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[LUIS A. TABUENA v. SANDIGANBAYAN](https://lawyerly.ph/juris/view/c8696?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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EN BANC

[ GR No. 103501-03, Feb 17, 1997 ]

LUIS A. TABUENA v. SANDIGANBAYAN +

DECISION

335 Phil. 795

EN BANC

[ G.R. No. 103501-03, February 17, 1997 ]

LUIS A. TABUENA, PETITIONER, VS. HONORABLE SANDIGANBAYAN, AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

[G.R. NO. 103507.  FEBRUARY 17, 1997]

ADOLFO M. PERALTA, PETITIONER, VS. HON. SANDIGANBAYAN (FIRST DIVISION), AND THE PEOPLE OF THE PHILIPPINES, REPRESENTED BY THE OFFICE OF THE SPECIAL PROSECUTOR, RESPONDENTS.
D E C I S I O N

FRANCISCO, J.:

Through their separate petitions for review,[1] Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990,[2] as well as the Resolution dated December 20, 1991[3] denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:
"(1)     In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporalas maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

"(2)     In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

"(3)    In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused - he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read:

"That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW."

x x x

"That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW."

x x x

"That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW."

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

"Office of the President
of the Philippines Malacañang

January 8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS."[4]

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:

"MEMORANDUM

F o r   : The President

F r o m            : Minister Roberto V. Ongpin

D a t e             : 7 January 1985

Subject           : Approval of Supplemental Contracts and

Request for Partial Deferment of Repayment of PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows

1. Supplemental Contract No. 12

Package Contract No. 2
P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14

Package Contract No.
4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2
233,561.22
6. Supplemental Contract No. 17

Package Contract No.
8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2
6,110,115.75
8. Supplemental Contract No. 3

Package Contract No. II
16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation:

Approved by Price Escalation Committee (PEC) but pended for lack of funds P 1.9 million

Endorsed by project consultants and currently being evaluated by PEC 30.7 million

Submitted by PNCC directly to PEC and currently under evaluation 66.5 million

T o t a l P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.Korte

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO V. ONGPIN

Minister"[5]

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA - the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacañang. Mrs. Gimenez did not issue any receipt for the money received.

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

"Malacañang Manila

January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10 - P25,000,000.00

Jan. 16 - 25,000,000.00

Jan. 30 - 5,000,000.00

(Sgd.) Fe Roa-Gimenez"

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors[6] committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that:

"x x x accused x x x conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of x x x."

But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:

    "x x x x x x x x x

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

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds." (Underscoring supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation.[7]

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation.[8]

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan"[9] where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

"x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x.

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:
'While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

x x x

'Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved.
x x x.

'The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.'

"Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense."

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation cases of "US v. Catolico"[10] and "US v. Elviña,"[11] the Court stressed that:
"To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person performing the act complained of is innocent.
The rule was reiterated in "People v. Pacana,"[12] although this case involved falsification of public documents and estafa:
"Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting."
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.[13] The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert.[14] And this, to our mind, Tabuena and Peralta had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose."[16] The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

"Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:

'xxx

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.'

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would only be for a sum of up to P34.5 million."[17]

"V.      Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million."[18]
Granting this to be true, it will not nevertheless affect Tabuena's good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:


"ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475,392.35.

x x x x x x x x x."[19]

ATTY. ANDRES

WITNESS
Q Can you tell us, Mr. Witness, what these obligations represent?

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir.

Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir."

x x x x x x x x x."[20]
ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you that these are due and demandable?
A Yes, sir."[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith.[22]Such is the ruling in "Nassif v. People"[23] the facts of which, in brief, are as follows:
"Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal."[24]
Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:
"There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million."[25]

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People"[26] where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that:
"Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable."
Likewise controlling is "US v. Elviña"[27] where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of Settlement and Balances - apparently made to underscore Tabuena's personal accountability, as agency head, for MIAA funds - would all the more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of "civilly liable" to describe the kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts x x x which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion":
"'Conversion', as necessary element of offense of embezzlement, being the fraudulent 'appropriation to one's own use' of another's property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is 'conversion to his own use.' (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106)

- At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owner's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

- At page 168, id.

x x x   x x x      x x x

The words 'convert' and 'misappropriate' connote an act of using or disposing of another's property as if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right.

People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use.

People vs. Luntao, 50 O.G.

p. 1182, 1183"[28]


We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION....", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:

"Good faith in the payment of public funds relieves a public officer from the crime of malversation.

x x x x x x x x x

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable."[29]
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of "US v. Acebedo"[30] and "Ang v. Sandiganbayan",[31] both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt:

"No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof."[32]
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:
"The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed."[33]
The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
"We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity."[34]
But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights of the accused."[35] While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not.[36]

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions.[37] The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions.[39]

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation.[40] (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).


"CROSS-EXAMINATION BY PROS. VIERNES

Q     You admit that as shown by these Exhibits "7" and "7-a", the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities?
A      I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*AJ AMORES

Q   This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount?
A  I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment.

Q   This determination of the escalation costs was it accepted as the correct figure by MIA?
A    I don't have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.

*PJ GARCHITORENA

Q   Basically, the letter of Mr. Ongpin is to what effect?
A      The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor.

Q   It has nothing to do with the implementation of the escalation costs?
A      The details show that most of the accounts refer to our escalations, your Honor.

Q   Does that indicate the computation for escalations were already billed or you do not have any proof of that?
A      Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor.

*AJ AMORES

Q   Were there partial payments made by MIA on these escalation billings?
A      Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

Q   Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company?

WITNESS

A      The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA

Q   What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash?
A      Yes, your Honor.

Q   The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?
A      Yes, your Honor.

Q   This is as of December 31, 1985?
A      The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

Q   We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985?

WITNESS

A      Yes, your Honor.

Q   And your records indicate when these adjustments and payments were made?
A      Yes, your Honor.

*AJ AMORES

Q   You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments?
A      Yes, your Honor.

Q   How were these payments made before February 1986, in case or check, if there were payments made?
A      The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

Q   The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings?
A      I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES

Q   Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985?
A      Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor.

Q   Do you know how the manner of this payment in cash was made by MIA?
A      I do not know, your Honor.

*PJ GARCHITORENA

Q   But your records will indicate that?
A      The records will indicate that, your Honor.

*Q   Except that you were not asked to bring them?
A      Yes, your Honor.

Q   At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?
A      Yes, your Honor.

*PJ GARCHITORENA

Q   Subsequent thereto, we are talking merely of about P44 million?
A      Yes, your Honor, as subsequent settlements.

Q   After December 31, 1985?
A      Yes, your Honor.

Q   And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment?
A      Yes, your Honor.

*AJ AMORES

Q   Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check?
A      I would venture to say it was by check, your Honor.

Q   Which is the safest way to do it?
A      Yes, your Honor.

*PJ GARCHITORENA

Q   And the business way?
A      Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"?

WITNESS

A      The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir.

Q     This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?
A      The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

Q   We are talking about the letter of Minister Ongpin?
A      The letter of Minister Ongpin refers to escalation billings, sir.

Q   As of what date?
A      The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q     In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA?

WITNESS

A      Yes, sir.

Q     In 1986, from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January to June 1986?
A      Yes, sir.

Q     And neither was the amount of P22 million remitted to PNCC by MIA?
A      Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q   From your records, for the month of January 1986, there was no payment of this escalation account by MIA?

WITNESS

A      Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986.

Q   But that is already under the present administration?
A      After February 1986, your Honor.

Q   But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?
A      Per record there is none appearing, your Honor.

*PJ GARCHITORENA

Q   The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin?
A      Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

Q   After December 31, 1985?
A      There appears also P23 million as credit, that is a form of settlement, your Honor.

Q   This is as of September 25?
A      Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million.

Q   And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA?
A      Yes, your Honor.

Q   And the amount of credit or receivables sold by PNCC to State Investment is P23 million?
A      Yes, your Honor.

Q   Is there a payback agreement?
A      I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.

*AJ AMORES

Q   As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A      There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. x x x."[41]

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.)

"CROSS-EXAMINATION BY PROS. VIERNES

Q     The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions?
A      Three times, sir.

Q     And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A      Yes, sir.

Q     It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?
A      Yes, sir.

*PJ GARCHITORENA

Q   So January 30 is the date of the last delivery?
A      I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez.

Q   Are you telling us that this Exhibit "3" was incorrectly dated?
A      Yes, your Honor.

Q   Because the third delivery was on January 31st and yet the receipt was dated January 30?
A      Yes, your Honor.

Q   When was Exhibit "3" delivered actually by Mrs. Gimenez?
A      January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You did not go to Malacañang on January 30, 1986?
A      Yes, sir, I did not.

Q     Do you know at whose instance this Exhibit "3" was prepared?
A      I asked for it, sir.

Q     You asked for it on January 31, 1986 when you made the last delivery?
A      Yes, sir.

Q     Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
A      Yes, sir.

Q     This receipt was typewritten in Malacañang stationery. Did you see who typed this receipt?
A      No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

*PJ GARCHITORENA

*Q   What you are saying is, you do not know who typed that receipt?

WITNESS

A      Yes, your Honor.

Q   Are you making an assumption that she typed that receipt?
A      Yes, your Honor, because she knows how to type.

Q   Your assumption is that she typed it herself?
A      Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q     This receipt was prepared on January 31, although it is dated January 30?
A      Yes, sir, because I was there on January 31st.

Q     In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A      In her office at Aguado, sir.

Q     Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?
A      No, sir, I did not. She was inside her room.

Q     So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed?
A      Yes, sir.

*AJ HERMOSISIMA

Q   So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A      Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me.

Q   So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?
A      What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?
A      Nobody, sir.

Q     I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous?
A      Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

Q   Why did you not ask for a receipt on the first and second deliveries?
A      Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

Q   So you know that the total amount to be delivered was P55 million?
A      Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

Q   From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this memorandum?
A      Mrs. Fe Roa Gimenez, your Honor.

Q   Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
A      The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

Q   If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?Calrky
A      The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA

Q   Be that as it may, why was there no voucher to cover this particular disbursement?
A      I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

Q   Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity?

WITNESS

A      No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

Q   So the Order was out of the ordinary?
A      Yes, your Honor.

*AJ DEL ROSARIO

Q   Did you file any written protest with the manner with which such payment was being ordered?
A      No, your Honor.

Q   Why not?
A      Because with that instruction of the President to me, I followed, your Honor.

Q   Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this matter with you?
A      Yes, your Honor.

Q   When was that?
A      He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q   By "I OWE", you mean the MIAA?

WITNESS

A      Yes, your Honor.

*AJ DEL ROSARIO

Q   And what did you say in this discussion you had with him?
A      I just said, "Yes, sir, I will do it/"

Q   Were you the one who asked for a memorandum to be signed by him?
A      No, your Honor.

Q   After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation?
A      He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it.

Q   Is this the first time you received such a memorandum from the President?
A      Yes, your Honor.

Q   And was that the last time also that you received such a memorandum?
A      Yes, your Honor.

Q   Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure?
A:     No, sir.

*AJ DEL ROSARIO

Q   Why did you not ask?
A      I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

Q   You said there was an "I OWE YOU"?
A      Yes, your Honor.

Q   Where is that "I OWE YOU" now?
A      All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.

Q   Was this payment covered by receipt from the PNCC?
A      It was not covered, your Honor.

Q   So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?
A      Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor.

Q   Is the PNCC a private corporation or government entity?
A      I think it is partly government, your Honor.

*PJ GARCHITORENA

Q   That is the former CDCP?
A      Yes, your Honor.

*AJ HERMOSISIMA

*Q   Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacañang?

WITNESS
A      I was just basing it from the Order of Malacañang to pay PNCC through the Office of the President, your Honor.

Q   Do you know the President or Chairman of the Board of PNCC?
A      Yes, your Honor.

Q   How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?
A      PNCC was the one that constructed the MIA, your Honor.

*Q   Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA?
A      Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor.

Q   Why did you agree to pay to Malacañang when your obligation was with the PNCC?
A      I was ordered by the President to do that, your Honor.

Q   You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacañang was not the creditor?
A      I saw nothing wrong with that because that is coming from the President, your Honor.

Q   The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary?
A      I was ordered by the President, your Honor.

*PJ GARCHITORENA

Q   There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime?
A      Yes, your Honor.

Q   Prior to 1986?
A      Yes, your Honor.

Q   Can you tell us when you became the Manager of MIA?
A      I became Manager of MIA way back, late 1968, your Honor.

Q   Long before the MIA was constituted as an independent authority?
A      Yes, your Honor.

*PJ GARCHITORENA

*Q   And by 1986, you have been running the MIA for 18 years?

WITNESS

A      Yes, your Honor.

Q   And prior to your joining the MIA, did you ever work for the government?
A      No, your Honor.

Q   So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government?
A      Yes, your Honor.

Q   While you were Manager of MIA, did you have other subsequent concurrent positions in the government also?
A      I was also the Chairman of the Games and Amusement Board, your Honor.

Q   But you were not the executive or operating officer of the Games and Amusement Board?
A      I was, your Honor.

Q   As Chairman you were running the Games and Amusement Board?
A      Yes, your Honor.

Q   What else, what other government positions did you occupy that time?
A      I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q   That is the cockfighting?

WITNESS
A      Yes, your Honor.

Q   Here, you were just a member of the Board?
A      Yes, your Honor.

Q   So you were not running the commission?
A      Yes, your Honor.

Q   Any other entity?
A      No more, your Honor.

Q   As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer?
A      Yes, your Honor.

Q   And you were a commissioner only of the Game Fowl Commission?
A      Yes, your Honor.

Q   Who was running the commission at that time?
A      I forgot his name, but he retired already, your Honor.

Q   All of us who joined the government, sooner or later, meet with our Resident COA representative?
A      Yes, your Honor.

*PJ GARCHITORENA

*Q   And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them?

WITNESS

A      Yes, your Honor.

Q   As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply?
A      Yes, your Honor.

Q   And more than anything else the COA is ever anxious for proper documentation and proper supporting papers?
A      Yes, your Honor.

Q   Sometimes, regardless of the amount?
A      Yes, your Honor.

Q   Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What will I do here?"
A      I did not, your Honor.

*PJ GARCHITORENA

*Q   Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly?

WITNESS

A      What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor.

Q   That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager's checks?
A      Yes, your Honor.

Q   Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so?
A      Yes, your Honor.

Q   And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that?
A      Yes, your Honor.

*PJ GARCHITORENA

Q   Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time?

WITNESS

A      No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that?

A      Yes, your Honor.

Q   And usually our best defense is that these activities are properly documented?
A      Yes, your Honor.

Q   In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car?
A      Yes, your Honor.

Q   Is that not quite a fearful experience to you?
A      I did not think of that at that time, your Honor.

*PJ GARCHITORENA

Q   You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

WITNESS

A      We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience?

A      As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. x x x."[42]

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.)

"CROSS-EXAMINATION BY PROS VIERNES

Q     Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Manager's check in the amount of P5 million?
A      At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time.

Q     As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager's checks by the PNB?
A      That is the only occasion I signed, sir.

Q     Did you say you were ordered by Mr. Tabuena to sign the request?
A      Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the issuance of Manager's check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q     Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A      Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was marked as exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q     How did you know there was an existing liability of MIAA in favor of PNCC at that time?
A      Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor.

Q     When was that Financial Statement prepared?
A      I prepared it around January 22 or 24, something like that, of 1986, sir.

Q     Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year?
A      Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting.

*PJ GARCHITORENA

Q   This matter of preparing Financial Statement was not an annual activity but a monthly activity?
A      Yes, your Honor.

Q   This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year?
A      Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q     You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request?
A      When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it.

Q     It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A      Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q     You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor?
A      Yes, sir.

Q     Why was it necessary for you to go with him on that occasion?
A      Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes.

Q     Did you actually participate in the counting of the money by bundles?
A      Yes, sir.

Q     Bundles of how much per bundle?
A      If I remember right, the bundles consisted of P100s and P50s, sir.

Q     No P20s and P10s?
A      Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

Q   If there were other denominations, you can not recall?
A      Yes, your Honor.

PROS VIERNES

Q     In how many boxes were those bills placed?
A      The P5 million were placed in two (2) peerless boxes, sir.

Q     And you also went with Mr. Tabuena to Aguado?
A      No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA.

Q     But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?
A      I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time.

Q     And Mr. Tabuena left for Malacañang after 5:00 o'clock in the afternoon of that date?
A      Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacañang.

PROS VIERNES

Q     And you yourself, returned to your office at MIA?

WITNESS

A      Yes, sir.

Q     Until what time do you hold office at the MIA?
A      Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q     So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA?
A      Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q   Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A      Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor.

Q   And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers?
A      Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also.

Q   Was such payment of P5 million covered by a Journal Voucher?
A      Yes, your Honor.

Q   Did you present that Journal Voucher here in Court?
A      We have a copy, your Honor.

Q   Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?
A      We have a copy of the Journal Voucher, your Honor.

Q   Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA?
A      The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q   In other words, the recording was made directly to the Journal?

WITNESS

A      Yes, your Honor.

*Q   There are no other separate documents as part of the application for Manager's Check?
A      Yes, your Honor, there was none.

*AJ DEL ROSARIO

Q   After the payment was made, did your office receive any receipt from PNCC?
A      I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

Q   After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher?
A      Your Honor, a Journal Voucher was prepared for that.

Q   How about a disbursement voucher?
A      Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor.

*AJ DEL ROSARIO

*Q   Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA

Q   As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities?
A      Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

*PJ GARCHITORENA

Q   In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher?

WITNESS

A      Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

Q   This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?
A      We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor.

Q   You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that the witness is an expert, witness may answer.

WITNESS

A      The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

Q   Are you saying that this transaction was made on the basis of that P.D. which you referred to?
A      I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

Q   As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check?
A      I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

*Q   Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

WITNESS

A      Yes, your Honor.

Q   Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?
A      Yes, your Honor.

*Q   In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A      The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

Q   Are you saying the Order of the General Manager is an adequate basis for the movement of money?
A      Yes, your Honor, because at that time we have also a recorded liability of P27 million.

Q   We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?
A      Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.

*Q   By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

WITNESS

A      As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q   This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

WITNESS

A      Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another.

*PJ GARCHITORENA

Q   Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
A      I think the liability was duly recorded and appropriations to pay the amount is.....

(interrupted)

*PJ GARCHITORENA

Q   Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?
A      No, your Honor.

Q   Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?
A      I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

Q   It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
A      No, your Honor.

Q   In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?
A      Yes, your Honor.

Q   So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?
A      Yes, your Honor.

Q   These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?
A      Yes, your Honor.

Q   And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?
A      Yes, your Honor.

*PJ GARCHITORENA

*Q   In other words, the co-signatories counter check each other?

WITNESS

A      Yes, your Honor.

*Q   In your case, you would be the counter check for Mr. Tabuena?

A      Yes, your Honor.

Q   In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper?
A      Yes, your Honor.

Q   Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction?
A      Yes, your Honor.

Q   And this is something you know by the nature of your position and because you are a Certified Public Accountant?
A      Yes, your Honor.

*AJ DEL ROSARIO

Q   You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed?
A      Yes, your Honor.

Q   Did you submit a written protest to the manner in which such amount was being disposed of?
A      A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

Q   If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction?
A      I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. x x x."[43]

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides.[44] But not only should his examination be limited to asking "clarificatory" questions,[45] the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.[46] Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated:

". . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts. x x x"

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:

"AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the question on the ground that it is

improper.

AJ DEL ROSARIO

I will withdraw the question.

PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and          secondly, I don't think there was any basis, Your               Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record."

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice Garchitorena:

*PJ GARCHITORENA

*Q   Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

xxx

*Q   In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded.

xxx

*Q   Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

xxx

*Q   In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is...

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that...

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS

A      The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*Q   Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q   We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.

*Q   By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

*PJ GARCHITORENA

*Q   This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

*Q   Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

*PJ GARCHITORENA

*Q   Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

xxx

*Q   Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q   It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*Q   In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

*Q   So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?

*Q   These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

*Q   And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q   In other words, the co-signatories counter check each other?

*Q   In your case, you would be the counter check for Mr. Tabuena?

*Q   In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper?

*Q   Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction?

*Q   And this is something you know by the nature of your position and because you are a Certified Public Accountant?"[47]


How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:

"A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution."[48]

"We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society."[49]

"Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing....This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate...."[50]

"While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays....The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel."[51]

"The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable."[52]

"He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto."[53]

"The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases...."[54]

"Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts."[55]

"Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process."[56]

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.

Narvasa, C.J., Regalado, Bellosillo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur.Padilla, Davide, Romero, Puno, and Panganiban, JJ., dissent.
Hermosisima, Jr., J., took no part being a signatory to SB decision.



[1] Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered consolidated by the Court in an En Banc Resolution dated October 1, 1992.

[2] Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario.

[3] Promulgated on January 10, 1992.

[4] Records, Vol. I, p. 26.

[5] Records, Vol. I, pp. 119-120.

[6] Tabuena avers that the Sandiganbayan:

"A

Erred and committed reviewable error in ruling that petitioner's withdrawal of the P55 Million was not for a lawful purpose or for a lawful debt. In the process, the Sandiganbayan clearly ignored several pieces of evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin Memorandum (Exh. "2", as attachment of Annex "I"), to which the Marcos order to pay referred (Exh. "1", attachment to Annex "I"). In so concluding, the Sandiganbayan laid its conclusions open to review as its judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927).

B

Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. "2" and "2-A", See Annex "I"), and the Marcos approval thereof (Exh. "1", id.) did not support the withdrawal and payment of monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin and Marcos Memoranda, and the ledger of PNCC.

C

Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with the presidential order to pay; in thus concluding the Sandiganbayan indulged in speculations and conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled to justifying circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5 and 6 of Art. 12 of the Revised Penal Code.

D

Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in holding petitioner accountable for acts not charged in the amended informations, and in so doing convicted him without jurisdiction.

E

Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try the cases.

F

Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioner's guilt was submitted by the prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proof and denied petitioner the benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the Revised Penal Code."

Peralta for his part claim that:

"1.          Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof that he allegedly converted the funds withdrawn to his own personal benefit as charged in the information in glaring violation of his basic constitutional right to be presumed innocent.

"2.          Respondent also grossly erred in convicting herein accused on the basis of mere assumptions, conjectures and inferences devoid of factual basis in another court likewise grossly and seriously erred in convicting herein accused for a crime not charged in the information again in violation of another constitutional right, that is the right to be informed of the accusation or right to due process.

"3.          Respondent court serious and glaring violation of his right to be presumed innocent until his guilt is established by proof beyond reasonable doubt.

"4.          Respondent court finally erred in refusing to recognize the applicability of the immunity provision embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid defenses in this case."

[7] Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.

[8] Citing Tubb v. People, 101 Phil. 114.

[9] 197 SCRA 94.

[10] 18 Phil. 504.

[11] 24 Phil. 230.

[12]47 Phil. 48.

[13] Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E. [2d] 592; State v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhill's Criminal Evidence, 5th Ed., Book 3, p. 1421.

[14] Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.

[15] Section 8, Article VII of the 1973 Constitution provides:

"The President shall have control of all ministries."

[16] No. 6, Article II, Revised Penal Code.

[17] Sandiganbayan Decision, pp. 37-38.

[18] Sandiganbayan Decision, p. 41.

[19]TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.

[20] TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410.

[21] TSN, March 17, 1989, p. 10; Vol. III, Records, p. 412.

[22] Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.

[23] 78 Phil. 67.

[24] Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised Penal Code, Vol. I, 1987 Ed., p. 207. In the very words of the Court in the "Nassif" case:

"El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra "sold," por orden de su principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte, no crea por si solo ninguna responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el recurrente hubiese sabido o sospechado de alguna manera que era para justificar un acto impropio de su principal, cosa que, por cierto, no se ha probado, ni puede desprenderse de la decision impugnada, indudablemente podria hacersele responsable a dicho recurrente, de la falsificacion cometida, si no como coautor, por lo menos como complice. Todo esto y la circunstancia justificativa invocada por el recurrente, eximen a este de toda responsabilidad."

[25] Decision, p. 45.

[26] 145 SCRA 435.

[27] Supra.

[28] Sandiganbayan Decision, p. 50.

[29] People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.

[30] 18 Phil. 428.

[31]197 SCRA 262.

[32] Supra, p. 431.

[33] Supra, p. 273.

[34] Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.

[35]People v. Exala, Dissenting Opinion, 221 SCRA 494, 503

[36] People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez v. Court of Appeals, 127 SCRA 636.

[37] See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.

[38] See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.

[39] See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.

[40] Confrontation.--Confrontation consists of confronting the witness with damaging facts which he cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening.

Probing.--Probing consists of inquiring thoroughly into the details of the story to discover the flaws.

Insinuation.--Insinuation consists of leading or forcing the witness by adding facts at one point and modifying details at another, to give a version of his evidence which is more favorable to the other side. The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-92.

[41] TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.

[42]TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.

[43] TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.

[44] US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.

[45] People v. Opida, 142 SCRA 295.

[46] York v. US, 299 Fed. 778.

[47] TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.

[48]People v. Opida, supra.

[49] Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.

[50] People v. Bernstein, 250 Ill. 63, 95 N.E. 50.

[51] Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.

[52] Dunn v. People, 172 Ill. 582, 50 N.E. 137.

[53] Com. v. Myma, 278 Pa. 505, 123 Atl. 786.

[54] Adler v. US, 104 C.C.A. 608, 108 Fed. 464.

[55] Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.

[56] People v. Opida, supra.


DISSENTING OPINION

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