G.R. No. 224720-23, February 2, 2021,
♦ Decision, Caguioa, [J]
♦ Concurring Opinion, Peralta, [CJ]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Dissenting Opinion, Leonen, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]

[ G.R. No. 224720-23, February 02, 2021 ]

RICHARD T. MARTEL, ALLAN C. PUTONG, ABEL A. GUIÑARES, VICTORIA G. MIER, AND EDGAR C. GAN, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

[G.R. Nos. 224765-68]

BENJAMIN P. BAUTISTA, JR., PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

CONCURRING OPINION

LAZARO-JAVIER, J.:

I concur in the result and a sizeable portion of the more important doctrines enunciated in the ponencia of the learned Justice Alfredo Benjamin S. Caguioa.

Elements of Section 3(e), Republic Act No. 3019 (RA 3019)

One. In the context of a violation of the relevant procurement statutes [Sections 356, 366, and 371 of the Local Government Code (LGC)] and Sections 4 and 10 of the Government Procurement Reform Act (GPRA), the elements of Section 3(e) of RA 3019 are as follows: (1) the accused's violation of procurement laws was done with evident bad faith, manifest partiality, or gross inexcusable negligence; and (2) the accused's violation of procurement laws caused undue injury to any party or gave any private party unwarranted benefits, advantage or preference.1

Malice as element of evident bad faith, manifest partiality and gross inexcusable negligence

Two. I agree with the ponencia that the modes of evident bad faith and manifest partiality must be characterized by malice or criminal intent.ℒαwρhi৷ For better or for worse, this has been how jurisprudence has expressly defined evident bad faith, and of late, in Sabaldan Jr. v. Office of the Ombudsman for Mindanao,2 has made this state of mind also an express element of manifest partiality.

To be sure, I see no reason to distinguish between evident bad faith and manifest partiality so far as this mental element is concerned. Manifest partiality cannot simply mean an open or clear inclination to favor another, because as humans we are faultlessly a fan of some than others, which without malice would be unjust to punish criminally. Further, we cannot remove malice as an element of manifest partiality since even the third mode of committing Section 3(e), RA 3019, gross inexcusable negligence, is culpa which by its context is actually a form of malicious omission.

In the context of a violation of the procurement statutes, there is malice or criminal intent when the violation is done with a vicious and malevolent purpose or agenda or dolus malus.

To illustrate, the crime of physical injuries in The Revised Penal Code cannot exist without dolus malus:3

As an act that is mala in se, the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer - iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the [RPC], there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are.4

Like the crime of physical injuries, the consummation of Section 3(e) demands two criminal intents - the general criminal intent and the specific criminal intent. Where a woman slaps a male suitor, the general criminal intent of slapping the suitor is presumed from the perpetration of such act. But to constitute physical injuries, there must also be the specific intent to injure him. This specific criminal intent may be inferred from the facts or circumstances contextualizing the slap, and if proved beyond reasonable doubt, is the same as the dolus malus.

Violations of procurement provisions per se not probative of criminal intent

Three. A violation of a procurement provision per se does not necessarily give rise to either a general criminal intent or a specific criminal intent. It all depends upon the specific procurement violation committed. This is because not all violations of procurement provisions are criminal in nature. For instance, here, the wrong use of the direct purchasing exception to the general rule of a public bidding and the wrong reference to brand names in the purchase documents are not crimes or offenses though perhaps they may give rise to administrative or civil liabilities. Hence, in the latter examples, it would take more than the violations themselves to prove dolus malus or even just a general criminal intent - for malus dolus, facts or circumstances or statutory language from which to infer from the violations an intent to cause fraud upon the government or its coffers or to commit or further graft and corrupt practices will be necessary, while for general criminal intent, we will have to require a statute criminalizing the mere erroneous use even if in good faith of any of the exceptions to public bidding or the mere erroneous reference sans bad faith to brand names in purchase documents.

As in the present case, violations of a procurement provision may constitute the predicate act for a charge under Section 3(e) of RA 3019. This however does not mean that the specific violations would already prove by themselves the first element of Section 3(e). As stated, we would require more to ensure a successful prosecution. This is acutely true here since (i) the wrong use of the direct purchasing exception to the general rule of a public bidding and the wrong reference to brand names in the purchase documents are not even crimes or offenses, and more importantly, (ii) the first element of Section 3(e) itself demands proof of dolus malus.

No evidence of criminal intent

Three. There is nothing from which we may infer dolus malus from the specific violations of the procurement statutes referred to in this case. Neither the LGC nor the GRPA characterizes the mere commission of any of the violations as presumptively dolus malus. There are also no facts or circumstances from which to infer this specific criminal intent. The subject violations do not even connote general criminal intent because these violations are not defined or penalized as criminal acts.

The wrong use of brand names - specifically, the specification of preference for two (2) units of Toyota Hilux 4x4 SR5, one (1) unit of Mitsubishi L300 Exceed DXX2500 Diesel and two (2) units of Ford Ranger XLT 4x4 - in the purchase documents was cited in the Dissent of the learned Justice Marvic Mario Victor F. Leonen as conclusive proof of dolus malus.

On the other hand, petitioners objected to their conviction, arguing that the brand names were used as mere benchmarks of the relevant characteristics and/or performance requirements of pick-up trucks for general use that their office needed. They even went to the extent of telling the Sandiganbayan in open court that all they had envisioned purchasing were vehicles for general use as pick-up trucks.

I am not too naive to believe petitioners' claims that the specified brand names were mentioned only as benchmarks of relevant characteristics or performance requirements. They are more sophisticated and discerning than what they would want to project. They are the type who would not refer to toothpastes as Colgate, refrigerators as Frigidaire, sodas as Coca Cola, rubber shoes as Adidas, photocopiers as Xerox, 8-track players as Pioneer, passenger jeepneys as Sarao, Asian utility vehicles as Ford Fiera, computers as IBM, wristwatches as Seiko, or jeans as Levis. Of course, petitioners, especially petitioner Bautista, specifically wanted Toyota Hilux 4x4 SR5, Mitsubishi L300 Exceed DXX2500 Diesel and Ford Ranger XLT 4x4. They knew what specifically appealed to their taste, what they thought would to them be not only comfortable and useful but more so gutsy and beautifully rugged.

Still, I do not find these specific choices consciously chosen by petitioners to be indicative of dolus malus.

Vehicles are purchased not only because of their utilitarian value. If these were the only consideration - only the general need for moving around - we would already be inundated with fleets upon fleets of low-cost even second-hand government vehicles. Truth to tell, vehicles are chosen for their over-all performance, durability, after-service assurances, freebies, and comfort, which would most likely be at par with every major vehicle and major car producer and distributor, but also for the X-factor and appeal they bring to the table.

Would there really be suitable substitutes for vehicles when suitable substitutes have been overbroadly defined as articles "which would serve substantially the same purpose or produce substantially the same results as the brand, type, or make of article originally desired or requisitioned"?

But what factors should be included in and excluded from the determination of the same purpose or the same results? Would a sense of respectability and dignity be a factor in determining the same purpose or the same results? Would a reclining seat inside a Sarao jeepney be serving substantially the same purpose or producing substantively the same results as a reclining seat inside a Mazda CX-30 or a Toyota Alphard? The fact is that choices of vehicles would depend not just on utility and price but also on the ooze of attraction from its grills, the ruggedness of its style, the brand appeal they each carry, and so much more imponderables.

In the end, it would be unjust to jail public servants simply because they acted humanly but not maliciously. If they did not profit from the procurement violations or did not allow others to unwarrantedly profit from government coffers, if the government receives value for value as this is defined by market forces, there would be no dolus malus and no violation of Section 3(e) of RA 3019.

I can hardly reconcile the claim that procurement standards are sacrosanct and worth protecting and regulating, yet the procurement statutes have not criminalized deviations from their standards. This fact alone should signal strongly that such deviations per se do not give rise to criminal liabilities under other statutes since they do not by themselves prove dolus malus. These deviations do not presume general criminal intent because merely committing them is not even a criminal act.

Here, other than the explicit brand preference, there are no other facts or circumstances from which to infer dolus malus. On the contrary, brand preference for some specialized products like vehicles may actually be warranted and encouraged by both societal and market values. Further, by itself, brand preference is not a crime. It has not been criminalized in our jurisdiction.

No evidence of malicious omission

Four. I also find no evidence of malicious omission by petitioners. For sure, they intentionally omitted compliance with the requirements of direct purchasing. Their belated obtention of certifications supports the claim that they knew for sure what direct purchasing called for and when it was appropriate to resort to this exception. However, I am unable to find malice in what they have done. The standing question is, did they omit compliance to pursue a specific result that is fraudulent or corrupt, and if yes, what was this specific fraudulent or corrupt result? There is simply no evidence of such malice in petitioners' deliberate non-compliance with the requisite procedures and documentation.

No evidence of injury to the Government or a private party, no evidence of unwarranted benefits and advantage to the dealers of the specifically preferred vehicles

Five. I agree that the Government and any private party were not injured by the decision to directly purchase the brand-specified vehicles. The Government received value for its money. No private party ever complained of being denied a business or the right to bid. Jurisprudence5 has consistently held:

x x x Unlike in actions for torts, undue injury in Sec. 3(e) cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury, or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.

In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property [; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.

In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

It naturally follows that the rule that should likewise be applied in determining undue injury is that in determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork, but must depend on competent proof and on the best evidence obtainable regarding specific facts that could afford some basis for measuring compensatory or actual damage.

....

Complainant's testimony regarding her family's financial stress was inadequate and largely speculative. Without giving specific details, she made only vague references to the fact that her four children were all going to school and that she was the breadwinner in the family. She, however, did not say that she was unable to pay their tuition fees and the specific damage brought by such nonpayment. The fact that the "injury" to her family was unspecified or unquantified does not satisfy the element of undue injury, as akin to actual damages. As in civil cases, actual damages, if not supported by evidence on record, cannot be considered.

In the present case, petitioner claims that the form of injury he suffered from the act of Garcia in referring his case to the DOJ is the resultant delay in the resolution of his Complaint against Palad. However, other than such assertion, petitioner failed to adduce evidence of the actual loss or damage he suffered by reason of the delay. While it is not necessary that a specific amount of the damage be proven with absolute certainty, there must be some reasonable basis by which the court can measure it. Here, petitioner utterly failed to support his bare allegation of undue injury

However, I do not agree that the dealers of the directly purchased vehicles did not get benefits and advantage from the direct purchase. A sale is still a sale, a business is appreciated precisely because business was consummated. The question is whether the benefits and advantage from the direct purchase were unwarranted.

I do not believe that the benefits and advantage received by the dealers of the preferred brand names were unwarranted. To be so, we have to ask another question - if the procurement provisions were not violated, would the sale or business or transaction not have pushed through? If the answer is yes, the sale or business or transaction would not have been consummated, then the benefits or advantage would be unwarranted. However, if the answer is in the negative, that it could have pushed through, the benefits or advantage was not unwarranted or at least there would have been reasonable doubt about whether the benefits or advantage were unwarranted.

Here, given the nature of the items to be purchased - vehicles - it was not improbable, or was indeed all too probable, that even if the procurement provisions on direct purchasing were followed, the selected vehicles would have been the same vehicles that would have been bought. The result in the end would have been a difference without any distinction from the situation we have now in the present case. This is because the nature of vehicles is that they are really brand-specific. A Toyota, a Ford, a Mitsubishi, have features inherent only to these brands. A reasonably prudent person would not shop for a vehicle without reference to the brand name and with reference solely to its utility and price. To claim otherwise would simply be forging a scenario contrary to common logic and human experience.

Villarosa v. People not on all fours with the facts in the case at bar

Six. I reiterate my stand in Villarosa v. People6 that the same was wrongly decided, viz.:

There can be no good faith where the circumstances point to the necessary mental element of the offense charged - manifest partiality, evident bad faith or inexcusable negligence. As noted, our case law has already settled the legal impact of petitioner's feigned ignorance of the utter lack of power to issue extraction permits. Petitioner gave out extraction permits repeatedly, albeit he had no authority to do so under the clear and unequivocal provision of Section 138 of the Local Government Code, Section 43 of the Philippine Mining Act, and Provincial Ordinance No. 2005-004. As a result, petitioner's unlawful act benefited and gave advantage to private parties that used the unduly permits to illegally extract resources. Despite petitioner's actual or at least strongly presumed knowledge of his lack of power to do so, he disputed, nay breaded the plain and categorical language of the Local Government Code, the Philippine Mining Act, and the Provincial Ordinance No. 2005-004. His actions manifest partiality, evident bad faith or inexcusable negligence.

In Villarosa, petitioner there was several times overruled about his asserted authority to issue extraction permits. Several times, too, he ignored the overruling of his issuance. His acts gave enormous benefits to contractors. These benefits were unwarranted - had he followed the law on the proper authority to issue the extraction permits, he would not have been able to issue these permits and the favored contractors would not have been favored after all. These glaring facts in Villarosa make it an unworthy precedent to be followed here. The facts are different; these facts distinguish one from the other.

In sum, I concur in the result and vote to acquit petitioners.



Footnotes

1 Sabaldan Jr. v. Office of the Ombudsman for Mindanao, G.R. No. 238014, June 15, 2020.

2 G.R. No. 238014, June 15, 2020.

3 US Legal.com at https://definitions.uslegal.com/d/dolus-malus/ (last accessed January 7, 2021): "Dolus malus is a Latin phrase which means "bad or evil deceit." It refers to a fraudulent design or intent; an unjustifiable deceit. In short it is the evil design with which an act is accomplished to the injury of another; or it may be the evil design with which an act is omitted that ought to be done."

4 Jabalde v. People, 787 Phil. 255, 273 (2016) quoting Villareal v. People, 680 Phil. 527 (2012).

5 Alvarez v. People, 692 Phil. 89 (2012); Guadines v. Sandiganbayan, 665 Phil. 563, 577 (2011); Soriano v. Marcelo, 597 Phil. 308, 317-319 (2009); Uriarte v. People, 540 Phil. 477, 497 (2006); Santos v. People, 520 Phil. 58, 71 (2006); Llorente Jr. v. Sandiganbayan, 350 Phil. 820, 837-839 (1998).

6 G.R. Nos. 233155-63, June 23, 2020.


The Lawphil Project - Arellano Law Foundation