G.R. Nos.

147026-27

September 11, 2009

CAROLINA R. JAVIER, Petitioner, vs. THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents. DECISION DEL CASTILLO, J.: Before the Court is a petition for certiorari1 under Rule 65 of the Rules of Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867 and 25898, entitled "People of the Philippines, Plaintiff versus Carolina R. Javier, Accused," seeking to nullify respondent Sandiganbayan's: (1) Order2 dated November 14, 2000 in Criminal Case No. 25867, which denied her Motion to Quash Information; (2) Resolution3 dated January 17, 2001 in Criminal Case No. 25898, which denied her Motion for Reconsideration and Motion to Quash Information; and (3) Order4 dated February 12, 2001, declaring that a motion for reconsideration in Criminal Case No. 25898 would be superfluous as the issues are fairly simple and straightforward. The factual antecedents follow. On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as the "Book Publishing Industry Development Act", was enacted into law. Foremost in its policy is the State's goal in promoting the continuing development of the book publishing industry, through the active participation of the private sector, to ensure an adequate supply of affordable, quality-produced books for the domestic and export market.

To achieve this purpose, the law provided for the creation of the National Book Development Board (NBDB or the Governing Board, for brevity), which shall be under the administration and supervision of the Office of the President. The Governing Board shall be composed of eleven (11) members who shall be appointed by the President of the Philippines, five (5) of whom shall come from the government, while the remaining six (6) shall be chosen from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector. On February 26, 1996, petitioner was appointed to the Governing Board as a private sector representative for a term of one (1) year.6 During that time, she was also the President of the Book Suppliers Association of the Philippines (BSAP). She was on a hold-over capacity in the following year. On September 14, 1998, she was again appointed to the same position and for the same period of one (1) year.7 Part of her functions as a member of the Governing Board is to attend book fairs to establish linkages with international book publishing bodies. On September 29, 1997, she was issued by the Office of the President a travel authority to attend the Madrid International Book Fair in Spain on October 8-12, 1997.8 Based on her itinerary of travel,9 she was paid P139,199.0010 as her travelling expenses. Unfortunately, petitioner was not able to attend the scheduled international book fair. On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to immediately return/refund her cash advance considering that her trip was canceled.11 Petitioner,

however, failed to do so. On July 6, 1998, she was issued a Summary of Disallowances12 from which the balance for settlement amounted to P220,349.00. Despite said notice, no action was forthcoming from the petitioner. On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the NBDB, filed with the Ombudsman a complaint against petitioner for malversation of public funds and properties. She averred that despite the cancellation of the foreign trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty (60) days from date of arrival, or in this case from the date of cancellation of the trip, in accordance with government accounting and auditing rules and regulations. Dr. Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 671313 for failure to file her Statement of Assets and Liabilities. The Ombudsman found probable cause to indict petitioner for violation of Section 3(e) of R.A. No. 3019,14 as amended, and recommended the filing of the corresponding information.15 It, however, dismissed for insufficiency of evidence, the charge for violation of R.A. No. 6713. In an Information dated February 18, 2000, petitioner was charged with violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to wit: That on or about October 8, 1997, or for sometime prior or subsequent thereto, in the City of Quezon, Philippines and within the jurisdiction of this Honorable Court, the aforenamed accused, a public officer, being then a member of the governing Board of the National Book Development Board (NBDB), while in the performance of her official and

administrative functions, and acting with evident bad faith or gross inexcusable negligence, did then and there willfully, unlawfully and criminally, without any justifiable cause, and despite due demand by the Resident Auditor and the Executive Director of NBDB, fail and refuse to return and/or liquidate her cash advances intended for official travel abroad which did not materialize, in the total amount of P139,199.00 as of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA Circular No. 97-002 thereby causing damage and undue injury to the Government. CONTRARY TO LAW.16 The case was docketed as Criminal Case No. 25867 and raffled to the First Division. Meanwhile, the Commission on Audit charged petitioner with Malversation of Public Funds, as defined and penalized under Article 217 of the Revised Penal Code, for not liquidating the cash advance granted to her in connection with her supposed trip to Spain. During the conduct of the preliminary investigation, petitioner was required to submit her counteraffidavit but she failed to do so. The Ombudsman found probable cause to indict petitioner for the crime charged and recommended the filing of the corresponding information against her. 17 Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan, which was docketed as Criminal Case No. 25898, and raffled to the Third Division, the accusatory portion of which reads: That on or about and during the period from October 8, 1997

to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board and as such, is accountable for the public funds she received as cash advance in connection with her trip to Spain from October 812, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.18 During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty. Thereafter, petitioner delivered to the First Division the money subject of the criminal cases, which amount was deposited in a special trust account during the pendency of the criminal cases. Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898 on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000, petitioner filed with the same Division a Motion for Consolidation19 of Criminal Case No. 25898 with Criminal Case No. 25867, pending before the First Division. On July 6, 2000, the People filed an Urgent Ex-Parte Motion to Admit Amended Information20 in Criminal Case No. 25898, which was granted. Accordingly, the Amended Information dated June 28, 2000 reads as follows:

That on or about and during the period from October 8, 1997 to February 16, 1999, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking officer, being a member of the Governing Board of the National Book Development Board equated to Board Member II with a salary grade 28 and as such, is accountable for the public funds she received as case advance in connection with her trip to Spain from October 8-12, 1997, per LBP Check No. 10188 in the amount of P139,199.00, which trip did not materialize, did then and there willfully, unlawfully and feloniously take, malverse, misappropriate, embezzle and convert to her own personal use and benefit the aforementioned amount of P139,199.00, Philippine currency, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW.21 In its Resolution dated October 5, 2000, the Third Division ordered the consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. 22 On October 10, 2000, petitioner filed a Motion to Quash Information,23 averring that the Sandiganbayan has no jurisdiction to hear Criminal Case No. 25867 as the information did not allege that she is a public official who is classified as Grade "27" or higher. Neither did the information charge her as a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. She also averred that she is not a public officer or employee and that she belongs to the Governing Board only as a private sector representative under R.A. No. 8047, hence, she may

not be charged under R.A. No. 3019 before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she does not perform public functions and is without any administrative or political power to speak of that she is serving the private book publishing industry by advancing their interest as participant in the government's book development policy. In an Order24 dated November 14, 2000, the First Division25 denied the motion to quash with the following disquisition: The fact that the accused does not receive any compensation in terms of salaries and allowances, if that indeed be the case, is not the sole qualification for being in the government service or a public official. The National Book Development Board is a statutory government agency and the persons who participated therein even if they are from the private sector, are public officers to the extent that they are performing their duty therein as such. Insofar as the accusation is concerned herein, it would appear that monies were advanced to the accused in her capacity as Director of the National Book Development Board for purposes of official travel. While indeed under ordinary circumstances a member of the board remains a private individual, still when that individual is performing her functions as a member of the board or when that person receives benefits or when the person is supposed to travel abroad and is given government money to effect that travel, to that extent the private sector representative is a public official performing public functions; if only for that reason, and not even considering situation of her being in possession of public funds even as a private individual for which she would also covered by provisions of

the Revised Penal Code, she is properly charged before this Court. On November 15, 2000, the First Division accepted the consolidation of the criminal cases against petitioner and scheduled her arraignment on November 17, 2000, for Criminal Case No. 25898. On said date, petitioner manifested that she is not prepared to accept the propriety of the accusation since it refers to the same subject matter as that covered in Criminal Case No. 25867 for which the Sandiganbayan gave her time to file a motion to quash. On November 22, 2000, petitioner filed a Motion to Quash the Information26 in Criminal Case No. 25898, by invoking her right against double jeopardy. However, her motion was denied in open court. She then filed a motion for reconsideration. On January 17, 2001, the Sandiganbayan issued a Resolution27 denying petitioners motion with the following disquisition: The accused is under the jurisdiction of this Court because Sec. 4 (g) of P.D. 1606 as amended so provides, thus: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; xxxx

The offense is office-related because the money for her travel abroad was given to her because of her Directorship in the National Book Development Board. Furthermore, there are also allegations to hold the accused liable under Article 222 of the Revised Penal Code which reads: Art. 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached , seized or deposited by public authority, even if such property belongs to a private individual. Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the ground of litis pendencia is denied since in this instance, these two Informations speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal Code, neither of which precludes prosecution of the other. Petitioner hinges the present petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft Law and the Revised Penal Code on malversation of public funds. She advanced the following arguments in support of her petition, to wit: first, she is not a public officer, and second, she was being charged under two (2) informations, which is in violation of her right against double jeopardy.

A motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.28 Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash. Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed. The evident reason for this rule is to avoid multiplicity of appeals in a single action.29 The above general rule, however admits of several exceptions, one of which is when the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate.30 To substantiate her claim, petitioner maintained that she is not a public officer and only a private sector representative, stressing that her only function among the eleven (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing

industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book publishers association. As such, she could not be held liable for the crimes imputed against her, and in turn, she is outside the jurisdiction of the Sandiganbayan. The NBDB is the government agency mandated to develop and support the Philippine book publishing industry. It is a statutory government agency created by R.A. No. 8047, which was enacted into law to ensure the full development of the book publishing industry as well as for the creation of organization structures to implement the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. The Governing Board was vested with powers and functions, to wit: a) assume responsibility for carrying out and implementing the policies, purposes and objectives provided for in this Act; b) formulate plans and programs as well as operational policies and guidelines for undertaking activities relative to promoting book development, production and distribution as well as an incentive scheme for individual authors and writers; c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and especially authors are paid justly and promptly royalties due them for reproduction of their works in any form and number and for whatever purpose; d) conduct or contract research on the book publishing industry including monitoring, compiling and providing data and information of book production;

e) provide a forum for interaction among private publishers, and, for the purpose, establish and maintain liaison will all the segments of the book publishing industry; f) ask the appropriate government authority to ensure effective implementation of the National Book Development Plan; g) promulgate rules and regulations for the implementation of this Act in consultation with other agencies concerned, except for Section 9 hereof on incentives for book development, which shall be the concern of appropriate agencies involved; h) approve, with the concurrence of the Department of Budget and Management (DBM), the annual and supplemental budgets submitted to it by the Executive director; i) own, lease, mortgage, encumber or otherwise real and personal property for the attainment of its purposes and objectives; j) enter into any obligation or contract essential to the proper administration of its affairs, the conduct of its operations or the accomplishment of its purposes and objectives; k) receive donations, grants, legacies, devices and similar acquisitions which shall form a trust fund of the Board to accomplish its development plans on book publishing; l) import books or raw materials used in book publishing which are exempt from all taxes, customs duties and other charges in behalf of persons and enterprises engaged in book publishing and its related activities duly registered with the board;

m) promulgate rules and regulations governing the matter in which the general affairs of the Board are to be exercised and amend, repeal, and modify such rules and regulations whenever necessary; n) recommend to the President of the Philippines nominees for the positions of the Executive Officer and Deputy Executive Officer of the Board; o) adopt rules and procedures and fix the time and place for holding meetings: Provided, That at least one (1) regular meeting shall be held monthly; p) conduct studies, seminars, workshops, lectures, conferences, exhibits, and other related activities on book development such as indigenous authorship, intellectual property rights, use of alternative materials for printing, distribution and others; and q) exercise such other powers and perform such other duties as may be required by the law.31 A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.32 Notwithstanding that petitioner came from the private sector to

sit as a member of the NBDB, the law invested her with some portion of the sovereign functions of the government, so that the purpose of the government is achieved. In this case, the government aimed to enhance the book publishing industry as it has a significant role in the national development. Hence, the fact that she was appointed from the public sector and not from the other branches or agencies of the government does not take her position outside the meaning of a public office. She was appointed to the Governing Board in order to see to it that the purposes for which the law was enacted are achieved. The Governing Board acts collectively and carries out its mandate as one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry. Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government.33 Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not make her private person exercising a public function. The fact that she is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides that members of the Governing Board shall receive per diem and such allowances as may be authorized for every meeting actually attended and subject to pertinent laws, rules and regulations. Also, under

the Anti-Graft Law, the nature of one's appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer. On the other hand, the Revised Penal Code defines a public officer as any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.34 Where, as in this case, petitioner performs public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public officer who takes part in the performance of public functions in the government whether as an employee, agent, subordinate official, of any rank or classes. In fact, during her tenure, petitioner took part in the drafting and promulgation of several rules and regulations implementing R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain. In fine, We hold that petitioner is a public officer. The next question for the Court to resolve is whether, as a public officer, petitioner is within the jurisdiction of the Sandiganbayan. Presently,35 the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: xxxx (2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade "Grade '27'" and higher under the Compensation and Position Classification Act of 1989. xxxx Notably, the Director of Organization, Position Classification

and Compensation Bureau, of the Department of Budget and management provided the following information regarding the compensation and position classification and/or rank equivalence of the member of the Governing Board of the NBDB, thus: Per FY 1999 Personal Services Itemization, the Governing Board of NDBD is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-officio), and nine (9) Members, four (4) of whom are ex-officio and the remaining five (5) members represent the private sector. The said five members of the Board do not receive any salary and as such their position are not classified and are not assigned any salary grade. For purposes however of determining the rank equivalence of said positions, notwithstanding that they do not have any salary grade assignment, the same may be equated to Board Member II, SG-28.36 Thus, based on the Amended Information in Criminal Case No. 25898, petitioner belongs to the employees classified as SG-28, included in the phrase "all other national and local officials classified as Grade 27' and higher under the Compensation and Position Classification Act of 1989." Anent the issue of double jeopardy, We can not likewise give in to the contentions advanced by petitioner. She argued that her right against double jeopardy was violated when the Sandiganbayan denied her motion to quash the two informations filed against her.1avvphi1 We believe otherwise. Records show that the Informations in Criminal Case Nos. 25867 and 25898 refer to offenses

penalized by different statues, R.A. No. 3019 and RPC, respectively. It is elementary that for double jeopardy to attach, the case against the accused must have been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon valid information sufficient in form and substance and the accused pleaded to the charge.37 In the instant case, petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She was not yet arraigned in the criminal case for malversation of public funds because she had filed a motion to quash the latter information. Double jeopardy could not, therefore, attach considering that the two cases remain pending before the Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her. It is well settled that for a claim of double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent.38 The third and fourth requisites are not present in the case at bar. In view of the foregoing, We hold that the present petition does not fall under the exceptions wherein the remedy of certiorari may be resorted to after the denial of one's motion to quash the information. And even assuming that petitioner may avail of such remedy, We still hold that the Sandiganbayan did not commit grave abuse of discretion amounting to lack of or in excess of jurisdiction.

WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of the Sandiganbayan are AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 111091 August 21, 1995 ENGINEER CLARO J. PRECLARO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

(P17,695,000.00) jointly funded by the Philippine and Japanese Governments, and while the said construction has not yet been finally completed, accused either directly requested and/or demanded for himself or for another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00), claimed as part of the expected profit of FOUR HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in connection with the construction of that government building wherein the accused had to intervene under the law in his capacity as Project Manager/Consultant of said construction said offense having been committed in relation to the performance of his official duties. CONTRARY TO LAW. 1

KAPUNAN, J.: On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information against him read as follows: That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Project Manager/ Consultant of the Chemical Mineral Division, Industrial Technology Development Institute, Department of Science and Technology, a component of the Industrial Development Institute (ITDI for brevity) which is an agency of the Department of Science and Technology (DOST for brevity), wherein the Jaime Sta. Maria Construction undertook the construction of the building in Bicutan, Taguig, Metro Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE THOUSAND PESOS On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him. On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment finding petitioner guilty beyond reasonable doubt. The dispositive portion reads as follows: WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos GUILTY beyond reasonable doubt of the violation of Section 3, paragraph (b) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and he is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1) MONTH, as the minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual disqualification from public office and to pay the costs of this action.

SO ORDERED. 2 The antecedent facts are largely undisputed. On 1 October 1989, the Chemical Mineral Division of the Industrial Technology Development Institute (ITDI), a component of the Department of Science and Technology (DOST) employed Petitioner under a written contract of services as Project Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST Compound in Bicutan, Taguig, Metro Manila. 3 The contract was to remain in effect from October 1, 1989 up to the end of the construction period unless sooner terminated. 4 Petitioner was to be paid a monthly salary drawn from counter-part funds duly financed by foreign-assisted projects and government funds duly released by the Department of Budget and Management. 5 In November 1989, to build the aforementioned CMD Structure, DOST contracted the services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as the company's project engineer. 6 How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is narrated in the Comment of the Solicitor General and amply supported by the records. The material portions are hereunder reproduced: xxx xxx xxx 3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria Construction Company, was in the

process of evaluating a Change Order for some electricals in the building construction when petitioner approached him at the project site (p. 11, 25, Ibid.). 4. Unexpectedly, petitioner made some overtures that expenses in the Change Order will be deductive (meaning, charged to the contractor by deducting from the contract price), instead of additive (meaning, charged to the owner). Petitioner intimated that he can forget about the deductive provided he gets P200,000.00, a chunk of the contractor's profit which he roughly estimated to be around P460,000.00 (pp. 12-13, 22, Ibid.). 5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria Construction Company, Resoso thereafter asked petitioner if he wanted a rendezvous for him to receive the money. Petitioner chose Wendy's Restaurant, corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around 8:00 o'clock in the evening (p. 14, Ibid.). 6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June, perceiving financial constraints (Ibid.). 7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15, Ibid.) Petitioner was thereafter asked to bring along the result of the punch list (meaning, the list of defective or correctible works to be done by the contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991). 8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of Investigation (NBI) to report the incident (p. 15, 35, Ibid.).

9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was requested to produce the amount of P50,000.00 in P500.00 denomination to represent the grease money (p. 37, TSN, 6 Sept. 1990). 10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI. Thereafter, the money was dusted with flourescent powder and placed inside an attache case (pp. 1617, Ibid.). Resoso got the attache case and was instructed not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant earlier than the designated time where a group of NBI men awaited him and his companion, Sta. Maria, Jr. (pp. 17-18, Ibid.). 11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.). 12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's Restaurant. They were led by the NBI men to a table previously reserved by them which was similarly adjacent to a table occupied by them (pp. 18-19, Ibid.). 13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation took place, to wit: JUSTICE BALAJADIA: q. When Dave Preclaro arrived, what did he do? a. We asked him his order and we talked about the punch list.

q. What was his comment about the punch list? a. He told us that it is harder to produce small items than big ones. q. How long did you converse with Engr. Claro Preclaro? a. I think thirty minutes or so. q. Was Preclaro alone when he came? a. Yes, Your Honor. xxx xxx xxx PROS. CAOILI: q. When you talk[ed] about his punch list, did you talk about anything else? a. Engineer Sta. Maria, Jr., they were conversing with Dave Preclaro and he told [him], "O, paano na." JUSTICE ESCAREAL: q. Who said "Paano na?" a. Engineer Sta. Maria, [Jr.]. And then Preclaro told [him], "Paano, How will the money be arranged and can I bring it?" he said. And then Jimmy Sta. Maria, Jr. told him it was arranged on two

bundles on two envelopes. And then Dave Preclaro told, "Puede" and he asked Jimmy Sta. Maria, Jr. if there is express teller and could he deposit during night time but Engineer Sta. Maria, Jr. told him, "I do not have any knowledge or I do not have any express teller you can deposit. I only know credit card." PROS. CAOILI: q. When Engr. Sta. Maria intervened and interviewed him that way, was there anything that happened? a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro. q. Did Claro Preclaro receive these two envelopes from Engineer Sta. Maria? a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct. 1990.) 14. From the moment petitioner received the two envelopes with his right hand, thereafter placing them under his left armpit, he was accosted by the NBI men (p. 22, TSN, 12 Oct. 1990). 15. A camera flashed to record the event. Petitioner instinctively docked to avoid the taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.). 16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused. Hence, one of the NBI men picked up the envelopes and placed them inside a big brown

envelope (p. 27, Ibid.) 17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.). 18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was tested positive of flourescent powder. The same flourescent powder, however, cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990). 7 xxx xxx xxx Thus, as brought out at the outset, an information was filed against petitioner which, after due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with the decision, petitioner instituted the present petition for review, ascribing to the Sandiganbayan the following errors: 1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF DISMISSING IT FOR LACK OF JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC OFFICER; and 2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE DOUBT. We find the petition unmeritorious. On the first issue, petitioner asserts that he is not a public

officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he was neither elected nor appointed to a public office. Rather, petitioner maintains that he is merely a private individual hired by the ITDI on contractual basis for a particular project and for a specified period 8 as evidenced by the contract of services 9 he entered into with the ITDI. Petitioner, to further support his "theory," alleged that he was not issued any appointment paper separate from the abovementioned contract. He was not required to use the bundy clock to record his hours of work and neither did he take an oath of office. 10 We are not convinced by petitioner's arguments. Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according to Sec. 2(b) thereof "includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exemption service receiving compensation, even nominal, from the government. . . ." The word "includes" used in defining a public officer in Sec. 2(b) indicates that the definition is not restrictive. The terms "classified, unclassified or exemption service" were the old categories of positions in the civil service which have been reclassified into Career Service and Non-Career Service 11 by PD 807 providing for the organization of the Civil Service Commission 12 and by the Administrative Code of 1987. 13 Non-career service in particular is characterized by (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure

which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. (Emphasis ours.) 14 From the foregoing classification, it is quite evident that petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019).

The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of office became unessential considerations in view of the abovementioned provision of law clearly including petitioner within the definition of a public officer. Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his intervention "was not required by law but in the performance of a contract of services entered into by him as a private individual contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the contract of services 16 are subsumed under the phrase "wherein the public officer in his official capacity has to intervene under the law." 17 Petitioner's allegation, to borrow a cliche, is nothing but a mere splitting of hairs. Among petitioner's duties as project manager is to evaluate the contractor's accomplishment reports/billings 18 hence, as correctly ruled by the Sandiganbayan he has the "privilege and authority to make a favorable recommendation and act favorably in behalf of the government," signing acceptance papers and approving deductives and additives are some examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt Practices Act are, therefore, present. Anent the second issue, we likewise find Petitioner's allegations completely bereft of merit. Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable doubt and that the charges against him should be rejected for being improbable, unbelievable and

contrary to human nature. We disagree. Proof beyond reasonable doubt does not mean that which produces absolute certainty. Only moral certainty is required or "that degree of proof which produces conviction in an unprejudiced mind." 20 We have extensively reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan. Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies of the prosecution witnesses. We shall examine the testimonies referred to with meticulousness. Petitioner asserts that it was improbable for him to have demanded P200,000.00 from Engr. Resoso, when he could have just talked directly to the contractor himself. It is quite irrelevant from whom petitioner demanded his percentage share of P200,000.00 whether from the contractor's project engineer, Engr. Alexander Resoso or directly from the contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently established by the testimony of Engr. Resoso, thus: xxx xxx xxx Q You said when you were computing your Change Order Mr. Preclaro or Dave Preclaro whom you identified approached you, what did you talk about?

A He mentioned to me that we are deductive in our Change Order three and four so after our conversation I told this conversation to my boss that we are deductible in the Change Order three and four and then my boss told me to ask why it is deductive. Q Did you ask the accused here, Dave Preclaro why it is considered deductive? A Yes, sir. Q What was his answer if any? A I asked him that my boss is asking me to ask you how come it became deductive when my computation is additive and he told me that I have done so much for your company already and then he picked up cement bag paper bag and computed our alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use some percentage in projects maximum and minimum and in our case he would use a minimum percentage and multiply to 60 and . . . JUSTICE ESCAREAL: Q What is 460? A P460,000.00 and he said take of the butal and get two Hundred Thousand Pesos. JUSTICE BALAJADIA: What is the translation now?

WITNESS: A And he said disregard the excess and I will just get the P200,000.00. (Emphasis ours.) PROS. CAOILI: Q What does he mean by that if you know? A I do not know sir. He just said, I will get the P200,000.00 and tell it to your boss. (Emphasis ours.) JUSTICE BALAJADIA: Q What is P200,000.00? A It is Two Hundred Thousand Pesos. PROS. CAOILI: Q What did you answer him when he told you that? A He told me to forget the deductive and electrical and after that I told my boss what he told me. Q Who is your boss? A Santa Maria Sr. Q What was the reaction of your boss when you relayed the

message to Mr. Preclaro? A The next day he told me to ask Dave where and when to pick up the money so the next day I asked Dave "Where do you intend to get the money, the Boss wanted to know." Q What was the answer of Dave? A And he told me, Wendy's Restaurant at 3:00 o'clock. Q When? A June 6 Wednesday. Q When he told you that did you comply with June 6 appointment? A I told my boss what he told me again that the meeting will take place at Wendy's Restaurant corner Edsa and Camias Street at around 8:00 o'clock p.m. June 6, Wednesday. Q What did your boss tell you? A The next day he told me to ask Dave. Q What did your boss tell you? A My boss told me to ask Dave to postpone the meeting on June 6 to be postponed on June 8 at the same place and same time because my boss is having financial problem. Q Did you relay the postponement to Dave Preclaro?

A Yes sir. I told what my boss told me. Q What was his reaction? A Dave told me "O.K. lang with me" because we are not in a hurry. Any way we are the ones to sign the acceptance papers and my boss instructed me that on Friday to ask Dave to bring along the result of the punch list and if possible also to bring along the acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag the director. Q What happened next after meeting with Preclaro to relay the postponement if any? A Nothing happened. The next day, Thursday the boss instructed me to go with him to the NBI to give a statement. Q Did you go to the NBI and report to the incident to the NBI? A Yes sir. Q Did you give a statement before any of the agents of the of the NBI? A Yes sir. 21 xxx xxx xxx Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter tried to arrange meetings with him regarding his demand 22 does not weaken the cause against petitioner. It does not at all prove that petitioner did not ask for money. Conceivably petitioner did not muster enough courage

to ask money directly from the contractor himself. Getting the amount through the project engineer would be safer because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny having made the demand. Petitioner contends that the percentage demanded in the amount of P200,000.00 is too high considering that the estimated profit of the contractor from the CMD project is only P460,000.00. In petitioner's words, this would "scare the goose that lays the golden egg." 23 We reject this argument. The aforementioned contractor's profit is petitioner's own computation as testified to by Engr. Resoso: xxx xxx xxx A I asked him that my boss is asking me to ask you how come it became deductive when my computation is additive and he told me that I have done so much for your company already and then he picked up cement bag paper bag and computed our alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me that he used to use some percentage in projects maximum and minimum and in our case he would use a minimum percentage and multiply to 460 and . . . (Emphasis ours.) JUSTICE ESCAREAL: Q What is 460? A P460,000.00 and it ended to P215 thousand or P20,000.00 and he said take of the butal and get the Two Hundred Thousand Pesos. (Emphasis ours.)

JUSTICE BALAJADIA: What is the translation now? WITNESS: A And he said disregard the excess and I will just get the P200,000.00. PROS. CAOILI: Q What does he mean by that if you know? A I do not know sir. He just said, I will get the P200,000.00 and tell it to your boss.
24

xxx xxx xxx The records, however, do not show the true and actual amount that the Sta. Maria Construction will earn as profit. There is, therefore, no basis for petitioner's contention as the actual profit may be lower or higher than his estimation. Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage proper compensation since he has allegedly done so much for the Sta. Maria construction company. 25 Petitioner also argues that:

According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35). If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why would the petitioner still demand P200,000.00 which would increase the contractor's loss to P480,000.00! It might have been different if the changes were additive where STA. MARIA CONSTRUCTION would have earned more, thereby providing motive for the petitioner to ask for a percentage! 26 But this is precisely what petitioner was bargaining for P200,000.00 in exchange for forgetting about the deductive 27 and thus prevent the Sta. Maria Construction from incurring losses. Petitioner's contention that it was impossible for him to make any demands because the final decision regarding accomplishments and billing lies with the DOST technical committee is unacceptable. Petitioner is part of the abovementioned technical committee as the ITDI representative consultant. This is part of his duties under the contract of services in connection with which he was employed by the ITDI. Even, assuming arguendo that petitioner does not make the final decision, as supervisor/consultant, his recommendations will necessarily carry much weight. Engr. Resoso testified thus: PROS. CAOILI: Q As a Project Engineer to whom do you present your billing

papers accomplishment report or purchase order? A The billing paper was being taken cared of by the, of our office. I personally do my job as supervision in the construction. Q Do you have any counterpart to supervise the project from the government side? A Yes, we have. Yes, the DOST have a technical Committee Infra-Structure Committee and also the ITDI as its own representative. Q Who composed the Technical Committee of the DOST? A A certain Engineer Velasco, Engineer Sande Banez and Engineer Mejia. Q How about the ITDI? A The ITDI representative composed of Dave Preclaro. Q Who is this Dave Preclaro? A He is the consultant of ITDI. (Emphasis ours.) xxx xxx xxx ATTY. CAOILI: Q As Project Engineer do you consult to any body regarding

your job? A First if there is any problem in the site I consult my boss. PROS. CAOILI: Q How about with the other consultants representing the ITDI and DOST? A In the construction site we have meeting every Monday to discuss any problem. Q With whom do you discuss this problem?

JUSTICE ESCAREAL: With the representative of DOST and Preclaro ATTY. JIMENEZ: Does that also mean that Preclaro is also among the representatives he is going to consult with? Well any way. . . JUSTICE ESCAREAL: Witness may answer the question.

A The Infra-structure Committee of DOST and the Infrastructure Committee of ITDI, the architect and the contractor. We had weekly meetings. Q What matters if any do you consult with Mr. Claro Preclaro? ATTY. JIMENEZ: No basis. JUSTICE ESCAREAL: They met on problems on Mondays. ATTY. JIMENEZ: But there is no mention of Preclaro specifically.

Read back the question. COURT STENOGRAPHER: Reading back the question as ordered by the Court. WITNESS: A Every Monday meeting we tackle with accomplishment report the billing papers. 28 (Emphasis ours.) xxx xxx xxx Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself are conflicting, doubtful or improbable:

(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder and used in the alleged entrapment. Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in P500 denomination to the NBI. 29 There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's declaration referred only to the number of bills dusted with flourescent powder. Petitioner, likewise, misappreciated the following testimony of Resoso: PROS. CAOILI: Q What did he do with the two envelopes upon receiving the same? A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he could deposit the money but Mr. Sta. Maria said, "I do not have, I only have credit cards." 30 Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria, Jr. He was merely inquiring from the latter if there was an express teller nearby where he could make the deposit. Mr. Sta. Maria Jr. himself testified as follows: A He asked me if there was express teller. I told him I do not

know then he asked me whether it is possible to deposit at the Express Teller at that time. I told him I don't know because I have no express teller card and he asked me how am I going to arrange, how was it arranged if I will bring it, can I bring it. Then I told him that it was placed in two envelopes consisting of 500 Peso bills and then he said "Okay na yan." 31 The failure of the NBI to take photographs of the actual turnover of the money to petitioner is not fatal to the People's cause. The transaction was witnessed by several people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whose testimonies on the circumstances before, during and after the turn-over are consistent, logical and credible. According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn-over so as not to alert and scare off the petitioner. During crossexamination Agent Balanban Jr. stated: xxx xxx xxx Q Now, of course, this entrapment operation, you made certain preparation to make sure that you would be able to gather evidence in support of the entrapment? A Yes sir. Q As a matter of fact you even brought photographer for the purpose? A That is right sir.

Q And that photographer was precisely brought along to record the entrapment? A Yes sir. Q From the beginning to the end, that was the purpose? A At the time of the arrest sir. ATTY. JIMENEZ: From the time of the handing over of the envelopes until the entrapment would have been terminated? A No sir we plan to take the photograph only during the arrest because if we take photographs he would be alerted during the handing of the envelopes. (Emphasis ours.) Q So you did not intend to take photographs of the act of handing of the envelopes to the suspect? A We intended but during that time we cannot take photographs at the time of the handling because the flash will alert the suspect. (Emphasis ours.) JUSTICE ESCAREAL: Why did you not position the photographer to a far distance place with camera with telescopic lens? A We did not Your Honor.

ATTY. JIMENEZ: So was it your intention to take photographs only at the time that he is already being arrested? A Yes sir. 32 xxx xxx xxx Petitioner insists that when his hands were placed under ultraviolet light, both were found negative for flourescent powder. This is petitioner's own conclusion which is not supported by evidence. Such self-serving statement will not prevail over the clear and competent testimony and the report 33 submitted by the forensic expert of the NBI Ms. Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's right palmar hand positive for flourescent powder, the same hand he used, according to witnesses Resoso and Sta. Maria Jr., to get the money from the latter. xxx xxx xxx Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI? A Since 1981 sir. Q JUSTICE ESCAREAL: Q By the way, is the defense willing to admit that the witness is a competent as . . . . ATTY. JIMENEZ:

Admitted Your Honor. PROS. CAOILI: Madam Witness did you conduct a forensic examination in the person of one Dave Preclaro y Jambalos? A Yes sir. Q If that person whom you examined is here in court would you be able to recognize him? ATTY. JIMENEZ:

Q How did you conduct such flourescent examination? A The left and right hands of the accused were placed under the ultra violet lamp sir. Q What was the result? A It gave a . . . under the ultra violent lamp the palmer hands of the suspect gave positive result for the presence of flourescent powder. Q What palmar hands? A Right hand sir.

We admit that the accused is the one examined by the witness. ATTY. CAOILI: Did you prepare the result of the examination in writing? A Yes sir. PROS. CAOILI: Showing to you Physic Examination No. 90-961 which for purposes of identification has already been marked as Exh. H what relation has this have with the report that you mentioned a while ago? A This is the same report that I prepared sir.

Q What other examination did you conduct? A And also the clothing, consisting of the t-shirts and the pants were examined. Under the ultra violet lamp the presence of the flourescent powder of the t-shirts and pants cannot be seen or distinguished because the fibers or the material of the cloth under the ultra violet lamp was flouresce. Q Please tell the Court why the t-shirts and pants under the ultra violent lamp was flouresce? A The materials or the fibers of the clothings it could have been dyed with flourescent dyes sir. 34 xxx xxx xxx What we find improbable and contrary to human experience is

petitioner's claim that he was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge on account, for petitioner's failure to recommend the Sta. Maria Construction to perform the extra electrical works. 35 The Sandiganbayan has aptly ruled on this matter, thus: For another, the claim of accused that there was ill-will on the part of the construction company is hardly plausible. It is highly improbable for the company to embark on a malicious prosecution of an innocent person for the simple reason that such person had recommended the services of another construction firm. And it is extremely impossible for such company to enlist the cooperation and employ the services of the government's chief investigative agency for such an anomalous undertaking. It is more in accord with reason and logic to presuppose that there was some sort of a mischievous demand made by the accused in exchange for certain favorable considerations, such as, favorable recommendation on the completeness of the project, hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for the occurrence of the meeting and the demand for money is infinite and boundless. 36 As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the construction of another DOST building, would not risk his business or livelihood just to exact revenge which is neither profitable nor logical. As we aptly stated in Maleg v. Sandiganbayan: 37 It is hard to believe that the complainant who is a contractor would jeopardize and prejudice his business interests and risk being blacklisted in government infrastructure projects,

knowing that with the institution of the case, he may find it no longer advisable nor profitable to continue in his construction ventures. It is hardly probable that the complainant would weave out of the blue a serious accusation just to retaliate and take revenge on the accused. From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary evidence presented during the trial, the guilt of petitioner has been established beyond reasonable doubt. WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED. SO ORDERED. Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur. G.R. No. 166355 May 30, 2011

PEOPLE OF THE PHILIPPINES, Petitioner, vs. LUIS J. MORALES, Respondent. DECISION BRION, J.: We review the petition for review People of the Philippines (the Resolution1 of the First Division Criminal Case No. 27431, entitled versus Luis J. Morales." on certiorari, filed by the People), to assail the of the Sandiganbayan in "People of the Philippines

Background Facts On June 13, 1991, then President Corazon Aquino issued Administrative Order No. 223 to commemorate the 100th anniversary of the declaration of Philippine Independence and thereby created the Committee for the National Centennial Celebrations in 1998 (Committee). In 1993, then President Fidel V. Ramos issued Executive Order No. 128 (EO 128), entitled "Reconstituting the Committee for the Preparation of the National Centennial Celebrations in 1998." EO 128 renamed the Committee as the "National Centennial Commission" (NCC). The mandate of the NCC was to "take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress."2 The late Vice-President Salvador Laurel was appointed as NCC Chairman. On March 10, 1996, the NCC and the Bases Conversion Development Authority (BCDA)3 organized the Philippine Centennial Expo 98 Corporation or Expocorp whose primary purpose was to operate, administer, manage and develop the Philippine Centennial International Exposition 1998 (Expo 98).4 The Philippine Centennial project was marred by numerous allegations of anomalies, among them, the lack of public biddings. In 1998, Senator Ana Dominique Coseteng delivered a privilege speech in the Senate denouncing these anomalies. Because of this speech, the Senate Blue Ribbon Committee conducted an investigation on the Philippine Centennial project. In 1999, then President Joseph Estrada created the

Ad Hoc and Independent Citizens Committee (AHICC), also for the purpose of investigating these alleged anomalies. Both the Senate Blue Ribbon Committee and the AHICC recommended to the Office of the Ombudsman that a more exhaustive investigation of the Philippine Centennial project be conducted. The investigation that followed resulted in the filing in 2001 of an Information5 by the Ombudsmans Fact-Finding and Investigation Bureau against respondent Luis J. Morales (Morales), the acting president of Expocorp at the time relevant to the case. This Information served as basis for Criminal Case No. 27431 that we now consider. The Information against Morales for violation of Section 3(e) of Republic Act (R.A.) No. 30196 reads: That on or about September 6, 1997 or sometime prior or subsequent thereto in Pasig City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Pres. of Expo Corporation, Pasig City, a government corporation, and as such was issued one (1) Mercede[s] Benz, Model 1997-C230, bearing Serial No. WDB202023-1F-602122, and Engine No. 111974-12-027093 for his official use, and while in the performance of his official functions, acting thru evident bad faith and manifest partiality, did then and there willfully, unlawfully, and criminally give unwarranted benefits to one Rodolfo M. Lejano by selling to him said Mercede[s] Benz through Newton Motors, Inc. represented by its President Exequiel V. Mariano in the amount of Two Million Two Hundred Fifty Thousand Pesos (P2,250,000.00), without the requisite public bidding nor approval of the Board of Directors

of Expo Corporation and thereafter failed to deposit the proceeds of the sale of the aforementioned vehicle to the account of Expo Corporation, to the damage and prejudice of the Corporation and the public interest as well.7 In the proceedings before the Sandiganbayan, Morales moved for the dismissal of the case for lack of jurisdiction over his person and over the offense charged. He alleged that Expocorp is a private corporation and that he is not a public employee or official. He also alleged that the Sandiganbayan has no jurisdiction over his person or the offense charged as he is a private individual who has not been charged jointly with other public officials or employees. He added that Expocorp is not a government-owned or controlled corporation because it was not created by a special law, it did not have an original charter, and a majority of Expocorps capital stock is owned by private individuals. He claimed that he did not receive any compensation from the government as defined in Section 2(a) of R.A. No. 3019, and the compensation he received as Expocorps acting president was paid from Expocorps funds.8 In its comment to Expocorps motion, the Office of the Special Prosecutor, representing the People, insisted that Expocorp is a government-owned corporation since its articles of incorporation showed that of its ten listed subscribers, BCDA held stocks valued at P99,999,100.00, while the stocks held by the rest of the subscribers had a total value of P900.00. The People further argued, based on the Courts ruling in Salvador H. Laurel v. Aniano A. Desierto,9 that NCC Chairman Laurel was a public officer; thus, Morales was likewise a public officer since his appointment flowed from the formers exercise of his authority as chairman of both NCC and Expocorp.

In his reply, Morales averred that upon Expocorps incorporation, BCDA owned essentially all of Expocorps stocks. Two months after its incorporation, however, the Board of Directors of Expocorp issued a resolution declaring all its unissued and unsubscribed shares open for subscription. Global Clark Assets Corporation (Global) subscribed to essentially all of these unissued and unsubscribed shares; thus, Global became the majority owner with 55.16% of Expocorps stocks, while BCDA was left as minority stockholder with 44.84% of Expocorps stocks. Morales also asserted that the ruling in Laurel10 applied exclusively to Chairman Laurel. Morales concluded that since Expocorp is a private corporation and an entity distinct from NCC, he, as its president, is not a public officer. The Sandiganbayan Resolution The Sandiganbayan, after considering the arguments of the parties, ruled that the position of a president of a governmentowned or controlled corporation clearly falls within its jurisdiction. However, before Morales could be held accountable as Expocorps president, it must first be established that Expocorp is a government-owned or controlled corporation. The Sandiganbayan explained in Laurel,11 that the Court only held that Laurel is a public officer without ruling on whether Expocorp is a private or a government-owned corporation. The Court also held that NCC performed executive functions, hence, it was a public office; consequently, its chairman, Laurel, was a public officer. Morales, in the case at bar, is being charged as president of Expocorp only and not as an NCC official.

In ruling that Expocorp is a private corporation, the Sandiganbayan stated that it was not created by a special law nor did it have an original charter. It was organized under the Corporation Code and was registered with the Securities and Exchange Commission. According to the Sandiganbayan, Expocorp could not derive its public character from the fact that it was organized by the NCC. The Sandiganbayan ruled that applying the provisions of the Revised Administrative Code of 1987, Expocorp is a private corporation because Global owns 55.16% of its stocks; hence, its officers and employees are private individuals who are outside the jurisdiction of the Sandiganbayan. On this basis, the Sandiganbayan dismissed the information against Morales. The Sandiganbayan denied the motion the subsequently filed;12 hence, the present petition. The Issues The People submits the following grounds: (1) Expocorp was organized and created for the sole purpose of performing the executive functions of the National Centennial Commission and the sovereign functions of the government, and should be considered as a public office. (2) Petitioner, as president of Expocorp, should rightfully be considered as a "public officer", falling under the jurisdiction of the Sandigangayan.13 The Courts Ruling We deny the petition for lack of merit. People

The nature of Expocorp The People submits that Expocorp was an extension of the NCC as provided in Expocorps Articles of Incorporation, specifically Section 214 which states Expocorps primary purpose. It provides that Expocorps primary purpose was to establish and operate Expo 98 - an NCC project. The People stated in its petition, thus The position occupied by respondent as President of Expocorp stemmed from his appointment as such by NCC Chair and Expocorp Chief Executive Officer Salvador H. Laurel. On the basis of such appointment, respondent served as the governments representative and Laurels alter ego in running the affairs of Expocorp. As held in the Laurel vs. Desierto case, "even assuming that Expocorp is a private corporation, petitioners position as Chief Executive officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC Chair." Having established that Expocorp, by extension, performed part of the sovereign functions delegated to the NCC, it follows that respondent, as President of Expocorp, performed tasks that likewise fall within the contemplation of the governments sovereign functions.15 We do not agree with the People. Expocorp is a private corporation as found by the Sandiganbayan. It was not created by a special law but was incorporated under the Corporation Code and was registered

with the Securities and Exchange Commission.16 It is also not a government-owned or controlled corporation. Although BCDA, which owned 999,991 shares17 of its shares, was one of Expocorps original incorporators, the Board of Directors of Expocorp allowed Global to buy 1,229,998 of its unused and unsubscribed shares two months after its incorporation. With the BCDA as a minority stockholder, Expocorp cannot be characterized as a government-owned or controlled corporation. In Dante V. Liban, et al. v. Richard J. Gordon,18 we pointedly said: A government-owned or controlled corporation must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. The Sandiganbayans Jurisdiction Section 5, Article XIII of the 1973 Constitution defines the jurisdiction of the Sandiganbayan:19 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. R.A. No. 8249,20 which amended Presidential Decree No. 1606,21 delineated the jurisdiction of the Sandiganbayan as follows:

Section 4. Section 4 of the same decree is hereby further amended to read as follows: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the Sangguniang panlalawigan and provincial treasurers, assessors, engineers and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang Panlungsod, city treasurers, assessors, engineers and other city department heads; (c ) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or -controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress and officials thereof classified as Grade '27' and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution; and (5) All other national and local officials classified as Grade '27' and higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office.1avvphi1 c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

(Underlining supplied.) Since Expocorp is a private corporation, not a governmentowned or controlled corporation, Morales, as Expocorps president who now stands charged for violating Section 3(e) of R.A. No. 3019 in this capacity, is beyond the Sandiganbayans jurisdiction. WHEREFORE, premises considered, the petition for review on certiorari is DISMISSED for lack of merit. The Sandiganbayans June 15, 2004 Resolution in Criminal Case No. 27431, entitled "People of the Philippines versus Luis J. Morales," is AFFIRMED. No costs. SO ORDERED.