criminally amass, accumulate and/or acquire ill-gotten wealth in the amount of at least P50 Million (i.e., P365,997,915.00); and (3) they did so through any or a combination or a series of overt or criminal acts, or similar schemes and means, described as follows: "(a) diverting in several instances, funds from the operating budget of [the] PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit"; (b) "raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures"; and (c) "taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines."33
At this juncture, let me express that it is of no moment that the main plunderer was not identified on the face of the Information. Contrary to the ponencia's stand,34 the identification of a main plunderer is not a constitutive element of the crime of Plunder. In fact, the charge in this case is hinged on an allegation of conspiracy, which connotes that all had participated in the criminal design. Under the Revised Rules of Criminal Procedure, to be considered as valid and sufficient, an Information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.35 All that should appear in the Information are the ultimate facts reflecting the elements of the crime charged, and not the evidentiary facts from which the conclusion of who was the main plunderer or who actually amassed, acquired, or accumulated the subject ill-gotten wealth may be drawn. Verily, the degree of particularity required for an Information to be sufficient is only based on the gauge of reasonable certainty - that is, whether the accused is informed in intelligible terms of the offense charged, as in this case.
That being said, I shall now proceed to a discussion on the substantive merits of the case.
II.
In concept, a demurrer to evidence is "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt."36
After a careful study of this case, it is my view that the Sandiganbayan gravely abused its discretion in denying Arroyo's demurrer to evidence on account of lack of sufficient evidence to prove her complicity in the alleged Plunder of CIF funds.
To recall, the Sandiganbayan found that there was sufficient evidence to prove Arroyo's participation as a co-conspirator in the Plunder of CIF funds because of her unqualified "OK" notations in Uriarte's multiple letter-requests for additional CIF funds. From its point of view, these notations violated LOI 1282 and COA Circular Nos. 92-385 and 2003-002. Accordingly, the Sandiganbayan denied her demurer to evidence.
I disagree with the Sandiganbayan' s findings.
For a conspiracy charge to prosper, it is important to show that the accused had prior knowledge of the criminal design; otherwise, it would hardly be the case that his alleged participation would be in furtherance of such design. In theory, conspiracy exists when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. To prove conspiracy, the prosecution must establish the following requisites: (1)two or more persons came to an agreement; (2) the agreement concerned the commission of a crime; and (3) the execution of the felony was decided upon.37 "Prior agreement or assent is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of sentiments or commun1.t v ofm. terests."38
In this case, I am hard-pressed to find that Arroyo's periodic approvals of Uriarte's multiple letter-requests for additional CIF funds - which was the sole justification behind the Sandiganbayan ruling under present scrutiny - amount to sufficient evidence which would prove her complicity in the Plunder of CIF funds. While she may have approved the use of CIF funds which would be the determinative act for which Uriarte was able to amass, acquire, or accumulate the questioned funds, the prosecution failed to satisfactorily establish any overt act on Arroyo's part that would clearly show that she knew that the funds she had approved for release was intended to further the alleged criminal design. In other words, while Arroyo's approval was an indispensable act in ultimately realizing the objective of the scheme or pattern of criminal acts alleged in the Plunder Information, there is no sufficient evidence - whether direct or circumstantial - to prove that she had knowledge of such objective, and hence, could have given her assent thereto. Without knowledge, there can be no agreement, which is precisely the essence of conspiracy.
The Sandiganbayan pointed to Arroyo's supposed breach of LOI 1282, from which one would supposedly infer her knowledge and eventual assent to the alleged Plunder scheme. For context, LOI 1281 was issued by then President Ferdinand E. Marcos on January 12, 1983, reflecting the government's policy on intelligence funds at that time. In reference to the duty of the President, LOI 1282 requires that all requests for the allocation and release of intelligence funds shall: (a) indicate the specific purposes for which the funds will be spent; (b) provide detailed explanations as to the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished by the release of funds; and (c) be presented personally to the President for his perusal and examination.
The pertinent portions of LOI 1282 are highlighted below:
LETTER OF INSTRUCTIONS No. 1282
To: All Ministries and Offices Concerned
In recent years[,] intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was often left unaware of how these funds had been utilized.
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the President in order to avoid such duplication of expenditures as has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.
Full compliance herewith is desired.39 (Emphases and underscoring supplied)
From this, it may be deduced that the President's approval of a request for intelligence funds which lacks any detailed explanation on the intended purpose or specifics thereof would be tantamount to an overt act that would support the finding that he/she facilitated the conspiratorial design.
In this case, records reveal that Uriarte indeed personally delivered to Arroyo the letter-requests for CIF funds in the aggregate amount of P295 Million, and that the latter provided her "OK" notations in each of those letter-requests.40 In the April 2, 2008 letter-request, Uriarte provided the following purposes of additional CIF funds amounting to P25 Million:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Donated medicines sometimes end up in drug stores for sale even if they were labelled "Donated by PCSO-Not for Sale";
2. Unwarranted or unofficial use of ambulances by beneficiary-donees;
3. Unauthorized expenditures of endowment fund for charity patients and organizations;
4. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as willing (sic) tickets;
5. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
6. Other fraudulent schemes and activities which put PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.41
In the letter-request dated August 13, 2008, seeking additional CIF funds in the amount of P50 Million, Uriarte detailed the purposes as follows:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Donated medicines sometimes end up in drug stores for sale even if they were labelled "Donated by PCSO-Not for Sale";
2. Unauthorized expenditures of endowment fund for charity patients and organizations;
3. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
4. Other fraudulent schemes and activities which put PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.42
In the letter-request dated April 27, 2009, for PIO Million, the purposes were as follows:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Unwarranted or unofficial use of ambulances by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
3. Conduct of illegal gambling games (jueteng) under [the] guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.43
In the letter-request dated July 2, 2009, for another P10 Million, the stated purposes were:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Unwarranted or unofficial use of ambulances by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
3. Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.44
In the letter-request dated August 19, 2009 seeking additional CIF amounting to P50 Million, the following purposes were stated:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Unwarranted or unofficial use of ambulances by beneficiary-donees;
2. Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
3. Conduct of illegal gambling games (jueteng) under [the] guise of Small Town Lottery;
4. Other fraudulent schemes and activities which put PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.45
Finally, in the letter-request dated January 4, 2010, for additional CIF funds amounting to Pl50 Million, Uriarte revealed the following purposes:
The Philippine Charity Sweepstakes Office (PCSO) had been conducting the experimental test run for the Small Town Lottery (STL) Project since February 2006. During the last semester of 2009, the PCSO Board has started to map out the regularization of the STL in 2010.
Its regularization will counter the illegal numbers game but will entail massive monitoring and policing using confidential agents in the area to ensure that all stakeholders are consulted in the process.
STL regularization will also require the acceptance of the public. Hence, public awareness campaigns will be conducted nationwide. In the process, we will need confidential funds to successfully implement all these.
On top of these, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:
1. Donated medicines sometimes end up in drug stores for sale even of (sic) they are labeled "Donated by PCSO-Not for Sale";
2. Unauthorized expenditures endowment fund for charity patients and organizations;
3. Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
4. Other fraudulent schemes and activities which put PCSO in bad light.
In order to save PCSO operating funds, we suggest that the General Manager's Office be given at most, twenty percent (20%) of the [P]ublic Relations [(PR)] Fund or a minimum of 150 Million Pesos, to be used as intelligence/confidential fund. PCSO spent 760 Million for PR in 2009.
The approval on the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues. PCSO will no longer need to seek approval for additional intelligence fund without first utilizing the amount allocated from the PR Fund.46
To my mind, the foregoing letter-requests show that, while they are indeed all similarly worded - as pointed out by the Sandiganbayan47 - it is nonetheless apparent that there was substantial compliance with the guidelines set forth in LOI 1282. In particular, Uriarte's letter-requests: (a) indicated the specific purposes for which the additional CIF funds will be spent (e.g., to protect the image and integrity of PCSO operations); (b) provided detailed explanations as to the circumstances giving rise for the expenditure and the particular aims to be accomplished by the release of additional CIF funds (e.g., the proliferation of fraudulent schemes that affect the integrity of PCSO operations and the need to curb the same); and (c) were presented personally to Arroyo for her approval.
To stress, LOI 1282 merely required that requests for additional CIF funds shall "indicate in full detail the specific purposes for which said funds shall be spent," and "explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."48 It did not provide for any other parameter as to how the purposes and the underlying circumstances should be particularized, thereby giving the President ample discretion to scrutinize and deem by himself/herself whether or not a letter-request indeed complied with the requirements of LOI 1282. In this case, it must be pointed out that as General Manager of the PCSO, Uriarte enjoyed the full trust and confidence not only of the PCSO Board of Directors who appointed her as such, but also of the President (Arroyo, in this instance), who is the appointing authority of the said board.49 Hence, when Arroyo placed her "OK" notations on Uriarte's letter-requests, it is as if she deemed such letter-requests compliant with the requirements of LOI 1282. Thus, while the Sandiganbayan correctly examined Arroyo's alleged participation under the lens of her duties under LOI 1282, it, however, erroneously concluded that there was sufficient evidence to prove that she knew of any Plunder conspiracy and henceforth, proceeded to approve the release of CIF funds in furtherance thereof.
The error of the Sandiganbayan is even more evident in relation to COA Circular Nos. 92-385 and 2003-002. This is because there appears to be no basis to render Arroyo accountable under the guidelines and control measures stated in these circulars. Reading their provisions, these issuances apply only to lower-level officials, particularly, the department heads, heads of government owned and controlled corporations, accountable officers, and other COA officers. At most, they only mention that the approval of the President is required before intelligence and confidential funds are to be released.50 However, the document showing the President's approval is but part of the requirements needed to be ascertained by the various heads and accountable officers as part of their duty to "institute and maintain sound and effective internal control measures to discourage and prevent irregular, unnecessary, excessive, extravagant and unconscionable expenditures as well as promote prudence in the use of government resources by those involved in intelligence/confidential operations."51 Outside of the duty to approve requests under LOI 1282, the circulars do not articulate any active responsibility on the part of the President so as to render him/her accountable for the irregular processing of CIF funds. The foregoing observation is buttressed by the testimony of prosecution witness Flerida Africa Jimenez, Director IV and Head of the Intelligence and Confidential Fund Audit Unit (ICFAU), Office of the Chairman, COA,52 to wit:
It is not the duty of the President of the Philippines to make or submit the liquidation of the GOCCs. It was not the duty of accused President Arroyo to submit these liquidations to COA. She also did not prepare these reports. She did not have any participation in the preparation of these reports. The reason for this is that she is not the payee or recipient of the CIF. Under the law, the special disbursing officer, who is the accountable officer, prepares the liquidation report. The President is not the accountable officer for CIF because she did not receive or use the CIF.53
In sum, considering that Arroyo's "OK" notations in Uriarte' s letter-requests are the only pieces of evidence which the Sandiganbayan used to link her to the Plunder charge, and that the same does not sufficiently prove that she assented to or committed any irregularity so as to facilitate the criminal design, it is my considered opinion that the Sandiganbayan patently erred - and in so doing, gravely abused its discretion - in denying Arroyo's demurrer to evidence. As I see it, the evidence of the prosecution has failed to prove Arroyo's commission of the crime, and her precise degree of participation under the evidentiary threshold of proof of guilt beyond reasonable doubt. While the records do reveal circumstances that may point to certain irregularities that Arroyo may or may not have knowingly committed, in the context of this criminal case for the high crime of Plunder, there lingers reasonable doubt as to her actual knowledge of the criminal design and that her approval of the release of CIF funds was in furtherance thereof. Case law instructs that "[i]ndeed, suspicion no matter how strong must never sway judgment. Where there is reasonable doubt, the accused must be acquitted even though their innocence may not have been established. The Constitution presumes a person innocent until proven guilty by proof beyond reasonable doubt. When guilt is not proven with moral certainty, it has been our policy of long standing that the presumption of innocence must be favored, and exoneration granted as a matter of right."54 Also, everyone is entitled to the presumption of good faith.55 While it is indeed tempting to cast the former President in a negative light because of the numerous anomalies involving her, the allure of publicity should not influence the outcome of a decision. Magistrates must be impartial to all that seek judicial succor. Every case should be decided based on the record and on its merits. The refuge of all presumptions, both of innocence and good faith, should not distinguish between similarly situated suitors.
In contrast, no grave abuse of discretion may be attributed to the Sandiganbayan in denying the demurrer of Aguas as his complicity to the said scheme appears to be supported by sufficient evidence on record. As PCSO Budget and Accounts Manager, Aguas was tasked to audit CIF liquidation reports.56 In this light, he is bound to comply with the provisions of COA Circular Nos. 92-385 and 2003-002 on the audit of CIF, which includes, inter alia, the proper scrutiny of liquidation reports with the corresponding supporting documents, as well as the submission of the same to the COA chairman before subsequent cash advances may be made. As exhaustively discussed by the Sandiganbayan, Aguas committed various irregularities in such audit, resulting in the release of additional CIF funds to Uriarte, viz.:
In all of the disbursement vouchers covering the cash advances/releases to Uriarte of the CIF funds, Aguas certified that:
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P__________ ; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.
These certifications, after close scrutiny, were not true because: 1) there were no documents which lent support to the cash advances on a per project basis. The particulars of payment simply read: "To draw cash advance from the CIF Fund of the Office of the Vice-Chairman and General Manager." No particular purpose or project was specified contrary to the requirement under COA Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each cash advance, Aguas could not certify that supporting documents existed simply because he would not know what project was being funded by the cash advances; and 2) There were no previous liquidations made of prior cash advances when Aguas made the certifications. COA Circular 2003-002 required that cash advances be liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If completion of the projects mentioned were for more than one month, a monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation made was wholesale, i.e., these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation progress report. How then could Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:
Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.
There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas' s certification, the disbursement vouchers could not have been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have been alerted that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is, therefore, present in the case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was conformed to by Uriarte, made it self-evident that the bulk of the CIF funds in 2009 and 2010 were allegedly spent for non-PCSO related activities, e.g., bomb threats, kidnapping, terrorism, and others.57 (Emphases and underscoring supplied)
Since the records show how Aguas evidently ignored his auditing duties and responsibilities in defiance of guidelines and control measures set therefor, there appears to be sufficient evidence to link him as a co-conspirator who had assented and eventually, facilitated Uriarte's amassment, accumulation, or acquisition of CIF funds subject of the present Plunder charge. Therefore, no grave abuse of discretion was committed by the Sandiganbayan in denying Aguas' s demurrer to evidence.
As a final point, allow me to submit my reservations on the ponencia's characterization of the concept of a "raid of public treasury" under the auspices of Section 1 (d) of the Plunder Law, viz.:
SECTION 1. Definition of Terms. - As used in this Act, the term
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury[.] (Emphasis supplied)
I disagree that the said concept requires - purportedly similar to the accompanying words in the above-cited provision - that personal benefit be derived by the public officer/s so charged. The gravamen of plunder is the amassing, accumulating, or acquiring of ill-gotten wealth by a public officer. Section 1 (d) of the Plunder Law states the multifarious modes under which the amassment, accumulation, or acquisition of public funds would be tantamount to the Plunder of ill-gotten wealth. There is simply no reasonable relation that the requirement of personal benefit commonly inheres in the sense of the words accompanying the predicate act of "raids on public treasury." For one, "misuse" is such a broad term that would encompass the gamut of illegal means and methods for which public funds may be amassed, accumulated, or acquired, without necessarily meaning that the public officer so amassing, accumulating, or acquiring the same had derived any personal benefit therefrom. Equally perceivable is the connotation given to the word "malversation," which under Article 217 of the Revised Penal Code, can be classified into a type known as "technical malversation." In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.58 In such instance of malversation, there is no necessity to prove that any personal benefit was derived. Thus, based on these observations, I respectfully submit that the doctrine of associated words, or noscitur a sociis was misapplied.
In addition, the Sandiganbayan noted that there is no basis under the Congressional deliberations of Plunder Law that personal benefit was required. As may be gleaned therefrom, the phrase "knowingly benefited" had been stricken off from the final text of the law.59
Finally, the Sandiganbayan aptly pointed out that: "to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already illegally amassed, acquired, or accumulated P50 Million or more of government funds and just decided to keep it in his vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the police, negating any opportunity for the person to actually benefit, would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still be evidence-based must fail."60 The ponencia's appreciation of the Plunder Law tends to deleteriously impact the prosecution of other pending Plunder cases. Unfortunately, the majority has imposed a rule which now requires the State to submit direct proof of personal benefit for an accused plunderer, as well as those who have conspired with him to be convicted. I strongly criticize this approach as it is practically the case that those who have raided the coffers of our government, especially in light of the fairly recent PDAF61 controversy and now current litigations, would, in great likelihood, had already hidden the money they stole through ingenious schemes and means. Regrettably, the majority's interpretation tends to enervate the potency of the Plunder Law's force.
ACCORDINGLY, for the reasons above-stated, I vote to GRANT the petition filed by petitioner Gloria Macapagal-Arroyo in G.R. No. 220598 and DENY the petition filed by petitioner Benigno B. Aguas in G.R. No. 220953.
ESTELA M. PERLAS-BERNABE
Associate Justice
Footnotes
1 The Information is reproduced in the ponencia, pp. 2-3.
2 Entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER," approved on July 12, 1991.
3 Entitled "AN Acr TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," approved on December 13, 1993.
4 See ponencia, p. 3.
5 Id. at 3-4.
6 Id. at 19. See also Sandiganbayan Resolution dated April 6, 2015, pp. 3-28.
7 See rollo (G.R. No. 220598), Vol. I, pp. 139-194. Penned by Associate Justice Rafael R. Lagos with Associate Justices Efren N. De La Cruz and Napoleon E. lnotura. Associate Justices Rodolfo A. Ponferrada and Alex L. Quiroz submitted their respective concurring and dissenting opinion.
8 See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, pp. 73-78, attached as Annex "R" of Arroyo's Petition in G.R. No. 220598.
9 Dated January 12, 1983.
10 Subject: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds dated October 1, 1992.
11 Subject: Audit and Liquidation of Intelligence and Confidential Funds for National and Corporate Sectors dated July 30, 2003.
12 See discussions in the April 6, 2015 Sandiganbayan Resolution, pp. 30-36.
13 The respective motions for reconsideration of petitioners were both dated April 22, 2015. See rollo (G.R. No. 220598), Vol. I, p. 195.
14 Id. at 195-211.
15 Ponencia, p. 28.
16 Id. at 47.
17 Id. at 28.
18 Id.at 41.
19 Id. at 43.
20 Id. at 35.
21 Id. at 36.
22 Id.
23 Id. at 40.
24 SECTION I. Definition of Terms. - As used in this Act, the term -
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury[.]
25 Ponencia, p. 45.
26 Aisporna v. Court of Appeals, 198 Phil. 838, 847 (1982).
27 Ponencia, pp. 44-45.
28 See id. at 46.
29 568 Phil. 297 (2008).
30 Id. at 309-310.
31 In Estrada v. Sandiganbayan [421 Phil. 290, 351 (200 I)], it was explained:
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law[.]
32 See Section 12 of RA 7659, amending Section 2 of RA 7080.
33 See portions of the Information as reproduced in the ponencia, pp. 2-3.
34 See id. at 34-36.
35 People v. Cinco, 622 Phil. 858, 866-867 (2009), citing Section 6, Rule 110 of the Revised Rules of Criminal Procedure.
36 People v. Go, G.R. No. 191015, August 6, 2014, 732 SCRA 216, 237-238; citations omitted.
37 See People v. Fabros, 429 Phil. 701, 713-714 (2002).
38 Id. at 714; emphasis and italics supplied.
39 See portions of LOI 1282 as reproduced in the ponencia, pp. 36-37.
40 See id. at 7.
41 See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, p. 73, attached as Annex "P" in Arroyo's Petition in G.R. No. 220598. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
42 Attached as Annex "Q" in Arroyo's Petition in G.R. No. 220598, p. 74. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
43 Attached as Annex "S" in Arroyo's Petition in G.R. No. 220598, p. 76. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
44 Attached as Annex "T" in Arroyo's Petition in G.R. No. 220598, p. 77. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
45 Attached as Annex "R" in Arroyo's Petition in G.R. No. 220598, p. 75. See also April 6, 2015 Sandiganbayan Resolution, p. 29 (erroneously dated as "January 19, 2009 in the Sandiganbayan Resolution).
46 Attached as Annex "W" in Arroyo's Petition in G.R. No. 220598, p. 78. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
47 See April 6, 2015 Sandiganbayan Resolution, p. 41.
48 See ponencia, p. 37.
49 See RA 1169 entitled "AN ACT PROVIDING FOR CHARITY SWEEPSTAKES, HORSE RACES, AND LOTTERIES" (As Amended by Batas Pambansa Big. 42 and Presidential Decree No. 1157) (June 18, 1954).
50 See 2"d Whereas clause of COA Circular No. 92-385 and Documentary Requirements, Item 2 of COA Circular No. 2003-002.
51 See COA Circular No. 2003-002.
52See April 6, 20 I 5 Sandiganbayan Resolution, pp. 20-27.
53 See id. at 23.
54 People v. Maraorao, 688 Phil. 458, 467 (2012).
55 "It is a standing rule that every public official is entitled to the presumption of good faith in the discharge of official duties, such that, in the absence of any proof that a public officer has acted with malice or bad faith, he should not be charged with personal liability for damages that may result from the performance of an official duty. Good faith is always presumed and he who alleges the contrary bears the burden to convincingly show that malice or bad faith attended the public officer's performance of his duties." Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013,703 SCRA 318, 337.
56 See Petition of Aguas in G.R. No. 220953, pp. 8 and 46.
57 See April 6, 2015 Sandiganbayan Resolution, pp. 32-33.
58 Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).
59 See also September 10, 2015 Sandiganbayan Resolution, pp. 8-9.
60 See September 10, 2015 Sandiganbayan Resolution, p. 10.
61 "Priority Development Assistance Fund.
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