G.R. Nos. 243029-30 - Dissenting Opinion

G.R. No. 243029-30, March 18, 2021,
♦ Decision, Gaerlan, [J]
♦ Dissenting Opinion, Caguioa, [J]

[ G.R. Nos. 243029-30, March 18, 2021 ]

TITO S. SARION, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DISSENTING OPINION

CAGUIOA, J.:

I respectfully register my dissent.

I submit that petitioner Tito S. Sarion (petitioner) cannot and should not be convicted for violating Section 3(e) of Republic Act (R.A.) No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and the crime of Malversation of Public Funds or Property under Article 217 of the Revised Penal Code (RPC).

After a careful review of the facts of the case, it is crystal clear that petitioner cannot be convicted of the two crimes he was charged with.

Brief review of the facts

Petitioner was charged with violation of Section 3(e) of R.A. No. 3019, as amended, and Malversation of Public Funds, in two separate Informations, the accusatory portions of which read:

SB-11-CRM-0256

That on 24 April 2008 or sometime prior or subsequent thereto, in Daet, a first class municipality in the Province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the accused, Tito S. Sarion, a public officer, being the Mayor of the Municipality of Daet, committing the crime in the discharge of his official functions, through manifest partiality, evident bad faith, or gross inexcusable negligence, did then and there willfully, unlawfully, and criminally cause undue injury to the government in the gross amount of One Million Pesos, Philippine Currency (PhP1,000,000.00), by then and there approving the disbursement in the absence of certificate of availability of funds, of public funds in said gross amount in favor of Markbilt Construction, the contractor for the construction of Daet Public Market (Phase II), as partial payment for its claim for price escalation which it is not entitled to so receive but which it received nevertheless per its Official Receipt No. 1156 dated 24 April 2008 through the approval of the disbursement voucher by the accused even without the approval from the Government Procurement Policy Board (GPPB) and the determination by the National Economic Deveiopment Authority (NEDA) as to the propriety of the claim for price escalation in violation of the GPPB Guidelines for Contract price Escalation to the prejudice of the Municipality of Daet in said amount.

CONTRARY TO LAW.

SB-11-CRM-0257

That on 24 April 2008, or sometime prior or subsequent thereto, in Daet, a first class municipality in the Province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable Court, the accused, Tito S. Sarion, a public officer, being the Mayor of the Municipality of Daet, while in the performance of his official functions, committing the offense in relation to his office, and taking advantage of his official position, and in grave abuse thereof, having control of public funds in the gross amount of One Million Pesos, Philippine Currency (PhP1,000,000.00), which was placed under his administration by reason of the duties of his office, and is accountable for said amount of public funds pursuant to Section 340 of the Local Government Code, did then and there willfully, unlawfully and feloniously consent, or through abandonment or negligence, permit Markbilt Construction, the contractor for the construction of Daet Public Market (Phase II), to take such amount of public funds which it is not entitled to receive but which it received nevertheless per its Official Receipt No. 1156 dated 24 April 2008, by then and there allowing the disbursement through his approval of the disbursement voucher even in the absence of certificate of availability of funds in said gross amount in favor of Markbilt Construction as partial payment for its claim for the price escalation even without the approval from the Government Procurement Policy Board (GPPB) and the determination by the National Economic Development Authority (NEDA) as to the propriety of the claim for price escalation in violation of the GPPB Guidelines for Contract price Escalation.

CONTRARY TO LAW.1 (Emphasis supplied)

The instant controversy arose from a Contract Agreement entered into on December 29, 2003 by herein petitioner, in his capacity as Municipal Mayor for the Municipal Government of Daet, Camarines Norte, and Mr. Billy Aceron (Aceron), General Manager of Markbilt Construction (Markbilt), represented by his attorney-in-fact, Architect Romeo B. Itturalde (Architect Itturalde).The agreement was for the Phase II construction of the Daet Public Market for the amount of P71,499,875.29, which was to be completed within a period of 365 calendar days.2

On January 5, 2005, petitioner approved a Notice to Commence Work authorizing Markbilt to commence with the construction project on the 10th day from receipt of said Notice.ℒαwρhi৷ Thereafter, construction works proceeded. Meanwhile, petitioner's term ended and Elmer E. Panotes (Mayor Panotes) was elected as Municipal Mayor of Daet, Camarines Norte during the May 2004 national and local elections.3

The construction of the Daet Public Market was completed sometime in 2006. On November 13, 2006, the Office of Mayor Panotes received a letter from Markbilt, requesting the processing and payment of contract price escalation in the amount of P5,222,903.75, in relation to the Daet Public Market (Phase II) project. Mayor Panotes refused to act on the demand.4

During the local elections held in 2007, petitioner was re-elected as Mayor of the Municipality of Daet.5 On January 21, 2008, in a letter addressed to petitioner, Markbilt reiterated its demand for payment of the contract price escalation.6 A similar demand was made by Markbilt in a letter dated February 7, 2008, this time with the information that it would be imposing a 15% interest per annum on the claim.7 Because of this demand, petitioner instructed Municipal Administrator Elmer Nagera (Administrator Nagera) to look for sources of funds to satisfy Markbilt's claim.8 This gave rise to the creation of Supplemental Budget No. 1. After the same was signed by Municipal Budget Officer Amelia P. Laborte (Budget Officer Laborte) and approved by Administrator Nagera, Supplemental Budget No. 1 was submitted to the Sangguniang Bayan.9

On March 6, 2008, the Sangguniang Bayan passed Resolution No. 063 unanimously approving Supplemental Budget No. 1 and appropriating the amount of P11,222,088.00 of the municipality's internal revenue allotment. Of such amount, designated under the Special Account, P4,400,000.00 was allotted for the construction of market. Resolution No. 063 was later approved by petitioner.10

In another letter dated April 14, 2008, Markbilt reiterated its demand for payment of contract price escalation. After Budget Officer Laborte certified the existence of available appropriation, Administrator Nagera prepared Obligation Request No. 100-08-03-402 certifying that "the charges to appropriation/allotment are necessary, lawful and under his direct supervision" and that "the supporting documents are valid, proper and legal."11 Subsequently, Administrator Nagera issued Disbursement Voucher No. 08041239 in the amount of P1,000,000.00 payable to Markbilt in partial satisfaction of its demand for contract price escalation.12

Concerned with the applicability of R.A. No. 9184, otherwise known as the "Government Procurement Reform Act," Municipal Accountant Caroline Maisie Robles (Accountant Robles) consulted the Commission on Audit (COA) Auditor assigned to the municipality, who in tum, advised her to seek the opinion of the Municipal Legal Officer. In his opinion, Municipal Legal Officer Edmundo Deveza II (Legal Officer Deveza) found, on the basis of Presidential Decree (P.D.) No. 1594,13 that there was no reason to refuse the payment of obligation in favor of Markbilt. Thus, on April 21, 2008, Accountant Robles certified the supporting documents complete and the allotment for partial payment of Markbilt.14 After Municipal Treasurer Arlyn O. Aberia certified that funds were available, petitioner approved the release of the funds for payment.15 Thus, on April 24, 2008, Markbilt received payment of P1,000,000.00 made through Landbank Check No. 0272388, and evidenced by Official Receipt No. 1156 dated April 24, 2008.16

On June 17, 2008, the Sangguniang Panlalawigan of Camarines Norte, approved Resolution No. 229-2008 declaring as operative Supplemental Budget No. 1 of the Municipality of Daet.17

On November 27, 2008, Zenaida Baluca, a resident of Daet, Camarines Norte, filed a complaint against petitioner before the Deputy Ombudsman for Luzon.18 The complainant charged petitioner with violation of Section 3(e) of R.A. No. 3019 relative to the payment of contract price escalation in the Daet Public Market (Phase II) Project.19

After investigation, Graft Investigation and Prosecution officer Judy Anne Doctor-Escalona found merit in the complaint and charged petitioner with violation of Section 3(e) of R.A. No. 3019, as amended, and Malversation of Public Funds, in two separate Informations.20

Petitioner was conditionally arraigned on September 2, 2011, and assisted by counsel, entered a plea of "not guilty."21

After trial, the Third Division of the Sandiganbayan rendered on September 29, 2017 the herein assailed Decision22 finding petitioner guilty beyond reasonable doubt for violation of Section 3(e) of R.A. No. 3019 and Malversation of Public Funds.23 The dispositive portion of the Decision reads:

WHEREFORE, this Court finds accused TITO S. SARION:

1. Guilty beyond reasonable doubt of Violation of Section 3(e) of Republic Act No. 3019, and he is accordingly sentenced to:

a. Suffer an indeterminate penalty of imprisonment of Six (6) years and One (1) month, as minimum, to Eight (8) years, as maximum, and,

b. Suffer the penalty of perpetual special disqualification from holding public office; and,

2. Guilty beyond reasonable doubt of Malversation of Public Funds or Property under Article 217 of the Revised Penal Code, and he is accordingly sentenced to:

a. Suffer an indeterminate penalty of imprisonment of Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Six (6) years and One (1) of prision mayor, as maximum;

b. Pay a fine in the amount of One Million Pesos (PhP1,000,000.00); and,

c. Suffer the penalty of perpetual special disqualification from holding public office.

Accused Sarion shall indemnify the municipality of Daet the amount of One Million Pesos (PhP1,000,000.00) as actual damages, plus interest at the rate of 6% per annum to be reckoned from the date of finality of the Decision until full satisfaction.

SO ORDERED.24

Petitioner's Motion for Reconsideration was thereafter denied by the Sandiganbayan in its Resolution dated November 8, 2018.25

Thus, this petition for review on certiorari.26

In affirming the conviction of petitioner for the crime of Malversation of Public Funds, the ponencia rules that the prosecution was able to prove all of the elements of said crime:27 (1) that petitioner is a public officer, being the then elected Municipal Mayor of Daet and that the funds involved are public in character, as they belong to the Municipality of Daet;28 (2) that, by reason of his office, he is an accountable officer based on Section 340 of the Local Government Code, as well as P.D. No. 1445 or the Government Auditing Code of the Philippines;29 (3) that the disbursement or release of funds had petitioner's approval as Mayor; and that payment in favor of Markbilt was released only after petitioner's signature in the disbursement voucher and the corresponding Landbank check;30 and (4) agreeing with the Sandiganbayan, that petitioner was guilty of gross inexcusable negligence when he permitted Markbilt to receive partial payment of price escalation despite not being entitled thereto.31

The ponencia reasons that when petitioner signed the disbursement voucher in favor of Markbilt, he certified to the correctness of the entries therein, warranted that the expenses incurred were necessary and lawful, the supporting documents were complete, and the availability of cash therefor.32 By approving the disbursement voucher and signing the Landbank check payable to Markbilt, despite the absence of funding and failure to comply with the requirements of Section 61,33 R.A. No. 9184, petitioner permitted Markbilt to take public funds to which it is not entitled to.34

In affirming petitioner's conviction for violation of Section 3(e) of R.A. No. 3019, the ponencia again anchors this on the finding that petitioner is guilty of gross inexcusable negligence "amounting to bad faith."35 The ponencia justifies its ruling on the following: (1) petitioner was remiss in his duty when he failed to exercise diligence in ensuring compliance with basic requirements demanded by the laws, rules, and regulations in the disbursement of public funds;36 (2) as the signatory to the Contract Agreement with Markbilt, he is presumed to know the contents thereof;37 thus (3) upon receipt of Markbilt's demand for price escalation, petitioner should have first verified the propriety of the said claim and whether the said claim satisfied the requirements of applicable laws.38

The ponencia likewise finds that the prosecution was able to prove the element of undue injury, as follows:39 (1) petitioner's approval of the disbursement voucher and his signature in the Landbank check in favor of Markbilt facilitated the unauthorized release of P1,000,000.00 worth of public funds which belong to the Municipality of Daet,40 (2) since Markbilt was not entitled to such payment, petitioner thus caused undue injury in this amount.41

I strongly disagree with the foregoing findings of the ponencia. To be sure, a careful review of the records shows that the foregoing findings are all belied by the evidence presented before the Sandiganbayan. I furthermore submit that following established jurisprudence, petitioner cannot be held guilty of "gross inexcusable negligence" for an act that was legal and fully compliant with the requirements of law. It is simply unjust to convict him; he should be acquitted of the crimes he is charged with.

While the Sandiganbayan Decision and the ponencia extensively discussed in relation to the crime of Malversation (1) the absence of Certificate of Availability of Funds (CAFs); and (2) petitioner's violation of the Government Procurement Policy Board (GPPB) Guidelines for Contract Price Escalation, and the absence of a determination by the National Economic Development Authority (NEDA) as to the propriety of the claim for price escalation, I likewise relate these discussions as far as applicable to R.A. No. 3019.

I.

Republic Act No. 3019
R.A. No. 3019, Section 3(e) reads:

SECTION 3. Corrupt practices of public officers.—In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

x x x x

(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

In order for an accused to be convicted under Section 3(e) of R.A. No. 3019, the prosecution must prove beyond reasonable doubt the following essential elements: (1) the accused must be a public officer discharging administrative, judicial or official functions; (2) he must have acted with manifest partiality, evident bad faith or inexcusable negligence; and (3) his action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.42

I submit that the last two elements were not established at all.

Under existing case law, petitioner cannot be found to have committed gross inexcusable negligence

There are three modes of committing a violation under Section 3(e) of R.A. No. 3019, to wit:

x x x There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. "Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. "Evident bad faith" contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes. "Gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.43 (Emphasis supplied)

At the very outset, it should be emphasized that the Sandiganbayan found and held that petitioner did not commit manifest partiality, to wit.

Accused Sarion's approval of the payment for price escalation to Markbilt, without the requisite approval of the GPPB and NEDA's determination of the existence of extraordinary circumstances, does not necessarily imply manifest partiality on the part of the accused. Records do not show that accused Sarion favored Markbilt over another entity when he authorized the subject payment.44 (Emphasis supplied)

The Sandiganbayan likewise held that petitioner did not act in evident bad faith, to wit:

The evidence is not sufficient to support a conclusion that accused Sarion was motivated by ill-will or dishonest purpose in paying Markbilt's demand for payment of contract price escalation. Accused Sarion appears to have relied on the legal opinion issued by the municipal legal officer which states: a) that P.D. No. 1594 is the applicable law in connection with Markbilt's claim for price escalation; b) The escalation prices were allegedly computed in accordance with the IRR of P.D. No. 1594; and c) There was no reason to refuse payment for price escalation. As concluded above, it appears that accused Sarion did not act in bad faith.45 (Emphasis supplied)

The Sandiganbayan convicted petitioner on the belief that he acted with gross inexcusable negligence when he approved the payment of the price escalation in favor of Markbilt without confirming that it was lawfully entitled thereto.46

To recall, petitioner was charged under the Information for causing undue injury to the government because of his having approved the payment to Markbilt of P1,000,000.00, as partial payment for its claim for contract price escalation: (1) in the absence of CAFs; and (2) in violation of the GPPB Guidelines for Contract Price Escalation as the payment was made despite the absence of an approval from the GPPB, and in the absence of a determination by NEDA as to the propriety of the claim for price escalation.47

Thus, the only question is this: Were these acts of petitioner committed with gross inexcusable negligence?

The ponencia answers in the affirmative. The ponencia rules that petitioner was remiss in his duty when he failed to exercise diligence in "ensuring compliance with basic requirements demanded by the law, rules, and regulations in the disbursement of public funds."48

I disagree. This is plain manifest error.

I discuss these points ad seriatim.

First, it should be noted that the Information for violation of Section 3(e) of R.A. No. 3019 alleges that petitioner approved the disbursement "in the absence of certificate of availability of funds."49 However, the Sandiganbayan found as a fact that there were CAFs, ruling only that there was an irregularity in the CAF:

The information charges accused Sarion of disbursing PhP1,000,000.00 in favor of Markbilt without a certificate of availability of funds. Disbursement Voucher No. 08041239 shows that Municipal Treasurer Arlyn Aberia certified to the availability of funds. Municipal Budget Officer Amelia P. Laborte certified, in the Obligation Request, to the existence of available appropriation. However, the certifications were irregular. Appropriation Ordinance No. 1 contained no appropriation for the payment of the amount of PhP1,000,000.00 to Markbilt. Appropriation Ordinance No. 1 shows that the appropriation was for the construction of the public market. There was no appropriation to pay for the contract price escalation, an obligation supposedly incurred in the already completed of the Daet Public Market.

Accused Sarion and his witnesses point to the deliberations of the Sangguniang Bayan. But the intent to pay the contract price escalation allegedly manifested during the deliberations are (sic) not reflected in Appropriation Ordinance No. 1. Notably, no documentary evidence was offered to prove the alleged deliberations.50 (Emphasis supplied and underscoring in the original)

The Sandiganbayan further ruled:

Accused Sarion cannot blindly rely on the erroneous certification of his municipal budget officer that funds are available because he was the one who approved the Supplemental Budget Ordinance and it was clear that no appropriation for the contract price escalation was included therein. Nonetheless, the Court notes that the Information alleges the absence of, not the infirmity in, the certificate of availability of funds. Hence, the court cannot find him culpable for said action.51 (Emphasis and underscoring supplied)

In spite of the Sandiganbayan's ruling that it cannot find petitioner culpable for the alleged irregularity in the CAF since "the Information alleges the absence of, not infirmity in, the [CAF],"52 the ponencia nevertheless rules as follows:

An Information is sufficient when it states the designation of the offense and the acts or omissions which constitute the offense charged. The crime must be described in ordinary and concise language and with such particularity and reasonable certainty that the accused is duly informed of the offense charged and able to adequately prepare for his defense. "In particular, whether an Information validly charges an offense depends on whether the material facts alleged in the complaint or information shall establish the essential elements of the offense charged as defined in the law."

To recapitulate, Section 86 of P.D. No. 1445 requires the existence of a prior specific appropriation, as certified by the proper accounting official, before any contract for expenditure of public funds is authorized. In this sense, therefore, it is the absence of certification as to the availability of or source of funds pertaining specifically to the payment of price escalation, that rendered the clause void and the subsequent approval by the petitioner of the disbursement voucher invalid. It is this irregularity which rendered the payment in favor of Markbilt illegal. In turn, it is the transgression of the same basic principle in disbursement of public funds which translates to gross negligence on the part of the petitioner. With this, the elements of the offense sufficiently alleged and proven in the Information, there is no obstacle in convicting the petitioner of the crime of malversation.

At any rate, granting for the sake of argument that the failure of the Information to specifically employ the word "irregularity" instead of "absence" constitutes a violation of the petitioner's right to Information and as such may not be considered in determining the offenses charged, the petitioner may nonetheless be still be convicted of the crime of malversation and for violation of Section 3(e) of R.A. No. 3019 "through [his] approval of the disbursement voucher x x x even without the approval from the Government Procurement Policy Board (GPPB) and the determination by the National Economic Development Authority (NEDA) as to the propriety of the claim for price escalation in violation of the GPPB Guidelines for Contract Price Escalation," clearly stated and alleged in the two (2) Informations filed against him. x x x53 (Emphasis and underscoring supplied)

The foregoing ruling violates petitioner's right, as an accused, to be properly informed of the charges against him.54 As correctly pointed out by petitioner, he cannot be found guilty for an irregularity in the CAFs because this violates his right to be informed of the accusation against him under Section 14(1), Article III of the 1987 Constitution since the Information merely alleged the absence of CAFs, and not irregularity.55 Stated differently, petitioner prepared for trial to prove, as he did, that there was a CAP. To convict him now on the reasoning that the CAP was "irregular" unduly deprived him the opportunity to directly traverse this.

More importantly, even the finding that there was an "irregularity" is wrong — it is completely belied by the evidence. This finding of "irregularity" in the CAF is based on the belief that "[t]here was no appropriation to pay for the contract price escalation."56 The Sandiganbayan, as well as the ponencia, holds that Appropriation Ordinance No. 0157 contained no appropriation for the payment of P1,000,000.00 to Markbilt.58 At the point of being repetitive, this is just plain error.

The plain language of Supplemental Budget No. 159 belies this factual finding. To recall, Resolution No. 063 approved Supplemental Budget No. 1 for CY60 2008 for the Municipality of Daet. It was this Supplemental Budget No. 161 that was approved in Appropriation Ordinance No. 01. Stated simply, Appropriation Ordinance No. 01 approved each and every proposed item in Supplemental Budget No. 1, including the payment of P1,000,000.00 for the price escalation claim of Markbilt.62 As correctly shown by petitioner:

The title of Resolution No. 063 is revealing as to what was approved by the Sangguniang Bayan, that is, Supplemental Budget No. 1, which contained an appropriation of P1,000,000.00 to partially pay Markbilt Construction's claim for price escalation –

Resolution Approving the Supplemental Budget No. 01 for CY 2008 for the Municipality of Daet Appropriating the Amount of Six Million Eight Hundred Twenty Two Thousand Eighty Eight Pesos (P6,822,088.00) for Various Municipal Projects/Expenditures under the General Fund Proper and for Special Account (Market) – Construction of Public Market Amounting to Four Million Four Hundred Thousand Pesos (P4,400,00.00) with a Total Amount of Eleven Million Two Hundred Twenty Two Thousand Eighty Eight Pesos (P11,222,088.00).63

Likewise, it is apparent in the title of Appropriation Ordinance No. 01 as to what was approved by the Sangguniang Bayan:

An Ordinance Approving the Supplemental Budget No. 01 for CY 2008 for the Municipality of Daet Appropriating the Amount of Six Million Eight Hundred Twenty Two Thousand Eighty Eight Pesos (P6,822,088.00) for Various Municipal Projects/Expenditures under the General Fund Proper and for Special Account (Market) – Construction of Public Market Amounting to Four Million Four Hundred Thousand Pesos (P4,400,00.00) with a Total Amount of Eleven Million Two Hundred Twenty Two Thousand Eighty Eight Pesos (P11,222,088.00).64

The portion of Appropriation Ordinance No. 01, which appropriated the amount of P4,400,000.00 as "Special Account (Market) Construction of Market" exactly corresponded to the appropriated items in that portion of Supplemental Budget No. 1 sub-marked as Exhibit 21-Q-1, which to repeat had these components:

Subsidy to Special Account – Market

Construction of Market 1,500,000.00

Price Escalation 1,000,000.00

Improvement/Repair Market 1,900,000.0065

These appropriated items would add up to P4,400,000.00, which is Exhibit 9-A-1 of the prosecution.

A cursory examination of Supplemental Budget No. 1 would show that the proposed appropriations therein were all approved and adopted in Appropriation Ordinance No. 01, as shown by the fact that Supplemental Budget No. 1 proposed a total appropriation of P11,222,088.00, which was the same approved amount in Appropriation Ordinance No. 01.

In other words, Appropriation Ordinance No. 01 approved each and every proposed item in Supplemental Budget No. 01, including the payment of P1,000,000.00 for the price escalation claim of Markbilt Construction.66

In other words, contrary to the findings of the Sandiganbayan and the ponencia, there was a valid appropriation to pay for the contract price escalation.

Accordingly, since there was a regularly issued CAF prior to petitioner's approval of the Disbursement Voucher, it is egregious error to still rule that petitioner acted with gross inexcusable negligence when he approved the Disbursement Vouchers.67

Second, on the alleged non-compliance with Section 61 of R.A. No. 9184, the evidence shows that: (1) the alleged non-compliance with Section 61 of R.A. No. 9184 did not pertain to petitioner; and (2) even assuming that compliance with Section 61 of R.A. No. 9184 pertained to petitioner, R.A. No. 9184 does not penalize the alleged irregularity.68

As correctly pointed out by petitioner, in the Notice of Disallowance69 with ND No. 2010-001-101 (2008) dated March 17, 2010, the obligation to secure the documents required under Section 61 of R.A. No. 9184 did not pertain to petitioner, but to Architect Itturalde for Aceron –

Name Position/Designation Name of Participation in the Transaction

x x x x x x x x x

6. Romeo B. Itturalde For Mr. Billy Aceron Represented the General Manager, Billy Aceron Failure to submit the required documents in compliance to Section 61 of RA 9184.70

This is, in turn, fully corroborated by the admission of prosecution witnesses Jesus R. Reblora, Jr. (Reblora) and Lourdes G. Cribe (Cribe) that the obligation to submit the required documents in compliance with Section 61 of R.A. No. 9184 did not pertain to petitioner, but to Architect Itturalde for Aceron.71

On cross-examination, the COA Audit Team Leader,72 Reblora, testified as follows:

Q: Do you confirm that the representatives of Markbilt Construction namely: Romeo B. [Itturalde], Mr. A[c]eron, also appeared in the Notice of Disallowance?

A: Yes, sir.

Q: Now do you confirm also sir that in this entry regarding the nature of participation in the transaction of Romeo [Itturalde] of Mr. Billy A[c]eron or the representatives of Markbilt Construction, reads, "failure to submit the required documents in compliance to Section 61 of RA 9184," do you confirm that that is the nature of participation? (sic)

A: Yes, sir.

Q: Therefore, the alleged irregularity of the subject transaction which was [the] absence of that GPP[B] approval pertained to the representatives of Markbilt Construction per Notice of Disallowance, do you confirm that sir?

A: That is part of the process.

Q: My question is answerable by yes or no regarding this Notice of Disallowance that requirement belong[s] to Mr. Romeo [Itturalde] or Billy Aceron?

A: Yes, sir.73

Cribe, who was the COA State Auditor V and Supervising Auditor who issued the Notice of Disallowance, likewise admitted that the failure to submit the required documents in compliance with Section 61 of R.A. No. 9184 did not appear in the line pertaining to petitioner:

Q: Now, [I] show this Notice of Disallowance[,] do you confirm that this line here which reads and I quote, "failure to submit the required documents in compliance with Section 61 of R.A. 9184" does not appear in this line pertaining to Tito Sarion?

A: It does not, sir.74

Moreover, even assuming that compliance with Section 61 of R.A. No. 9184 pertained to him, said law does not actually penalize the alleged irregularity.75 R.A. No. 9184 does not contain a penal clause for not securing a GPPB and a NEDA clearance before payment of price escalation.76

In this relation, the Court held in Sabaldan, Jr. v. Ombudsman,77 that violations of procurement laws do not ipso facto give rise to violation of R.A. No. 3019:

More importantly, it must be emphasized that the instant case involves a finding of probable cause for a criminal case for violation of Section 3(e) of R.A. No. 3019, and not for violation of R.A. No. 9184. Hence, even granting that there may be violations of the applicable procurement laws, the same does not mean that the elements of violation of Section 3(e) of R.A. No. 3019 are already present as a matter of course. For there to be a violation under Section 3(e) of R.A. No. 3019 based on a breach of applicable procurement laws, one cannot solely rely on the mere fact that a violation of procurement laws has been committed. x x x.78 (Emphasis supplied)

Thus, in the recent case of Martel v. People,79 (Martel) the Court ruled that in order to successfully prosecute the accused under Section 3(e) of R.A. No. 3019 based on a violation of procurement laws, the prosecution must prove beyond reasonable doubt that: (1) the violation of procurement laws caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference, and (2) the accused acted with evident bad faith, manifest partiality, or gross inexcusable negligence.

However, in the instant case, the Sandiganbayan conceded that petitioner did not act with evident bad faith or manifest partiality. Also, as previously discussed, the prosecution failed to prove that petitioner acted with gross inexcusable negligence. Thus, the second element is absent.

Further, as I stated in my Concurring Opinion in Villarosa v. People80 (Villarosa), an accused should not be punished with imprisonment for violations of non-penal laws:

While I am in full agreement with the call to hammer the point that "public office is a public trust," I cannot, in good conscience, agree to punishing with imprisonment any and all violations of non-penal laws. It is true that public servants have a duty to know the limits of the authority granted to them. Yet, I cannot subscribe to the thinking that to do an act outside of those limits already constitutes "gross inexcusable negligence" that is criminally punishable. If that is the case, then we might as well dispense with administrative proceedings – whether in the Civil Service Commission or in the Ombudsman – against public officials, for what is the sense of having a distinction between administrative and criminal cases when every single misstep merits a criminal sanction.

It is also true that every person is presumed to know the law, and that ignorance of the law excuses no one from compliance therewith. However, it is likewise true that it is unjust to automatically punish someone with a criminal sentence by virtue of his non-compliance with a non-penal rule.81 (Emphasis supplied and underscoring in the original)

Again, R.A. No. 9184 and R.A. No. 3019 are distinct laws with distinct requisites for their violation. A violation of one does not ipso facto result in a violation of the other.82 Thus, even assuming that petitioner committed a violation of some provisions of R.A. No. 9184, he cannot and should not be convicted under R.A. No. 3019 without proof beyond reasonable doubt that the elements of a violation of R.A. No. 3019 are all present.

The ponencia insists that petitioner is "guilty of gross inexcusable negligence amounting to bad faith:"83

The Court affirms that the petitioner is guilty of gross inexcusable negligence amounting to bad faith. From the stated definition, there is gross inexcusable negligence when a public officer commits a breach of duty in a blatant and extremely careless manner; or when the violation of law is serious, flagrant, palpable, or there is willful indifference in complying with the same.

As previously discussed, the petitioner was remiss in his duty when he failed to exercise diligence in ensuring compliance with basic requirements demanded by the law, rules, and regulations in the disbursement of public funds. First, as the signatory in the Contract Agreement with Markbilt, he is presumed to know the contents thereof. On its face, the instrument only provides for a single appropriation for the construction project; there is no separate funding to support the contract price escalation clause therein. In the statement of the said clause, the parties covenant to comply with relevant rules and regulations with respect to the same. Albeit unnecessary, they explicitly incorporated the relevant guidelines with respect to adjustment of contract prices. Thus, upon receipt of Markbilt's demand for price escalation, prudence dictates for the petitioner to first verify the propriety of the said claim and whether the said claim satisfies the requirements of applicable laws. It is only then that the possibility of satisfying the claim can even be entertained. It is highly irregular and unusual to rely merely on the representation of the contractor as to the amount due, without validating whether the amount so claimed is accurate and correct. Likewise, it must be noted that petitioner was already confronted with Markbilt's demands for price escalation as early as January 21, 2008. Even so, there was no evidence on record of any effort on the part of the petitioner to direct municipal officials to inquire on the basis of Markbilt's claims vis-a-vis the Contract Agreement which is cited as basis therefor, when he had every opportunity to do so prior to release of Legal Officer Deveza's opinion and the preparation of the Supplemental Budget. This step could have easily alerted the petitioner or the municipal officials of the requirements of price escalation under the law, particularly that provided for under Sec. 61 of R.A. No. 9184.

Had the petitioner undertaken these steps, he would have realized, for reasons previously stated in this decision, that Markbilt's claim should be denied. The petitioner's failure to observe sufficient diligence under these circumstances which led to violation of the law and rules relating to disbursement of public funds amounts to gross inexcusable negligence.84

In this relation, it is important to stress first of all that gross inexcusable negligence does not mean evident bad faith. In my Concurring Opinion in Villarosa, I stated:

x x x "Section 3 (e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence." In simple terms, "evident bad faith" entails willfulness to do something wrong, whereas "gross inexcusable negligence" entails failure to exercise the required diligence that either results in a wrong or in the failure to prevent the occurrence of a wrongdoing. Thus, "gross inexcusable negligence" and "evident bad faith" are separate and distinct from each other. x x x85 (Emphasis supplied and italics in the original)

Felonies committed by means of dolo or deceit are those performed with deliberate intent. On the other hand, felonies committed by means of culpa are those performed with imprudence, negligence, lack of foresight, or lack of skill.86 In intentional felonies, the act or omission of the offender is malicious. However, in culpable felonies, the act or omission of the offender need not be malicious. The wrongful act results from imprudence, negligence, lack of foresight or lack of skill.87

Gross inexcusable negligence under Section 3(e) of R.A. No. 3019 does not require fraudulent intent or ill-will. A public officer is guilty of gross inexcusable negligence when there is a breach of duty that is committed flagrantly, palpably, and with willful indifference.88 Hence, a public officer who seriously breaches his or her duty in a blatant and extremely careless manner is guilty of gross inexcusable negligence under Section 3(e).

To stress anew, as held in Martel:

The commission of Section 3(e) of R.A. 3019 through gross inexcusable negligence requires more than simple negligence. The negligence committed must be both gross and inexcusable, characterized by the want of even slight care, wherein the accused was consciously indifferent as to the compliance with his or her duty as a public officer. More than committing a breach of a legal duty, it is necessary that in committing the said breach, the public officer was inattentive, thoughtless, and careless.89 (Emphasis and underscoring supplied; italics in the original)

On this score, the following arguments of petitioner are well-taken:

The Municipal Legal Officer was competent to determine the applicable law insofar as the claim was concerned. The Municipal Accountant and the Municipal Mayor were not lawyers. They could not be faulted for relying on the legal opinion of the Municipal Legal Officer who was presumed to know the correct law.

Thus, Tito Sarion rightfully and lawfully relied in good faith on the acts of the other municipal officers who verified the regularity of the transaction.

There being no patent irregularity and considering that the transaction had gone through the proper procedure as certified by the officers concerned, Tito Sarion finally gave his approval to the Disbursement Voucher.

Negligence is the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do.

To convict Tito Sarion for an act which appears to be perfectly valid and after due regard to the conduct and performance of duty of other municipal officers before him, is patently unjust and arbitrary.90

The records show that petitioner signed on the basis of the acts of the other municipal officers who verified the regularity of the transaction.91 All concerned municipal officers, including Accountant Robles and petitioner, relied on the legal opinion of Legal Officer Deveza.92 In fact, petitioner did not only sign on the basis of the legal opinion of the Legal Officer, but he also relied on all the certifications and approvals of all concerned local officials including the presumed validity of Appropriation Ordinance No. 01 that approved the Supplemental Budget No. 1, which included a P1,000,000.00 appropriation for Markbilt Construction.93 Thus, petitioner's actions cannot be characterized as one where he acted without even the slightest care.

In this regard, the ponencia insists that petitioner should have taken steps to verify the propriety of the said claim and whether the said claim satisfies the requirements of applicable laws.94 The ponencia further rules that when there are circumstances that should have alerted heads of offices to exercise a higher degree of circumspection in the performance of their duties, they cannot invoke the doctrine to escape liability.95 In this scenario, heads of offices are expected to exercise more diligence and go beyond what their subordinates have prepared.96

With all due respect, under the factual milieu of this case, the evidence shows that petitioner did exercise the required diligence. The fault ascribed to him by the ponencia simply does not exist, viz.:

x x x Even so, there was no evidence on record of any effort on the part of the petitioner to direct municipal officials to inquire on the basis of Markbilt's claims vis-a-vis the Contract Agreement which is cited as basis therefor, when he had every opportunity to do so prior to release of Legal Officer Deveza's opinion and the preparation of the Supplemental Budget. This step could have easily alerted the petitioner or the municipal officials of the requirements of price escalation under the law, particularly that provided for under Sec. 61 of R.A. No. 9184.97

The fact remains that Legal Officer Deveza gave his legal opinion that the demand of Markbilt should be paid. For petitioner to be labelled as negligent for not "direct[ing] municipal officials [to direct municipal officers] to inquire on" Markbilt's demands "prior to release of" Legal Officer Deveza's opinion is, with respect, nonsensical. Again, the fact is that Legal Officer Deveza gave his imprimatur to the payment.

Moreover, the ponencia utterly fails to even state what circumstances it is referring to that should have "alerted [petitioner] to exercise a higher degree of circumspection."98

In this regard, petitioner's reliance on Arias v. Sandiganbayan99 is very apropos:

We would be setting a bad precedent if a head of office plagued by all too common problems – dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence – is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority.

x x x x

We can, in retrospect, argue that Arias should have probed records, inspected documents, received procedures, and questioned persons. It is doubtful if any auditor for a fairly sized office could personally do all these things in all vouchers presented for his signature. The Court would be asking for the impossible. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those prepare bids, purchase supplies, or enter into negotiations. If a department secretary entertains important visitors, the auditor is not ordinarily expected to call the restaurant about the amount of the bill, question each guest whether he was present at the luncheon, inquire whether the correct amount of food was served, and otherwise personally look into the reimbursement voucher's accuracy, propriety, and sufficiency. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling.

There should be other grounds than the mere signature or approval appearing on a voucher to sustain a conspiracy charge and conviction.100 (Emphasis and underscoring supplied; italics in the original)

Likewise, in Sistoza v. Desierto,101 the Court held:

There is no question on the need to ferret out and expel public officers whose acts make bureaucracy synonymous with graft in the public eye, and to eliminate systems of government acquisition procedures which covertly ease corrupt practices. But the remedy is not to indict and jail every person who happens to have signed a piece of document or had a hand in implementing routine government procurement, nor does the solution fester in the indiscriminate use of the conspiracy theory which may sweep into jail even the most innocent ones. To say the least, this response is excessive and would simply engender catastrophic consequences since prosecution will likely not end with just one civil servant but must, logically, include like an unsteady streak of dominoes the department secretary, bureau chief, commission chairman, agency head, and all chief auditors who, if the flawed reasoning were followed, are equally culpable for every crime arising from disbursements they sanction.

Stretching the argument further, if a public officer were to personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority, if only to avoid prosecution, our bureaucracy would end up with public managers doing nothing else but superintending minute details in the acts of their subordinates. x x x102 (Emphasis and underscoring supplied)

Thus, there being no "irregularity" in the CAF, or any other patent irregularity in the transaction that had gone through the proper procedure as certified by the officers concerned before petitioner signed the disbursement voucher, as well as the fact that petitioner relied on a legal opinion, it is erroneous to insist that petitioner is guilty of gross inexcusable negligence, more so that he acted in bad faith.

There were no unwarranted benefits, advantage, or preference given to Markbilt nor any undue injury to the government

The ponencia, in upholding the Sandiganbayan ruling that the prosecution was able to prove the element of undue injury to the government,103 refers solely to the absence of a GPPB approval and the absence of a determination by NEDA as to the propriety of the claim for price escalation.104

However, as previously discussed, the evidence unequivocally established that: (1) there was indeed an appropriation to pay for the contract price escalation; (2) the alleged non-compliance with Section 61 of R.A. No. 9184 did not pertain to petitioner; and (3) even assuming that compliance with Section 61 of R.A. No. 9184 pertained to petitioner, the same law does not penalize the alleged irregularity.105 Finally, there is no question that work was actually done by Markbilt.

To still hold that petitioner gave unwarranted benefits, advantage or preference to Markbilt is to contradict established jurisprudence because it was not proven that petitioner acted with corrupt intent. In Martel, the Court held:

x x x As its title implies, and as what can be gleaned from the deliberations of Congress, R.A. 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under R.A. 3019 is corruption. As explained by one of the sponsors of the law, Senator Arturo M. Tolentino, "[w]hile we are trying to penalize, the main idea of the bill is graft and corrupt practices. x x x Well, the idea of graft is the one emphasized." Graft entails the acquisition of gain in dishonest ways.106 (Italics and underscoring in the original)

Further, as I stated in my Concurring Opinion in Villarosa:

Hence, in saying that a public officer gave "unwarranted benefits, advantage or preference," it is not enough that the benefits, advantage, or preference was obtained in transgression of laws, rules, and regulations. Such benefits must have been given by the public officer to the private party with corrupt intent, a dishonest design, or some unethical interest. This is in alignment with the spirit of RA 3019, which centers on the concept of graft.

I recognize that this is not the understanding under the current state of jurisprudence. Jurisprudence has defined the term "unwarranted" as simply lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another. The term "private party" may be used to refer to persons other than those holding public office, which may either be a private person or a public officer acting in a private capacity to protect his personal interest.

Thus, under current jurisprudence, in order to be found guilty for giving any unwarranted benefit, advantage, or preference, it is enough that the public officer has given an unauthorized or unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. By giving any private party unwarranted benefit, advantage, or preference, damage is not required. It suffices that the public officer has given unjustified favor or benefit to another in the exercise of his official functions. Proof of the extent or quantum of damage is not even essential, it being sufficient that the injury suffered or benefit received could be perceived to be substantial enough and not merely negligible.

I respectfully submit, and evidently the majority agrees, that it is high time for the Court to revisit this line of reasoning.

The foregoing understanding of "unwarranted benefit, advantage, or preference" is too broad that every single misstep committed by public officers that result in benefits to private parties falls under the definition and would thus possibly be criminally punishable. Every little error no matter how minor- would satisfy the fourth element as the threshold is simply that the benefit be "unjustified," "unauthorized," or "without justification." For instance, a contract awarded in good faith based on an interpretation of the law that would later on be judicially declared incorrect would be sufficient basis for affirming the existence of the fourth element, which may lead to the incarceration of a public officer simply because a private party received a benefit "without justification," yet was revealed to be so only in hindsight.

While it is true that public office is a public trust, the Court is called upon to likewise play its part in not interpreting the laws to effectively be a disincentive to individuals in joining the public service. It is simply absurd to criminally punish every minute mistake that incidentally caused a benefit to private parties even when these acts were not done with corrupt intent.

In the instant case, for example, Villarosa's act of issuing the extraction permits was motivated, not by any corrupt intent to favor one operator over another or to unduly receive any pecuniary benefit. Based on the evidence, his actuations were simply based on his honest belief that he had the authority to issue the permits. To be sure, the evidence in fact shows that all the pertinent taxes and fees in the issuance of the said permits were collected, creating revenue for the provincial government, the municipality, and the barangay. No pecuniary benefit went to the wrong person or entity – in other words, the evidence clearly showed that no graft and corruption actually transpired.107 (Emphasis supplied and italics in the original)

To show that petitioner did not act with corrupt intent, a dishonest design, or some unethical interest, the following arguments of petitioner are very telling:

The Contract Agreement between Markbilt Construction and the Municipality of Daet x x x contained a provision of price escalation.

Invoking such provision, Markbilt Construction sent five (5) demand letters, from 2005 to 2008, for the payment of its price escalation claim x x x. Plaintiff's witness, Jesus R. Reblora, Jr., confirmed the existence of these demand letters.

With its previous demand letters being ignored by the municipality, Markbilt Construction sent another demand letter dated 7 February 2008 x x x charging the municipality a fifteen percent (15%) interest per annum on its P5.2 million price escalation claim and threatening to sue the municipality.

Tito Sarion did not want the municipal government to be dragged into an expensive lawsuit so he referred these demand letters to the Sangguniang Bayan.

The Sanggunian acted upon the claim made by Markbilt Construction by enacting an appropriation. The payment did not even pass through Tito Sarion, who did not receive any benefit or commission from such payment.

His act did not cause undue injury to the Municipality of Daet. In fact, such act redounded to its benefit.

Only then that the Disbursement Voucher x x x was prepared by the Municipal Accountant who certified as to the existence of an allotment for the purpose and the completeness of supporting documents. In same Disbursement Voucher, the Municipal Treasurer certified on the availability of funds. Only after such certifications by the said municipal officers did Tito Sarion, as Municipal Mayor, sign the Disbursement Voucher.108 (Emphasis and underscoring supplied)

Thus, in the instant case, similar to Villarosa and Martel, it cannot be said that petitioner acted with corrupt intent.

As previously discussed, petitioner relied in good faith on the acts of the other municipal officers who verified the regularity of the transaction.ᇈWᑭHIL In fact, the Sandiganbayan concededly admitted that petitioner did not act in bad faith because the evidence presented by the prosecution was not sufficient to support a conclusion that petitioner was motivated by ill-will or dishonest purpose in paying Markbilt's demand for payment of contract price escalation having relied on the legal opinion issued by the municipal legal officer.109

The Sandiganbayan further held that petitioner relied on the legal opinion issued by the municipal legal officer which states: (a) P.D. No. 1594 is the applicable law in connection with Markbilt's claim for price escalation; (b) the escalation prices were allegedly computed in accordance with the Implementing Rules and Regulations of P.D. No. 1594; and (c) there was no reason to refuse payment for price escalation.110 In the face of all these, as recognized by the Sandiganbayan itself, it is clear that petitioner was justified in his acts by his honest belief that there were no irregularities in the payment of the escalation prices to Markbilt.

In sum, the second and third elements of a violation of Section 3(e) of R.A. No. 3019 do not exist. This warrants the acquittal of petitioner for the charge of violation of Section 3(e) of R.A. No. 3019.

II.

Malversation of Public Funds or Property
under Article 217 of the RPC

Article 217 of the RPC defines and penalizes Malversation of Public Funds as follows:

Art. 217. Malversation of public funds or property. — Presumption of malversation.—Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property x x x[.]

In order to convict an accused for Malversation of Public Funds, the prosecution must prove beyond reasonable doubt the following elements: (a) that the offender is a public officer; (b) that he had custody or control of funds or property by reason of the duties of his office; (c) that those funds or property were public funds or property for which he was accountable; and (d) that he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them.

From the earlier disquisition, it is clear that the fourth element was shown to not exist.

In fine, it simply cannot be said that petitioner permitted Markbilt to take the P1,000,000.00 "through abandonment or negligence."

In this regard, the ponencia holds that petitioner, through gross inexcusable negligence, permitted Markbilt to receive partial payment of price escalation despite not being entitled thereto.111 The ponencia rules:

x x x Thus, when petitioner signed the disbursement voucher in favor of Markbilt, in effect, he certified to the correctness of the entries therein; and warranted that the expenses incurred were necessary and lawful, the supporting documents were complete, and the availability of cash therefor. By approving the disbursement voucher and signing the Landbank check payable to Markbilt, despite the absence of funding and failure to comply with the requirements of Section 61, R.A. No. 9184, he permitted Markbilt to received (sic) public funds to which it is not entitled. Otherwise, the petitioner's approval and signature in respect facilitated the illegal release of funds, constitutive of the act of malversation.112 (Emphasis supplied)

Again, it is without doubt that there was a CAF; meaning that there was a funding.113

It has also already been shown that the obligation to secure the documents required under Section 61 of R.A. No. 9184 did not pertain to petitioner, but to Architect Itturalde for Aceron.114 As well, it was established that the acts of petitioner cannot be said to have been with a total want of care.

With the absence of the fourth element of the crime of Malversation of Public Funds, petitioner should be acquitted.

Presumption of Innocence

On a final note, I would like to stress the constitutionally enshrined principle of presumption of innocence, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt.115 Absolute guarantee of guilt is not demanded by the law to convict a person of a criminal charge but there must, at least, be moral certainty on each element essential to constitute the offense and on the responsibility of the offender.116 Thus, the prosecution has the primordial duty to present its case with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion.117

In the instant case, since the prosecution failed to prove beyond reasonable doubt the guilt of petitioner for violation of Section 3(e) of R.A. No. 3019 and Malversation of Public Funds, the presumption of innocence of petitioner must be upheld.

Thus, I respectfully dissent. I accordingly vote that petitioner be acquitted of the crimes charged.

Footnotes

1 Ponencia, pp. 4-5.

2 Id. at 1-2.

3 Id. at 2.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id. at 3.

10 Id.

11 Id.

12 Id.

13 PRESCRIBING POLICIES, GUIDELINES, RULES AND REGULATIONS FOR GOVERNMENT INFRASTRUCTURE CONTRACTS, approved on June 11, 1978.

14 Ponencia, pp. 3-4.

15 Id. at 4.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id. at 5.

22 Rollo, pp. 95-119-A. Penned by Associate Justice Sarah Jane T. Fernandez with Presiding Justice Amparo M. Cabotaje-Tang and Associate Justice Bernelito R. Fernandez, concurring.

23 Ponencia, pp. 5-6.

24 Rollo, pp. 118-A-119.

25 Ponencia, p. 7.

26 Rollo, pp. 11-90.

27 See ponencia, pp. 9-11.

28 Id. at 10.

29 Id.

30 Id. at 10-11.

31 Id. at 11.

32 Id.

33 SEC. 61. Contract Prices. — For the given scope of work in the contract as awarded, all bid prices shall be considered as fixed prices, and therefore not subject to price escalation during contract implementation, except under extraordinary circumstances and upon prior approval of the GPPB.

For purposes of this Section, "extraordinary circumstances" shall refer to events that may be determined by the National Economic and Development Authority in accordance with the Civil Code of the Philippines, and upon the recommendation of the procuring entity concerned.

34 Ponencia, p. 11.

35 Id. at 21.

36 Id.

37 Id.

38 Id.

39 Id. at 22.

40 Id.

41 Id.

42 Rivera v. People, G.R. No. 228154, October 16, 2019, accessed at .

43 Tiongco v. People, G.R. Nos. 218709-10, November 14, 2018, 885 SCRA 480, 507.

44 Rollo, pp. 117-117-A.

45 Id. at 117-A.

46 Id.

47 Id. at 72-73. Information for SB-11-CRM-0256.

48 Ponencia, p. 21.

49 Id. at 4; emphasis and italics supplied.

50 Rollo, pp. 47-48.

51 Id. at 112.

52 Id.

53 Ponencia, pp. 15-16.

54 Rollo, p. 47.

55 Id.

56 Id. at 112.

57 Spelled "Appropriation Ordinance No. 1" in some parts of the rollo.

58 Id; ponencia, p. 15.

59 Rollo, p. 48.

60 Calendar Year.

61 Rollo, pp. 49-50.

62 Id. at 50-51.

63 See Exhibit 21-Q, id. at 49.

64 Exhibit 9, id. at 24.

65 Exhibit 21-Q-1, id. at 49.

66 Rollo, pp. 50-51.

67 Ponencia, p. 11.

68 Rollo, p. 52.

69 Exhibit 20, id.

70 Id.

71 Rollo, pp. 53-54.

72 Id. at 16.

73 Id. at 53.

74 Id. at 53-54.

75 Id. at 54.

76 Id.

77 G.R. No. 238014, June 15, 2020, accessed at .

78 Id.

79 G.R. Nos. 224720-23 & 224765-68, February 2, 2021.

80 G.R. Nos. 233155-63, June 23, 2020, accessed at .

81 Id.

82 Sabaldan, Jr. v. Ombudsman, supra note 77.

83 Ponencia, p. 21; emphasis and italics supplied.

84 Id. at 21-22.

85 Supra note 80.

86 Act No. 3815, as amended, otherwise known as the REVISED PENAL CODE, Art. 3.

87 Calimutan v. People, G.R. No. 152133, February 9, 2006,482 SCRA 44, 66, citing Luis B. Reyes, THE REVISED PENAL CODE (13th Ed., 1993), pp. 33-34.

88 Sistoza v. Desierto, G.R. No. 144784, September 3, 2002, 388 SCRA 307, 316.

89 Supra note 79, at 27.

90 Rollo, p. 85.

91 Id.

92 Id. at 83.

93 Id. at 61.

94 See ponencia, pp. 18-20.

95 Id. at 18.

96 Id.

97 Id. at 21-22.

98 Id. at 18.

99 G.R. Nos. 81563 & 82512, December 19, 1989, 180 SCRA 309.

100 Id. at 315-316.

101 Supra note 88.

102 Id. at 315-316.

103 Ponencia, p. 22; rollo, p. 118.

104 Rollo, p. 118.

105 Id. at 52.

106 Supra note 79, at 29.

107 Supra note 80.

108 Rollo, pp. 87-88.

109 Id. at 117-A.

110 Id.

111 Ponencia, p. 11.

112 Id.

113 See supra note 49-67.

114 See supra note 70-74.

115 People v. Maraorao, G.R. No. 174369, June 20, 2012, 674 SCRA 151, 160.

116 People v. Jampas, G.R. No. 177766, July 17, 2009, 593 SCRA 241, 256.

117 Id.

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