EN BANC
[ G.R. No. 220598, July 19, 2016 ]GLORIA MACAPAGAL-ARROYO v. PEOPLE & SANDIGANBAYAN (FIRST DIVISION) +
GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN (FIRST DIVISION), RESPONDENTS.
[G.R. No. 220953]
BENIGNO B. AGUAS, PETITIONER, VS. SANDIGANBAYAN (FIRST DIVISION), RESPONDENT.
D E C I S I O N
GLORIA MACAPAGAL-ARROYO v. PEOPLE & SANDIGANBAYAN (FIRST DIVISION) +
GLORIA MACAPAGAL-ARROYO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN (FIRST DIVISION), RESPONDENTS.
[G.R. No. 220953]
BENIGNO B. AGUAS, PETITIONER, VS. SANDIGANBAYAN (FIRST DIVISION), RESPONDENT.
D E C I S I O N
BERSAMIN, J.:
We resolve the consolidated petitions for certiorari separately brought to assail and annul the resolutions issued on April 6, 2015[1] and September 10, 2015,[2] whereby the Sandiganbayan respectively denied their demurrer to evidence, and their motions for reconsideration, asserting such denials to be tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Antecedents
On July 10, 2012, the Ombudsman charged in the Sandiganbayan former President Gloria Macapagal-Arroyo (GMA); Philippine Charity Sweepstakes Office (PCSO) Budget and Accounts Officer Benigno Aguas; PCSO General Manager and Vice Chairman Rosario C. Uriarte; PCSO Chairman of the Board of Directors Sergio O. Valencia; Members of the PCSO Board of Directors, namely: Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero, and Ma. Fatima A.S. Valdes; Commission on Audit (COA) Chairman Reynaldo A. Villar; and COA Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras with plunder. The case was docketed as Criminal Case No. SB-12-CRM-0174 and assigned to the First Division of the Sandiganbayan.
The information[3] reads:
Thereafter, several of the accused separately filed their respective petitions for bail. On June 6, 2013, the Sandiganbayan granted the petitions for bail of Valencia, Morato and Roquero upon finding that the evidence of guilt against them was not strong.[4] In the case of petitioners GMA and Aguas, the Sandiganbayan, through the resolution dated November 5, 2013, denied their petitions for bail on the ground that the evidence of guilt against them was strong.[5] The motions for reconsideration filed by GMA and Aguas were denied by the Sandiganbayan on February 19, 2014.[6] Accordingly, GMA assailed the denial of her petition for bail in this Court, but her challenge has remained pending and unresolved to date.
Personal jurisdiction over Taruc and Villar was acquired by the Sandiganbayan in 2014. Thereafter, said accused sought to be granted bail, and their motions were granted on different dates, specifically on March 31, 2014[7] and May 9, 2014,[8] respectively.
The case proceeded to trial, at which the State presented Atty. Aleta Tolentino as its main witness against all the accused. The Sandiganbayan rendered the following summary of her testimony and evidence in its resolution dated November 5, 2013 denying the petitions for bail of GMA and Aguas, to wit:
To complete the evidence for the Prosecution, Atty. Anamarie Villaluz Gonzales, Office-in-Charge and Department Manager of the Human Resources of PCSO; Flerida Africa Jimenez, Head of the Intelligence and Confidential Fund Audit Unit of the COA; and Noel Clemente, Director of COA were presented as additional witnesses.
After the Prosecution rested its case, GMA, Aguas, Valencia, Morato, Taruc V, Roquero and Villar separately filed their demurrers to evidence asserting that the Prosecution did not establish a case for plunder against them.
On April 6, 2015, the Sandiganbayan granted the demurrers to evidence of Morato, Roquero, Taruc and Villar, and dismissed the charge against them. It held that said accused who were members of the PCSO Board of Directors were not shown to have diverted any PCSO funds to themselves, or to have raided the public treasury by conveying and transferring into their possession and control any money or funds from PCSO account; that as to Villar, there had been no clear showing that his designation of Plaras had been tainted with any criminal design; and that the fact that Plaras had signed "by authority" of Villar as the COA Chairman could not criminally bind him in the absence of any showing of conspiracy.
However, the Sandiganbayan denied the demurrers of GMA, Aguas and Valencia, holding that there was sufficient evidence showing that they had conspired to commit plunder; and that the Prosecution had sufficiently established a case of malversation against Valencia, pertinently saying:
Issues
GMA pleads that the denial of her demurrer to evidence was in patent and flagrant violation of Republic Act No. 7080, the law on plunder, and was consequently arbitrary and oppressive, not only in grave abuse of discretion but rendered without jurisdiction because:
Procedural Issue:
The consolidated petitions for certiorari are meritorious.
I.
The Court cannot be deprived of its jurisdiction to correct grave abuse of discretion
The Prosecution insists that the petition for certiorari of GMA was improper to challenge the denial of her demurrer to evidence; that she also thereby failed to show that there was grave abuse of discretion on the part of the Sandiganbayan in denying her demurrer to evidence; and that, on the contrary, the Sandiganbayan only interpreted what constituted plunder under the law and jurisprudence in light of the established facts, and did not legislate a new offense, by extensively discussing how she had connived with her co-accused to commit plunder.[16]
The Court holds that it should take cognizance of the petitions for certiorari because the Sandiganbayan, as shall shortly be demonstrated, gravely abused its discretion amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because of the availability of another remedy in the ordinary course of law.[17] Moreover, Section 23, Rule 119 of the Rules of Court expressly provides that "the order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment." It is not an insuperable obstacle to this action, however, that the denial of the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the proceedings, and the proper recourse of the demurring accused was to go to trial, and that in case of their conviction they may then appeal the conviction, and assign the denial as among the errors to be reviewed.[18] Indeed, it is doctrinal that the situations in which the writ of certiorari may issue should not be limited,[19] because to do so -
II.
The Prosecution did not properly allege and prove the existence of conspiracy among GMA, Aguas and Uriarte
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony, and decide to commit it.[23] In this jurisdiction, conspiracy is either a crime in itself or a mere means to commit a crime.
As a rule, conspiracy is not a crime unless the law considers it a crime, and prescribes a penalty for it.[24] The exception is exemplified in Article 115 (conspiracy and proposal to commit treason), Article 136 (conspiracy and proposal to commit coup d'etat, rebellion or insurrection) and Article 141 (conspiracy to commit sedition) of the Revised Penal Code. When conspiracy is a means to commit a crime, it is indispensable that the agreement to commit the crime among all the conspirators, or their community of criminal design must be alleged and competently shown.
We also stress that the community of design to commit an offense must be a conscious one.[25] Conspiracy transcends mere companionship, and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge of, or acquiescence in, or agreement to cooperate is not enough to constitute one a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose.[26] Hence, conspiracy must be established, not by conjecture, but by positive and conclusive evidence.
In terms of proving its existence, conspiracy takes two forms. The first is the express form, which requires proof of an actual agreement among all the co-conspirators to commit the crime. However, conspiracies are not always shown to have been expressly agreed upon. Thus, we have the second form, the implied conspiracy. An implied conspiracy exists when two or more persons are shown to have aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating closeness of personal association and a concurrence of sentiment.[27] Implied conspiracy is proved through the mode and manner of the commission of the offense, or from the acts of the accused before, during and after the commission of the crime indubitably pointing to a joint purpose, a concert of action and a community of interest.[28]
But to be considered a part of the conspiracy, each of the accused must be shown to have performed at least an overt act in pursuance or in furtherance of the conspiracy, for without being shown to do so none of them will be liable as a co-conspirator, and each may only be held responsible for the results of his own acts. In this connection, the character of the overt act has been explained in People v. Lizada:[29]
In Estrada v. Sandiganbayan,[31] the Court recognized two nuances of appreciating conspiracy as a means to commit a crime, the wheel conspiracy and the chain conspiracy.
The wheel conspiracy occurs when there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes). The spoke typically interacts with the hub rather than with another spoke. In the event that the spoke shares a common purpose to succeed, there is a single conspiracy. However, in the instances when each spoke is unconcerned with the success of the other spokes, there are multiple conspiracies.[32]
An illustration of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy alleged in the information for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
On the other hand, the American case of Kotteakos v. United States[33] illustrates a wheel conspiracy where multiple conspiracies were established instead of one single conspiracy. There, Simon Brown, the hub, assisted 31 independent individuals to obtain separate fraudulent loans from the US Government. Although all the defendants were engaged in the same type of illegal activity, there was no common purpose or overall plan among them, and they were not liable for involvement in a single conspiracy. Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects. Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through. Thus, the US Supreme Court concluded that there existed 32 separate conspiracies involving Brown rather than one common conspiracy.[34]
The chain conspiracy recognized in Estrada v. Sandiganbayan exists when there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[35]
This involves individuals linked together in a vertical chain to achieve a criminal objective.[36] Illustrative of chain conspiracy was that involved in United States v. Bruno,[37] of the US Court of Appeals for the Second Circuit. There, 88 defendants were indicted for a conspiracy to import, sell, and possess narcotics. This case involved several smugglers who had brought narcotics to retailers who, in turn, had sold the narcotics to operatives in Texas and Louisiana for distribution to addicts. The US Court of Appeals for the Second Circuit ruled that what transpired was a single chain conspiracy in which the smugglers knew that the middlemen must sell to retailers for distribution to addicts, and the retailers knew that the middle men must purchase drugs from smugglers. As reasoned by the court, "the conspirators at one end of the chain knew that the unlawful business would not and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers." Each conspirator knew that "the success of that part with which he was immediately concerned was dependent upon success of the whole." This means, therefore, that "every member of the conspiracy was liable for every illegal transaction carried out by other members of the conspiracy in Texas and in Louisiana."[38]
Once the State proved the conspiracy as a means to commit a crime, each co-conspirator is as criminally liable as the others, for the act of one is the act of all. A co-conspirator does not have to participate in every detail of the execution; neither does he have to know the exact part performed by the co-conspirator in the execution of the criminal act.[39] Otherwise, the criminal liability of each accused is individual and independent.
The Prosecution insisted that a conspiracy existed among GMA, Uriarte, Valencia and the Members of the PCSO Board of Directors, Aguas, Villar and Plaras. The Sandiganbayan agreed with the Prosecution as to the conspirators involved, declaring that GMA, Aguas, and Uriarte had conspired and committed plunder.
A review of the records of the case compels us to reject the Sandiganbayan's declaration in light of the information filed against the petitioners, and the foregoing exposition on the nature, forms and extent of conspiracy. On the contrary, the Prosecution did not sufficiently allege the existence of a conspiracy among GMA, Aguas and Uriarte.
A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy to commit plunder among all of the accused on the basis of their collective actions prior to, during and after the implied agreement. It is notable that the Prosecution did not allege that the conspiracy among all of the accused was by express agreement, or was a wheel conspiracy or a chain conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080 (Plunder Law) states:
This interpretation is supported by Estrada v. Sandiganbayan,[40] where the Court explained the nature of the conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation and acquisition was made, thus:
We are not unmindful of the holding in Estrada v. Sandiganabayan[41] to the effect that an information alleging conspiracy is sufficient if the information alleges conspiracy either: (1) with the use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc.; or (2) by allegations of the basic facts constituting the conspiracy in a manner that a person of common understanding would know what is being conveyed, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts. We are not talking about the sufficiency of the information as to the allegation of conspiracy, however, but rather the identification of the main plunderer sought to be prosecuted under R.A. No. 7080 as an element of the crime of plunder. Such identification of the main plunderer was not only necessary because the law required such identification, but also because it was essential in safeguarding the rights of all of the accused to be properly informed of the charges they were being made answerable for. The main purpose of requiring the various elements of the crime charged to be set out in the information is to enable all the accused to suitably prepare their defense because they are presumed to have no independent knowledge of the facts that constituted the offense charged.[42]
For sure, even the Sandiganbayan was at a loss in this respect. Despite the silence of the information on who the main plunderer or the mastermind was, the Sandiganbayan readily condemned GMA in its resolution dated September 10, 2015 as the mastermind despite the absence of the specific allegation in the information to that effect. Even worse, there was no evidence that substantiated such sweeping generalization.
In fine, the Prosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the petitioners for violating the rights of each accused to be informed of the charges against each of them.
Nevertheless, the Prosecution insists that GMA, Uriarte and Aguas committed acts showing the existence of an implied conspiracy among themselves, thereby making all of them the main plunderers. On this score, the Prosecution points out that the sole overt act of GMA to become a part of the conspiracy was her approval via the marginal note of "OK" of all the requests made by Uriarte for the use of additional intelligence fund. The Prosecution stresses that by approving Uriarte's requests in that manner, GMA violated the following:
The Prosecution takes GMA to task for approving Uriarte's request despite the requests failing to provide "the full detail [of] the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished." It posits that the requests were not specific enough, contrary to what is required by LOI 1282.
LOI 1282 reads:
The specific purposes and circumstances for the necessity of the expenditures were laid down as follows:
COA Circular No. 92-385 required that additional request for CIFs would be approved only when there was available budget. In this regard, the Prosecution suggests that there was no longer any budget when GMA approved Uriarte's requests because the budget had earmarked intelligence funds that had already been maxed out and used. The suggestion is not acceptable, however, considering that the funds of the PCSO were co-mingled into one account as early as 2007. Consequently, although only 15% of PCSO's revenues was appropriated to an operation fund from which the CIF could be sourced, the remaining 85% of PCSO's revenues, already co-mingled with the operating fund, could still sustain the additional requests. In short, there was available budget from which to draw the additional requests for CIFs.
It is notable that the COA, although frowning upon PCSO's co-mingling of funds, did not rule such co-mingling as illegal. As such, sourcing the requested additional CIFs from one account was far from illegal.
Lastly, the Prosecution's effort to show irregularities as badges of bad faith has led it to claim that GMA had known that Uriarte would raid the public treasury, and would misuse the amounts disbursed. This knowledge was imputed to GMA by virtue of her power of control over PCSO.
The Prosecution seems to be relying on the doctrine of command responsibility to impute the actions of subordinate officers to GMA as the superior officer. The reliance is misplaced, for incriminating GMA under those terms was legally unacceptable and incomprehensible. The application of the doctrine of command responsibility is limited, and cannot be true for all litigations. The Court ruled in Rodriguez v. Macapagal-Arroyo[44] that command responsibility pertains to the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict. The doctrine has also found application in civil actions for human rights abuses. But this case involves neither a probe of GMA's actions as the Commander-in-Chief of the Armed Forces of the Philippines, nor of a human rights issue. As such, it is legally improper to impute the actions of Uriarte to GMA in the absence of any conspiracy between them.
On the part of Aguas, the Sandiganbayan pronounced him to be as much a member of the implied conspiracy as GMA was, and detailed his participation in this manner:
We opine and declare, however, that Aguas' certifications and signatures on the disbursement vouchers were insufficient bases to conclude that he was into any conspiracy to commit plunder or any other crime. Without GMA's participation, he could not release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to any implied conspiracy to commit plunder.
Under the circumstances, the Sandiganbayan's finding on the existence of the conspiracy to commit plunder was unsustainable. It then becomes unavoidable for the Court to rule that because the Prosecution failed to properly allege the elements of the crime, as well as to prove that any implied conspiracy to commit plunder or any other crime existed among GMA, Aguas and Uriarte there was no conspiracy to commit plunder among them. As a result, GMA and Aguas could be criminally responsible only for their own respective actions, if any.
III.
No proof of amassing, or accumulating, or acquiring ill-gotten wealth of at least P50 Million was adduced against GMA and Aguas
The Sandiganbayan sustained the sufficiency of the evidence to convict the petitioners for plunder on the basis that the Prosecution established all the elements of plunder.
After a review of the records, we find and rule that the Prosecution had no case for plunder against the petitioners.
To successfully mount a criminal prosecution for plunder, the State must allege and establish the following elements, namely:
As regards the element that the public officer must have amassed, accumulated or acquired ill-gotten wealth worth at least P50,000,000.00, the Prosecution adduced no evidence showing that either GMA or Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any amount. There was also no evidence, testimonial or otherwise, presented by the Prosecution showing even the remotest possibility that the CIFs of the PCSO had been diverted to either GMA or Aguas, or Uriarte.
The absolute lack of evidence on this material but defining and decisive aspect of the criminal prosecution was explicitly noted in the concurring and partial dissenting opinion of Justice Rodolfo A. Ponferrada of the Sandiganbayan, to wit:
IV.
The Prosecution failed to prove the predicate act of raiding the public treasury
The Sandiganbayan observed that the Prosecution established the predicate act of raiding the public treasury, to wit:
We do not share the Sandiganbayan's contention.
The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides:
To convert connotes the act of using or disposing of another's property as if it were one's own; to misappropriate means to own, to take something for one's own benefit;[50] misuse means "a good, substance, privilege, or right used improperly, unforeseeably, or not as intended;"[51] and malversation occurs when "any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially."[52] The common thread that binds all the four terms together is that the public officer used the property taken. Considering that raids on the public treasury is in the company of the four other terms that require the use of the property taken, the phrase raids on the public treasury similarly requires such use of the property taken. Accordingly, the Sandiganbayan gravely erred in contending that the mere accumulation and gathering constituted the forbidden act of raids on the public treasury. Pursuant to the maxim of noscitur a sociis, raids on the public treasury requires the raider to use the property taken impliedly for his personal benefit.
The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for plunder. In not requiring personal benefit, the Sandiganbayan quoted the following exchanges between Senator Enrile and Senator Tañada, viz.:
As a result, not only did the Prosecution fail to show where the money went but, more importantly, that GMA and Aguas had personally benefited from the same. Hence, the Prosecution did not prove the predicate act of raids on the public treasury beyond reasonable doubt.
V.
Summation
In view of the foregoing, the Court inevitably concludes that the Sandiganbayan completely ignored the failure of the information to sufficiently charge conspiracy to commit plunder against the petitioners; and ignored the lack of evidence establishing the corpus delicti of amassing, accumulation and acquisition of ill-gotten wealth in the total amount of at least P50,000,000.00 through any or all of the predicate crimes. The Sandiganbayan thereby acted capriciously, thus gravely abusing its discretion amounting to lack or excess of jurisdiction.
Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.[54] To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and the abuse must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.[55]
WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the resolutions issued in Criminal Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and September 10, 2015; GRANTS the petitioners' respective demurrers to evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the petitioners GLORIA MACAPAGAL-ARROYO and BENIGNO AGUAS for insufficiency of evidence; ORDERS the immediate release from detention of said petitioners; and MAKES no pronouncements on costs of suit.
SO ORDERED.
Sereno, C. J., I join the Dissent of J. Leonen and attach my Separate Dissent.
Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Perez, Mendoza, Reyes, and Jardeleza, concur.
Carpio, J., I join the Dissenting Opinion of J. Leonen.
Perlas-Bernabe, J., Please see my Separate Concurring and Dissenting Opinion.
Leonen, J., I dissent. See Separate Opinion.
Caguioa, J., I join the Dissent of J. Leonen.
Sirs/Mesdames:
Please take notice that on July 19, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 21, 2016 at 1:18 p.m.
[1] Rollo, Vol. I, pp. 139-194; penned by Associate Justice Rafael R. Lagos and concurred by Associate Justices Efren N. De La Cruz and Napoleon E. Inoturan. Associate Justices Rodolfo A. Ponferrada and Alex L. Quiroz submitted their respective concurring and dissenting opinion.
[2] Id. at 195-211.
[3] Id. at 305-307-A.
[4] Id. at 415-459.
[5] Id. at 450-510.
[6] Id. at 512-523.
[7] Rollo, Vol. II, pp. 526-580.
[8] Id. at 581-586.
[9] Rollo, Vol. I, pp. 463-477.
[10] The following law enforcers testified for the Prosecution, namely: (a) Capt. Ramil Roberto Enriquez, Assistant Chief of Staff for Intelligence of the Philippine Air Force; (b) Col. Teofilo Reyno Bailon, Jr., Assistant Chief of Staff, Air Staff for Intelligence of the Philippine Air Force; (c) Col. Ernest Marc Rosal, Chief Operations and Intelligence Division, Intelligence Service of the Armed Forces of the Philippines; (d) Lt. Col. Vince James de Guzman Bantilan, Chief of the Intelligence and Operations Branch, Office of the Assistant Chief of Staff for Intelligence of the AFP; (e) Col. Orlando Suarez, Chief Operations, Central Divisions, Office of the J12 of the AFP; (f) Ruel Lasala, Deputy Director for Intelligence Services of the NBI; (g) Atty. Reynaldo Ofialda Esmeralda, Deputy Director for Intelligence Services of the NBI; (h) NBI Agents Dave Segunial, Romy Bon Huy Lim, and Palmer Mallari; (i) Virgilio L. Mendez, Director of the NBI; and (j) Charles T. Calima, Jr., Director for Intelligence of the PNP.
[11] Rollo, pp. 159-161.
[12] Rollo, G.R. No. 220598, Vol. I, pp. 204-205.
[13] Rollo, G.R. No. 220598, Vol. I, pp. 51-54.
[14] Rollo, G.R. No. 220953, Vol. I, p. 15.
[15] Rollo, G.R. No. 220598, Vol. II. pp. 1016-1017.
[16] Rollo, Vol. I, p. 1628.
[17] Tadeo v. People, G.R. No. 129774, December 29, 1998, 300 SCRA 744.
[18] Alarilla v. Sandiganbayan, G.R. No. 136806, August 22, 2000, 338 SCRA 485, 495.
[19] Ong v. People, G.R. No. 140904, October 9, 2000, 342 SCRA 372, 387.
[20] Id.
[21] Cruz v. People, G.R. No. 121422, February 23, 1999, 303 SCRA 533.
[22] Gutib v. Court of Appeals, G.R. No. 131209, August 13, 1999, 312 SCRA 365, 377.
[23] Article 8, Revised Penal Code.
[24] Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002, 377 SCRA 538, 557.
[25] Bahilidad v. People, G.R. No. 185195, March 17, 2010, 615 SCRA 597, 606.
[26] Id. at 686.
[27] People v. De Leon, G.R. No. 179943, June 26, 2009, 591 SCRA 178, 194-195.
[28] People v. Del Castillo, G.R. No. 169084, January 18, 2012, 663 SCRA 226, 246.
[29] G.R. No. 143468-71, January 24, 2003, 396 SCRA 62, 94-95.
[30] Supra note 12.
[31] G.R. No. 148965, February 26, 2002, 377 SCRA 538, 556.
[32] Contemporary Criminal Law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R., Sage Publication, California, USA, 2013, p. 195.
[33] 328 U.S. 750 (1946).
[34] Supra note 32.
[35] Supra note 31.
[36] Supra note 32.
[37] 105 F.2d 921 (2d Cir. 1939).
[38] Supra note 32.
[39] People v. Del Castillo, G.R. No. 169084, January 18, 2012, 663 SCRA 226, 247.
[40] Supra note 31, at 555-556.
[41] Id. at 565.
[42] Andaya v. People, G.R. No. 168486, June 27, 2006, 493 SCRA 539, 558.
[43] Rollo, Vol. II, p. 990.
[44] G.R. No. 191805, November 15, 2011, 660 SCRA 84.
[45] Rollo, Vol. I., pp. 205-206.
[46] Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 394, 432.
[47] Rollo, Vol. I, pp. 188-189.
[48] Rollo, Vol. I, pp. 203-204.
[49] Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 598-599.
[50] Sy v. People, G.R. No. 85785, April 24, 1989, 172 SCRA 685, 694.
[51] The Law Dictionary. Retrieved athttp://thelawdictionary.org/misuse last June 6, 2016.
[52] Article 217, Revised Penal Code.
[53] Record of the Senate, June 6, 1989, p. 1403, Vol. IV, No. 141.
[54] Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348; Uy v. Office of the Ombudsman, G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.
[55] Vergara v. Ombudsman, G.R. No. 174567, March 12, 2009, 580 SCRA 693; Nationwide Security and Allied Services, Inc. v. Court of Appeals, G.R. No. 155844, 14 July 2008, 558 SCRA 148.
SERENO, C.J.:
Given the records and pleadings in these cases, I register my dissent from the ponencia. Contrary to the ponencia's conclusion, I find that the prosecution has sufficiently alleged and established conspiracy in the commission of the crime of plunder involving, among others, petitioners Gloria Macapagal Arroyo (Arroyo) and Benigno B. Aguas (Aguas). I therefore find no grave abuse of discretion in the Sandiganbayan rulings, which denied petitioners' demurrers and motions for reconsideration.
In sum, my strong objection to the Majority Opinion is impelled by at least five (5) doctrinal and policy considerations.
The prosecution has sufficiently alleged and established conspiracy among the accused specifically petitioners Arroyo and Aguas.
Preliminarily, the ponencia states that the prosecution did not properly allege conspiracy. I disagree.
Estrada v. Sandiganbayan[3] (2002 Estrada) is instructive as to when the allegations in the Information may be deemed sufficient to constitute conspiracy. In that case, We stated:
Contrary to the ponencia, I find the allegations above consistent with Our pronouncement in 2002 Estrada,[6] wherein conspiracy was successfully proven.
On another point, the ponencia declares that the prosecution failed to establish or prove conspiracy. A review of the records before us contradicts this position.
The prosecution's theory of the conspiracy to commit plunder is that PCSO funds were repeatedly siphoned off purportedly to fund activities which were not actually conducted - a 3-year process which could not have been accomplished without the indispensable acts of accused public officers who took advantage of their positions to amass nearly P366 million.
To appreciate the prosecution's theory of conspiracy, it is necessary to have a bird's eye view of the procedure for disbursement of CIF funds. The testimony before the Sandiganbayan of prosecution witness, Atty. Aleta Tolentino, Chairperson of the PCSO Audit Committee, provides the procedure briefly outlined below:
Expenditures for prizes and charity follow strict disbursement, accounting, and liquidation procedures.[12] In contrast, procedures for CIF expenditures are less strict because of their confidential nature.
Funds for confidential or intelligence projects are usually released as cash advances. Under COA rules, the liquidation documents therefor are sent in sealed envelopes directly to the COA chairperson (or his/her representative).
Given the prosecution's claim that PCSO funds were all commingled in one account, it is easier to see the significance of using the CIF route in diverting funds for personal gain. Utilizing that route minimizes the risks of discovery and the tracking of any anomaly, irregularity, or illegality in the withdrawal of funds.
The lax process of disbursement, accounting, and liquidation has been identified in the field of financial management as a possible, if not perfect, locus for fraud. In Fraud and Corruption Awareness Handbook, How It Works and What to Look For: A Handbook for Staff[13] the World Bank states that fraud thrives in accounting systems with vulnerabilities.[14]
The irregularities in the approval, disbursement, and liquidation of the funds
First, when Arroyo approved the requests, the PCSO was operating on a deficit.[16] This situation means that it is irregular to authorize additional CIF when the fund source is negative. It is tantamount to authorizing the use of other PCSO funds - that of the Prize Fund and Charity Fund - for purposes other than those allowed by law.
In 2005, the PCSO had a deficit of F916 million.[17] In 2006, the deficit was P1,000,078,683.23, P215 million of which comprised the CIF expenses. For that year, the CIF budget was only P10 million.[18] Otherwise stated, the CIF expense exceeded the budget by P205 million.
On the other hand, the CIF disbursements amounted to P77,478,705[19] in 2007 when the CIF budget was only P25,480,550.[20] The CIF expenditure exceeded its budget by almost P52 million.
In 2008, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of P25 million in April and another P50 million in August.[21] In its Corporate Operating Budget (COB) approved in May, the PCSO board allocated P28 million for the CIF.[22] The actual disbursement amounted to P86,555,060[23] so CIF expenditures were P58 million more than its allocated budget.[24]
Four times in 2009, Uriarte asked for and received approval from Arroyo for additional CIF in the total amount of P90 million - P50 million in January, P10 million in April, another P10 million in July and then P20 million in October.[25] The board allocated P60 million in its Corporate Operating Budget approved in March.[26] The actual CIF disbursement was P138,420,875,[27] so the overspending was more than P78 million.
For 2010, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of P150 million in January.[28] The board allocated P60 million for the CIF in its Corporate Operating Budget, which was approved in March. The GIF disbursement, as of June 2010, was P141,021,980,[29] so overspending was by more than P81 million.
It is worth noting that from previous allocations of P10 million (P5 million each for the Office of the Chairperson and for the Office of the Vice-Chairperson), the CIF budget was gradually but significantly increased to P60 million in 2009 and 2010. Still, additional amounts were requested and authorized, reaching very significant CIF expenditures in the years when the PCSO was on a deficit, from 2004 to 2009. For a fuller context, the information is tabulated:
Despite the above facts and figures culled from the records, the ponencia remarks that commingling was far from illegal.[31] The ponencia downplays the fact that there was no longer any budget when Arroyo approved the requests and considers the approval justified "considering that the funds of the PCSO were commingled into one account x x x." While the act of commingling may not by itself be illegal, the fact that it continued to be successfully maintained despite the COA advice to stop the practice means that it was deliberately used to facilitate the raid of government coffers. The majority should not have downplayed the viciousness of this practice. It is a critical red flag of financial fraud.
Second, the prosecution witness testified that for 2009, the recorded CIF expense was only P24,968,300, while actual vouchers for the CIF cash advances totalled P138,420,875.[32] This discrepancy is another red flag.
The CIF cash advances remain as accountabilities of the special disbursing officers until liquidated. After they are properly liquidated and cleared by the COA chairperson or his/her representative, the Confidential/Intelligence expenses are then recorded as such.
The witness found, however, that receivables from Uriarte and Valencia for the CIF disbursements amounting to P106,386,800 and P90,428,780, respectively, were removed. These were instead recorded as expenses under the Prize Fund and Charity Fund.[33] For 2008, another P63.75 million was obtained from the Charity Fund and the Prize Fund.[34]
These facts and figures are the most compelling evidence of a fraudulent scheme in this case — cash advances being taken as CIF expenses for withdrawal purposes and thereafter being passed off as PF and CF expenses for recording purposes. Apparently, the reason for taking cash advances from the common (commingled) account as CIF expenses was the relative ease of withdrawal and subsequent liquidation of the funds. On the other hand, the apparent purpose of recording the same cash advances in the books as PF and CF expenses was to avoid detection of the lack of CIF.
Red flags are again readily noticeable here in the form of missing funds and apparent misuse. Missing funds occur when cash appears to be missing after a "review of transaction documentation and financial documents," while apparent misuse happens when funds are spent on "personal or non-business-related" matters.[35]
The prosecution witness pointed out these red flags as follows:
Third, witness Tolentino reported that for their respective cash advances, Uriarte and Valencia approved the vouchers certifying the necessity and the legality of the disbursement and thereafter authorized the payment thereof. They also co-signed with the treasurer the checks payable to their own names.
Thus, a situation in which the same person approved the disbursement and signed the check for payment to that same person is readily observed. This situation is irregular. In the usual course of things, payees do not get to approve vouchers and sign checks payable to themselves.
The witness further found that while Uriarte was authorized by the Board of Directors[37] to be the Special Disbursing Officer (SDO), Valencia designated himself as the SDO for his own cash advances, upon the recommendation of COA Auditor Plaras.[38] Under COA rules, the Board of Directors, not the Chairperson, has authority to designate SDOs.
The usual check-and-balance mechanism for the segregation of duties was therefore totally ignored. The disregard of that mechanism strongly indicates an intention to keep knowledge of the transactions to as few people as possible. In fraudulent schemes, risks of detection are avoided by keeping the conspiracy or connivance known to as few people as necessary. This is therefore another red flag.
Fourth, the accountabilities of Uriarte and Valencia for the CIF cash advances they availed of were removed from the records on the basis of the issuance of a Credit Notice. And this issuance of credit notice by COA CIF Unit Head Plaras is also marked by irregularities.[39]
The relevant testimony of prosecution witness Atty. Aleta Tolentino is summed up by the Sandiganbayan in its Resolution dated 5 November 2013 as follows:
The clearance made by COA Auditor Plaras, despite the presence of several irregularities, is another red flag - a species of approval override which ignores an irregularity with respect to payment.[41]
Finally, the purposes for the amounts were supposedly for the conduct of CIF activities as reflected in the accomplishment report but these activities were subsequently belied by testimonial evidence. The prosecution in this regard sufficiently established an aspect of the conspiracy scheme by showing that the final destination of the amount was linked to petitioner Arroyo and her Office as admitted by a co-conspirator.
In its Resolution dated 6 April 2015, the Sandiganbayan stated the following:
In the Formal Offer of Exhibits for the Prosecution dated 4 June 2014 in addition to the Exhibits previously offered in evidence on the Formal Offer of Exhibits for the Prosecution dated 26 February 2013, various pieces of documentary evidence were presented. Among them are the certifications made by Uriarte and Aguas. The most pertinent of these are the following:
The conspiracy is thus sufficiently shown through the repeated approvals of Arroyo of additional CIF requests in the course of three years; the irregularities in the disbursement, accounting, and liquidation of the funds and the active participation therein of the accused; and finally, a showing that the Office of the President, which Arroyo controlled, was the final destination of the amounts. The CIF releases would not have been made possible without the approval of Arroyo. The funds could not have been disbursed without the complicity and overt act of Aguas. Uriarte (the one who received the amounts) was definitely part of the scheme. Aguas could not have cleared Uriarte (and Valencia) without the credit notice of Plaras. Thus, the connivance and conspiracy of Arroyo, Uriarte, Valencia, Aguas and Plaras are clearly established.
Relevant Plunder Law provisions and jurisprudence in relation to the case
Section 4 of the Plunder Law states:
Estrada v. Sandiganbayan[43] (2001 Estrada) provides an instructive discussion on "pattern" by using the provisions of the Anti-Plunder Law:
With respect to "combination," Estrada requires at least two acts that fall under the different categories of the enumeration given by Section 1, paragraph (d) of the Plunder Law. Examples would be raids on the public treasury under Section 1, paragraph (d), subparagraph (1), and fraudulent conveyance of assets belonging to the National Government under Section 1, paragraph (d), subparagraph (3).
For ease of reference, Section 1 (d) is quoted below:
In this regard, Arroyo's approval now assumes greater significance. Petitioner Arroyo's act - her repeated and unqualified approval -represented the necessary and indispensable action that started the "taking" process. The repeated approval of the requests in the course of three years is the crucial and indispensable act without which the amount of nearly P366 million could not have been plundered.
The ponencia rules that the prosecution failed to establish an overt act in furtherance of the conspiracy, either on the part of petitioner Arroyo or Aguas. It reasons that Arroyo's "mere approval"[50] of Vice Chairman and General Manager Uriarte's requests for CIF did not make her part of any criminal conspiracy. On the other hand, as regards petitioner Aguas, the ponencia explains that "without GMA's participation, he could not release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to any conspiracy to commit plunder."[51]
These pronouncements, however, are perceptibly conflicted. Contrary to the pronouncements of the ponencia, Arroyo's manner of approving requests for additional CIFs, seven times in the course of three years, reveals the initial, indispensable act in the conspiracy to commit plunder. All the individual acts of the conspirators from the time the requests were approved until the moment the amounts were finally in the Office of the President indicate a complete whole. The intent to accumulate, amass, or acquire the PCSO funds is thus shown through the successive acts which at first appear to be independent but, in fact, are connected and cooperative. The chain of circumstances from the inscription of a mere "ok" of petitioner Arroyo on all the requests, up to the time the amounts were proven to be with the Office of the President as indicated in the accomplishment report (Exhibit "Y7-68") sufficiently proves the conspiracy to commit plunder.
In other words, Arroyo's approval of Uriarte's request cannot be simply downplayed as an innocent, legal, common and valid practice, as the ponencia would want, to exonerate Arroyo and Aguas. As aptly stated by the Sandiganbayan:
Given the totality of the circumstances discussed above, the prosecution's claim that Arroyo had known that Uriarte would raid the public treasury and misuse the funds the latter had disbursed, owing to the fact that the former President had the power of control over the PCSO, consequently appears to be correct.
The ponencia, however, misses this point and deliberately chooses to reject the prosecution's claim by stating that the doctrine of command responsibility does not apply since this case does not involve Arroyo's functions as Commander-in-Chief of the Armed Forces of the Philippines, or a human rights issue.
Contrary to that statement of the ponencia, however, the control of the President, not only over the PCSO, but also over the intelligence funds, is clearly mandated by Letter of Instruction No. (LOI) 1282 which sheds light on the role of the President when it comes to the expenditure of intelligence funds. LOI 1282 provides:
II
There is evidence to show that Uriarte, Arroyo, or Aguas amassed, accumulated, or acquired ill-gotten wealth.
The ponencia states that "the Prosecution adduced no evidence showing that either Arroyo or Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any amount. It also did not present evidence, testimonial or otherwise, showing even the remotest possibility that the CIFs of the PCSO had been diverted to Arroyo, Aguas, or Uriarte."[54] I must disagree.
As held by this Court in 2001 Estrada,[55] the only elements of the crime of plunder are the following:
From January 2008 to June 2010, the following cash advances were made:
The act of amassing, accumulating, or acquiring CIF funds is thus evident. I agree with the Sandiganbayan's pronouncement that Arroyo was rightly charged as a co-conspirator of Uriarte who received the cash advance for most of the amounts.[58]
It had been argued that receipt by the Office of the President is not necessarily receipt of the moneys by Arroyo. This however is a matter of defense, considering that Arroyo controls the Office of the President.
III
Personal benefit need not be proven.
The ponencia harps on the failure of the prosecution to allege in the Information and prove that the amount amassed, accumulated, and acquired was for the benefit of an identified main plunderer.
In particular, the ponencia leans on this Court's pronouncement that what is required in a conspiracy charge is not that every accused must have performed all the acts constituting the crime of plunder, but that "each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada."[59]
The ponencia also takes issue with the Sandiganbayan's statement that all that is required is that the public officer must have raided the public coffers, without need to prove personal benefit on the part of the public officer.
It cites the deliberations on Senate Bill No. 733, which later on became Republic Act No. 7080, to support the thesis that personal benefit on the part of the main plunderer, or the co-conspirators by virtue of their plunder, is still necessary. It then concludes that the prosecution failed to show not only where the money went but, more important, whether Arroyo and Aguas had personally benefited therefrom.
To begin with, the failure of the Information to name the main plunderer in particular is not crucial.
Section 2 of the Plunder Law does not require a mastermind or a main recipient when it comes to plunder as a collective act:
In a conspiracy, the act of one is the act of all.[60] Every conspirator becomes a principal even if the person did not participate in the actual commission of every act constituting the crime.[61] Hence, it is not material if only Uriarte among all the accused is proven or shown to have taken material possession of the plundered amount.
It is thus not crucial to identify the main plunderer in the Information, so long as conspiracy is properly alleged and established. Identification in the Information of the main plunderer or the accused who acquires the greatest loot is immaterial, as it suffices that any one or two of the conspirators are proven to have transferred the plundered amount to themselves.
In this case, there is ample evidence to show that Uriarte gained material possession of the amounts through cash advances facilitated by the repeated and unqualified approval of the requests by Arroyo and that a large portion of the amount received as cash advance was later certified by Aguas to have been used by the Office of the President.
What should be underscored at this juncture is that in prosecution for plunder, it is enough that one or more of the conspirators must be shown to have gained material possession of at least P50 million through any or a combination or a series of overt criminal acts, or similar schemes or means enumerated in the law and stated in the Information.
Our ruling in Valenzuela v. People,[62] a theft case, is instructive:
I quote with approval the Sandiganbayan in its pronouncement, as follows:
IV
Arroyo and Aguas failed to show evidence that the Sandiganbayan gravely abused its discretion.
Section 23 of Rule 119 states:
Certiorari therefore is not the proper recourse against a denial of a demurrer to evidence. Under the Rules of Court, the appropriate remedy is for the court to proceed with the trial, after which the accused may file an appeal from the judgment rendered by the lower court.
Consequently, I am not prepared to impute grave abuse of discretion on the part of the Sandiganbayan. For reasons already discussed, the prosecution's evidence has satisfactorily established the elements of the crime of plunder.
Further, it must be emphasized that access to this Court through a Rule 65 petition is narrow and limited. That recourse excludes the resolution of factual questions.[65] In the present case, the question of whether a denial of the demurrer to evidence is proper is factual in nature, as it involves a test of the sufficiency of evidence.
This Court has made a pronouncement on the nature of a demurrer to evidence in this wise:
Further, it must be borne in mind that the Sandiganbayan is a constitutionally-mandated tribunal designed to resolve cases involving graft and corruption. As such, it is the expert in the field of graft cases. On the other hand, this Court is not a trier of facts. The Sandiganbayan must be allowed to complete the entire course of the trial as it sees fit.
A final note. The crime charged, the personalities involved, the amount in question, and the public interest at stake - are considerations that should prompt us to demonstrate an even hand, conscious that the benefits of the Decision would cascade to the least powerful accused in all future proceedings. We must be mindful of the potentially discouraging impact of a grant of this particular demurrer on the confidence of trial courts.
Nearly P366 million of the People's money is missing. Direct documentary evidence whereby petitioner Aguas states that a large part of this or P244.5 million to be exact was diverted to the Office of the President under petitioner Arroyo was considered sufficient by the Sandiganbayan to require both petitioners herein to proceed with the presentation of their defense evidence. This cogent conclusion by the constitutionally-mandated court that has tried the prosecution's evidence on plunder cannot be overridden willy-nilly by this Court.
I further fully agree with Justice Marvic Mario Victor F. Leonen in his Separate Dissenting Opinion.
I therefore vote to DISMISS the petitions.
[1] 454 Phil. 34 (2003).
[2] Decision, p. 42.
[3] G.R. No. 148965, 26 February 2002, 377 SCRA 538.
[4] Id. at 563, 565.
[5] Annex "D" of the Petition.
[6] G.R. No. 148965, 26 February 2002, 377 SCRA 538.
[7] Rollo (G.R. No. 220598), p. 466; see also COA Circular 92-385.
[8] Id.; see also COA Circular 92-385 and Letter of Instruction No. 1282 (1983).
[9] Id. at 466-469; see also COA Circulars 92-385 and 2009-02.
[10] Id. at 471.
[11] See Section 2, Batas Pambansa Blg. 42, An Act Amending the Charter of the Philippine Charity Sweepstakes Office.
[12] See for example, PCSO's answers to Frequently Asked Questions on how to claim prizes and request for medical assistance (http://www.pcso.gov.ph/index.php/frequently-ask-questions/) and its Prize Payment workflow chart (http://www.pcso.gov.ph/wp-content/uploads/2015/03/44.-functional-chart-treas.pdf), both accessed on 6 July 2016).
[13] Fraud and Corruption Awareness Handbook, How it Works and What to Look For: A Handbook for Staff,http://siteresources.worldbank.org/INTDOII/Resources/INT_inside_fraud_text_090909.pdf (last accessed on 15 July 2016).
[14] Id.
[15] Id.
[16] Rollo (G.R. No. 220598), p. 463; "They were working on a deficit from 2004 to 2009".
[17] Id. at 464.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 157.
[22] Id.
[23] Id. at 466.
[24] Or P10 million if the budget was P28 million.
[25] Rollo (G.R. No. 220598), p. 158.
[26] Id.
[27] Id. at. 470.
[28] Id. at 158.
[29] Id. at 466.
[30] For six months, up to June 2010 only.
[31] Decision, p. 29.
[32] Rollo (G.R. No. 220598), p. 476.
[33] Id.
[34] Id.
[35] See note 13.
[36] Rollo (G.R. No. 220598), p. 475.
[37] Id. at 467.
[38] Id.
[39] Id. at 471.
[40] Id.
[41] See note 13.
[42] Id. at 163-164.
[43] 421 Phil. 290, 515.
[44] Id.
[45] Id.
[46] People v. Bergonia, 339 Phil. 284 (1997).
[47] Salapuddin v. Court of Appeals, 704 Phil. 577 (2013).
[48] 454 Phil. 34 (2003).
[49] Id. at 106.
[50] Decision, p. 27.
[51] Id. at 40.
[52] Rollo (G.R. No. 220598), p. 502.
[53] Decision, p. 40.
[54] Id. at 42.
[55] 421 Phil. 290, 515.
[56] Id. at 160; Sandiganbayan Resolution dated 6 April 2015, p. 31.
[57] Id. at 163.
[58] Rollo (G.R. No. 220598), p. 205; Sandiganbayan Resolution dated 10 September 2015.
[59] Id.
[60] U.S. v. Ipil, 27 Phil. 530 (1914).
[61] Id.
[62] G.R. No. 160188, 21 June 2007.
[63] Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC, 3 October 2000.
[64] People v. Go, G.R. No. 191015, 6 August 2014, 732 SCRA 216, and Alarilla v. Sandiganbayan, 393 Phil. 143 (2000).
[65] Don Orestes Romualdez Electric Cooperative, Inc. v. NLRC, 377 Phil. 268 (1999).
[66] Gutib v. CA, 371 Phil. 293 (1999).
[67] Id. at 305.
PERLAS-BERNABE, J.:
The primordial issue in this case is whether or not respondent the Sandiganbayan gravely abused its discretion in denying the demurrers to evidence of petitioners Gloria Macapagal-Arroyo (Arroyo) and Benigno B. Aguas (Aguas).
The instant petitions stemmed from an Information[1] charging Arroyo and Aguas (petitioners), along several others, of the crime of Plunder, defined by and penalized under Section 2 of Republic Act No. (RA) 7080[2] or the "Plunder Law," as amended by RA 7659,[3] filed before the Sandiganbayan and docketed as Criminal Case No. SB-12-CRM-0174. The charge revolved around a series of anomalous transactions with respect to the release of the Confidential and Intelligence Fund (CIF) of the Philippine Charity Sweepstakes Office (PCSO), through which petitioners and other co-accused, all public officers, allegedly conspired to amass, accumulate, or acquire ill-gotten wealth in the aggregate amount of P365,997,915.00.[4] After the Sandiganbayan acquired jurisdiction over the persons of petitioners, the latter filed their respective petitions for bail which were, however, denied on the ground that the evidence of guilt against them was strong.[5] Thereafter, trial on the merits ensued.
After the prosecution concluded its presentation of evidence, various co-accused, including petitioners, filed, with leave of court, their respective demurrers to evidence, asserting that there was no sufficient evidence to establish a case of Plunder against them.[6]
In a Resolution[7] dated April 6, 2015, the Sandiganbayan denied the demurrers to evidence of petitioners. With respect to Arroyo's demurrer, the Sandiganbayan held that: (a) her repeated "OK" notations in PCSO General Manager Rosario C. Uriarte's (Uriarte) multiple letter-requests[8] did not only signify her unqualified approval to Uriarte's requests for additional CIF funds, but also amounted to an authorization of the use thereof; (b) despite the absence of full details on the specific purposes for which the additional CIF funds were to be spent for, Arroyo never questioned Uriarte's requests and still approved them in violation of Letter of Instructions No. 1282,[9] series of 1983 (LOI 1282) and Commission on Audit (COA) Circular Nos. 92-385[10] and 2003-002[11]; and (c) such acts resulted in Uriarte illegally amassing, acquiring, or accumulating CIF funds amounting to more than P50 Million. As for Aguas's demurrer, the Sandiganbayan ratiocinated that it was through his certifications in the disbursement vouchers - which all turned out to be false - that Uriarte was able to amass, acquire, or accumulate ill-gotten wealth amounting to more than P50 Million. In view of the foregoing, the Sandiganbayan concluded that petitioners' respective participations as co-conspirators of Uriarte in the plunder of public funds were established by sufficient evidence.[12]
Aggrieved, petitioners separately moved for reconsideration,[13] but were, however, denied in a Resolution[14] dated September 10, 2015; hence, the instant petitions for certiorari.
At the outset, the ponencia found no procedural infirmity in the certiorari petitions filed by petitioners against the Sandiganbayan Resolutions denying their respective demurrers, emphasizing that the said orders are interlocutory in nature and, hence, subject to the Court's certiorari jurisdiction. In this relation, it added that the Court has "the duty to strike down grave abuse of discretion whenever and wherever it is committed."[15]
On the merits, the ponencia proposed to grant petitioners' demurrers to evidence, dismiss Criminal Case No. SB-12-CRM-0174 as against them, and order their release from detention.[16] In so ruling, the ponencia held that the Sandiganbayan gravely abused its discretion in denying said demurrers, considering that the prosecution failed to: (a) properly allege and prove the existence of conspiracy among Arroyo, Aguas, and Uriarte[17]; (b) prove that the co-accused amassed, acquired, or accumulated ill-gotten wealth in the amount of at least P50 Million[18]; and (c) prove the existence of the predicate act of raiding the public treasury.[19]
On the insufficiency of the charge, the ponencia observed that the "identification of the main plunderer was not only necessary because the law required such identification[,] but also because it was essential in safeguarding the rights of the accused to be properly informed of the charges they were being made answerable for."[20] Thus, it concluded that "the [p]rosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the [petitioners]."[21]
Further, the ponencia held that the prosecution failed to prove any overt acts from petitioners that would establish their respective participations in the conspiracy to commit Plunder, reasoning that: (a) Arroyo's mere unqualified approval of Uriarte's requests for additional CIF funds - which was not by any means irregular or illegal - did not make her part of the design to raid the public treasury and thereby amass, acquire, or accumulate ill-gotten wealth[22]; and (b) Aguas's certifications and signatures on the disbursement vouchers were insufficient bases to conclude that he was involved in any conspiracy to commit Plunder as those would not have meant anything had Arroyo not authorized the release of additional CIF funds.[23]
Finally, anent the predicate act of raiding the public treasury, the ponencia theorized that a "raid on the public treasury" under Section 1 (d) (1)[24] of the Plunder Law "requires the raider to use property taken impliedly for his personal benefit"[25] in line with the principle of noscitur a sociis, or "the doctrine of associated words," which postulates that "where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be made clear and specific by considering the company in which it is found or with which it is associated."[26] In this regard, it was pointed out that the term "raid on the public treasury" was accompanied by the words "misappropriation," "conversion," and "misuse or malversation" of public funds, all of which according to the ponencia - are concepts which require the use of the property taken.[27] Thus, in view of the prosecution's failure to prove that personal benefit was derived by any of the co-accused from the use of CIF funds, it ruled that the existence of the aforesaid predicate act was not proven.[28]
I partly agree with the ponencia's findings.
I.
I first address the matters of procedure.
A petition for certiorari is generally prohibited to assail an order denying a demurrer to evidence. Section 23, Rule 119 of the Revised Rules of Criminal Procedure states:
Meanwhile, on a separate procedural matter, it is my view that the Information against petitioners, including their co-accused, sufficiently apprised them of the nature and cause of the accusation against them. In order for the accused to be sufficiently apprised of the charge of Plunder, it is essential that the ultimate facts constitutive of the crime's elements be stated in the Information with reasonable particularity. Plunder, as defined in RA 7080, as amended by RA 7659, has the following elements: first, that the offender is a public officer; second, that he amasses, accumulates or acquires ill-gotten wealth through a combination or series[31] of overt or criminal acts described in Section 1 (d); and third, that the aggregate amount or total value of the ill-gotten wealth is at least P50,000,000.00.[32]
The Information in this case clearly alleged the imputed crime of Plunder against all the accused, as well as the fact that they had conspired to commit the same. On its face, the Information states that: (1) petitioners are all public officers; (2) they conspired with each other and the other accused to willfully, unlawfully and criminally amass, accumulate and/or acquire ill-gotten wealth in the amount of at least P50 Million (i.e., P365,997,915.00); and (3) they did so through any or a combination or a series of overt or criminal acts, or similar schemes and means, described as follows: "(a) diverting in several instances, funds from the operating budget of [the] PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit"; (b) "raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures"; and (c) "taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines."[33]
At this juncture, let me express that it is of no moment that the main plunderer was not identified on the face of the Information. Contrary to the ponencia's stand,[34] the identification of a main plunderer is not a constitutive element of the crime of Plunder. In fact, the charge in this case is hinged on an allegation of conspiracy, which connotes that all had participated in the criminal design. Under the Revised Rules of Criminal Procedure, to be considered as valid and sufficient, an Information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.[35] All that should appear in the Information are the ultimate facts reflecting the elements of the crime charged, and not the evidentiary facts from which the conclusion of who was the main plunderer or who actually amassed, acquired, or accumulated the subject ill-gotten wealth may be drawn. Verily, the degree of particularity required for an Information to be sufficient is only based on the gauge of reasonable certainty - that is, whether the accused is informed in intelligible terms of the offense charged, as in this case.
That being said, I shall now proceed to a discussion on the substantive merits of the case.
II.
In concept, a demurrer to evidence is "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt."[36]
After a careful study of this case, it is my view that the Sandiganbayan gravely abused its discretion in denying Arroyo's demurrer to evidence on account of lack of sufficient evidence to prove her complicity in the alleged Plunder of CIF funds.
To recall, the Sandiganbayan found that there was sufficient evidence to prove Arroyo's participation as a co-conspirator in the Plunder of CIF funds because of her unqualified "OK" notations in Uriarte's multiple letter-requests for additional CIF funds. From its point of view, these notations violated LOI 1282 and COA Circular Nos. 92-385 and 2003-002. Accordingly, the Sandiganbayan denied her demurer to evidence.
I disagree with the Sandiganbayan's findings.
For a conspiracy charge to prosper, it is important to show that the accused had prior knowledge of the criminal design; otherwise, it would hardly be the case that his alleged participation would be in furtherance of such design. In theory, conspiracy exists when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. To prove conspiracy, the prosecution must establish the following requisites: (1) two or more persons came to an agreement; (2) the agreement concerned the commission of a crime; and (3) the execution of the felony was decided upon.[37] "Prior agreement or assent is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of sentiments or community of interests."[38]
In this case, I am hard-pressed to find that Arroyo's periodic approvals of Uriarte's multiple letter-requests for additional CIF funds -which was the sole justification behind the Sandiganbayan ruling under present scrutiny - amount to sufficient evidence which would prove her complicity in the Plunder of CIF funds. While she may have approved the use of CIF funds which would be the determinative act for which Uriarte was able to amass, acquire, or accumulate the questioned funds, the prosecution failed to satisfactorily establish any overt act on Arroyo's part that would clearly show that she knew that the funds she had approved for release was intended to further the alleged criminal design. In other words, while Arroyo's approval was an indispensable act in ultimately realizing the objective of the scheme or pattern of criminal acts alleged in the Plunder Information, there is no sufficient evidence - whether direct or circumstantial - to prove that she had knowledge of such objective, and hence, could have given her assent thereto. Without knowledge, there can be no agreement, which is precisely the essence of conspiracy.
The Sandiganbayan pointed to Arroyo's supposed breach of LOI 1282, from which one would supposedly infer her knowledge and eventual assent to the alleged Plunder scheme. For context, LOI 1281 was issued by then President Ferdinand E. Marcos on January 12, 1983, reflecting the government's policy on intelligence funds at that time. In reference to the duty of the President, LOI 1282 requires that all requests for the allocation and release of intelligence funds shall: (a) indicate the specific purposes for which the funds will be spent; (b) provide detailed explanations as to the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished by the release of funds; and (c) be presented personally to the President for his perusal and examination.
The pertinent portions of LOI 1282 are highlighted below:
In this case, records reveal that Uriarte indeed personally delivered to Arroyo the letter-requests for CIF funds in the aggregate amount of P295 Million, and that the latter provided her "OK" notations in each of those letter-requests.[40] In the April 2, 2008 letter-request, Uriarte provided the following purposes of additional CIF funds amounting to P25 Million:
To stress, LOI 1282 merely required that requests for additional CIF funds shall "indicate in full detail the specific purposes for which said funds shall be spent," and "explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."[48] It did not provide for any other parameter as to how the purposes and the underlying circumstances should be particularized, thereby giving the President ample discretion to scrutinize and deem by himself/herself whether or not a letter-request indeed complied with the requirements of LOI 1282. In this case, it must be pointed out that as General Manager of the PCSO, Uriarte enjoyed the full trust and confidence not only of the PCSO Board of Directors who appointed her as such, but also of the President (Arroyo, in this instance), who is the appointing authority of the said board.[49] Hence, when Arroyo placed her "OK" notations on Uriarte's letter-requests, it is as if she deemed such letter-requests compliant with the requirements of LOI 1282. Thus, while the Sandiganbayan correctly examined Arroyo's alleged participation under the lens of her duties under LOI 1282, it, however, erroneously concluded that there was sufficient evidence to prove that she knew of any Plunder conspiracy and henceforth, proceeded to approve the release of CIF funds in furtherance thereof.
The error of the Sandiganbayan is even more evident in relation to COA Circular Nos. 92-385 and 2003-002. This is because there appears to be no basis to render Arroyo accountable under the guidelines and control measures stated in these circulars. Reading their provisions, these issuances apply only to lower-level officials, particularly, the department heads, heads of government owned and controlled corporations, accountable officers, and other COA officers. At most, they only mention that the approval of the President is required before intelligence and confidential funds are to be released.[50] However, the document showing the President's approval is but part of the requirements needed to be ascertained by the various heads and accountable officers as part of their duty to "institute and maintain sound and effective internal control measures to discourage and prevent irregular, unnecessary, excessive, extravagant and unconscionable expenditures as well as promote prudence in the use of government resources by those involved in intelligence/confidential operations."[51] Outside of the duty to approve requests under LOI 1282, the circulars do not articulate any active responsibility on the part of the President so as to render him/her accountable for the irregular processing of CIF funds. The foregoing observation is buttressed by the testimony of prosecution witness Flerida Africa Jimenez, Director IV and Head of the Intelligence and Confidential Fund Audit Unit (ICFAU), Office of the Chairman, COA,[52] to wit:
In contrast, no grave abuse of discretion may be attributed to the Sandiganbayan in denying the demurrer of Aguas as his complicity to the said scheme appears to be supported by sufficient evidence on record. As PCSO Budget and Accounts Manager, Aguas was tasked to audit CIF liquidation reports.[56] In this light, he is bound to comply with the provisions of CO A Circular Nos. 92-385 and 2003-002 on the audit of CIF, which includes, inter alia, the proper scrutiny of liquidation reports with the corresponding supporting documents, as well as the submission of the same to the COA chairman before subsequent cash advances may be made. As exhaustively discussed by the Sandiganbayan, Aguas committed various irregularities in such audit, resulting in the release of additional CIF funds to Uriarte, viz.:
As a final point, allow me to submit my reservations on the ponencia's characterization of the concept of a "raid of public treasury" under the auspices of Section 1 (d) of the Plunder Law, viz.:
In addition, the Sandiganbayan noted that there is no basis under the Congressional deliberations of Plunder Law that personal benefit was required. As may be gleaned therefrom, the phrase "knowingly benefited" had been stricken off from the final text of the law.[59]
Finally, the Sandiganbayan aptly pointed out that: "to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already illegally amassed, acquired, or accumulated P50 Million or more of government funds and just decided to keep it in his vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the police, negating any opportunity for the person to actually benefit, would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still be evidence-based must fail."[60] The ponencia's appreciation of the Plunder Law tends to deleteriously impact the prosecution of other pending Plunder cases. Unfortunately, the majority has imposed a rule which now requires the State to submit direct proof of personal benefit for an accused plunderer, as well as those who have conspired with him to be convicted. I strongly criticize this approach as it is practically the case that those who have raided the coffers of our government, especially in light of the fairly recent PDAF[61] controversy and now current litigations, would, in great likelihood, had already hidden the money they stole through ingenious schemes and means. Regrettably, the majority's interpretation tends to enervate the potency of the Plunder Law's force.
ACCORDINGLY, for the reasons above-stated, I vote to GRANT the petition filed by petitioner Gloria Macapagal-Arroyo in G.R. No. 220598 and DENY the petition filed by petitioner Benigno B. Aguas in G.R. No. 220953.
[1] The Information is reproduced in the ponencia, pp. 2-3.
[2] Entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER," approved on July 12, 1991.
[3] Entitled "AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," approved on December 13, 1993.
[4] See ponencia, p. 3.
[5] Id. at 3-4.
[6] Id. at 19. See also Sandiganbayan Resolution dated April 6, 2015, pp. 3-28.
[7] See rollo (G.R. No. 220598), Vol. I, pp. 139-194. Penned by Associate Justice Rafael R. Lagos with Associate Justices Efren N. De La Cruz and Napoleon E. Inotura. Associate Justices Rodolfo A. Ponferrada and Alex L. Quiroz submitted their respective concurring and dissenting opinion.
[8] See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, pp. 73-78, attached as Annex "R" of Arroyo's Petition in G.R. No. 220598.
[9] Dated January 12, 1983.
[10] Subject: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds dated October 1, 1992.
[11] Subject: Audit and Liquidation of Intelligence and Confidential Funds for National and Corporate Sectors dated July 30, 2003.
[12] See discussions in the April 6, 2015 Sandiganbayan Resolution, pp. 30-36.
[13] The respective motions for reconsideration of petitioners were both dated April 22, 2015. See rollo (G.R. No. 220598), Vol. I, p. 195.
[14] Id. at 195-211.
[15] Ponencia, p. 28.
[16] Id. at 47.
[17] Id. at 28.
[18] Id. at 41.
[19] Id. at 43.
[20] Id. at 35.
[21] Id. at 36.
[22] Id.
[23] Id. at 40.
[24] SECTION 1. Definition of Terms. — As used in this Act, the term —
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
[25] Ponencia, p. 45.
[26] Aisporna v. Court of Appeals, 198 Phil. 838, 847 (1982).
[27] Ponencia, pp. 44-45.
[28] See id. at 46.
[29] 568 Phil. 297 (2008).
[30] Id. at 309-310.
[31] In Estrada v. Sandiganbayan [421 Phil. 290, 351 (2001)], it was explained:
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law[.]
[32] See Section 12 of RA 7659, amending Section 2 of RA 7080.
[33] See portions of the Information as reproduced in the ponencia pp 2-3.
[34] See id. at 34-36.
[35] People v. Cinco, 622 Phil. 858, 866-867 (2009), citing Section 6, Rule 110 of the Revised Rules of Criminal Procedure.
[36] People v. Go, G.R. No. 191015, August 6, 2014, 732 SCRA 216, 237-238; citations omitted.
[37] See People v. Fabros, 429 Phil. 701, 713-714 (2002).
[38] Id. at 714; emphasis and italics supplied.
[39] See portions of LOI 1282 as reproduced in the ponencia, pp. 36-37.
[40] See id. at 7.
[41] See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, p. 73, attached as Annex "P" in Arroyo's Petition in G.R. No. 220598. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
[42] Attached as Annex "Q" in Arroyo's Petition in G.R. No. 220598, p. 74. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
[43] Attached as Annex "S" in Arroyo's Petition in G.R. No. 220598, p. 76. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[44] Attached as Annex "T" in Arroyo's Petition in G.R. No. 220598, p. 77. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[45] Attached as Annex "R" in Arroyo's Petition in G.R. No. 220598, p. 75. See also April 6, 2015 Sandiganbayan Resolution, p. 29 (erroneously dated as "January 19, 2009 in the Sandiganbayan Resolution).
[46] Attached as Annex "W" in Arroyo's Petition in G.R. No. 220598, p. 78. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[47] See April 6,2015 Sandiganbayan Resolution, p. 41.
[48] See ponencia, p. 37.
[49] See RA 1169 entitled "AN ACT PROVIDING FOR CHARITY SWEEPSTAKES, HORSE RACES, AND LOTTERIES" (As Amended by Batas Pambansa Blg. 42 and Presidential Decree No. 1157) (June 18, 1954).
[50] See 2nd Whereas clause of COA Circular No. 92-385 and Documentary Requirements, Item 2 of COA Circular No. 2003-002.
[51] See COA Circular No. 2003-002.
[52] See April 6, 2015 Sandiganbayan Resolution, pp. 20-27.
[53] See id. at 23.
[54] People v. Maraorao, 688 Phil. 458, 467 (2012).
[55] "It is a standing rule that every public official is entitled to the presumption of good faith in the discharge of official duties, such that, in the absence of any proof that a public officer has acted with malice or bad faith, he should not be charged with personal liability for damages that may result from the performance of an official duty. Good faith is always presumed and he who alleges the contrary bears the burden to convincingly show that malice or bad faith attended the public officer's performance of his duties." Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013, 703 SCRA 318, 337.
[56] See Petition of Aguas in G.R. No. 220953, pp. 8 and 46.
[57] See April 6, 2015 Sandiganbayan Resolution, pp. 32-33.
[58] Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).
[59] See also September 10, 2015 Sandiganbayan Resolution, pp. 8-9.
[60] See September 10, 2015 Sandiganbayan Resolution, p. 10.
[61] "Priority Development Assistance Fund.
LEONEN, J:
With respect, I dissent.
Gloria Macapagal-Arroyo was a highly intelligent President who knew what she was doing. Having had an extraordinary term of nine (9) years as President of the Philippines, she had the experience to make her wise to many, if not all, of the schemes perpetrated within the government bureaucracy that allowed the pilferage of public coffers especially if these were repeated acts in ever-increasing amounts reaching millions of pesos. As President, it was her duty to stop—not abet or participate—in such schemes.
Gloria Macapagal-Arroyo, as a highly intelligent and experienced President, was aware that the power to increase the allocation and, therefore, disbursement of additional confidential and intelligence funds (CIF) of the Philippine Charity and Sweepstakes Office (PCSO) was hers alone. She was aware that this power was discretionary on her part. She did not have to approve any request for increase if it was not properly supported by adequate funds and the enumeration of specific activities.
She was also aware that, as President who occupied the highest office imbued with public trust, it was her duty under the Constitution and our laws that all the financial controls supported by audit observations be complied with to ensure that all funds be disbursed in a regular manner and for legitimate purposes. She knew that it was her duty to scrutinize if repeated requests for increases in these funds especially in ever-increasing amounts in the millions of pesos were done regularly and for legitimate ends.
After all, the President is the Chief Executive. Along with the awesome powers and broad discretions is likewise the President's duty to ensure that public trust is respected. The regular and legitimate allocation, disbursement, and use of funds—even confidential and intelligence funds—are matters of grave public trust.
It is not possible to assume that Gloria Macapagal Arroyo, the President of the Philippines, was not intelligent, not experienced and, at the time she held office, powerless to command the huge bureaucracy once under her control and to stop schemes that plundered our public coffers.
Increases in the allocation of CIF of PCSO were made possible only with the approval of Gloria Macapagal-Arroyo as President. Within the period from 2008 to 2010, there was not only one increase. There were several. The additional allocations for CIF were of increasing amounts running into the hundreds of millions of pesos. In 2010 alone, it was One Hundred Fifty Million Pesos (P150,000,000.00). The General Manager of the PCSO was able to disburse more than One Hundred Thirty Eight Million Pesos (P138,000,000.00) to herself. That disbursement remains unaccounted.
There was testimony that during these years, the PCSO was in deficit. Despite continued annual warnings from the Commission on Audit with respect to the illegality and irregularity of the co-mingling of funds that should have been allocated for the Prize Fund, the Charitable Fund, and the Operational Fund, this co-mingling was maintained. This made it difficult to ensure that the CIF will only be charged to the Operational Fund and that the Operational Fund would be kept at the required percentage of the revenues of the PCSO.
Gloria Macapagal-Arroyo, as President, approved the increases in the allocation and thus facilitated the disbursement of CIF despite the irregular co-mingling of funds. She approved the ever-increasing additions to the CIF of PCSO even without a showing that this government corporation had savings. She approved the additional allocation in increasing amounts on the strength of pro-forma requests without anything on record to show that she required explanation why the regular budget for CIF was insufficient. There was nothing to show that her repeated approval of ever-increasing amounts running into the millions of pesos was preceded with her inquiry as to why there was really a need to continue to increase the allocations and the disbursements in those amounts.
In 2008, 2009, and 2010, she approved increases in allocation for the CIF in millions of pesos even before the PCSO Board was able to approve its regular corporate budget (COB).
All these are supported by the evidence presented by the prosecution.
The scheme to amass and accumulate P365,997,915.00 in cash of CIF required the indispensable participation of the President in its approval and its actual disbursement in cash by the General Manager of the PCSO. The raid on public coffers was done in a series or combination of acts. The use of the funds was not properly accounted.
The Information fded against petitioners and their co-accused unequivocally charged them with conspiring to commit this type of plunder.
The demurrers to evidence of petitioners Gloria Macapagal-Arroyo and Benigno B. Aguas were properly denied as the prosecution's evidence showed that, as part of a conspiracy, they engaged in acts constituting plunder. The evidence demonstrated that they participated in a protracted scheme of raiding the public treasury aimed at amassing ill-gotten wealth.
It is of no consequence, as the ponencia harps on, that petitioners' specific and direct personal benefit or enrichment is yet to be established with unmitigated certainty. I echo the position taken by Associate Justice Estela Perlas-Bernabe: "raids on the public treasury"—as articulated in Section 1 (d) of Republic Act No. 7080, the law penalizing plunder—does not require "that personal benefit be derived by the [persons] charged."[1]
The rule on demurrer to evidence in criminal proceedings is clear and categorical.[2] If the demurrer to evidence is denied, trial must proceed and, thereafter, a judgment on the merits rendered. If the accused is convicted, he or she may then assail the adverse judgment, not the order denying demurrer to evidence.
It is true that we have the power of judicial review. This power, however, must be wielded delicately. Its exercise must be guided by a temperament of deference. Otherwise, the competence of trial courts will be frustrated. We will likewise open ourselves to the criticism that we use our power to supplant our own findings of fact with those of the Sandiganbayan.
The extraordinary power of certiorari granted under Article VIII, Section 1 of the Constitution allows the exercise of judicial review of other branches and constitutional organs. With respect to courts under our supervision, the use of certiorari is covered by our Rules.
Certainly, we cannot grant certiorari and annul the denial of the demurrer to evidence when we ourselves, through our Rules of Court, prohibit the review or appeal of any denial of the demurrer to evidence.
The unique circumstances of this case provide us with the temptation of an inopportune, overzealous intervention by a superior court. We have the potential to frustrate the unique competence of specially designed public instrumentalities. In this case, it is the Sandiganbayan.[3] This can similarly entail the undermining of mechanisms for exacting public accountability. In this case, it is for the criminal prosecution of what is possibly the most severe offense that public officers may commit, and of charges that are raised against the highest official of the executive branch of government.
This Court's principal task is to preserve the rule of law. Animated by this purpose, we should exercise the better part of restraint, defer to the original jurisdiction of the constitutionally mandated "anti-graft court,"[4] and prudently bide for a more opportune time to involve ourselves with the factual and evidentiary intricacies of the charges against petitioners.
We should allow the Sandiganbayan to proceed with trial, weigh the evidence, and acquit or convict on the basis of its evaluation of evidence received over the course of several months. Only after final judgment and in the proper course of an appeal should we intervene, if warranted.
I
At the core of these criminal proceedings is the charge of conspiracy. Petitioners and their co-accused are charged with "conniving, conspiring and confederating with one another . . . to amass, accumulate and/or acquire, directly or indirectly, ill-gotten wealth."[5]
This allegation of conspiracy is as pivotal to these proceedings as the basic requisites of the offense with which petitioners were charged.
Plunder is defined in Section 2 of Republic Act No. 7080,[6] as amended:
It is a distinction critical to appreciating the nature of the predicate means or schemes enumerated in Section 1 (d). While some of these means or schemes may coincide with specific offenses (i.e., "criminal" acts) defined and penalized elsewhere in our statutes, it is not imperative that a person accused of plunder be also shown to have committed other specific criminal offenses by his or her predicate acts. That there be an overt showing of engaging in such means or schemes suffices.
The Information filed against petitioners and their co-accused properly alleged the elements of plunder.
First, it stated that petitioners were public officers. Petitioner Gloria Macapagal-Arroyo (Former President Arroyo) is Former President of the Republic, and petitioner Benigno B. Aguas (Aguas) was former Budget and Accounts Manager of PCSO.[10]
Second, it alleged that the accused, in conspiracy with each other, transferred a total amount of P365,997,915.00 from PCSO's 2008 to 2010 Confidential and Intelligence Fund (CIF) in PCSO's accounts to their control and possession.[11]
Third, it stated that this diversion or transfer of funds was accomplished through three (3) of the six (6) acts enumerated in Section 1 (d) of Republic Act No. 7080:
By definition, plunder may be a collective act, just as well as it may be an individual act. Section 2 of Republic Act No. 7080 explicitly states that plunder may be committed "in connivance":
It does, however, speak of "[a]ny public officer."[15] This reference is crucial to the determination of plunder as essentially an offense committed by a public officer. Plunder is, therefore, akin to the offenses falling under Title VII of the Revised Penal Code. Likewise, this reference highlights the act of plundering as essentially one that is accomplished by taking advantage of public office or other such instrumentalities.
Contrary to what the ponencia postulates, there is no need for a "main plunderer."[16] Section 2 does not require plunder to be centralized, whether in terms of its planning and execution, or in terms of its benefits. All it requires is for the offenders to act out of a common design to amass, accumulate, or acquire ill-gotten wealth, such that the aggregate amount obtained is at least P50,000,000.00. Section 1 (d) of Republic Act No. 7080, in defining "ill-gotten," no longer even speaks specifically of a "public officer." In identifying the possessor of ill-gotten wealth, Section 1 (d) merely refers to "any person":
This is not an appeal from definitive findings of fact that have resulted in the conviction or acquittal of the accused. It is only a Petition for Certiorari seeking to supplant the discretion of the Sandiganbayan to hear all the evidence.
Section 4 of Republic Act No. 7080 provides:
Section 4 was correctly applied in this case.
It would be inappropriate to launch a full-scale evaluation of the evidence, lest this Court—an appellate court, vis-a-vis the Sandiganbayan's original jurisdiction over plunder—be invited to indulge in an exercise which is not only premature, but also one which may entirely undermine the Sandiganbayan's competence. Nevertheless, even through a prima facie review, the prosecution adduced evidence of a combination or series of events that appeared to be means in a coherent scheme to effect a design to amass, accumulate, or acquire ill-gotten wealth. Without meaning to make conclusions on the guilt of the accused, specifically of petitioners, these pieces of evidence beg, at the very least, to be addressed during trial. Thus, there was no grave abuse of discretion on the part of the Sandiganbayan.
The Resolution of the Sandiganbayan, with respect to Former President Arroyo, deserves to be reproduced:
First, evidence was adduced to show that there was co-mingling of PCSO's Prize Fund, Charity Fund, and Operating Fund. In the Annual Audit Report of PCSO for 2007, the Commission on Audit already found this practice of having a "combo account" questionable.[21] The prosecution further alleged that this co-mingling was "to ensure that there is always a readily accessible fund from which to draw CIF money."[22]
Section 6 of PCSO's Charter, Republic Act No. 1169,[23] as amended by Batas Pambansa Blg. 42 and Presidential Decree No. 1157, stipulates how PCSO's net receipts (from the sale of tickets) shall be allocated. It specifies three separate funds - the Prize Fund, the Charity Fund, and funds for the operating expenses (or operating fund) - and defines the apportionment of gross receipts:
Letter of Instruction No. 1282 states:
The requests likewise failed to account for why additional amounts—which ballooned to P150,000,000.00, as shown in the January 4, 2010 request—were necessary. Instead, these requests merely relied on the repeated refrain of how "PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities."[40] These requests also relied on the claim that "[w]ith the use of intelligence fund, PCSO can protect its image and integrity."[41]
Commission on Audit Circular No. 92-385[42] emphasizes that funds provided for in the General Appropriations Act, which are released for intelligence operations, must be specifically designated as such in the General Appropriations Act. It further identifies the President of the Philippines as the sole approving authority for the release of confidential and intelligence funds:
The prosecution presented evidence to show that Former President Arroyo personally approved the release of additional CIF to the PCSO on several occasions from 2008 to 2010. This she did by handwriting the notation "OK, GMA."[45] In addition, the prosecution showed that these releases were in excess of amounts initially allocated as such CIF and were facilitated despite PCSO's having had to operate under a deficit.
Prosecution witness, Atty. Aleta Tolentino (Atty. Tolentino), Head of the Audit Committee of PCSO, emphasized that the approval and disbursements of the CIF were irregular as they did not comply with Commission on Audit Circular 92-385's requirement of there being an amount "specifically identified and authorized as such intelligence or confidential fund" before disbursements may be made for confidential and intelligence activities.
Atty. Tolentino noted that, as a consequence of Commission on Audit Circular 03-002, a government-owned and controlled corporation must first have an allocation for the CIF specified in its Corporate Operating Budget or "taken from savings authorized by special provisions."
In 2008, only P28,000,000.00 was allocated as CIF.[46] Nevertheless, Former President Arroyo approved the requests of Uriarte—separately, on April 2, 2008 and on August 13, 2008—to increase the budget allotted for PCSO Confidential and Intelligence Expenses, with an amount totaling P75,000,000.00.[47] For this year, an amount totaling P86,555,060.00 was disbursed.[48]
In 2009, the original budget of P60,000,000.00[49] was increased by a total of P90,000,000.00, through the approval of separate requests made by Uriarte to increase the budget by P50,000,000.00 on January 19, 2009;[50] P10,000,000.00 on April 27, 2009;[51] and P10,000,000.00 on July 2, 2009.[52] A letter[53] dated October 19, 2009 issued by former Executive Secretary Eduardo Ermita showed that Former President Arroyo also approved the release of additional CIF amounting to P20,000,000.00.[54] Total 2009 disbursements amounted to P138,420,875.00.[55]
In 2010, P141,021,980.00 was disbursed as of June 2010,[56] even as the CIF allocation for the entire year was only P60,000,000.00.[57] This comes at the heels of an increase of P150,000,000.00,[58] again through Former President Arroyo's approval of the request made by Uriarte.
It was similarly impossible for PCSO to have sourced these funds from savings. As Atty. Tolentino emphasized, PCSO was running on a deficit from 2004 to 2009.[59] She added that the financial statements for the years 2006 to 2009, which she obtained in her capacity as the Head of the Audit Committee of the PCSO, specifically stated that the PCSO was operating on a deficit in 2006 to 2009.
Third, the prosecution demonstrated that Uriarte was enabled to withdraw from the CIF solely on the strength of Former President Arroyo's approval and despite not having been designated as a special disbursing officer, pursuant to Commission on Audit Circulars 92-385 and 03-002.[60]
Commission on Audit Circular 92-385 provides:
Fourth, there were certifications on disbursement vouchers issued and submitted by Aguas, in his capacity as PCSO Budget and Accounts Manager, which stated that: there were adequate funds for the cash advances; that prior cash advances have been liquidated or accounted for; that the cash advances were accompanied by supporting documents; and that the expenses incurred through these were in order.[64] As posited by the prosecution, these certifications facilitated the drawing of cash advances by PCSO General Manager Uriarte and Chairperson Sergio Valencia.[65]
Aguas repeatedly made the certifications in the disbursement vouchers twenty-three (23) times[66] in the following tenor:
Fifth, officers from the Philippine National Police, the Armed Forces of the Philippines, and the National Bureau of Investigation gave testimonies to the effect that no intelligence activities were conducted by PCSO with their cooperation, contrary to Uriarte's claims.[69]
These officers were:
The prosecution added that no contracts, receipts, correspondences, or any other documentary evidence exist to support expenses for PCSO's intelligence operations.[79] These suggest that funds allocated for the CIF were not spent for their designated purposes, even as they appeared to have been released through cash advances. This marks a critical juncture in the alleged scheme of the accused. The disbursed funds were no longer in the possession and control of PCSO and, hence, susceptible to misuse or malversation.
Sixth, another curious detail was noted by the prosecution: that Former President Arroyo directly dealt with PCSO despite her having issued her own executive orders, which put PCSO under the direct control and supervision of other agencies.
On November 8, 2004, Former President Arroyo issued Executive Order No. 383, Series of 2004, which placed PCSO under the supervision and control of the Department of Welfare and Development. Section 1 of this Executive Order stated:
PCSO General Manager Uriarte had intimate access to the Office of the President and was likewise critical in the allocation, disbursement, and release of millions of pesos in cash.
Summing up, the prosecution adduced evidence indicating that Former President Arroyo and Aguas were necessary cogs to a machinery effected to raid the public treasury. It is hardly of consequence, then, that their direct personal gain has not been indubitably established.
For Former President Arroyo, this came through her capacity as the sole and exclusive approving authority. The funds, demarcated as confidential and intelligence funds, would not have been at any prospective plunderer's disposal had their release not been sanctioned. As the prosecution asserted, her own handwriting attests to her assent.
It defies common sense to think that other malevolent actors could have so easily misled Former President Arroyo into giving her assent. The more reasonable inference is that she acted with awareness, especially considering the large amounts involved, as well as the sheer multiplicity in the number of times her assent was sought.
Violations of regulations must necessarily be presumed to not have been made out of ignorance. This is especially true of senior government officials. The greater one's degree of responsibility, as evinced by an official's place in the institutional hierarchy, the more compelling the supposition that one acted with the fullness of his or her competence and faculty. The person involved here was once at the summit of the entire apparatus of government: a former President of the Republic.
These commonsensical and soundly logical suppositions arising from the prosecution's evidence demand a process through which the defendant Former President Arroyo may prove the contrary. Trial, then, must continue to afford her this opportunity.
We cannot assume that the President of the Philippines, the Chief Executive, was ignorant of these regulations and these infractions.
For Aguas, he was in a position to enforce internal control mechanisms to ensure that the PCSO's financial mechanisms comply with the relevant laws and regulations. As the prosecution pointed out, his task was far from merely being perfunctory and ministerial.[83] By his certifications on disbursement vouchers, he attested that: "(1) the expenditure for which disbursements are made have been verified; (2) the expenditure for which the disbursements are made are supported by documents; (3) that account codes from which the fund[s] are to be sourced are proper; and (4) the previous cash advance has been liquidated/accounted."[84]
His very act of making these certifications presume an active effort to verify and make the necessary confirmations. Doing so without these prerequisites is tantamount to knowingly making false declarations. Still, Aguas appears to have proceeded to certify anyway, thereby enabling his co-accused PCSO General Manager Uriarte and Chairperson Sergio Valencia to draw cash advances. This drew the proverbial door open to the larger scheme of plunder, which the Information averred. As the prosecution explained:
III
Parenthetically, even assuming without conceding that petitioners could not be convicted of plunder, the prosecution still adduced sufficient evidence to convict them with malversation of public funds, as penalized by Article 217 of the Revised Penal Code. Hence, trial should still proceed to receive their evidence on this point.
At the heart of the offense of plunder is the existence of "a combination or series of overt or criminal acts." Estrada v. Sandiganbayan[86] clarified that "to constitute a "series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1)."
Accordingly, this Court has consistently held that the lesser offense of malversation can be included in plunder when the amount amassed reaches at least P50,000,000.00.[87] This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate acts of bribery and malversation (if applicable) need not be charged under separate informations when one has already been charged with plunder:
IV
The sheer absence of grave abuse of discretion is basis for denying the consolidated Petitions. There, however, lies a more basic reason for respecting the course taken by the Sandiganbayan.
Rule 119, Section 23 of the Revised Rules on Criminal Procedure articulates the rules governing demurrers to evidence in criminal proceedings:
It works by "challeng[ing] the sufficiency of the whole evidence to sustain a verdict."[94] In resolving the demurrer to evidence, a trial court is not as yet compelled to rule on the basis of proof beyond reasonable doubt[95]—the requisite quantum of proof for conviction in a criminal proceeding[96]—but "is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt."[97]
A demurrer to evidence is a device to effect one's right to a speedy trial[98] and to speedy disposition of cases.[99] This has been settled very early on in our jurisprudence:
In Spouses Condes v. Court of Appeals:[102]
The competence to determine whether trial must continue and judgment on the merits eventually rendered is exclusively lodged in the trial court:
Therefore, it follows that if a demurrer to evidence is denied, the correctness of this denial may only be ascertained when the consideration of evidence has been consummated. There is no better way of disproving the soundness of the trial court's having opted to continue with the proceedings than the entire body of evidence:
Accordingly, in the event that a demurrer to evidence is denied, "the remedy is . . . to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law."[106] The proper subject of the appeal is the trial court's judgment convicting the accused, not its prior order denying the demurrer. The denial order is but an interlocutory order rendered during the pendency of the case,[107] while the judgment of conviction is the "judgment or final order that completely disposes of the case"[108] at the level of the trial court.
People v. Court of Appeals[109] involved two assailed Resolutions of the Court of Appeals. The first assailed Resolution granted the accused's Motion to consider the trial court's denial order not as an interlocutory order but as a "judgment of conviction." In granting this Motion, the first assailed Resolution also considered the Petition for Certiorari subsequently filed before the Court of Appeals as an "appeal" from that "judgment of conviction." This Resolution ruled that the Court of Appeals should proceed to rule on the "appeal" as soon as the parties' appeal briefs or memoranda had been filed. The second assailed Resolution considered the "appeal" submitted for resolution.
This Court found grave abuse of discretion on the part of the Court of Appeals in issuing the assailed Resolutions, particularly in "preempt[ing] or arrogat[ing] unto itself the trial court's original and exclusive jurisdiction."[110]
In making its conclusions, this Court emphasized an appellate court's lack of competence or jurisdiction to render an original judgment on the merits, i.e., one which, at the first instance, is based on the evidence or the facts established. It further explained that the exercise of appellate jurisdiction is contingent on a prior judgment rendered by a tribunal exercising original jurisdiction:
It is true that the Revised Rules on Criminal Procedure is subordinate to and must be read in harmony with the Constitution. Article VIII, Section 1 of the 1987 Constitution spells out the injunction that "[j]udicial power includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Judicial review of a denial order is, therefore, still possible.
However, the review must be made on the narrowest parameters, consistent with the Constitution's own injunction and the basic nature of the remedial vehicle for review, i.e., a petition for certiorari:
A sweeping reference to the power of judicial review does not sanction an ad hoc disregard of principles and norms articulated in the Rules of Court, such as those on the basic nature and availability of a Rule 65 petition, as well as the availability of relief from orders denying demurrers to evidence. These are Rules which this Court itself promulgated and by which it voluntarily elected to be bound. More importantly, these Rules embody a wisdom that was articulated in an environment removed from the ephemeral peculiarities of specific cases. They are not to be rashly suspended on a provisional basis. Otherwise, we jeopardize our own impartiality.
The power of judicial review through a petition for certiorari must be wielded delicately. The guiding temperament must be one of deference, giving ample recognition to the unique competence of trial courts to enable them to freely discharge their functions without being inhibited by the looming, disapproving stance of an overzealous superior court.
VII
The need for prudence and deference is further underscored by other considerations: first, a policy that frowns upon injunctions against criminal prosecution; and second, the need to enable mechanisms for exacting public accountability to freely take their course.
As a rule, "injunction will not lie to enjoin a criminal prosecution."[118] This is because "public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights."[119]
"What cannot be done directly, cannot be done indirectly."[120] The quoted statements were made in jurisprudence and specifically pertained to the issuance of writs of injunction. Nevertheless, granting a petition for certiorari assailing the denial of demurrer to evidence will similarly mean the cessation of proceedings that, in the trial court's wisdom, were deemed imperative. By the stroke of another court's hand, the conduct of trial is peremptorily cast aside, and a full-scale inquiry into the accused's complicity is undercut.
The public interest that impels an uninhibited full-scale inquiry into complicity for criminal offenses, in general, assumes even greater significance in criminal offenses committed by public officers, in particular. If the legal system is to lend truth to the Constitution's declaration that "[p]ublic office is a public trust,"[121] all means must be adopted and all obstructions cleared so as to enable the unimpaired application of mechanisms for demanding accountability from those who have committed themselves to the calling of public service.
This is especially true in prosecutions for plunder. It is an offense so debased, it may as well be characterized as the apex of crimes chargeable against public officers:
The Sandiganbayan was created by statute, that is, Presidential Decree No. 1486. However, this statute was enacted pursuant to a specific injunction of the 1973 Constitution:
Guided by these principles, animated by the wisdom of deferring to the Sandiganbayan's competence—both as a trial court and as the constitutionally ordained anti-graft court—and working within the previously discussed parameters, this Court must deny the consolidated Petitions.
This Court is not a trier of facts. Recognizing this Court's place in the hierarchy of courts is as much about propriety in recognizing when it is opportune for this Court to intervene as it is about correcting the perceived errors of those that are subordinate to it.
Prudence dictates that we abide by the established competence of trial courts. We must guard our own selves against falling into the temptation (against which we admonished the Court of Appeals in People v. Court of Appeals) to "preempt or arrogate unto [ourselves] the trial court's original and exclusive jurisdiction."[125]
We are faced with an independent civil action, not an appeal. By nature, a petition for certiorari does not enable us to engage in the "correction of evaluation of evidence."[126] In a Rule 65 petition, we are principally equipped with the parties' submissions. It is true that in such petitions, we may also require the elevation of the records of the respondent tribunal or officer (which was done in this case). Still, these records are an inadequate substitute for the entire enterprise that led the trial court—in this case, the Sandiganbayan—to its conclusions.
The more judicious course of action is to let trial proceed at the Sandiganbayan. For months, it received the entire body of evidence while it sat as a collegiate court. Enlightened by the evidence with which it has intimate acquaintance, the Sandiganbayan is in a better position to evaluate them and decide on the full merits of the case at first instance. It has the competence to evaluate both substance and nuance of this case. Thus, in this important case, what would have emerged is a more circumspect judgment that should have then elevated the quality of adjudication, should an appeal be subsequently taken.
VIII
The cardinal nature of the offense charged, the ascendant position in government of the accused (among them, a former President of the Republic), and the sheer amount of public funds involved demand no less. Otherwise, the immense public interest in seeing the prosecution of large-scale offenders and in the unbridled application of mechanisms for public accountability shall be undermined.
I dissent from the view of the majority that there was insufficient evidence to support a finding beyond reasonable doubt that the accused were in conspiracy to commit a series or combination of acts to amass and accumulate more than Three Hundred Million Pesos within 2008 to 2010 through raids of the public coffers of the PCSO.
If any, what the majority reveals as insufficient may be the ability of the judiciary to correctly interpret the evidence with the wisdom provided by the intention of our laws on plunder and the desire of the sovereign through a Constitution that requires from public officers a high degree of fidelity to public trust. We diminish the rule of law when we deploy legal interpretation to obfuscate rather than to call out what is obvious.
A total of Php365,997,915.00 was disbursed in cash as additional Confidential and Intelligence Fund (CIF) from the PCSO. Where it went and why it was disbursed was not fully explained. It is clear that the cash was taken out by the General Manager and the Chair of the PCSO among others. Its disbursement was made possible only by repeated acts of approval by the former President. The General Manager had intimate access to the President herself. She bypassed layers of supervision over the PCSO. The approvals were in increasing amounts and each one violating established financial controls. The former President cannot plead naivete. She was intelligent and was experienced.
The scheme is plain except to those who refuse to see.
ACCORDINGLY, I vote to DENY the consolidated Petitions for Certiorari. Public respondent Sandiganbayan committed no grave abuse of discretion in issuing the assailed April 6, 2015 and September 10, 2015 Resolutions.
[1] J. Bernabe, Separate Opinion, p. 17.
[2] RULES OF COURT, Rule 119, sec. 23 provides:
SEC. 23. Demurrer to evidence. — . . .
The order denying the motion for leave of 5court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
[3] CONST. (1973), art. XIII, sec. 5 provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
[4] CONST., art. XI, sec. 4 provides:
SEC. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.
[5] Rollo (G.R. No. 220598), p. 24, Petition.
[6] An Act Defining and Penalizing the Crime of Plunder (1991).
[7] 421 Phil. 290(2001) [Per J. Bellosillo, En Banc].
[8] Id. at 343-344.
[9] Rep. Act No. 7080 (1991), sec. I provides:
Section 1. Definition of Terms. — As used in this Act, the term —
. . . .
d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or - controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
[10] Rollo (G.R. No. 220598), p. 306, Information.
[11] Id. at 306-307.
[12] Id. at 307.
[13] Id. at 306-307.
[14] Id. at 51-53, Petition.
[15] Rep. Act No. 7080 (1991), sec. 2.
[16] Ponencia, p. 34.
[17] People v. Medina, 354 Phil. 447, 460 (1998) [Per J. Regalado, En Banc], citing People v. Paredes, 133 Phil. 633, 660 (1968) [Per J. Angeles, En Banc]; Valdez v. People, 255 Phil. 156, 160-161 (1986) [Per J. Cortes, En Banc]; People v. De la Cruz, 262 Phil. 838, 856 (1990) [Per J. Melencio-Herrera, Second Division]; People v. Camaddo, G.R. No. 97934, January 18, 1993, 217 SCRA 162, 167 [Per J. Bidin, Third Division].
[18] People v. Peralta, 134 Phil. 703, 723 (1968) [Per Curiam, En Banc].
[19] Alvizo v. Sandiganbayan, 454 Phil. 34, 106 (2003) [Per J. Austria-Martinez, En Banc].
[20] Rollo (G.R. No. 220598), p. 157-165.
[21] Rollo (G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandigunbayan records, Exhibit "E" for the Prosecution.
[22] Id. at 1644, Comment filed by the Ombudsman in G.R. No. 220598.
[23] Otherwise known as "An Act Providing for Charity Sweepstakes, Horse Races, and Lotteries".
[24] Rollo (G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandiganbayan records, Exhibit "E" for the Prosecution.
[25] Id. at 1671, Annex 1 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
[26] Id.
[27] Id.
[28] Id. at 1644.
[29] Id. at 1642, Comment filed by the Ombudsman in G.R. No. 220598.
[30] Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
[31] Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution.
[32] Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
[33] Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
[34] Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
[35] Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan Records Exhibit "W" for the Prosecution.
[36] Id. at 1591-1611, Comment filed by the Ombudsman in G.R. No. 220598.
[37] See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[38] L.O.I. No. 1282 (1983), par. 2 provides: "Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."
[39] L.O.I. No. 1282 (1983).
[40] See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbaynn records, Exhibit "P" for the Prosecution
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[41] Id.
[42] In re: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds (1992).
[43] In re: Audit and Liquidation of Confidential and Intelligence Funds For National and Corporate Sectors (2003).
[44] The following must be submitted whenever a new Disbursing Officer is appointed.
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records. Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[46] Id. at 1829, Annex 4 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "K" for the Prosecution.
[47] Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
[48] Ponencia, p. 7.
[49] Id. at 1952, Annex 22 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "L" for the Prosecution.
[50] Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
[51] Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
[52] Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
[53] Id. at 1957, Annex 27 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "V" for the Prosecution.
[54] Id.
[55] Ponencia, p. 7.
[56] Ponencia, p. 7.
[57] Id. at 2062, Annex 36 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
[58] Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[59] Ponencia, p.5.
[60] Id. at 1652-1653, Comment filed by the Ombudsman in G.R. No. 220598.
[61] Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "M" for the Prosecution.
[62] At that time, three (3) disbursements were already made based on the approval of the requests of PCSO General Manager Uriarte. These were made on April 2, 2008, August 13, 2008, and January 19, 2009.
[63] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[64] Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records. Exhibits "JJ" to "H" for the Prosecution.
[65] Id.
[66] Sandiganbayan records. Exhibits "JJ" to "H3" for the Prosecution.
[67] Sandiganbayan records, Exhibits "JJ" to "H3" for the Prosecution.
[68] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[69] Id.
[70] TSN, February 12, 2014.
[71] TSN, January 29, 2014.
[72] TSN, February 5, 2014.
[73] TSN, February 19, 2014.
[74] TSN, February 26, 2014.
[75] TSN, March 5, 2014.
[76] TSN, March 12, 2014.
[77] TSN, March 19, 2014.
[78] TSN, March 26, 2014.
[79] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[80] Executive Order No. 383, series of 2004.
[81] Executive Order No. 455, series of 2005.
[82] See Rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
[83] Id. at 3476-3479, Comment filed by the Ombudsman in G.R. No. 220953.
[84] Id.
[85] Id. at 3478, Comment filed by the Ombudsman in G.R. No. 220953.
[86] 427 Phil. 820 (2002) [Per J. Puno, En Banc].
[87] Estrada v. Sandiganbayan, 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Enrile v. People, G.R. No. 213455, August 11, 2015, 766 SCRA 1 [Per J. Brion, En Banc]; Serapio v. Sandiganbayan, 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc]; Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].
[88] 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc].
[89] Id. at 524-525.
[90] Id.
[91] Petition, Annex "B", People v. Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-crm-0174 Concurring and Dissenting, April 6, 2016, p. 5, per Ponferrada J.
[92] Petition, Annex "A", People v. Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-CRM-0174, Resolution, April 6, 2016, pp. 44-52, per Lagos J.
[93] Choa v. Choa, 441 Phil. 175, 183 (2002) [Per J. Panganiban, Third Division], citing Black's Law Dictionary 433 (6th ed, 1990).
[94] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
[95] Cf. Spouses Condes v. Court of Appeals, 555 Phil. 311, 323-324 (2007) [Per J. Nachura, Third Division], on demurrer to evidence in civil cases: "In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence. 'Preponderance of evidence' means evidence which is of greater weight, or more convincing than that which is offered in opposition to it. It is, therefore, premature to speak of 'preponderance of evidence' in a demurrer to evidence because it is filed before the defendant presents his evidence." (Emphasis supplied)
[96] RULES OF COURT, Rule 133, sec. 2 provides:
SEC. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt docs not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.
[97] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division], emphasis supplied.
[98] CONST., art. III, sec. 14 provides:
SECTION 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
[99] CONST., art. III, sec. 16 provides:
SECTION 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
[100] Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division].
[101] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
[102] 555 Phil. 311 (2007) [Per J, Nachura, Third Division].
[103] Id. at 324, citing Heirs of Emilio Santioque v. Heirs of Emilio Calma, 536 Phil. 524, 540-541 (2006) [Per J. Callejo, First Division].
[104] Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division]. In the context of this Decision, "lower court" was used to mean "trial court."
[105] Id.
[106] Soriquez v. Sandiganbayan, 510 Phil. 709, 719 (2005) [Per J. Garcia, Third Division], citing Quiñon v. Sandiganbayan, 338 Phil. 290, 309 (1997) [Per C.J. Narvasa, Third Division].
[107] Azor v. Sayo, 273 Phil. 529, 533 (1991) [Per J. Paras, En Banc]: "[A] denial of the demurrer is not a final order but merely an interlocutory one. Such an order or judgment is only provisional, as it determines some point or matter but is not a final decision of the whole controversy."
[108] RULES OF COURT, Rule 41, sec. 1 provides:
SECTION 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
. . . .
(c) An interlocutory order;
[109] 204 Phil. 511 (1982) [Per J. Teehankee, First Division].
[110] Id. at 517.
[111] Id. at 528-529.
[112] 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division].
[113] Id. at 256, citing International Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].
[114] Id.
[115] Spouses Condes v. Court of Appeals, 555 Phil. 311, 322 (2007) [Per J. Nachura, Third Division] citing Choa v. Choa, 441 Phil. 175, 181 (2002) [Per J. Panganiban, Third Division], Deutsche Bank Manila v. Chua Yok See, 517 Phil. 212 (2006) [Per J. Callejo, First Division].
[116] Mitra v. Commission on Elections, 636 Phil. 753, 777 (2010) [Per J. Brion, En Banc].
[117] RULES OF COURT, Rule 65, sec. 1 provides:
SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
[118] Asutilla v. Philippine National Bank, 225 Phil. 40, 43 (1986) [Per J. Melencio-Herrera, First Division].
[119] Id.
[120] Director of Prisons v. Teodoro, 97 Phil. 391, 397 (1955) [Per J. Labrador, First Division].
[121] CONST., art. XI, sec. 1.
[122] Estrada v. Sandiganbayan, 421 Phil. 290, 366-367 (2001) [Per J. Bellosillo, En Banc].
[123] CONST. (1973), art. XIII, sec. 5 was subsequently amended to read as:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
[124] CONST., art. XI, sec. 4.
[125] People v. Court of Appeals, 204 Phil. 511,517(1982) [Per J. Teehankee, First Division].
[126] Resoso v. Sandiganbayan, 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division], citing Interorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].
On July 10, 2012, the Ombudsman charged in the Sandiganbayan former President Gloria Macapagal-Arroyo (GMA); Philippine Charity Sweepstakes Office (PCSO) Budget and Accounts Officer Benigno Aguas; PCSO General Manager and Vice Chairman Rosario C. Uriarte; PCSO Chairman of the Board of Directors Sergio O. Valencia; Members of the PCSO Board of Directors, namely: Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero, and Ma. Fatima A.S. Valdes; Commission on Audit (COA) Chairman Reynaldo A. Villar; and COA Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras with plunder. The case was docketed as Criminal Case No. SB-12-CRM-0174 and assigned to the First Division of the Sandiganbayan.
The information[3] reads:
The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer III, Office of the Ombudsman, hereby accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of the crime of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended by R.A. No. 7659, committed, as follows:By the end of October 2012, the Sandiganbayan already acquired jurisdiction over GMA, Valencia, Morato and Aguas. Plaras, on the other hand, was able to secure a temporary restraining order (TRO) from this Court in Plaras v. Sandiganbayan docketed as G.R. Nos. 203693-94. Insofar as Roquero is concerned, the Sandiganbayan acquired jurisdiction as to him by the early part of 2013. Uriarte and Valdes remained at large.
That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL-ARROYO, then the President of the Philippines, ROSARIO C. URIARTE, then General Manager and Vice Chairman, SERGIO O. VALENCIA, then Chairman of the Board of Directors, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, then members of the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts Manager, all of the Philippine Charity Sweepstakes Office (PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit Unit, both of the Commission on Audit, all public officers committing the offense in relation to their respective offices and taking undue advantage of their respective official positions, authority, relationships, connections or influence, conniving, conspiring and confederating with one another, did then and there willfully, unlawfully and criminally amass, accumulate and/or acquire. Directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less, through any or a combination or a series of overt or criminal acts, or similar schemes or means, described as follows:
CONTRARY TO LAW.
Thereafter, several of the accused separately filed their respective petitions for bail. On June 6, 2013, the Sandiganbayan granted the petitions for bail of Valencia, Morato and Roquero upon finding that the evidence of guilt against them was not strong.[4] In the case of petitioners GMA and Aguas, the Sandiganbayan, through the resolution dated November 5, 2013, denied their petitions for bail on the ground that the evidence of guilt against them was strong.[5] The motions for reconsideration filed by GMA and Aguas were denied by the Sandiganbayan on February 19, 2014.[6] Accordingly, GMA assailed the denial of her petition for bail in this Court, but her challenge has remained pending and unresolved to date.
Personal jurisdiction over Taruc and Villar was acquired by the Sandiganbayan in 2014. Thereafter, said accused sought to be granted bail, and their motions were granted on different dates, specifically on March 31, 2014[7] and May 9, 2014,[8] respectively.
The case proceeded to trial, at which the State presented Atty. Aleta Tolentino as its main witness against all the accused. The Sandiganbayan rendered the following summary of her testimony and evidence in its resolution dated November 5, 2013 denying the petitions for bail of GMA and Aguas, to wit:
She is a certified public accountant and a lawyer. She is a member of the Philippine Institute of Certified Public Accountants and the Integrated Bar of the Philippines. She has been a CPA for 30 years and a lawyer for 20 years. She has practiced accountancy and law. She became accounting manager of several companies. She has also taught subjects in University of Santo Tomas, Manuel L. Quezon University, Adamson University and the Ateneo de Manila Graduate School. She currently teaches Economics, Taxation and Land Reform.The State also presented evidence consisting in the testimonies of officers coming from different law enforcement agencies[10] to corroborate Tolentino's testimony to the effect that the PCSO had not requested from their respective offices any intelligence operations contrary to the liquidation report submitted by Uriarte and Aguas.
Presently, she is a Member of the Board of Directors of the PCSO. The Board appointed her as Chairman of an Audit Committee. The audit review proceeded when she reviewed the COA Annual Reports of the PCSO for 2006, 2007, 2008 and 2009 (Exhibits "D", "E", "F" and "G", respectively), and the annual financial statements contained therein for the years 2005 to 2009. The reports were given to them by the COA. These are transmitted to the PCSO annually after the subject year of audit.
One of her major findings was that the former management of the PCSO was commingling the charity fund, the prize fund and the operating fund. By commingling she means that the funds were maintained in only one main account. This violates Section 6 of Republic Act 1169 (PCSO Charter) and generally accepted accounting principles.
The Audit Committee also found out that there was excessive disbursement of the Confidential and Intelligence Fund (CIF). There were also excessive disbursements for advertising expenses. The internal audit department was also merged with the budget and accounting department, which is a violation of internal audit rules.
There was excessive disbursement of the CIF because the PCSO was given only P10 million in 2002, i.e. P5 million for the Office of the Chairman and P5 million for the Office of the General Manager. Such allocation was based on the letters of then Chairman Lopez (Exh. "I") and then General Manager Golpeo (Exh. "J"), asking for P5 million intelligence fund each. Both were dated February 21, 2000, and sent to then President Estrada, who approved them. This allocation should have been the basis for the original allocation of the CIF in the PCSO, but there were several subsequent requests made by the General Manager during the time of, and which were approved by, former President Arroyo.
The allocation in excess of P10 million was in violation of the PCSO Charter. PCSO did not have a budget for this. They were working on a deficit from 2004 to 2009. The charter allows only 15% of the revenue as operating fund, which was already exceeded. The financial statements indicate that they were operating on a deficit in the years 2006 to 2009.
It is within the power of the General Manager to ask for additional funds from the President, but there should be a budget for it. The CIF should come from the operating fund, such that, when there is no more operating fund, the other funds cannot be used.
The funds were maintained in a commingled main account and PCSO did not have a registry of budget utilization. The excess was not taken from the operating fund, but from the prize fund and the charity fund.
In 2005, the deficit was P916 million; in 2006, P1,000,078,683.23. One of the causes of the deficit for 2006 was the CIF expense of P215 million, which was in excess of the approved allocation of P10 million. The net cash provided by operating expenses in 2006 is negative, which means that there were more expenses than what was received.
In the 2007 COA report, it was found that there was still no deposit to the prize and charity funds. The COA made a recommendation regarding the deposits in one main account. There were also excessive disbursements of CIF amounting to P77,478,705.
She received a copy of the PCSO corporate operating budget (COB) for the year 2008 in 2010 because she was already a member of its Board of Directors. The 2008 approved COB has a comparative analysis of the actual budget for 2007 (Exh. "K"). It is stated there that the budget for CIF in 2007 is only P25,480,550. But the financial statements reflect P77 million. The budget was prepared and signed by then PCSO General Manager Rosario Uriarte. It had accompanying Board Resolution No. 305, Series of 2008, which was approved by then Chairperson Valencia, and board members Valdes, Morato, Domingo, and attested to by Board Secretary Atty. Ronald T. Reyes.
In the 2008 COA report, it was noted that there was still no deposit to the prize and charity funds, adverted in the 2007 COA report. There was already a recommendation by the COA to separate the deposits or funds in 2007. But the COA noted that this was not followed. The financial statements show the Confidential and the Extra-Ordinary Miscellaneous Expenses account is P38,293,137, which is more than the P10 million that was approved.
In the Comparative Income Statement (Exh. "K"), the 2008 Confidential/Intelligence Expense budget was approved for P28 million. The Confidential and Extra-Ordinary Miscellaneous Expenses is the account being used for confidential and intelligence expenses. The amount in the financial statements is over the budgeted amount of P28 million. Further, the real disbursement is more than that, based on a summary of expenditures she had asked the treasurer to prepare.
In the Comparative Income Statement for 2009 Budget against the 2008 Actual Budget (Exh. "L"), the budget for CIF and expenses was P60 million.
In the 2009 COA report, it was noted that there was still no deposit to the prize and charity funds, despite the instruction or recommendation of COA. The funds were still deposited in one account. The COA observation in 2007 states that there is juggling or commingling of funds.
After she had concluded the audit review, she reported her findings to the Board of Directors in one of their executive meetings. The Board instructed her to go in-depth in the investigation of the disbursements of CIF.
The Audit Committee also asked Aguas why there were disbursements in excess of P10 million. He explained that there were board resolutions confirming additional CIF which were approved by former President Arroyo. Aguas mentioned this in one of their meetings with the directors and corporate secretary. The board secretary, Atty. Ed Araullo, gave them the records of those resolutions.
In the records that Araullo submitted to her, it appears that Uriarte would ask for additional CIF, by letter and President Arroyo approves it by affixing her signature on that same letter-request. There were seven letters or memoranda to then President Arroyo, with the subject "Request for Intelligence Fund."
She then asked their Treasurer, Mercy Hinayon, to give her a summary of all the disbursements from CIF from 2007 to 2010. The total of all the amounts in the summaries for three years is P365,997,915.
After receiving the summaries of the disbursed checks, she asked Hinayon to give her the checks or copies thereof. She also asked Dorothy Robles, Budget and Accounting Manager, to give her the corresponding vouchers. Only two original checks were given to her, as the rest were with the bank. She asked her to request certified true copies of the checks.
They were then called to the Senate Blue Ribbon Committee, which was then investigating the operation of PCSO, including the CIF. She was invited as a resource speaker in an invitation from Chairman Tcoilsto Guingona III (Exh. "DD"). Before the hearing, the Committee Chairman went to the PCSO and got some documents regarding the subject matter being investigated. Araullo was tasked to prepare all the documents needed by the Committee. These documents included the CIF summary of disbursements, letters of Uriarte and the approval of the former president.
She attended whenever there were committee hearings. Among those who also attended were the incoming members if the PCSO Board Directors and the directors. Accused Valencia and Aguas were also present in some hearings as resources speakers. They were invited in connection with the past disbursements of PCSO related to advertising expenses, CIF, vehicles for the bishops, and the commingling of funds.
The proceedings in the Committee were recorded and she secured a copy of the transcript of stenographic notes from the Office of the Blue Ribbon Committee. In the proceeding on June 7, 2011 (Exh. "EE"), Uriarte testified. The witness was about two to three meters away from Uriarte when the latter testified, and using a microphone.
According to the witness, Uriarte testified that all the confidential intelligence projects she had proposed were approved by President Arroyo; all the requests she gave to the President were approved and signed by the latter personally in her (Uriarte's) presence; and all the documents pertaining to the CIF were submitted to President Arroyo. On the other hand, Valencia and Taruc said they did not know about the projects. Statements before the Committee are under oath.
After the Committee hearings, she then referred to the laws and regulations involved to check whether the disbursements were in accordance with law. One of the duties and responsibilities of the audit committee was to verify compliance with the laws.
She considered the following laws: R.A. 1169, as amended (PCSO Charter); P.D. 1445 (COA Code); LOI 1282; COA Circular 92-385, as amended by Circular 2003-002, which provides the procedure for approval of disbursements and liquidation of confidential intelligence funds. She made a handwritten flowchart (Exh. "II") of the allocations/disbursements/liquidation and audit of the CIF, based on LOI 1282 and the COA Circulars. A digital presentation of this flowchart was made available.
The first step is the provision or allotment of a budget because no CIF fund can be disbursed without the allocation. This is provided in the second whereas clause of Circular 92-385. For GOCCs, applying Circular 2003-002, there must be allocation or budget for the CIF and it should be specifically in the corporate operating budget or would be taken from savings authorized by special provisions.
This was not followed in the PCSO CIF disbursement in 2008. The disbursement for that year was P86,555,060. The CIF budget for that year was only P28 million, and there were no savings because they were on deficit. This was also not followed for the year 2009. The CIF disbursement for that year was P139,420,875. But the CIF budget was only P60 million, and there was also no savings, as they were in deficit. For the year 2010, the total disbursement, as of June 2010, was P141,021,980. The budget was only P60 million.
The requirements in the disbursement of the CIF are the budget and the approval of the President. If the budget is correct, the President will approve the disbursement or release of the CIF. In this case, the President approved the release of the fund without a budget and savings. Also, the President approved the same in violation of LOI 1282, because there were no detailed specific project proposals and specifications accompanying the request for additional CIF. The requests for the year 2008, 2009 and 2010 were uniform and just enumerated the purposes, not projects. They did not contain what was required in the LOI.
The purpose of this requirement is stated in the LOI itself. The request for allocations must contain full details and specific purposes for which the fund will be used. A detailed presentation is made to avoid duplication of expenditures, as what had happened in the past, because of a lack of centralized planning and organization or intelligence fund.
There was no reason for each additional intelligence fund that was approved by then President Arroyo.
The third step is the designation of the disbursing officer. In this case, the Board of Directors designated Uriarte as Special Disbursing Officer (SDO) for the portion of the CIF that she withdrew. For the portion withdrawn by Valencia, there was no special disbursing officer designated on record.
The designation of Uriarte was in violation of internal control which is the responsibility of the department head, as required by Section 3 of Circular 2003-002. When she went through copies of the checks and disbursement vouchers submitted to her, she found out that Uriarte was both the SDO and the authorized officer to sign the vouchers and checks. She was also the payee of the checks. All the checks withdrawn by Uriarte were paid to her and she was also the signatory of the checks.
Aside from Uriarte, Valencia also disbursed funds in the CIF. For the funds withdrawn by Valencia, he was also the authorized officer to sign the vouchers and checks. He was also the payee of the checks.
The confidential funds were withdrawn through cash advance. She identified the vouchers and checks pertaining to the disbursements made by Uriarte and Valencia in 2008, 2009 and 2010.
The checks of Uriarte and Valencia had the treasurer as cosignatory. The treasurer who signed depends on when the checks were issued
She knows the signatures of Uriarte, Valencia and Aguas because they have their signatures on the records.
Uriarte and Valencia signed the vouchers to certify to the necessity and legality of the vouchers; they also signed to approve the same, signify they are "okay" for payment and claim the amount certified and approved as payee. Gloria P. Araullo signed as releasing officer, giving the checks to the claimants.
Accused Aguas signed the vouchers to certify that there are adequate funds and budgetary allotment, that the expenditures were properly certified and supported by documents, and that the previous cash advances were liquidated and accounted for. This certification means that the cash advance voucher can be released. This is because the COA rule on cash advance is that before any subsequent cash advance is released, the previous cash advance must be liquidated first. This certification allowed the requesting party and payee to get the cash advance from the voucher. Without this certification, Uriarte and Valencia could not have been able to get the cash advance. Otherwise, it was a violation of P.D. 1445 (Government Auditing Code).
The third box in the flowchart is the designation of the SDO. Board Resolutions No. 217, Series of 2009 (Exh."M"), No. 2356, Series of 2009 (Exh."N"), and No. 029, Series of 2010 (Exh. "O"), resolved to designate Uriarte as SDO for the CIF. These resolutions were signed and approved by Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The witness is familiar with these persons' signature because their signatures appear on PCSO official records.
Valencia designated himself as SDO upon the recommendation of COA Auditor Plaras. There was no board resolution for this designation. There was just a certification dated February 2, 2009 (Exh. "Z4"). This certification was signed by Valencia himself and designates himself as the SDO since he is personally taking care of the funds which are to be handled with utmost confidentiality. The witness is familiar with Valencia's signature because it appears on PCSO official documents. Under COA rules, the Board of Directors has authority to designate the SDO. The chairman could not do this by himself.
Plaras wrote a letter dated December 15, 2008 to Valencia. It appears in the letter that to substantiate the liquidation report, Plaras told Valencia to designate himself as SDO because there was no disbursing officer. It was the suggestion of Plaras. Plaras is the head of the CIF Unit under then COA Chairman Villar. Liquidation vouchers and supporting papers were submitted to them, with corresponding fidelity bond.
COA Circulars 92-385 and 2003-002 indicate that to disburse CIF, one must be a special disbursing officer or SDO. All disbursing officers of the government must have fidelity bonds. The bond is to protect the government from and answer for misappropriation that the disbursing officer may do. The bond amount required is the same as the amount that may be disbursed by the officer. It is based on total accountability and not determined by the head of the agency as a matter of discretion. The head determines the accountability which will be the basis of the bond amount.
The Charter states that the head of the agency is the Board of Directors, headed by the Chairman. But now, under the Governance of Government Corporation law, it is the general manager.
Plaras should have disallowed or suspended the cash advances because there was no fidelity bond and the disbursing officer was not authorized. There was no bond put up for Valencia. The records show that the bond for Uriarte was only for the amount of P1.5 million. This is shown in a letter dated August 23, 2010, to COA Chairman Villar through Plaras from Aguas (Exh. "B5"), with an attachment from the Bureau of Treasury, dated March 2, 2009. It appears there that the bond for Uriarte for the CIF covering the period February 2009 to February 2010 was only P1.5 million.
Aguas submitted this fidelity bond certification, which was received on August 24, 2010, late, because under the COA Circulars, it should have been submitted when the disbursing officer was designated. It should have been submitted to COA because a disbursing officer cannot get cash advances if they do not have a fidelity bond.
Once an SDO is designated, the specimen signature must be submitted to COA, together with the fidelity bond and the signatories for the cash advances.
The approval of the President pertains to the release of the budget, not its allocation. She thinks the action of the Board was done because there was no budget. The Board's confirmation was needed because it was in excess of the budget that was approved. They were trying to give a color of legality to them approval of the CIF in excess of the approved corporate operating budget. The Board approval was required for the amount to be released, which amount was approved in excess of the allotted budget for the year. The President cannot approve an additional amount, unless there is an appropriation or a provision saying a particular savings will be used for the CIF. The approvals here were all in excess of the approved budget.
Cash advances can be given on a per project basis for CIF. For one to get a cash advance, one must state what the project is as to that cash advance. No subsequent cash advance should be given, until previous cash advances have been liquidated and accounted for. If it is a continuing project, monthly liquidation reports must be given. The difference in liquidation process between CIF and regular cash advances is that for CIF, the liquidation goes to the Chair and not to the resident auditor of the agency or the GOCC. All of the liquidation papers should go to the COA Chair, given on a monthly basis.
In this case, the vouchers themselves are couched generally and just say cash advance from CIF of the Chairman or from the GM's office in accordance with her duties. There is no particular project indicated for the cash advance. Also, the requirement that prior advances be liquidated first for subsequent advances to be given was not followed. The witness prepared a summary of the cash advances withdrawn by the two disbursing officers covering the years 2008, 2009 and 2010 (Exh. "D5"). The basis for this summary is the record submitted to them by Aguas, which were supposedly submitted to COA. It shows that there were subsequent cash advances, even if a prior advance has not yet been liquidated. Valencia submitted liquidation reports to Villar, which consists of a letter, certification and schedule of cash advances, and liquidation reports. One is dated July 24, 2008 (Exh. "G5") and another is dated February 13, 2009 (Exh. "H5").
When she secured Exhibit "G5", together with the attached documents, she did not find any supporting documents despite the statement in Exhibit "G5" that the supporting details of the expenses that were incurred from the fund can be made available, if required. Aguas, the person who processed the cash advances said he did not have the details or supporting details of documents of the expenditures.
Normally, when liquidating CIF, the certification of the head of the agency is necessary. If there were vouchers or receipts involved, then all these should be attached to the liquidation report. There should also be an accomplishment report which should be done on a monthly basis. All of these should be enclosed in a sealed envelope and sent to the Chairman of the COA, although the agency concerned must retain a photocopy of the documents. The report should have a cover/transmittal letter itemizing the documents, as well as liquidation vouchers and other supporting papers. If the liquidation voucher and the supporting papers are in order, then the COA Chairman or his representative shall issue a credit memorandum. Supporting papers consist of receipts and sales invoices. The head of the agency would have to certify that those were all actually incurred and are legal. In this case, there were no supporting documents submitted with respect to Valencia's cash advances in 2008. Only the certifications by the SDO were submitted. These certifications stated that he has the documents in his custody and they can be made available, if and when necessary.
When she reviewed the CIF, she asked Aguas to produce the supporting documents which were indicated in Valencia's certification and Aguas's own certification in the cash advance vouchers, where he also certified that the documents supporting the cash advance were in their possession and that there was proper liquidation. Aguas replied that he did not have them.
She identified the letter of Uriarte to Villar dated July 24, 2008 as well as a transmittal letter by Uriarte for August 1, 2008, a certification and schedule of cash advances and an undetailed liquidation report. Among the attachments is Board Resolution 305, a copy of the COB for 2008, a document for the second half of 2008, a document dated April 2, 2009, and a document for liquidation of P2,295,000. She also identified another letter for P50 million, dated February 13, 2009, attached to the transmittal letter. There is a certification attached to those two letters amounting to P2,295,000. Also attached is the schedule of cash advances by Aguas and a liquidation report where Aguas certified that the supporting documents are complete and proper although the supporting documents and papers are not attached to the liquidation report, only the general statement. These documents were submitted to them by Aguas.
She was shown the four liquidation reports (Exhibits "M5", "N5", "O5" and "P5") attached to the transmittal letter and was asked whether they were properly and legally accomplished. She replied that they were couched in general terms and the voucher for which the cash advance was liquidated is not indicated and only the voucher number is specified. She adds that the form of the liquidation is correct, but the details are not there and neither are the supporting papers.
The liquidation report was dated July 24, 2008, but it was submitted only on August 1, 2008 to COA, and it supposedly covered the cash advances of Uriarte from January to May 2008. This is stated in her summary of liquidation that was earlier marked. There were no supporting papers stated on or attached to the liquidation report.
She identified a set of documents to liquidate the cash advances from the CIF for the second semester of 2008 by Uriarte. The transmittal letter of Uriarte was received by the COA on April 2, 2009. Upon inquiry with Aguas, he said that he did not have any of the supporting papers that he supposedly had according to the certification. According to him, they are with Uriarte. Uriarte, on the other hand, said, during the Senate hearing, that she gave them to President Arroyo.
When Plaras wrote Valencia on December 15, 2008, Aguas wrote back on behalf of Valencia, who had designated himself as SDO. However, their designations, or in what capacity they signed the voucher are not stated. Among the attachments is also a memorandum dated April 2, 2008 (Exhibit "P5"), containing the signature of Arroyo, indicating her approval to the utilization of funds. Another memorandum, dated August 13, 2008, indicating the approval of Arroyo was also attached to the transmittal letter of Aguas on April 4, 2009. These two memoranda bear the reasons for the cash advances, couched in general terms. The reasons were donated medicines that were sold and authorized expenditures on endowment fund. The reasons stated in the memoranda are practically the same. Uriarte did not submit any accomplishment reports regarding the intelligence fund. Aguas submitted an accomplishment report, but the accomplishments were not indicated in definite fashion or with specificity.
The witness narrated, based on her Summary of Liquidation Reports in 2009, that the total cash advance made by Uriarte was P132,760,096. Arroyo approved P90 million for release. P10 million in January 2009 and April 27, 2009, and then P50 million in May 6, 2009 in July 2, 2009, P10 million or a total of P70 million. In October 2009, P20 million or a total of P90 million. The amount that was cash advanced by Valencia was P5,660,779. Therefore, the total cash advances by these two officials were P138,420,875, but all of these were never liquidated in 2009. Uriarte and Valencia only submitted a liquidation voucher and a report to COA on April 12, 2010. For the January 22, 2009 disbursements, the date of the liquidation voucher was June 30, 2009, but it was submitted to COA on April 12, 2010. Witness identified the transmittal letter for P28 million by Uriarte, dated October 19, 2009, which was received by the COA only on April 12, 2010, with an accompanying certification from Uriarte as to some of the documents from which the witness's Summary of Liquidation was based.
The cash advances made by Uriarte and Valencia violated par. 1, Sec. 4 and Sec. 84 of P.D. 1445 and par. 2, III, COA Circular No. 92-385.
Since these cash advances were in excess of the appropriation, in effect, they were disbursed without any appropriation. These cash advances were also made without any specific project, in violation of par. 2 of COA Circular No. 92-385. In this case, the cash advances were not for a specific project. The vouchers only indicate the source of the fund. The vouchers did not specify specific projects.
The total cash advances for the years 2008, 2009 and 2010 to accused Uriarte and Valencia is more than P366,000,000. Valencia cash advanced P13.3 million. The rest was made by Uriarte.
The memoranda to President Arroyo stated only the problems encountered by the PCSO. These problems, as stated in each memorandum, included donated medicines sometimes ending up in store for sale, unofficial use of ambulances, rise of expenditures of endowment fund, lotto sweepstakes scams, fixers for programs of the PCSO, and other fraudulent schemes. No projects were mentioned.
As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice is a settlement or an action made by the COA Auditors and is given once the Chairman, in the case of CIF Fund, finds that the liquidation report and all the supporting papers are in order. In this case, the supporting papers and the liquidation report were not in order, hence, the credit notice should not have been issued. Further, the credit notice has to follow a specific form. The COA Chairman or his representative can: 1) settle the cash advance when everything is in order; 2) suspend the settlement if there are deficiencies and then ask for submission of the deficiencies; or 3) out rightly disallow it in case said cash advances are illegal, irregular or unconscionable, extravagant or excessive. Instead of following this form, the COA issued a document dated January 10, 2011, which stated that there is an irregular use of the price fund and the charity fund for CIF Fund. The document bears an annotation which says, "wait for transmittal, draft" among others. The document was not signed by Plaras, who was the Head of the Confidential and Intelligence Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas to submit the supplemental budget." This document was not delivered to PCSO General Manager J.M. Roxas. They instead received another letter dated January 13, 2011 which was almost identical to the first document, except it was signed by Plaras, and the finding of the irregular use of the prize fund and the charity fund was omitted. Instead, the work "various" was substituted and then the amount of P137,500,000. Therefore, instead of the earlier finding of irregularity, suddenly, the COA issued a credit notice as regards the total of P140,000,000. The credit notice also did not specify that the transaction had been audited, indicating that no audit was made.
A letter dated May 11, 2009 from the COA and signed by Plaras, states that the credit notice is hereby issued. Thus, it is equivalent to the credit notice, although it did not come in the required form. It merely stated that the credit notice is issued for P29,700,000, without specifying for which vouchers and for which project the credit notice was being given. It merely says "First Semester of 2008". In other words, it is a "global" credit notice that she issued and it did not state that she made an audit.
Another letter, dated July 14, 2010 and signed by Plaras, supposedly covers all the cash advances in 2009, but only up to the amount of P116,386,800. It also did not state that an audit was made.
There were no supporting papers attached to the voucher, and the certification issued is not in conformity with the required certification by COA Circular 2003-002. The certification dated July 24, 2008 by Valencia was not in conformity with the certification required by COA. The required form should specify the project for which the certification was being issued, and file code of the specific project. The certification dated July 24, 2008, however, just specified that it was to certify that the P2 million from the 2008 CIF Fund was incurred by the undersigned, in the exercise of his functions as PCSO Chairman for the various projects, projects and activities related to the operation of the office, and there was no specific project or program or file code of the intelligence fund, as required by COA. Furthermore, the certification also did not contain the last paragraph as required by COA. Instead, the following was stated in the certification: "He further certifies that the details and supporting documents and papers on these highly confidential missions and assignments are in our custody and kept in our confidential file which can be made available if circumstances so demand." No details or supporting documents were reviewed by the witness, and though she personally asked Aguas, the latter said that he did not have the supporting papers, and they were not in the official files of the PCSO. Two people should have custody of the papers, namely, The Chairman of COA and the PCSO or its Special Disbursing Officer. The witness asked Aguas because Valencia was not there, and also because Aguas was the one who made the certification and was in-charge of accounting. The vouchers, supposedly certified by Aguas, as Budget and Accounting Department Manager, each time cash advances were issued, stated that the supporting documents are complete, so the witness went to him to procure the documents.
A certification dated February 13, 2009, stating that P2,857,000 was incurred by Valencia in the exercise of his function as PCSO Chairman, related to the operations of his office without the specific intelligence project. In the same document, there is a certification similar to one in the earlier voucher. No details of this certification were submitted by Aguas.
Another certification dated July 24, 2008 was presented, and it also did not specify the intelligence and confidential project, and it did not contain any certification that the amount was disbursed legally or that no benefits was given to any person. Similarly, the fourth paragraph of the same document states that Uriarte certified that details and supporting papers of the cash advance that she made of P27,700,000 are "kept in their confidential" (sic). The same were not in the PCSO official records.
The certification dated October 19, 2009 for the amount of P2,498,300, was submitted to the witness by Aguas. It also did not conform to the COA requirements, as it also did not specify the use of the cash advance, did not contain any certification that the cash advance was incurred for legal purposes, or that no benefits to other people were paid out of it. Again, no supporting documents were found and none were given by Aguas. Similarly, a certification dated February 8, 2010 for the amount of P2,394,654 was presented, and it also does not conform with the COA circular, as it only stated that the amount was spent or incurred by Valencia for projects covering the period of July 1 to December 31, 2009 to exercise his function as PCSO Chairman, thus no particular intelligence fund or project was stated. As in the other certifications, though it was stated that the details were in the confidential file, it appeared that these were not in the possession of PCSO. Another certification dated October 19, 2009 submitted by Uriarte was examined by the witness in the course of her audit, and found that it also did not conform to the requirements, as it only stated that the P25 million and P10 million intelligence and confidential fund dated January 29, 2009 and April 27, 2009 were used in the exercise of her function as PCSO Vice Chairman and General Manager.
All the documents were furnished by Aguas during the course of the audit of the financial transactions of PCSO. Other documents given by Aguas include a letter by Valencia to COA Chairman Villar, which was attached to the letter dated July 24, 2008. For the Certification issued by Valencia for P2,857,000, there was also a certification attached dated February 13, 2009. As to Exhibit "J5", together with the certification, there was a letter but no other documents were submitted. Similarly, as to Exhibit "M6", it was attached to a letter dated October 19, 2009 and was submitted to the witness by Aguas. Exhibit "N6" was attached to the letter of Valencia dated February 8, 2010, the October 19, 2009 certification was attached to the October 19, 2009 letter to Chairman Villar.
The certification dated June 29, 2010, signed by Valencia in the amount of P2,075,000, also does not conform with the COA requirement as it only specifies that the fund was disbursed by Valencia under his office for various programs in the exercise of his function as Chairman. Though there was a certification that the supporting papers were kept in the office, these papers were not found in the records of the PCSO and Aguas did not have any of the records. The certification was attached to the letter of Valencia to Villar dated June 29, 2010.
In the certification dated June 29, 2010 signed by Uriarte in the amount of P137,500,000, the witness also said that the certification did not conform to the COA Circular because it only stated that the amount was disbursed from a special intelligence fund, authorized and approved by the President under the disposition of the Office of the Vice Chairman. Despite the statement certifying that there were documents for the audit, no documents were provided and the same were not in the official files of PCSO. The certification was attached to a letter by Uriarte dated July 1, 2010 addressed to Villar.
In the certification dated October 19, 2009 signed by Uriarte in the amount of P2,500,000, the witness made the same finding that it also did not conform to the COA Circular, as it did not specify the project for which the cash advance was obtained and there were also no records in the PCSO. It was attached to the letter dated October 19, 2009.
Finally, in the certification dated February 9, 2010 signed by Uriarte in the amount of P73,993,846, the witness likewise found that it did not conform with the requirements of the COA, as all it said was the amount was used for the exercise of the functions of the PCSO Chairman and General Manager. The documents related to this were also not in the PCSO records and Aguas did not submit the same. It was attached to a letter dated February 8, 2010 from Uriarte to Villar.
There are two kinds of audit on disbursements of government funds: pre-audit and post-audit. Both are defined in COA Circular 2009-002. Pre-audit is the examination of documents supporting the transaction, before these are paid for and recorded. The auditor determines whether: (1) the proposed expenditure was in compliance with the appropriate law, specific statutory authority or regulations; (2) sufficient funds are available to enable payment of the claim; (3) the proposed expenditure is not illegal, irregular, extravagant, unconscionable or unnecessary, and (4) the transaction is approved by the proper authority and duly supported by authentic underlying evidence. On the other hand, the post-audit requirement is the process where the COA or the auditor will have to do exactly what was done in the pre-audit, and in addition, the auditor must supplement what she did by tracing the transaction under audit to the books of accounts, and that the transaction is all recorded in the books of accounts. The auditor, in post-audit, also makes the final determination of whether the transaction was not illegal, irregular, extravagant, excessive, unconscionable or unnecessary.
In this case, no audit was conducted. In a letter dated May 11, 2009 signed by Plaras, it was stated that a credit advice was given. However, the letter did not conform to the requirements or form of a credit notice. Such form was in COA Circular 2003-002, and should specify the liquidation report number, the amount, check numbers, and the action taken by the auditor. The auditor should also include a certification that these have been audited. In this instance, no certification that the transaction was audited was given by Plaras. Other similar letters did not conform with the COA Circular. All transactions of the government must be subject to audit in accordance with the provisions of the Constitution. Nevertheless, the requirements for audit are the same.
The effect of the issuance of the credit notice by the COA was that the agency will take it up in the books and credit the cash advance. This is the seventh step in the flowchart. Once there is a cash advance, the liability of the officers who obtained the cash advance would be recorded in the books. The credit notice, when received, would indicate that the account was settled. The agency will credit the receivable or the cash advance, and remove from the books as a liability of the person liable lor the cash advance. The effect of this was that the financial liabilities of Uriarte and Valencia were removed from the books, but they could still be subject to criminal liability based on Sec. 10 of COA Circular 91-368 (Government Accounting and Auditing Manuals, Vol. 1, implementing P.D. 1445), which states: "The settlement of an account whether or not on appeal has been made within the statutory period is no bar to criminal prosecution against persons liable." From the 2008 COA Annual Audited Financial Statements of PCSO, it was seen that the procedure was not followed because the liability of the officers was already credited even before the credit notice was received. In the financial statements, it was stated that the amount due from officers and employees, which should include the cash advances obtained by Uriarte and Valencia, were not included because the amount stated therein was P35 million, while the total vouchers of Uriarte and Valencia was P86 million.
The witness also related that she traced the records of the CIF fund (since such was no longer stated as a receivable), and reviewed whether it was recorded as an expense in 2008. She found out that the recorded CIF fund expense, as recorded in the corporate operating budget as actually disbursed, was only P21,102,000. As such, she confronted her accountants and asked them "Saan tinago itong amount na to?" The personnel in the accounting office said that the balance of the P86 million or the additional P21 million was not recorded in the operating fund budget because they used the prize fund and charity fund as instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31, 2008, signed by Elmer Camba, Aguas (Head of the Accounting Department), and Hutch Balleras (one of the staff in the Accounting Department), showed that this procedure was done.
The contents of the Journal Entry Voucher are as follows:Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and Intelligence Fund Expenses", and was the basis of Camba in doing the Journal Entry Voucher. In the same document, there was a written annotation dated 12-31-2008 which reads that the adjustment of CIF, CF and IF, beneficiary of the fund is CF and PF and signed by Aguas.
The year 2009 was a similar case, as the witness traced the recording of the credit notice at the end of 2009, and despite the absence of the credit notice, the Accounting Department removed from the books of PCSO the liability of Uriarte and Valencia, corresponding to the cash advances obtained in 2009. She based this finding on the COA Annual Audit Report on the PCSO for the year ended December 31, 2009. It was stated in the Audit Report that the total liability due from officers and employees was only P87,747,280 and it was less than the total cash advances of Uriarte and Valencia, which was P138 million. As a result, the witness checked the corresponding entry for the expenses in the corporate operating budget and found out that the same was understated. The CIF expenses were only P24,968,300, as against the actual amount per vouchers, which was P138,420,875. Upon checking with the Accounting Department, the department showed her another Journal Entry Voucher No. 9121157, dated December 29, 2009, where the personnel removed immediately the expense and recorded it as expense for the prize fund and charity fund by the end of December 31.
The contents of the Journal Entry Voucher, especially the notation "due from", means the accountability of those who had cash advance was instead credited. It was removed, and the amount was P106 million. The entry was confidential expense for P15,958,020 and then the due to other funds was P90,428,780. The explanation for "424" was found in the middle part, stating: "424-1-L" of miscellaneous prize fund was used in the amount of P58,502,740 and the charity fund was used in the amount of P31,916,040. The total amount of the receivables from Uriarte and Valencia that was removed was P106,386,800 and P90,428,780 respectively which came from the prize fund and charity fund.
The witness reported the discrepancy because there were violations of R.A. 1169, Sec. 6, which provides for the different funds of PCSO namely: prize fund (55% of the net receipts), charity fund (30% of the net receipts), and operating fund (15%). The proceeds of the lotto and sweepstakes ticket sales provide the money for these different funds, removing first the printing cost and the net proceeds (98%) is divided among the three funds mentioned. The prize fund is the fund set aside to be used to pay the prizes for the winnings in the lotto or sweepstakes draws, whether they are jackpot or consolation prizes. Incentives to the lotto operators or horse owners are also drawn from this fund, as all of the expenses connected to the winnings of the draw. On the other hand, the charity fund is reserved for charity programs approved by the board of PCSO, and constitutes hospital and medical assistance to individuals, or to help facilities and other charities of national character. Operating expenses are charged to the expenses to operate, personnel services, and MOOE. One kind of fund cannot be used for another kind, as they become a trust fund which should only be used for the purpose for which it was authorized, not even with the approval of the board.
The amounts obtained from the charity fund and prize fund for 2008 was P63,750,000, and in 2009 P90,428,780. The Board of Directors was given a copy of the COA Audit Reports for years 2008 and 2009. The Board of Directors for both years was composed of: Chairman Valencia, and Board Members Morato, Roquero, Taruc and Valdez. Uriarte was the Vice Chairman of the Board of Directors. The witness did not know whether the Board checked the COA reports, but there was no action on their part, and neither did they question the correctness of the statements. They also had the Audit Committee (which was composed of members of the board) at that time, and one of the duties of the Audit Committee was to verify the balances.
The witness identified the documents referring to the confirmation by the Board of Directors of PCSO of the GIF. Board Resolution No. 217, approved on February 18, 2009, confirms the CIF approved by the President. It did not state which CIF they were approving. They also assigned Uriarte as the Special Disbursing Officer of the CIF, but it did say for what year. The signatories to the same Board Resolution were Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The same were the witness's findings for Board Resolution No. 2356 S. 2009, approved on December 9, 2009. As for Board Resolution No. 29, S. 2010, approved on January 6, 2010, the Board confirmed the fund approved by the President for 2010, though the approval of the President was only received on August 13, 2010 as shown in the Memorandum dated January 4. In effect, the Board was aware of the requests, and because they ratified the cash advances, they agreed to the act of obtaining the same.
Apart from the President violating LOI 1282, the witness also observed that the President directly dealt with the PCSO, although the President, by Executive Order No. 383 dated November 14, 2004, and Executive Order No. 455 dated August 22, 2005, transferred the direct control and supervision of the PCSO to the Department of Social Welfare and Development (DSWD), and later to the Department of Health (DOH). A project should first be approved by the Supervising and Controlling Secretary of the Secretary of Health; that the President had transferred her direct control and supervision, and lost the same. The witness said her basis was administrative procedure. In this regard, President Aquino now has transferred the control and supervision of the PCSO back to the Office of the President through Executive Order No. 14, S. 2010, dated November 19, 2010.
Uriarte should not have gone directly to the President to ask for the latter's approval for allocation. Nonetheless, the release of the CIF must still be approved by the President.[9]
To complete the evidence for the Prosecution, Atty. Anamarie Villaluz Gonzales, Office-in-Charge and Department Manager of the Human Resources of PCSO; Flerida Africa Jimenez, Head of the Intelligence and Confidential Fund Audit Unit of the COA; and Noel Clemente, Director of COA were presented as additional witnesses.
After the Prosecution rested its case, GMA, Aguas, Valencia, Morato, Taruc V, Roquero and Villar separately filed their demurrers to evidence asserting that the Prosecution did not establish a case for plunder against them.
On April 6, 2015, the Sandiganbayan granted the demurrers to evidence of Morato, Roquero, Taruc and Villar, and dismissed the charge against them. It held that said accused who were members of the PCSO Board of Directors were not shown to have diverted any PCSO funds to themselves, or to have raided the public treasury by conveying and transferring into their possession and control any money or funds from PCSO account; that as to Villar, there had been no clear showing that his designation of Plaras had been tainted with any criminal design; and that the fact that Plaras had signed "by authority" of Villar as the COA Chairman could not criminally bind him in the absence of any showing of conspiracy.
However, the Sandiganbayan denied the demurrers of GMA, Aguas and Valencia, holding that there was sufficient evidence showing that they had conspired to commit plunder; and that the Prosecution had sufficiently established a case of malversation against Valencia, pertinently saying:
Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court then ascertains whether there is a competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.The Sandiganbayan later also denied the respective Motions for Reconsideration of GMA and Aguas, observing that:
x x x x
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded to accord to circumstances. To be considered sufficient therefore, the evidence must prove (a) the commission of the crime, and (b) the precise degree of participation therein by the accused (Gutib v. CA, 110 SCAD 743, 312 SCRA 365 [1999]).x x x x x x x x x
A. Demurrer filed by Arroyo and Aguas:
It must be remembered that in Our November 5, 2013 Resolution, We found strong evidence of guilt against Arroyo and Aguas, only as to the second predicate act charged in the Information, which reads:In the November 5, 2013 Resolution, We said:
x x x x
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
x x x x
x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able [to] accumulate during that period CIF funds in the total amount of P352,681,646. This was through a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed by her, through her authorized representative.
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to "misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic v. Sandiganbayan. The encashment of the checks, which named her as the "payee," gave Uriarte material possession of the CIF funds which she disposed of at will.
As to the determination whether the threshold amount of P50 million was met by the prosecution's evidence, the Court believes this to have been established. Even if the computation is limited only to the cash advances/releases made by accused Uriarte alone AFTER Arroyo had approved her requests and the PCSO Board approved CIF budget and the "regular" P5 million CIF budget accorded to the PCSO Chairman and Vice Chairman are NOT taken into account, still the total cash advances through accused Uriarte's scries of withdrawals will total P189,681,646. This amount surpasses the P50 million threshold.
The evidence shows that for the year 2010 alone, Uriarte asked for P150 million additional CIF funds, and Arroyo granted such request and authorized its use. From January 8, 2010 up to June 18, 2010, Uriarte made a series of eleven (11) cash advances in the total amount of P138,223,490. According to Uriarte's testimony before the Senate, the main purpose for these cash advances was for the "roll-out" of the small town lottery program. However, the accomplishment report submitted by Aguas shows that P137,500,000 was spent on non-related PCSO activities, such as "bomb threat, kidnapping, terrorism and bilateral and security relations." All the cash advances made by Uriarte in 2010 were made in violation of LOI 1282, and CO A Circulars 2003-002 and 92-385. These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete freedom to dispose of, but was not able to properly account for.The evidence shows that Arroyo approved not only Uriarte's request for additional CIF funds in 2008-2010, but also authorized the latter to use such funds. Arroyo's "OK" notation and signature on Uriarte's letter-requests signified unqualified approval of Uriarte's request to use the additional CIF funds because the last paragraph of Uriarte's requests uniformly ended with this phrase: With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
The letter-request of Uriarte in 2010 was more explicit because it categorically asked for: "The approval on the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues."
Arroyo cannot, therefore, successfully argue that what she approved were only the request for the grant or allocation of additional CIF funds, because Arroyo's "OK" notation was unqualified and, therefore, covered also the request to use such funds, through releases of the same in favor of Uriarte.[11]
In this case, to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties or used for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already illegally amassed, acquired or accumulated P50 Million or more of government funds and just decided to keep it in his vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the police, negating any opportunity for the person to actually benefit, would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still be evidence-based must fail.Considering that the Sandiganbayan denied the demurrers to evidence of GMA and Aguas, they have come to the Court on certiorari to assail and set aside said denial, claiming that the denial was with grave abuse of discretion amounting to lack or excess of jurisdiction.
Also, accused Arroyo insists that there was no proof of the fact of amassing the ill-gotten wealth, and that the "overt act" of approving the disbursement is not the "overt act" contemplated by law. She further stresses that there was no proof of conspiracy between accused Arroyo and her co-accused and that the Prosecution was unable to prove their case against accused Arroyo. What accused Arroyo forgets is that although she did not actually commit any "overt act" of illegally amassing CIF funds, her act of approving not only the additional CIF funds but also their releases, aided and abetted accused Uriarte's successful raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-conspirator of Uriarte who accumulated the CIF funds. Moreover, the performance of an overt act is not indispensable when a conspirator is the mastermind.[12]
GMA pleads that the denial of her demurrer to evidence was in patent and flagrant violation of Republic Act No. 7080, the law on plunder, and was consequently arbitrary and oppressive, not only in grave abuse of discretion but rendered without jurisdiction because:
On his part, Aguas contends that:First Ground
On the basis of the above Resolutions, the Sandiganbayan has denied petitioner Arroyo's Demurrer to Evidence and considering the reasons for doing so, would find petitioner Arroyo guilty of the offense of plunder under Republic Act No. 7080 as charged in the Information notwithstanding the following:
- While the gravamen, indeed corpus delicti of the offense of plunder under R.A. No. 7080, and as charged in the Information, is that the public officer . . . "amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00)", the Sandiganbayan Resolutions extirpate this vital element of the offense of plunder;
- In point of fact, not a single exhibit of the 637 exhibits offered by the prosecution nor a single testimony of the 21 witnesses of the prosecution was offered by the prosecution to prove that petitioner amassed, accumulated or acquired even a single peso of the alleged ill-gotten wealth amounting to P365,997,915.00 or any part of that amount alleged in the Information;
- Implicitly confirming the above, and aggravating its error, on the basis solely of petitioner Arroyo's authorization of the release of the Confidential/Intelligence Fund from PCSO's accounts, the Sandiganbayan ruled that she has committed the offense of plunder under R.A. No. 7080 for the reason that her release of CIF funds to the PCSO amount to a violation of Sec. 1(d) [1] of R.A. No. 7080 which reads, as follows:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;which, "did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids on the public treasury", thereby disregarding the gravamen or the corpus delicti of the offense of plunder under R.A. No. 7080.Second Ground
Worsening the above error of the Sandiganbayan, the Resolutions, with absolutely no justification in law or in the evidence, purportedly as the "mastermind" of a conspiracy, and without performing any overt act, would impute to petitioner Arroyo the "series of withdrawals as cash advances of the CIF funds from the PCSO coffers" by Uriarte as "raids on the PCSO coffers, which is part of the public treasury" and "in every sense, 'pillage' as Uriarte looted government funds and appears to have not been able to account for it". Parenthetically, Uriarte has not been arrested, was not arraigned and did not participate in the trial of the case.Third Ground
That as an obvious consequence of the above, denial of petitioner Arroyo's Demurrer To Evidence for the reasons stated in the Sandiganbayan Resolutions, amounting no less to convicting her on the basis of a disjointed reading of the crime of plunder as defined in R.A. No. 7080, aggravated by the extirpation in the process of its "corpus delicti" - the amassing, accumulation or acquisition of ill-gotten wealth, hence, of a crime that does not exist in law and consequently a blatant deprivation of liberty without due process of law.Fourth Ground
The Information alleges that the ten (10) persons accused in Crim. Case No. SB-12-CRM-0174, namely: Gloria Macapagal-Arroyo, Rosario C. Uriarte, Sergio O. Valencia, Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero, [M]a. Fatima A.S. Valdes, Benigno B. Aguas, Reynaldo A. Villar and Nilda B. Plaras . . . all public officers committing the offense in relation to their respective offices and taking undue advantage of their respective official positions, authority, relationships, connections or influence, conniving, conspiring and confederating with one another, did then and there willfully, unlawfully and criminally amass, accumulate and/or acquire, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less, through any or a combination or a series of overt or criminal acts, or similar schemes or means, described as follows . . . or each of them, P36,599,791.50 which would not qualify the offense charged as "plunder" under R.A. No. 7080 against all ten (10) accused together, for which reason the Information docs not charge the offense of plunder and, as a consequence, all proceedings thereafter held under the Information are void.[13]
On the other hand, the Prosecution insists that the petitions for certiorari should be dismissed upon the following grounds, namely:
- In light of the factual setting described above and the evidence offered and admitted, does proof beyond reasonable doubt exist to warrant a holding that Prosecution proved the guilt of the accused such that there is legal reason to deny Petitioner's Demurrer?
- Did the Prosecution's offered evidence squarely and properly support the allegations in the Information?
PETITIONER STRONGLY SUBMITS THAT PROSECUTION FAILED TO ESTABLISH BY PROOF BEYOND REASONABLE DOUBT THE EXISTENCE OF THE CORE ELEMENTS OF THE CRIME OF PLUNDER.[14]
Based on the submissions of the parties, the Court synthesizes the decisive issues to be considered and resolved, as follows:
- CERTIORARI IS NOT THE PROPER REMEDY FROM AN ORDER OR RESOLUTION DENYING DEMURRER TO EVIDENCE.
- THERE IS NO GRAVE ABUSE OF DISCRETION BECAUSE THE SANDIGANBAYAN MERELY INTERPRETED WHAT CONSTITUTES PLUNDER UNDER LAW AND JURISPRUDENCE IN LIGHT OF FACTS OF THE CASE. IT DID NOT JUDICIALLY LEGISLATE A "NEW" OFFENSE.
- ACTUAL PERSONAL GAIN, BENEFIT OR ENRICHMENT IS NOT AN ELEMENT OF PLUNDER UNDER R.A. NO. 7080.
- EVIDENCE SHOWS THAT ARROYO, BY INDISPENSABLE COOPERATION, CONSPIRED WITH HER CO-ACCUSED AND PARTICIPATED IN THE COMPLEX, ILLEGAL SCHEME WHICH DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF PESOS, WHICH CONSTITUTES PLUNDER.
- ARROYO IS NOT SIMILARLY SITUATED WITH ACCUSED PCSO BOARD MEMBERS AND CANNOT THUS DEMAND THAT THE SANDIGANBAYAN DISMISS THE PLUNDER CASE AGAINST HER.
- ARROYO'S BELATED, COLLATERAL ATTACK ON THE INFORMATION CHARGING HER AND CO-ACCUSED FOR PLUNDER IS HIGHLY IMPROPER, ESPECIALLY AT THIS LATE STAGE OF THE PROCEEDING.
- THE FACTS CONSTITUTING THE OFFENSE ARE CLEARLY ALLEGED IN THE INFORMATION.
- ARROYO'S ACTIVE PARTICIPATION IN THE PROCEEDINGS ARISING FROM OR RELATING TO SB- 12-CRM-0174 PROVES THAT SHE HAS ALWAYS KNOWN AND UNDERSTOOD THE NATURE AND SCOPE OF THE ACCUSATIONS AGAINST HER.
- ARROYO IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER BECAUSE THE CRIMINAL PROSECUTION IN SB-12-CRM-0174 CANNOT BE ENJOINED.[15]
Procedural Issue:
- Whether or not the special civil action for certiorari is proper to assail the denial of the demurrers to evidence.
- Whether or not the State sufficiently established the existence of conspiracy among GMA, Aguas, and Uriarte;
- Whether or not the State sufficiently established all the elements of the crime of plunder:
- Was there evidence of amassing, accumulating or acquiring ill-gotten wealth in the total amount of not less than P50,000,000.00?
- Was the predicate act of raiding the public treasury alleged in the information proved by the Prosecution?
- Was there evidence of amassing, accumulating or acquiring ill-gotten wealth in the total amount of not less than P50,000,000.00?
Ruling of the Court
The consolidated petitions for certiorari are meritorious.
The Court cannot be deprived of its jurisdiction to correct grave abuse of discretion
The Prosecution insists that the petition for certiorari of GMA was improper to challenge the denial of her demurrer to evidence; that she also thereby failed to show that there was grave abuse of discretion on the part of the Sandiganbayan in denying her demurrer to evidence; and that, on the contrary, the Sandiganbayan only interpreted what constituted plunder under the law and jurisprudence in light of the established facts, and did not legislate a new offense, by extensively discussing how she had connived with her co-accused to commit plunder.[16]
The Court holds that it should take cognizance of the petitions for certiorari because the Sandiganbayan, as shall shortly be demonstrated, gravely abused its discretion amounting to lack or excess of jurisdiction.
The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because of the availability of another remedy in the ordinary course of law.[17] Moreover, Section 23, Rule 119 of the Rules of Court expressly provides that "the order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment." It is not an insuperable obstacle to this action, however, that the denial of the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the proceedings, and the proper recourse of the demurring accused was to go to trial, and that in case of their conviction they may then appeal the conviction, and assign the denial as among the errors to be reviewed.[18] Indeed, it is doctrinal that the situations in which the writ of certiorari may issue should not be limited,[19] because to do so -
x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that authority is not wanting to show that certiorari is more discretionary than either prohibition or mandamus. In the exercise of our superintending control over other courts, we are to be guided by all the circumstances of each particular case 'as the ends of justice may require.' So it is that the writ will be granted where necessary to prevent a substantial wrong or to do substantial justice.[20]The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors of jurisdiction as a result of capricious, arbitrary, whimsical and despotic exercise of discretion by expressly incorporating in Section 1 of Article VIII the following provision:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.The exercise of this power to correct grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government cannot be thwarted by rules of procedure to the contrary or for the sake of the convenience of one side. This is because the Court has the bounden constitutional duty to strike down grave abuse of discretion whenever and wherever it is committed. Thus, notwithstanding the interlocutory character and effect of the denial of the demurrers to evidence, the petitioners as the accused could avail themselves of the remedy of certiorari when the denial was tainted with grave abuse of discretion.[21] As we shall soon show, the Sandiganbayan as the trial court was guilty of grave abuse of discretion when it capriciously denied the demurrers to evidence despite the absence of competent and sufficient evidence to sustain the indictment for plunder, and despite the absence of the factual bases to expect a guilty verdict.[22]
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
The Prosecution did not properly allege and prove the existence of conspiracy among GMA, Aguas and Uriarte
Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony, and decide to commit it.[23] In this jurisdiction, conspiracy is either a crime in itself or a mere means to commit a crime.
As a rule, conspiracy is not a crime unless the law considers it a crime, and prescribes a penalty for it.[24] The exception is exemplified in Article 115 (conspiracy and proposal to commit treason), Article 136 (conspiracy and proposal to commit coup d'etat, rebellion or insurrection) and Article 141 (conspiracy to commit sedition) of the Revised Penal Code. When conspiracy is a means to commit a crime, it is indispensable that the agreement to commit the crime among all the conspirators, or their community of criminal design must be alleged and competently shown.
We also stress that the community of design to commit an offense must be a conscious one.[25] Conspiracy transcends mere companionship, and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge of, or acquiescence in, or agreement to cooperate is not enough to constitute one a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose.[26] Hence, conspiracy must be established, not by conjecture, but by positive and conclusive evidence.
In terms of proving its existence, conspiracy takes two forms. The first is the express form, which requires proof of an actual agreement among all the co-conspirators to commit the crime. However, conspiracies are not always shown to have been expressly agreed upon. Thus, we have the second form, the implied conspiracy. An implied conspiracy exists when two or more persons are shown to have aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating closeness of personal association and a concurrence of sentiment.[27] Implied conspiracy is proved through the mode and manner of the commission of the offense, or from the acts of the accused before, during and after the commission of the crime indubitably pointing to a joint purpose, a concert of action and a community of interest.[28]
But to be considered a part of the conspiracy, each of the accused must be shown to have performed at least an overt act in pursuance or in furtherance of the conspiracy, for without being shown to do so none of them will be liable as a co-conspirator, and each may only be held responsible for the results of his own acts. In this connection, the character of the overt act has been explained in People v. Lizada:[29]
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold underscoring supplied for emphasis)In her case, GMA points out that all that the State showed was her having affixed her unqualified "OK" on the requests for the additional CIFs by Uriarte. She argues that such act was not even an overt act of plunder because it had no immediate and necessary relation to plunder by virtue of her approval not being per se illegal or irregular. However, the Sandiganbayan, in denying the Motions for Reconsideration of GMA and Aguas vis-a-vis the denial of the demurrers, observed that:
x x x x accused Arroyo insists that there was no proof of the feet of amassing the ill-gotten wealth, and that the "overt act" of approving the disbursement is not the "overt act" contemplated by law. She further stresses that there was no proof of conspiracy between accused Arroyo and her co-accused and that the Prosecution was unable to prove their case against accused Arroyo. What accused Arroyo forgets is that although she did not actually commit any "overt act" of illegally amassing CIF funds, her act of approving not only the additional CIF funds but also their releases, aided and abetted accused Uriarte's successful raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-conspirator of Uriarte who accumulated the CIF funds. Moreover, the performance of an overt act is not indispensable when a conspirator is the mastermind.[30]It is in this regard that the Sandiganbayan gravely abused its discretion amounting to lack or excess of its jurisdiction. To start with, its conclusion that GMA had been the mastermind of plunder was plainly conjectural and outrightly unfounded considering that the information did not aver at all that she had been the mastermind; hence, the Sandiganbayan thereby acted capriciously and arbitrarily. In the second place, the treatment by the Sandiganbayan of her handwritten unqualified "OK" as an overt act of plunder was absolutely unwarranted considering that such act was a common legal and valid practice of signifying approval of a fund release by the President. Indeed, pursuant to People v. Lizada, supra, an act or conduct becomes an overt act of a crime only when it evinces a causal relation to the intended crime because the act or conduct will not be an overt act of the crime if it does not have an immediate and necessary relation to the offense.
In Estrada v. Sandiganbayan,[31] the Court recognized two nuances of appreciating conspiracy as a means to commit a crime, the wheel conspiracy and the chain conspiracy.
The wheel conspiracy occurs when there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes). The spoke typically interacts with the hub rather than with another spoke. In the event that the spoke shares a common purpose to succeed, there is a single conspiracy. However, in the instances when each spoke is unconcerned with the success of the other spokes, there are multiple conspiracies.[32]
An illustration of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy alleged in the information for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
On the other hand, the American case of Kotteakos v. United States[33] illustrates a wheel conspiracy where multiple conspiracies were established instead of one single conspiracy. There, Simon Brown, the hub, assisted 31 independent individuals to obtain separate fraudulent loans from the US Government. Although all the defendants were engaged in the same type of illegal activity, there was no common purpose or overall plan among them, and they were not liable for involvement in a single conspiracy. Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects. Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through. Thus, the US Supreme Court concluded that there existed 32 separate conspiracies involving Brown rather than one common conspiracy.[34]
The chain conspiracy recognized in Estrada v. Sandiganbayan exists when there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[35]
This involves individuals linked together in a vertical chain to achieve a criminal objective.[36] Illustrative of chain conspiracy was that involved in United States v. Bruno,[37] of the US Court of Appeals for the Second Circuit. There, 88 defendants were indicted for a conspiracy to import, sell, and possess narcotics. This case involved several smugglers who had brought narcotics to retailers who, in turn, had sold the narcotics to operatives in Texas and Louisiana for distribution to addicts. The US Court of Appeals for the Second Circuit ruled that what transpired was a single chain conspiracy in which the smugglers knew that the middlemen must sell to retailers for distribution to addicts, and the retailers knew that the middle men must purchase drugs from smugglers. As reasoned by the court, "the conspirators at one end of the chain knew that the unlawful business would not and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers." Each conspirator knew that "the success of that part with which he was immediately concerned was dependent upon success of the whole." This means, therefore, that "every member of the conspiracy was liable for every illegal transaction carried out by other members of the conspiracy in Texas and in Louisiana."[38]
Once the State proved the conspiracy as a means to commit a crime, each co-conspirator is as criminally liable as the others, for the act of one is the act of all. A co-conspirator does not have to participate in every detail of the execution; neither does he have to know the exact part performed by the co-conspirator in the execution of the criminal act.[39] Otherwise, the criminal liability of each accused is individual and independent.
The Prosecution insisted that a conspiracy existed among GMA, Uriarte, Valencia and the Members of the PCSO Board of Directors, Aguas, Villar and Plaras. The Sandiganbayan agreed with the Prosecution as to the conspirators involved, declaring that GMA, Aguas, and Uriarte had conspired and committed plunder.
A review of the records of the case compels us to reject the Sandiganbayan's declaration in light of the information filed against the petitioners, and the foregoing exposition on the nature, forms and extent of conspiracy. On the contrary, the Prosecution did not sufficiently allege the existence of a conspiracy among GMA, Aguas and Uriarte.
A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy to commit plunder among all of the accused on the basis of their collective actions prior to, during and after the implied agreement. It is notable that the Prosecution did not allege that the conspiracy among all of the accused was by express agreement, or was a wheel conspiracy or a chain conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080 (Plunder Law) states:
Section 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. [As Amended by Section 12, Republic Act No. 7659 (The Death Penalty Law)]Section 1 (d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act, the term:The law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or accumulated ill-gotten wealth because it plainly states that plunder is committed by any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least P50,000,000.00 through a combination or series of overt criminal acts as described in Section 1 (d) hereof. Surely, the law requires in the criminal charge for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons. In other words, the allegation of the wheel conspiracy or express conspiracy in the information was appropriate because the main plunderer would then be identified in either manner. Of course, implied conspiracy could also identify the main plunderer, but that fact must be properly alleged and duly proven by the Prosecution.
x x x x
d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gilt, share, percentage, kickbacks or any/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
This interpretation is supported by Estrada v. Sandiganbayan,[40] where the Court explained the nature of the conspiracy charge and the necessity for the main plunderer for whose benefit the amassment, accumulation and acquisition was made, thus:
There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonality - to help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. [bold underscoring supplied for emphasis]Here, considering that 10 persons have been accused of amassing, accumulating and/or acquiring ill-gotten wealth aggregating P365,997,915.00, it would be improbable that the crime charged was plunder if none of them was alleged to be the main plunderer. As such, each of the 10 accused would account for the aliquot amount of only P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth, which is far below the threshold value of ill-gotten wealth required for plunder.
We are not unmindful of the holding in Estrada v. Sandiganabayan[41] to the effect that an information alleging conspiracy is sufficient if the information alleges conspiracy either: (1) with the use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc.; or (2) by allegations of the basic facts constituting the conspiracy in a manner that a person of common understanding would know what is being conveyed, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts. We are not talking about the sufficiency of the information as to the allegation of conspiracy, however, but rather the identification of the main plunderer sought to be prosecuted under R.A. No. 7080 as an element of the crime of plunder. Such identification of the main plunderer was not only necessary because the law required such identification, but also because it was essential in safeguarding the rights of all of the accused to be properly informed of the charges they were being made answerable for. The main purpose of requiring the various elements of the crime charged to be set out in the information is to enable all the accused to suitably prepare their defense because they are presumed to have no independent knowledge of the facts that constituted the offense charged.[42]
For sure, even the Sandiganbayan was at a loss in this respect. Despite the silence of the information on who the main plunderer or the mastermind was, the Sandiganbayan readily condemned GMA in its resolution dated September 10, 2015 as the mastermind despite the absence of the specific allegation in the information to that effect. Even worse, there was no evidence that substantiated such sweeping generalization.
In fine, the Prosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the petitioners for violating the rights of each accused to be informed of the charges against each of them.
Nevertheless, the Prosecution insists that GMA, Uriarte and Aguas committed acts showing the existence of an implied conspiracy among themselves, thereby making all of them the main plunderers. On this score, the Prosecution points out that the sole overt act of GMA to become a part of the conspiracy was her approval via the marginal note of "OK" of all the requests made by Uriarte for the use of additional intelligence fund. The Prosecution stresses that by approving Uriarte's requests in that manner, GMA violated the following:
The insistence of the Prosecution is unwarranted. GMA's approval of Uriarte's requests for additional CIFs did not make her part of any design to raid the public treasury as the means to amass, accumulate and acquire ill-gotten wealth. Absent the specific allegation in the information to that effect, and competent proof thereon, GMA's approval of Uriarte's requests, even if unqualified, could not make her part of any criminal conspiracy to commit plunder or any other crime considering that her approval was not by any means irregular or illegal.
- Letter of Instruction 1282, which required requests for additional confidential and intelligence funds (CIFs) to be accompanied with detailed, specific project proposals and specifications; and
- COA Circular No. 92-385, which allowed the President to approve the release of additional CIFs only if there was an existing budget to cover the request.
The Prosecution takes GMA to task for approving Uriarte's request despite the requests failing to provide "the full detail [of] the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished." It posits that the requests were not specific enough, contrary to what is required by LOI 1282.
LOI 1282 reads:
However, an examination of Uriarte's several requests indicates their compliance with LOI No. 1282. The requests, similarly worded, furnished: (a) the full details of the specific purposes for which the funds would be spent; (b) the explanations of the circumstances giving rise to the necessity of the expenditure; and (c) the particular aims to be accomplished.LETTER OF INSTRUCTION NO. 1282
To: All Ministries and Offices Concerned
In recent years intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was often left unaware of how these funds had been utilized.
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the President in order to avoid such duplication of expenditures as has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.
Full compliance herewith is desired.
Manila, January 12, 1983.(Sgd.) FERDINAND E. MARCOS
President of the Philippines
The specific purposes and circumstances for the necessity of the expenditures were laid down as follows:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:A reading of the requests also reveals that the additional CIFs requested were to be used to protect PCSO's image and the integrity of its operations. The Court thus cannot share the Prosecution's dismissiveness of the requests for not being compliant with LOI No. 1282. According to its terms, LOI No. 1282 did not detail any qualification as to how specific the requests should be made. Hence, we should not make any other pronouncement than to rule that Uriarte's requests were compliant with LOI No. 1282.
- Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO - Not for Sale";
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Lotto and sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put the PCSO in bad light.[43]
COA Circular No. 92-385 required that additional request for CIFs would be approved only when there was available budget. In this regard, the Prosecution suggests that there was no longer any budget when GMA approved Uriarte's requests because the budget had earmarked intelligence funds that had already been maxed out and used. The suggestion is not acceptable, however, considering that the funds of the PCSO were co-mingled into one account as early as 2007. Consequently, although only 15% of PCSO's revenues was appropriated to an operation fund from which the CIF could be sourced, the remaining 85% of PCSO's revenues, already co-mingled with the operating fund, could still sustain the additional requests. In short, there was available budget from which to draw the additional requests for CIFs.
It is notable that the COA, although frowning upon PCSO's co-mingling of funds, did not rule such co-mingling as illegal. As such, sourcing the requested additional CIFs from one account was far from illegal.
Lastly, the Prosecution's effort to show irregularities as badges of bad faith has led it to claim that GMA had known that Uriarte would raid the public treasury, and would misuse the amounts disbursed. This knowledge was imputed to GMA by virtue of her power of control over PCSO.
The Prosecution seems to be relying on the doctrine of command responsibility to impute the actions of subordinate officers to GMA as the superior officer. The reliance is misplaced, for incriminating GMA under those terms was legally unacceptable and incomprehensible. The application of the doctrine of command responsibility is limited, and cannot be true for all litigations. The Court ruled in Rodriguez v. Macapagal-Arroyo[44] that command responsibility pertains to the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict. The doctrine has also found application in civil actions for human rights abuses. But this case involves neither a probe of GMA's actions as the Commander-in-Chief of the Armed Forces of the Philippines, nor of a human rights issue. As such, it is legally improper to impute the actions of Uriarte to GMA in the absence of any conspiracy between them.
On the part of Aguas, the Sandiganbayan pronounced him to be as much a member of the implied conspiracy as GMA was, and detailed his participation in this manner:
In all of the disbursement vouchers covering the cash advances/releases to Uriarte of the CIF funds, Aguas certified that:Thus, the Sandiganbayan concluded that Aguas became a part of the implied conspiracy when he signed the disbursement vouchers despite the absence of certain legal requirements, and issued certain certifications to the effect that the budgetary allotment/funds for cash advance to be withdrawn were available; that the expenditures were supported by documents; and that the previous cash advances had been liquidated or accounted for.CERTIFIED: Adequate available funds/budgetary allotment in the amount of P_________; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.These certifications, after close scrutiny, were not true because: 1.) there were no documents which lent support to the cash advances on a per project basis. The particulars of payment simply read: "To draw cash advance form the CIF Fund of the Office of the Vice-Chairman and General Manager". No particular purpose or project was specified contrary to the requirement under CO A Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each cash advance. Aguas could not certify that supporting documents existed simply because he would not know what project was being funded by the cash advances; and 2.) There were no previous liquidations made of prior cash advances when Aguas made the certifications. COA circular 2003-002 required that cash advances be liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If the completion of the projects mentioned were for more than one month, a monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation made was wholesale, i.e. these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation progress report. How then could Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas's certification, the disbursement vouchers could not have been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have been alerted that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is therefore present in the case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was conformed to by Uriarte, made it self-evidence that the bulk of the CIF funds in 2009 and 2010 were allegedly spend for non-PCSO related activities, e.g. bomb threats, kidnapping, terrorism, and others.[45]
We opine and declare, however, that Aguas' certifications and signatures on the disbursement vouchers were insufficient bases to conclude that he was into any conspiracy to commit plunder or any other crime. Without GMA's participation, he could not release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to any implied conspiracy to commit plunder.
Under the circumstances, the Sandiganbayan's finding on the existence of the conspiracy to commit plunder was unsustainable. It then becomes unavoidable for the Court to rule that because the Prosecution failed to properly allege the elements of the crime, as well as to prove that any implied conspiracy to commit plunder or any other crime existed among GMA, Aguas and Uriarte there was no conspiracy to commit plunder among them. As a result, GMA and Aguas could be criminally responsible only for their own respective actions, if any.
No proof of amassing, or accumulating, or acquiring ill-gotten wealth of at least P50 Million was adduced against GMA and Aguas
The Sandiganbayan sustained the sufficiency of the evidence to convict the petitioners for plunder on the basis that the Prosecution established all the elements of plunder.
After a review of the records, we find and rule that the Prosecution had no case for plunder against the petitioners.
To successfully mount a criminal prosecution for plunder, the State must allege and establish the following elements, namely:
The corpus delicti of plunder is the amassment, accumulation or acquisition of ill-gotten wealth valued at not less than P50,000,000.00. The failure to establish the corpus delicti should lead to the dismissal of the criminal prosecution.
- That the offender is a public officer who acts by herself or in connivance with members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
- That the offender amasses, accumulates or acquires ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and.
- That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.[46]
As regards the element that the public officer must have amassed, accumulated or acquired ill-gotten wealth worth at least P50,000,000.00, the Prosecution adduced no evidence showing that either GMA or Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any amount. There was also no evidence, testimonial or otherwise, presented by the Prosecution showing even the remotest possibility that the CIFs of the PCSO had been diverted to either GMA or Aguas, or Uriarte.
The absolute lack of evidence on this material but defining and decisive aspect of the criminal prosecution was explicitly noted in the concurring and partial dissenting opinion of Justice Rodolfo A. Ponferrada of the Sandiganbayan, to wit:
Here the evidence of the prosecution failed to show the existence of the crime of plunder as no evidence was presented that any of the accused, accumulated and/or acquired ill-gotten wealth. In fact, the principal witness of the prosecution when asked, said that she does not know the existence or whereabouts of the alleged ill-gotten wealth, to wit:After Atty. Tolentino, as the Prosecution's main witness, conceded lack of any knowledge of the amassing, accumulating or acquiring of ill-gotten wealth of at least P50,000,000.00, nothing more remained of the criminal prosecution for plunder. Hence, the Sandiganbayan should have granted the demurrers of GMA and Aguas, and dismissed the criminal action against them.
The Prosecution failed to prove the predicate act of raiding the public treasury
The Sandiganbayan observed that the Prosecution established the predicate act of raiding the public treasury, to wit:
Secondly, the terms "unjust enrichment," "benefit," and "pecuniary benefit" are only mentioned in the predicate acts mentioned in par. 2, 5 and 6 of Section 1 (d) of the Plunder Law. Paragraph 1 of the same section where "raids on the public treasury" is mentioned did not mention "unjust enrichment" or "personal benefit". Lastly, the predicate act covering "raids on the public treasury" is lumped up with the phrases misappropriation, conversion, misuse and malversation of public funds. Thus, once public funds, as in the case of CIF funds, are illegally accumulated, amassed or acquired. To the tune of P50 Million or more, there will be no need to establish any motive to gain, or much more establish where the money eventually ended up. As stated in Our Resolution dated November 5, 2013:The Sandiganbayan contended that in order to prove the predicate act of raids of the public treasury, the Prosecution need not establish that the public officer had benefited from such act; and that what was necessary was proving that the public officer had raided the public coffers. In support of this, it referred to the records of the deliberations of Congress to buttress its observation.
It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible predicate acts in the commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" is consummated where all the acts necessary for its execution and accomplishment are present. Thus a "raid on the public treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse, misappropriation or conversion, without need of establishing gain or profit to the "raider" gets material possession of a government asset through improper means and has free disposal of the same, the raid or pillage is completed.
x x x x
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
x x x x
x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646. This was through a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed by her, through her authorized representatives.
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus amounting to "misuse" of the same. x x x
In this case, to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties or used for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already amassed, acquired or accumulated P50 Million or more of government funds and just decide to keep it in his vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the police, negating any opportunity for the purpose to actually benefit, would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still be evidence-based must fail.[48]
We do not share the Sandiganbayan's contention.
The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides:
Section 1. Definition of Terms. - x x xTo discern the proper import of the phrase raids on the public treasury, the key is to look at the accompanying words: misappropriation, conversion, misuse or malversation of public funds. This process is conformable with the maxim of statutory construction noscitur a sociis, by which the correct construction of a particular word or phrase that is ambiguous in itself or is equally susceptible of various meanings may be made by considering the company of the words in which the word or phrase is found or with which it is associated. Verily, a word or phrase in a statute is always used in association with other words or phrases, and its meaning may, therefore, be modified or restricted by the latter.[49]
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
x x x x
To convert connotes the act of using or disposing of another's property as if it were one's own; to misappropriate means to own, to take something for one's own benefit;[50] misuse means "a good, substance, privilege, or right used improperly, unforeseeably, or not as intended;"[51] and malversation occurs when "any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially."[52] The common thread that binds all the four terms together is that the public officer used the property taken. Considering that raids on the public treasury is in the company of the four other terms that require the use of the property taken, the phrase raids on the public treasury similarly requires such use of the property taken. Accordingly, the Sandiganbayan gravely erred in contending that the mere accumulation and gathering constituted the forbidden act of raids on the public treasury. Pursuant to the maxim of noscitur a sociis, raids on the public treasury requires the raider to use the property taken impliedly for his personal benefit.
The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for plunder. In not requiring personal benefit, the Sandiganbayan quoted the following exchanges between Senator Enrile and Senator Tañada, viz.:
Senator Enrile. The word here, Mr. President, "such public officer or person who conspired or knowingly benefited". One docs not have to conspire or rescheme. The only element needed is that he "knowingly benefited". A candidate for the Senate for instance, who received a political contribution from a plunderer, knowing that the contributor is a plunderer and therefore, he knowingly benefited from the plunder, would he also suffer the penalty, Mr. President, for life imprisonment?The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from the coverage of the bill and the final version that eventually became the law was a person who was not the main plunderer or a co-conspirator, but one who personally benefited from the plunderers' action. The requirement of personal benefit on the part of the main plunderer or his co-conspirators by virtue of their plunder was not removed.
Senator Tañada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part of line 5, on page 3. But, in a way, Mr. President, it is good that the Gentleman is bringing out these questions, I believe that under the examples he has given, the Court will have to . . .
Senator Enrile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the country but because she is a dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to the spouse. And, of course, she enjoys the benefits out of the plunder. Would the Gentleman now impute to her or him the crime of plunder simply because she or he knowingly benefited out of the fruits of the plunder and, therefore, he must suffer or he must suffer the penalty of life imprisonment?
The President. That was stricken out already in the Committee amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were stricken out in the Committee amendment. But, as I said, the camples of the Minority Floor Leader are still worth spreading the Record. And, I believe that in those examples, the Court will have just to take into consideration all the other circumstances prevailing in the case and the evidence that will be submitted.
The President. In any event, 'knowingly benefited' has already been stricken off.[53]
As a result, not only did the Prosecution fail to show where the money went but, more importantly, that GMA and Aguas had personally benefited from the same. Hence, the Prosecution did not prove the predicate act of raids on the public treasury beyond reasonable doubt.
Summation
In view of the foregoing, the Court inevitably concludes that the Sandiganbayan completely ignored the failure of the information to sufficiently charge conspiracy to commit plunder against the petitioners; and ignored the lack of evidence establishing the corpus delicti of amassing, accumulation and acquisition of ill-gotten wealth in the total amount of at least P50,000,000.00 through any or all of the predicate crimes. The Sandiganbayan thereby acted capriciously, thus gravely abusing its discretion amounting to lack or excess of jurisdiction.
Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.[54] To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and the abuse must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.[55]
WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the resolutions issued in Criminal Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and September 10, 2015; GRANTS the petitioners' respective demurrers to evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the petitioners GLORIA MACAPAGAL-ARROYO and BENIGNO AGUAS for insufficiency of evidence; ORDERS the immediate release from detention of said petitioners; and MAKES no pronouncements on costs of suit.
SO ORDERED.
Sereno, C. J., I join the Dissent of J. Leonen and attach my Separate Dissent.
Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del Castillo, Perez, Mendoza, Reyes, and Jardeleza, concur.
Carpio, J., I join the Dissenting Opinion of J. Leonen.
Perlas-Bernabe, J., Please see my Separate Concurring and Dissenting Opinion.
Leonen, J., I dissent. See Separate Opinion.
Caguioa, J., I join the Dissent of J. Leonen.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on July 19, 2016 a Decision/Resolution, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 21, 2016 at 1:18 p.m.
Very truly yours,
(SGD)FELIPA G. BORLONGAN-ANAMA
Clerk of Court
(SGD)FELIPA G. BORLONGAN-ANAMA
Clerk of Court
[1] Rollo, Vol. I, pp. 139-194; penned by Associate Justice Rafael R. Lagos and concurred by Associate Justices Efren N. De La Cruz and Napoleon E. Inoturan. Associate Justices Rodolfo A. Ponferrada and Alex L. Quiroz submitted their respective concurring and dissenting opinion.
[2] Id. at 195-211.
[3] Id. at 305-307-A.
[4] Id. at 415-459.
[5] Id. at 450-510.
[6] Id. at 512-523.
[7] Rollo, Vol. II, pp. 526-580.
[8] Id. at 581-586.
[9] Rollo, Vol. I, pp. 463-477.
[10] The following law enforcers testified for the Prosecution, namely: (a) Capt. Ramil Roberto Enriquez, Assistant Chief of Staff for Intelligence of the Philippine Air Force; (b) Col. Teofilo Reyno Bailon, Jr., Assistant Chief of Staff, Air Staff for Intelligence of the Philippine Air Force; (c) Col. Ernest Marc Rosal, Chief Operations and Intelligence Division, Intelligence Service of the Armed Forces of the Philippines; (d) Lt. Col. Vince James de Guzman Bantilan, Chief of the Intelligence and Operations Branch, Office of the Assistant Chief of Staff for Intelligence of the AFP; (e) Col. Orlando Suarez, Chief Operations, Central Divisions, Office of the J12 of the AFP; (f) Ruel Lasala, Deputy Director for Intelligence Services of the NBI; (g) Atty. Reynaldo Ofialda Esmeralda, Deputy Director for Intelligence Services of the NBI; (h) NBI Agents Dave Segunial, Romy Bon Huy Lim, and Palmer Mallari; (i) Virgilio L. Mendez, Director of the NBI; and (j) Charles T. Calima, Jr., Director for Intelligence of the PNP.
[11] Rollo, pp. 159-161.
[12] Rollo, G.R. No. 220598, Vol. I, pp. 204-205.
[13] Rollo, G.R. No. 220598, Vol. I, pp. 51-54.
[14] Rollo, G.R. No. 220953, Vol. I, p. 15.
[15] Rollo, G.R. No. 220598, Vol. II. pp. 1016-1017.
[16] Rollo, Vol. I, p. 1628.
[17] Tadeo v. People, G.R. No. 129774, December 29, 1998, 300 SCRA 744.
[18] Alarilla v. Sandiganbayan, G.R. No. 136806, August 22, 2000, 338 SCRA 485, 495.
[19] Ong v. People, G.R. No. 140904, October 9, 2000, 342 SCRA 372, 387.
[20] Id.
[21] Cruz v. People, G.R. No. 121422, February 23, 1999, 303 SCRA 533.
[22] Gutib v. Court of Appeals, G.R. No. 131209, August 13, 1999, 312 SCRA 365, 377.
[23] Article 8, Revised Penal Code.
[24] Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002, 377 SCRA 538, 557.
[25] Bahilidad v. People, G.R. No. 185195, March 17, 2010, 615 SCRA 597, 606.
[26] Id. at 686.
[27] People v. De Leon, G.R. No. 179943, June 26, 2009, 591 SCRA 178, 194-195.
[28] People v. Del Castillo, G.R. No. 169084, January 18, 2012, 663 SCRA 226, 246.
[29] G.R. No. 143468-71, January 24, 2003, 396 SCRA 62, 94-95.
[30] Supra note 12.
[31] G.R. No. 148965, February 26, 2002, 377 SCRA 538, 556.
[32] Contemporary Criminal Law. Concepts, Cases, and Controversies. Third Ed., Lippman, M. R., Sage Publication, California, USA, 2013, p. 195.
[33] 328 U.S. 750 (1946).
[34] Supra note 32.
[35] Supra note 31.
[36] Supra note 32.
[37] 105 F.2d 921 (2d Cir. 1939).
[38] Supra note 32.
[39] People v. Del Castillo, G.R. No. 169084, January 18, 2012, 663 SCRA 226, 247.
[40] Supra note 31, at 555-556.
[41] Id. at 565.
[42] Andaya v. People, G.R. No. 168486, June 27, 2006, 493 SCRA 539, 558.
[43] Rollo, Vol. II, p. 990.
[44] G.R. No. 191805, November 15, 2011, 660 SCRA 84.
[45] Rollo, Vol. I., pp. 205-206.
[46] Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 394, 432.
[47] Rollo, Vol. I, pp. 188-189.
[48] Rollo, Vol. I, pp. 203-204.
[49] Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 598-599.
[50] Sy v. People, G.R. No. 85785, April 24, 1989, 172 SCRA 685, 694.
[51] The Law Dictionary. Retrieved at
[52] Article 217, Revised Penal Code.
[53] Record of the Senate, June 6, 1989, p. 1403, Vol. IV, No. 141.
[54] Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348; Uy v. Office of the Ombudsman, G.R. Nos. 156399-400, June 27, 2008, 556 SCRA 73.
[55] Vergara v. Ombudsman, G.R. No. 174567, March 12, 2009, 580 SCRA 693; Nationwide Security and Allied Services, Inc. v. Court of Appeals, G.R. No. 155844, 14 July 2008, 558 SCRA 148.
DISSENTING OPINION
SERENO, C.J.:
Given the records and pleadings in these cases, I register my dissent from the ponencia. Contrary to the ponencia's conclusion, I find that the prosecution has sufficiently alleged and established conspiracy in the commission of the crime of plunder involving, among others, petitioners Gloria Macapagal Arroyo (Arroyo) and Benigno B. Aguas (Aguas). I therefore find no grave abuse of discretion in the Sandiganbayan rulings, which denied petitioners' demurrers and motions for reconsideration.
In sum, my strong objection to the Majority Opinion is impelled by at least five (5) doctrinal and policy considerations.
- The ponencia completely ignores the stark irregularities in the Confidential/Intelligence Fund (CIF) disbursement process and effectively excuses the breach of budget ceilings by the practice of commingling of funds;
- The ponencia retroactively introduces two additional elements in the prosecution of the crime of plunder - the identification of a main plunderer and personal benefit to him or her - an effect that is not contemplated in the law nor explicitly required by any jurisprudence;
- The ponencia denies efficacy to the concept of implied conspiracy that had been carefully laid down in Alvizo v. Sandiganbayan;[1]
- The ponencia creates an unwarranted certiorari precedent by completely ignoring the evidentiary effect of formal reports to the Commission on Audit (COA) that had been admitted by the trial court; and
- The ponencia has grossly erred in characterizing the prosecution's evidence as not showing "even the remotest possibility that the CIFs of the PCSO had been diverted to either [Arroyo] or Aguas or Uriarte,"[2] when petitioner Aguas himself reported to COA that P244 million of nearly P366 million controverted Philippine Charity Sweepstakes Office (PCSO) funds had been diverted to the Office of the President.
I
Preliminarily, the ponencia states that the prosecution did not properly allege conspiracy. I disagree.
Estrada v. Sandiganbayan[3] (2002 Estrada) is instructive as to when the allegations in the Information may be deemed sufficient to constitute conspiracy. In that case, We stated:
[I]t is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc.; or (2) by allegation of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts.[4]In the Information[5] in this case, all the accused public officers were alleged to have "connived and conspired" in unlawfully amassing, accumulating and acquiring ill-gotten wealth in the total amount of P365,997,915 through (a) "diverting funds from the operating budget of PCSO to its [CIF] x x x and transferring the proceeds to themselves x x x for their personal gain and benefit;" (b) "raiding the public treasury by withdrawing and receiving x x x and unlawfully transferring or conveying the same into their possession and control;" and (c) "taking advantage of their respective official positions x x x to unjustly enrich themselves x x x at the expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines."
Contrary to the ponencia, I find the allegations above consistent with Our pronouncement in 2002 Estrada,[6] wherein conspiracy was successfully proven.
On another point, the ponencia declares that the prosecution failed to establish or prove conspiracy. A review of the records before us contradicts this position.
The prosecution's theory of the conspiracy to commit plunder is that PCSO funds were repeatedly siphoned off purportedly to fund activities which were not actually conducted - a 3-year process which could not have been accomplished without the indispensable acts of accused public officers who took advantage of their positions to amass nearly P366 million.
To appreciate the prosecution's theory of conspiracy, it is necessary to have a bird's eye view of the procedure for disbursement of CIF funds. The testimony before the Sandiganbayan of prosecution witness, Atty. Aleta Tolentino, Chairperson of the PCSO Audit Committee, provides the procedure briefly outlined below:
- Provision or allotment of a budget for the CIF in the Corporate Operating Budget;[7]
- Approval of the release of the CIF by the President of the Philippines;[8]
- Designation of a disbursing officer who will have custody of the amounts received as cash advances for the confidential/intelligence (CI) operation;
- Issuance of the check for the cash advance and disbursement thereof;
- Liquidation of the CIF cash advances with the documents sent directly by sealed envelope to the COA chairperson or his/her representative;[9] and
- Clearing of accountability on the basis of the Credit Notice issued by the COA chairperson or his/her representative.[10]
Expenditures for prizes and charity follow strict disbursement, accounting, and liquidation procedures.[12] In contrast, procedures for CIF expenditures are less strict because of their confidential nature.
Funds for confidential or intelligence projects are usually released as cash advances. Under COA rules, the liquidation documents therefor are sent in sealed envelopes directly to the COA chairperson (or his/her representative).
Given the prosecution's claim that PCSO funds were all commingled in one account, it is easier to see the significance of using the CIF route in diverting funds for personal gain. Utilizing that route minimizes the risks of discovery and the tracking of any anomaly, irregularity, or illegality in the withdrawal of funds.
The lax process of disbursement, accounting, and liquidation has been identified in the field of financial management as a possible, if not perfect, locus for fraud. In Fraud and Corruption Awareness Handbook, How It Works and What to Look For: A Handbook for Staff[13] the World Bank states that fraud thrives in accounting systems with vulnerabilities.[14]
Fraud in financial management (FM) can take the form of either individuals taking advantage of system vulnerabilities to redirect funds for their own purposes, or working with other parties in a collusive set-up. x x xTo my mind, the prosecution has successfully established the conspiracy scheme through the various irregularities in the CIF disbursement. These irregularities or red flags clearly spell a conspiracy to commit plunder when the amounts involved and the processes of requesting, approval, and liquidating the amounts are holistically considered.
Theft may range from very small amounts to sophisticated schemes involving large sums of money. More often than not, theft is performed in a manner that is premeditated, systematic or methodical, with the explicit intent to conceal the activities from other individuals. Often, it involves a trusted person embezzling only a small proportion or fraction of the funds received, in an attempt to minimize the risk of detection. The method usually involves direct and gradual transfers of project funds for personal use or diversion of payments for legitimate expenses into a personal account.[15] (Emphases ours)
The irregularities in the approval, disbursement, and liquidation of the funds
First, when Arroyo approved the requests, the PCSO was operating on a deficit.[16] This situation means that it is irregular to authorize additional CIF when the fund source is negative. It is tantamount to authorizing the use of other PCSO funds - that of the Prize Fund and Charity Fund - for purposes other than those allowed by law.
In 2005, the PCSO had a deficit of F916 million.[17] In 2006, the deficit was P1,000,078,683.23, P215 million of which comprised the CIF expenses. For that year, the CIF budget was only P10 million.[18] Otherwise stated, the CIF expense exceeded the budget by P205 million.
On the other hand, the CIF disbursements amounted to P77,478,705[19] in 2007 when the CIF budget was only P25,480,550.[20] The CIF expenditure exceeded its budget by almost P52 million.
In 2008, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of P25 million in April and another P50 million in August.[21] In its Corporate Operating Budget (COB) approved in May, the PCSO board allocated P28 million for the CIF.[22] The actual disbursement amounted to P86,555,060[23] so CIF expenditures were P58 million more than its allocated budget.[24]
Four times in 2009, Uriarte asked for and received approval from Arroyo for additional CIF in the total amount of P90 million - P50 million in January, P10 million in April, another P10 million in July and then P20 million in October.[25] The board allocated P60 million in its Corporate Operating Budget approved in March.[26] The actual CIF disbursement was P138,420,875,[27] so the overspending was more than P78 million.
For 2010, Uriarte asked for and received approval from Arroyo for additional CIF in the amount of P150 million in January.[28] The board allocated P60 million for the CIF in its Corporate Operating Budget, which was approved in March. The GIF disbursement, as of June 2010, was P141,021,980,[29] so overspending was by more than P81 million.
It is worth noting that from previous allocations of P10 million (P5 million each for the Office of the Chairperson and for the Office of the Vice-Chairperson), the CIF budget was gradually but significantly increased to P60 million in 2009 and 2010. Still, additional amounts were requested and authorized, reaching very significant CIF expenditures in the years when the PCSO was on a deficit, from 2004 to 2009. For a fuller context, the information is tabulated:
From the above, various irregularities can already be noted. The repeated and unqualified approval of additional CIF was made even when there were no more operating funds left. The requests were made and approved even before the Corporate Operating Budget was approved by the PCSO Board. And the amounts requested were significantly large amounts.
Despite the above facts and figures culled from the records, the ponencia remarks that commingling was far from illegal.[31] The ponencia downplays the fact that there was no longer any budget when Arroyo approved the requests and considers the approval justified "considering that the funds of the PCSO were commingled into one account x x x." While the act of commingling may not by itself be illegal, the fact that it continued to be successfully maintained despite the COA advice to stop the practice means that it was deliberately used to facilitate the raid of government coffers. The majority should not have downplayed the viciousness of this practice. It is a critical red flag of financial fraud.
Second, the prosecution witness testified that for 2009, the recorded CIF expense was only P24,968,300, while actual vouchers for the CIF cash advances totalled P138,420,875.[32] This discrepancy is another red flag.
The CIF cash advances remain as accountabilities of the special disbursing officers until liquidated. After they are properly liquidated and cleared by the COA chairperson or his/her representative, the Confidential/Intelligence expenses are then recorded as such.
The witness found, however, that receivables from Uriarte and Valencia for the CIF disbursements amounting to P106,386,800 and P90,428,780, respectively, were removed. These were instead recorded as expenses under the Prize Fund and Charity Fund.[33] For 2008, another P63.75 million was obtained from the Charity Fund and the Prize Fund.[34]
These facts and figures are the most compelling evidence of a fraudulent scheme in this case — cash advances being taken as CIF expenses for withdrawal purposes and thereafter being passed off as PF and CF expenses for recording purposes. Apparently, the reason for taking cash advances from the common (commingled) account as CIF expenses was the relative ease of withdrawal and subsequent liquidation of the funds. On the other hand, the apparent purpose of recording the same cash advances in the books as PF and CF expenses was to avoid detection of the lack of CIF.
Red flags are again readily noticeable here in the form of missing funds and apparent misuse. Missing funds occur when cash appears to be missing after a "review of transaction documentation and financial documents," while apparent misuse happens when funds are spent on "personal or non-business-related" matters.[35]
The prosecution witness pointed out these red flags as follows:
The witness also related that she traced the records of the CIF fund (since such was no longer stated as a receivable), and reviewed whether it was recorded as an expense in 2008. She found out that the recorded CIF fund expense, as recorded in the corporate operating budget as actually disbursed, was only P21,102,000. As such, she confronted her accountants and asked them "Saan tinago itong amount na to?" The personnel in the accounting office said that the balance of the P86 million or the additional P21 million was not recorded in the operating fund budget because they used the prize fund and charity fund as instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31, 2008, signed by Elmer Camba, Aguas (Head of the Accounting Department), and Hutch Balleras (one of the staff in the Accounting Department), showed that this procedure was done. x x xFrom the foregoing, the participation of petitioner Aguas is established. He was intimately privy to the transactions and to the scheme. His participation was necessary for diverting the funds from the Prize Fund and the Charity Fund to underwrite the lack of Operating Fund for the CIF cash advances. He is thus proven to have committed an indispensable act in covering the tracks of Uriarte and Valencia, as will be explained further.
Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and Intelligence Fund Expenses," and was the basis of Camba in doing the Journal Entry Voucher. In the same document, there was a written annotation dated 12-31-2008 which reads that the adjustments of CIF, CF and IF, beneficiary of the fund is CF and PF and signed by Aguas.
The year 2009 was a similar case x x x.[36] (Emphases ours)
Third, witness Tolentino reported that for their respective cash advances, Uriarte and Valencia approved the vouchers certifying the necessity and the legality of the disbursement and thereafter authorized the payment thereof. They also co-signed with the treasurer the checks payable to their own names.
Thus, a situation in which the same person approved the disbursement and signed the check for payment to that same person is readily observed. This situation is irregular. In the usual course of things, payees do not get to approve vouchers and sign checks payable to themselves.
The witness further found that while Uriarte was authorized by the Board of Directors[37] to be the Special Disbursing Officer (SDO), Valencia designated himself as the SDO for his own cash advances, upon the recommendation of COA Auditor Plaras.[38] Under COA rules, the Board of Directors, not the Chairperson, has authority to designate SDOs.
The usual check-and-balance mechanism for the segregation of duties was therefore totally ignored. The disregard of that mechanism strongly indicates an intention to keep knowledge of the transactions to as few people as possible. In fraudulent schemes, risks of detection are avoided by keeping the conspiracy or connivance known to as few people as necessary. This is therefore another red flag.
Fourth, the accountabilities of Uriarte and Valencia for the CIF cash advances they availed of were removed from the records on the basis of the issuance of a Credit Notice. And this issuance of credit notice by COA CIF Unit Head Plaras is also marked by irregularities.[39]
The relevant testimony of prosecution witness Atty. Aleta Tolentino is summed up by the Sandiganbayan in its Resolution dated 5 November 2013 as follows:
As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice is a settlement or an action made by the COA Auditors and is given once the Chairman, in the case of CIF Fund, finds that the liquidation report and all the supporting papers arc in order. In this case, the supporting papers and the liquidation report were not in order, hence, the credit notice should not have been issued.In effect, Uriarte and Valencia were cleared of the responsibility to liquidate their CIF cash advances, thereby rendering the funds fully in their control and disposition.
Further, the credit notice has to follow a specific form. The COA Chairman or his representative can: 1) settle the cash advance when everything is in order; 2) suspend the settlement if there are deficiencies and then ask for submission of the deficiencies; or 3) out rightly disallow it in case said cash advances are illegal, irregular or unconscionable, extravagant or excessive. Instead of following this form, the COA issued a document dated January 10, 2011, which stated that there is an irregular use of the price fund and the charity fund for CIF Fund. The document bears an annotation which says, "wait for transmittal, draft" among others. The document was not signed by Plaras, who was the Head of the Confidential and Intelligence Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas to submit the supplemental budget." This document was not delivered to PCSO General Manager J.M. Roxas. They instead received another letter dated January 12, 2011 which was almost identical to the first document, except it was signed by Plaras, and the finding of the irregular use of the prize fund and the charity fund was omitted. Instead, the word "various" was substituted and then the amount of P137,500,000. Therefore, instead of the earlier finding of irregularity, suddenly, the COA issued a credit notice as regards the total of P140,000,000. The credit notice also did not specify that the transaction has been audited, indicating that no audit was made.[40] (Emphases ours)
The clearance made by COA Auditor Plaras, despite the presence of several irregularities, is another red flag - a species of approval override which ignores an irregularity with respect to payment.[41]
Finally, the purposes for the amounts were supposedly for the conduct of CIF activities as reflected in the accomplishment report but these activities were subsequently belied by testimonial evidence. The prosecution in this regard sufficiently established an aspect of the conspiracy scheme by showing that the final destination of the amount was linked to petitioner Arroyo and her Office as admitted by a co-conspirator.
In its Resolution dated 6 April 2015, the Sandiganbayan stated the following:
In an attempt to explain and justify the use of these CIF funds, Uriarte, together with Aguas, certified that these were utilized for the following purposes:These statements made by the anti-graft court are not without any legal or factual basis.a) Fraud and threat that affect integrity of operation.According to Uriarte and Aguas, these purposes were to be accomplished through "cooperation" of law enforcers which include the military, police and the NBI. The second and third purposes were never mentioned in Uriarte's letter-requests for additional CIF funds addressed to Arroyo. Aguas, on the other hand, issued an accomplishment report addressed to the COA, saying that the "Office of the President" required funding from the CIF funds of the PCSO to achieve the second and third purposes abovementioned. For 2009 and 2010, the funds allegedly used for such purposes amounted to P244,500,000.
b) Bomb threat, kidnapping, destabilization and terrorism.
c) Bilateral and security relation.
Such gargantuan amounts should have been covered, at the very least, by some documentation covering fund transfers or agreements with the military, police or the NBI, notwithstanding that these involved CIF funds. However, all the intelligence chiefs of the Army, Navy, Air Force, the PNP and the NBI, testified that for the period 2008-2010, their records do not show any PCSO-related operations involving any of the purposes mentioned by Uriarte and Aguas in their matrix of accomplishments. Neither were there any memoranda of agreements or any other documentation covering fund transfers or requests for assistance or surveillance related to said purposes. x x x As it stands, the actual use of these CIF funds is still unexplained.[42] (Citations omitted and emphases ours)
In the Formal Offer of Exhibits for the Prosecution dated 4 June 2014 in addition to the Exhibits previously offered in evidence on the Formal Offer of Exhibits for the Prosecution dated 26 February 2013, various pieces of documentary evidence were presented. Among them are the certifications made by Uriarte and Aguas. The most pertinent of these are the following:
Exhibit "Y7-68," the Accomplishment Report on the Utilization of the CIF of the PCSO, is most crucial. In this report, petitioner Aguas specifically stated:
But what is more pronounce (sic) in the disposition and handling of the CIF was those activities and programs coming from the Office of the President which do not only involved the PCSOs (sic) operation but the national security threat (destabilization, terrorist act, bomb scare, etc.) in general which require enough funding from available sources coming from different agencies under the Office of the President.These pieces of documentary evidence were used as basis by the Sandiganbayan to conclude that the Office of the President had required and received the CIF funds of the PCSO to purportedly achieve the second and third purposes, i.e. bomb threat, kidnapping, destabilization and terrorism and bilateral and security relation, respectively. The testimonies of all the intelligence chiefs of the Army, Navy, Air Force, the Philippine National Police and the National Bureau of Investigation, however, all prove that for the period 2008-2010, there never was any PCSO-related or funded operation.
The conspiracy is thus sufficiently shown through the repeated approvals of Arroyo of additional CIF requests in the course of three years; the irregularities in the disbursement, accounting, and liquidation of the funds and the active participation therein of the accused; and finally, a showing that the Office of the President, which Arroyo controlled, was the final destination of the amounts. The CIF releases would not have been made possible without the approval of Arroyo. The funds could not have been disbursed without the complicity and overt act of Aguas. Uriarte (the one who received the amounts) was definitely part of the scheme. Aguas could not have cleared Uriarte (and Valencia) without the credit notice of Plaras. Thus, the connivance and conspiracy of Arroyo, Uriarte, Valencia, Aguas and Plaras are clearly established.
Relevant Plunder Law provisions and jurisprudence in relation to the case
Section 4 of the Plunder Law states:
Section 4. Rule of Evidence. — For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.For purposes of proving the crime of plunder, proof of each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth is not required. Section 4 deems sufficient the establishment beyond reasonable doubt of "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Estrada v. Sandiganbayan[43] (2001 Estrada) provides an instructive discussion on "pattern" by using the provisions of the Anti-Plunder Law:
[A] 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him, follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.[44]By "series," Estrada teaches that there must be at least two overt or criminal acts falling under the same category of enumeration found in Section 1, paragraph (d) of the Anti-Plunder Law, such as misappropriation, malversation and raids on the public treasury, all of which fall under Section 1, paragraph (d), subparagraph (1) of the law.[45]
With respect to "combination," Estrada requires at least two acts that fall under the different categories of the enumeration given by Section 1, paragraph (d) of the Plunder Law. Examples would be raids on the public treasury under Section 1, paragraph (d), subparagraph (1), and fraudulent conveyance of assets belonging to the National Government under Section 1, paragraph (d), subparagraph (3).
For ease of reference, Section 1 (d) is quoted below:
SECTION 1. . . . . . (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:Our pronouncement in Alvizo v. Sandiganbayan[48] is instructive:
It is well to note, too, that conspiracy may be made by evidence of a chain of circumstances.[46] It may be established from the "mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest."[47]
Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved. Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only. (citations omitted)[49]The indispensable role of petitioner Arroyo
In this regard, Arroyo's approval now assumes greater significance. Petitioner Arroyo's act - her repeated and unqualified approval -represented the necessary and indispensable action that started the "taking" process. The repeated approval of the requests in the course of three years is the crucial and indispensable act without which the amount of nearly P366 million could not have been plundered.
The ponencia rules that the prosecution failed to establish an overt act in furtherance of the conspiracy, either on the part of petitioner Arroyo or Aguas. It reasons that Arroyo's "mere approval"[50] of Vice Chairman and General Manager Uriarte's requests for CIF did not make her part of any criminal conspiracy. On the other hand, as regards petitioner Aguas, the ponencia explains that "without GMA's participation, he could not release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have committed did not amount to plunder, or to any conspiracy to commit plunder."[51]
These pronouncements, however, are perceptibly conflicted. Contrary to the pronouncements of the ponencia, Arroyo's manner of approving requests for additional CIFs, seven times in the course of three years, reveals the initial, indispensable act in the conspiracy to commit plunder. All the individual acts of the conspirators from the time the requests were approved until the moment the amounts were finally in the Office of the President indicate a complete whole. The intent to accumulate, amass, or acquire the PCSO funds is thus shown through the successive acts which at first appear to be independent but, in fact, are connected and cooperative. The chain of circumstances from the inscription of a mere "ok" of petitioner Arroyo on all the requests, up to the time the amounts were proven to be with the Office of the President as indicated in the accomplishment report (Exhibit "Y7-68") sufficiently proves the conspiracy to commit plunder.
In other words, Arroyo's approval of Uriarte's request cannot be simply downplayed as an innocent, legal, common and valid practice, as the ponencia would want, to exonerate Arroyo and Aguas. As aptly stated by the Sandiganbayan:
While it is true that Arroyo was never involved in the actual withdrawals/cash advances and release of the CIF or in their disbursements and its liquidation, Arroyo's approval of the grant and release of these funds facilitated Uriarte's commission of the series of raids on PCSO coffers because without Arroyor's approval of the release, Uriarte could not have succeeded in accumulating the same.[52]The power of control over the PCSO of petitioner Arroyo
Given the totality of the circumstances discussed above, the prosecution's claim that Arroyo had known that Uriarte would raid the public treasury and misuse the funds the latter had disbursed, owing to the fact that the former President had the power of control over the PCSO, consequently appears to be correct.
The ponencia, however, misses this point and deliberately chooses to reject the prosecution's claim by stating that the doctrine of command responsibility does not apply since this case does not involve Arroyo's functions as Commander-in-Chief of the Armed Forces of the Philippines, or a human rights issue.
Contrary to that statement of the ponencia, however, the control of the President, not only over the PCSO, but also over the intelligence funds, is clearly mandated by Letter of Instruction No. (LOI) 1282 which sheds light on the role of the President when it comes to the expenditure of intelligence funds. LOI 1282 provides:
In recent years intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was often left unaware of how these funds had been utilized.The foregoing shows the nature of the control of the President over the intelligence funds. Unless Arroyo were to demonstrate in her defense, the responsibility and control of intelligence funds is direct and personal. The irregularities that transpired should therefore be within the knowledge of Arroyo as President of the Philippines, considering the fact that this case involves not one but repeated and unqualified approval of seven requests for release of CIF funds in a span of three years. Even the ponencia admits: "[w]ithout GMA's participation, he (Aguas) could not release any money because there was then no budget available for the additional CIFs."[53]
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the Presidents in order to avoid such duplication of expenditures as has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.
Full compliance herewith is desired. (Emphases ours)
There is evidence to show that Uriarte, Arroyo, or Aguas amassed, accumulated, or acquired ill-gotten wealth.
The ponencia states that "the Prosecution adduced no evidence showing that either Arroyo or Aguas or even Uriarte, for that matter, had amassed, accumulated or acquired ill-gotten wealth of any amount. It also did not present evidence, testimonial or otherwise, showing even the remotest possibility that the CIFs of the PCSO had been diverted to Arroyo, Aguas, or Uriarte."[54] I must disagree.
As held by this Court in 2001 Estrada,[55] the only elements of the crime of plunder are the following:
To emphasize, the prosecution, as previously discussed, presented evidence proving that Uriarte had made several cash advances. The Sandiganbayan quoted pertinent parts of its Resolution dated 5 November 2013 denying the petitions for bail in its Resolution dated 6 April 2015 denying the petitioners' demurrers. The Sandiganbayan stated therein that "Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646;" that "Uriarte looted government funds and appears to have not been able to account for it;" and that "the encashment of the checks, which named her as the 'payee,' gave Uriarte material possession of the CIF funds that she disposed of at will."[56]
- That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
- That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
- That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.
From January 2008 to June 2010, the following cash advances were made:
Again, in its 6 April 2015 Resolution, the Sandiganbayan considered the accomplishment report that was submitted by petitioner Aguas to COA. He said therein that the Office of the President required funding from the CIF funds of the PCSO to achieve the second and the third purposes, i.e., bomb threat, kidnapping, destabilization and terrorism; and bilateral and security relation.[57]
CIF in the COB from the previous 10M CIF in 2000 Additional CIF requested by Uriarte and granted by Arroyo Cash advances by Uriarte Cash advances by Valencia TOTAL
The act of amassing, accumulating, or acquiring CIF funds is thus evident. I agree with the Sandiganbayan's pronouncement that Arroyo was rightly charged as a co-conspirator of Uriarte who received the cash advance for most of the amounts.[58]
It had been argued that receipt by the Office of the President is not necessarily receipt of the moneys by Arroyo. This however is a matter of defense, considering that Arroyo controls the Office of the President.
Personal benefit need not be proven.
The ponencia harps on the failure of the prosecution to allege in the Information and prove that the amount amassed, accumulated, and acquired was for the benefit of an identified main plunderer.
In particular, the ponencia leans on this Court's pronouncement that what is required in a conspiracy charge is not that every accused must have performed all the acts constituting the crime of plunder, but that "each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada."[59]
The ponencia also takes issue with the Sandiganbayan's statement that all that is required is that the public officer must have raided the public coffers, without need to prove personal benefit on the part of the public officer.
It cites the deliberations on Senate Bill No. 733, which later on became Republic Act No. 7080, to support the thesis that personal benefit on the part of the main plunderer, or the co-conspirators by virtue of their plunder, is still necessary. It then concludes that the prosecution failed to show not only where the money went but, more important, whether Arroyo and Aguas had personally benefited therefrom.
To begin with, the failure of the Information to name the main plunderer in particular is not crucial.
Section 2 of the Plunder Law does not require a mastermind or a main recipient when it comes to plunder as a collective act:
Section 2. Definition of the Crime of Plunder; Penalties. — Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. (Emphasis ours)On the other hand, as can be seen from above, all that is required by Section 2 is that there is a public officer who acts in connivance with other offenders in a common design to amass, accumulate or acquire ill-gotten wealth, the aggregate amount of which is at least P50 Million. In other words, it is only the conspiracy that needs to be alleged in an Information.
In a conspiracy, the act of one is the act of all.[60] Every conspirator becomes a principal even if the person did not participate in the actual commission of every act constituting the crime.[61] Hence, it is not material if only Uriarte among all the accused is proven or shown to have taken material possession of the plundered amount.
It is thus not crucial to identify the main plunderer in the Information, so long as conspiracy is properly alleged and established. Identification in the Information of the main plunderer or the accused who acquires the greatest loot is immaterial, as it suffices that any one or two of the conspirators are proven to have transferred the plundered amount to themselves.
In this case, there is ample evidence to show that Uriarte gained material possession of the amounts through cash advances facilitated by the repeated and unqualified approval of the requests by Arroyo and that a large portion of the amount received as cash advance was later certified by Aguas to have been used by the Office of the President.
What should be underscored at this juncture is that in prosecution for plunder, it is enough that one or more of the conspirators must be shown to have gained material possession of at least P50 million through any or a combination or a series of overt criminal acts, or similar schemes or means enumerated in the law and stated in the Information.
Our ruling in Valenzuela v. People,[62] a theft case, is instructive:
The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. x x x To restate what this Court has repeatedly held the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.So it is with plunder. How the money was disposed of and who inevitably benefited the most therefrom among all the accused need not be shown for as long as material possession of at least P50 million was shown through the unlawful acts mentioned in the law.
x x x it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquino's commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.
x x x x
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.
I quote with approval the Sandiganbayan in its pronouncement, as follows:
It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible predicate acts in the commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse, misappropriation or conversion, without need of establishing gain or profit to the raider. Otherwise stated, once a "raider" gets material possession of a government asset through improper means and has free disposal of the same, the raid or pillage is completed. x x xThese matters considered, I find the pronouncements in the ponencia unwarranted.
x x x x
It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646. x x x
x x x x
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to "misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic v. Sandiganbayan. The encashment of the checks, which named her as "payee," gave Uriarte material possession of the CIF funds which she disposed of at will.
x x x x
x x x These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete freedom to dispose of, but was not able to account for. (Emphases ours)
Arroyo and Aguas failed to show evidence that the Sandiganbayan gravely abused its discretion.
Section 23 of Rule 119 states:
SECTION 23. Demurrer to Evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.Jurisprudence has affirmed the rule, subject to the recognized exception that the denial of a demurrer may be the proper subject of a Rule 65 petition when the denial is tainted with grave abuse of discretion.[64]
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period often (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment. (n)[63] (Emphases supplied)
Certiorari therefore is not the proper recourse against a denial of a demurrer to evidence. Under the Rules of Court, the appropriate remedy is for the court to proceed with the trial, after which the accused may file an appeal from the judgment rendered by the lower court.
Consequently, I am not prepared to impute grave abuse of discretion on the part of the Sandiganbayan. For reasons already discussed, the prosecution's evidence has satisfactorily established the elements of the crime of plunder.
Further, it must be emphasized that access to this Court through a Rule 65 petition is narrow and limited. That recourse excludes the resolution of factual questions.[65] In the present case, the question of whether a denial of the demurrer to evidence is proper is factual in nature, as it involves a test of the sufficiency of evidence.
This Court has made a pronouncement on the nature of a demurrer to evidence in this wise:
[A d]emurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.[66]What constitutes sufficient evidence has also been defined as follows:
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.[67]When there is no showing of such grave abuse, certiorari is not the proper remedy. Rather, the appropriate recourse from an order denying a demurrer to evidence is for the court to proceed with the trial, after which the accused may file an appeal from the judgment of the lower court rendered after such trial. In the present case, I am not prepared to rule that the Sandiganbayan has gravely abused its discretion when it denied petitioners' demurrer to evidence. The Sandiganbayan found that the prosecution's evidence satisfactorily established the elements of the crime charged. There is nothing in the records of this case, nor in the pleadings of petitioners that would show otherwise.
Further, it must be borne in mind that the Sandiganbayan is a constitutionally-mandated tribunal designed to resolve cases involving graft and corruption. As such, it is the expert in the field of graft cases. On the other hand, this Court is not a trier of facts. The Sandiganbayan must be allowed to complete the entire course of the trial as it sees fit.
A final note. The crime charged, the personalities involved, the amount in question, and the public interest at stake - are considerations that should prompt us to demonstrate an even hand, conscious that the benefits of the Decision would cascade to the least powerful accused in all future proceedings. We must be mindful of the potentially discouraging impact of a grant of this particular demurrer on the confidence of trial courts.
Nearly P366 million of the People's money is missing. Direct documentary evidence whereby petitioner Aguas states that a large part of this or P244.5 million to be exact was diverted to the Office of the President under petitioner Arroyo was considered sufficient by the Sandiganbayan to require both petitioners herein to proceed with the presentation of their defense evidence. This cogent conclusion by the constitutionally-mandated court that has tried the prosecution's evidence on plunder cannot be overridden willy-nilly by this Court.
I further fully agree with Justice Marvic Mario Victor F. Leonen in his Separate Dissenting Opinion.
I therefore vote to DISMISS the petitions.
[1] 454 Phil. 34 (2003).
[2] Decision, p. 42.
[3] G.R. No. 148965, 26 February 2002, 377 SCRA 538.
[4] Id. at 563, 565.
[5] Annex "D" of the Petition.
[6] G.R. No. 148965, 26 February 2002, 377 SCRA 538.
[7] Rollo (G.R. No. 220598), p. 466; see also COA Circular 92-385.
[8] Id.; see also COA Circular 92-385 and Letter of Instruction No. 1282 (1983).
[9] Id. at 466-469; see also COA Circulars 92-385 and 2009-02.
[10] Id. at 471.
[11] See Section 2, Batas Pambansa Blg. 42, An Act Amending the Charter of the Philippine Charity Sweepstakes Office.
[12] See for example, PCSO's answers to Frequently Asked Questions on how to claim prizes and request for medical assistance (
[13] Fraud and Corruption Awareness Handbook, How it Works and What to Look For: A Handbook for Staff,
[14] Id.
[15] Id.
[16] Rollo (G.R. No. 220598), p. 463; "They were working on a deficit from 2004 to 2009".
[17] Id. at 464.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 157.
[22] Id.
[23] Id. at 466.
[24] Or P10 million if the budget was P28 million.
[25] Rollo (G.R. No. 220598), p. 158.
[26] Id.
[27] Id. at. 470.
[28] Id. at 158.
[29] Id. at 466.
[30] For six months, up to June 2010 only.
[31] Decision, p. 29.
[32] Rollo (G.R. No. 220598), p. 476.
[33] Id.
[34] Id.
[35] See note 13.
[36] Rollo (G.R. No. 220598), p. 475.
[37] Id. at 467.
[38] Id.
[39] Id. at 471.
[40] Id.
[41] See note 13.
[42] Id. at 163-164.
[43] 421 Phil. 290, 515.
[44] Id.
[45] Id.
[46] People v. Bergonia, 339 Phil. 284 (1997).
[47] Salapuddin v. Court of Appeals, 704 Phil. 577 (2013).
[48] 454 Phil. 34 (2003).
[49] Id. at 106.
[50] Decision, p. 27.
[51] Id. at 40.
[52] Rollo (G.R. No. 220598), p. 502.
[53] Decision, p. 40.
[54] Id. at 42.
[55] 421 Phil. 290, 515.
[56] Id. at 160; Sandiganbayan Resolution dated 6 April 2015, p. 31.
[57] Id. at 163.
[58] Rollo (G.R. No. 220598), p. 205; Sandiganbayan Resolution dated 10 September 2015.
[59] Id.
[60] U.S. v. Ipil, 27 Phil. 530 (1914).
[61] Id.
[62] G.R. No. 160188, 21 June 2007.
[63] Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC, 3 October 2000.
[64] People v. Go, G.R. No. 191015, 6 August 2014, 732 SCRA 216, and Alarilla v. Sandiganbayan, 393 Phil. 143 (2000).
[65] Don Orestes Romualdez Electric Cooperative, Inc. v. NLRC, 377 Phil. 268 (1999).
[66] Gutib v. CA, 371 Phil. 293 (1999).
[67] Id. at 305.
SEPARATE CONCURRING AND DISSENTING OPINION
PERLAS-BERNABE, J.:
The primordial issue in this case is whether or not respondent the Sandiganbayan gravely abused its discretion in denying the demurrers to evidence of petitioners Gloria Macapagal-Arroyo (Arroyo) and Benigno B. Aguas (Aguas).
The instant petitions stemmed from an Information[1] charging Arroyo and Aguas (petitioners), along several others, of the crime of Plunder, defined by and penalized under Section 2 of Republic Act No. (RA) 7080[2] or the "Plunder Law," as amended by RA 7659,[3] filed before the Sandiganbayan and docketed as Criminal Case No. SB-12-CRM-0174. The charge revolved around a series of anomalous transactions with respect to the release of the Confidential and Intelligence Fund (CIF) of the Philippine Charity Sweepstakes Office (PCSO), through which petitioners and other co-accused, all public officers, allegedly conspired to amass, accumulate, or acquire ill-gotten wealth in the aggregate amount of P365,997,915.00.[4] After the Sandiganbayan acquired jurisdiction over the persons of petitioners, the latter filed their respective petitions for bail which were, however, denied on the ground that the evidence of guilt against them was strong.[5] Thereafter, trial on the merits ensued.
After the prosecution concluded its presentation of evidence, various co-accused, including petitioners, filed, with leave of court, their respective demurrers to evidence, asserting that there was no sufficient evidence to establish a case of Plunder against them.[6]
In a Resolution[7] dated April 6, 2015, the Sandiganbayan denied the demurrers to evidence of petitioners. With respect to Arroyo's demurrer, the Sandiganbayan held that: (a) her repeated "OK" notations in PCSO General Manager Rosario C. Uriarte's (Uriarte) multiple letter-requests[8] did not only signify her unqualified approval to Uriarte's requests for additional CIF funds, but also amounted to an authorization of the use thereof; (b) despite the absence of full details on the specific purposes for which the additional CIF funds were to be spent for, Arroyo never questioned Uriarte's requests and still approved them in violation of Letter of Instructions No. 1282,[9] series of 1983 (LOI 1282) and Commission on Audit (COA) Circular Nos. 92-385[10] and 2003-002[11]; and (c) such acts resulted in Uriarte illegally amassing, acquiring, or accumulating CIF funds amounting to more than P50 Million. As for Aguas's demurrer, the Sandiganbayan ratiocinated that it was through his certifications in the disbursement vouchers - which all turned out to be false - that Uriarte was able to amass, acquire, or accumulate ill-gotten wealth amounting to more than P50 Million. In view of the foregoing, the Sandiganbayan concluded that petitioners' respective participations as co-conspirators of Uriarte in the plunder of public funds were established by sufficient evidence.[12]
Aggrieved, petitioners separately moved for reconsideration,[13] but were, however, denied in a Resolution[14] dated September 10, 2015; hence, the instant petitions for certiorari.
At the outset, the ponencia found no procedural infirmity in the certiorari petitions filed by petitioners against the Sandiganbayan Resolutions denying their respective demurrers, emphasizing that the said orders are interlocutory in nature and, hence, subject to the Court's certiorari jurisdiction. In this relation, it added that the Court has "the duty to strike down grave abuse of discretion whenever and wherever it is committed."[15]
On the merits, the ponencia proposed to grant petitioners' demurrers to evidence, dismiss Criminal Case No. SB-12-CRM-0174 as against them, and order their release from detention.[16] In so ruling, the ponencia held that the Sandiganbayan gravely abused its discretion in denying said demurrers, considering that the prosecution failed to: (a) properly allege and prove the existence of conspiracy among Arroyo, Aguas, and Uriarte[17]; (b) prove that the co-accused amassed, acquired, or accumulated ill-gotten wealth in the amount of at least P50 Million[18]; and (c) prove the existence of the predicate act of raiding the public treasury.[19]
On the insufficiency of the charge, the ponencia observed that the "identification of the main plunderer was not only necessary because the law required such identification[,] but also because it was essential in safeguarding the rights of the accused to be properly informed of the charges they were being made answerable for."[20] Thus, it concluded that "the [p]rosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the [petitioners]."[21]
Further, the ponencia held that the prosecution failed to prove any overt acts from petitioners that would establish their respective participations in the conspiracy to commit Plunder, reasoning that: (a) Arroyo's mere unqualified approval of Uriarte's requests for additional CIF funds - which was not by any means irregular or illegal - did not make her part of the design to raid the public treasury and thereby amass, acquire, or accumulate ill-gotten wealth[22]; and (b) Aguas's certifications and signatures on the disbursement vouchers were insufficient bases to conclude that he was involved in any conspiracy to commit Plunder as those would not have meant anything had Arroyo not authorized the release of additional CIF funds.[23]
Finally, anent the predicate act of raiding the public treasury, the ponencia theorized that a "raid on the public treasury" under Section 1 (d) (1)[24] of the Plunder Law "requires the raider to use property taken impliedly for his personal benefit"[25] in line with the principle of noscitur a sociis, or "the doctrine of associated words," which postulates that "where a particular word or phrase in a statement is ambiguous in itself or is equally susceptible of various meanings, its true meaning may be made clear and specific by considering the company in which it is found or with which it is associated."[26] In this regard, it was pointed out that the term "raid on the public treasury" was accompanied by the words "misappropriation," "conversion," and "misuse or malversation" of public funds, all of which according to the ponencia - are concepts which require the use of the property taken.[27] Thus, in view of the prosecution's failure to prove that personal benefit was derived by any of the co-accused from the use of CIF funds, it ruled that the existence of the aforesaid predicate act was not proven.[28]
I partly agree with the ponencia's findings.
I first address the matters of procedure.
A petition for certiorari is generally prohibited to assail an order denying a demurrer to evidence. Section 23, Rule 119 of the Revised Rules of Criminal Procedure states:
Section 23. Demurrer to evidence. — x x x.However, case law has recognized certain exceptions to this rule. For instance, in Nicolas v. Sandiganbayan,[29] this Court had the occasion to explain:
x x x x
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
On whether certiorari is the proper remedy in the consolidated petitions, the general rule prevailing is that it does not lie to review an order denying a demurrer to evidence, which is equivalent to a motion to dismiss, filed after the prosecution has presented its evidence and rested its case.As case law shows, despite the prohibition foisted in Section 23, Rule 119 of the Revised Rules of Criminal Procedure, the Court may take cognizance of the petitions for certiorari against orders denying demurrers to evidence if only to correct an "oppressive exercise of judicial authority" which is manifested by patent errors in the assailed ruling amounting to grave abuse of discretion.
Such order, being merely interlocutory, is not appealable; neither can it be the subject of a petition for certiorari. The rule admits of exceptions, however. Action on a demurrer or on a motion to dismiss rests on the sound exercise of judicial discretion. In Tadeo v. People [(360 Phil. 914, 919 [1998]), this Court declared that certiorari may be availed of when the denial of a demurrer to evidence is tainted with "grave abuse of discretion or excess of jurisdiction, or oppressive exercise of judicial authority." And so it did declare in Choa v. Choa [(441 Phil. 175, 182-183 [2002T) where the denial is patently erroneous.
Indeed, resort to certiorari is expressly recognized and allowed under Rules 41 and 65 of the Rules of Court, viz.:Rule 41:SEC. 1. Subject of appeal. - x x xIn all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
No appeal may be taken from:
x x x x
(c) An interlocutory order;
x x x x
Rule 65:
SEC. 1. Petition for certiorari - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.[30] (Emphases and underscoring supplied)
Meanwhile, on a separate procedural matter, it is my view that the Information against petitioners, including their co-accused, sufficiently apprised them of the nature and cause of the accusation against them. In order for the accused to be sufficiently apprised of the charge of Plunder, it is essential that the ultimate facts constitutive of the crime's elements be stated in the Information with reasonable particularity. Plunder, as defined in RA 7080, as amended by RA 7659, has the following elements: first, that the offender is a public officer; second, that he amasses, accumulates or acquires ill-gotten wealth through a combination or series[31] of overt or criminal acts described in Section 1 (d); and third, that the aggregate amount or total value of the ill-gotten wealth is at least P50,000,000.00.[32]
The Information in this case clearly alleged the imputed crime of Plunder against all the accused, as well as the fact that they had conspired to commit the same. On its face, the Information states that: (1) petitioners are all public officers; (2) they conspired with each other and the other accused to willfully, unlawfully and criminally amass, accumulate and/or acquire ill-gotten wealth in the amount of at least P50 Million (i.e., P365,997,915.00); and (3) they did so through any or a combination or a series of overt or criminal acts, or similar schemes and means, described as follows: "(a) diverting in several instances, funds from the operating budget of [the] PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit"; (b) "raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures"; and (c) "taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and the damage and prejudice of the Filipino people and the Republic of the Philippines."[33]
At this juncture, let me express that it is of no moment that the main plunderer was not identified on the face of the Information. Contrary to the ponencia's stand,[34] the identification of a main plunderer is not a constitutive element of the crime of Plunder. In fact, the charge in this case is hinged on an allegation of conspiracy, which connotes that all had participated in the criminal design. Under the Revised Rules of Criminal Procedure, to be considered as valid and sufficient, an Information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.[35] All that should appear in the Information are the ultimate facts reflecting the elements of the crime charged, and not the evidentiary facts from which the conclusion of who was the main plunderer or who actually amassed, acquired, or accumulated the subject ill-gotten wealth may be drawn. Verily, the degree of particularity required for an Information to be sufficient is only based on the gauge of reasonable certainty - that is, whether the accused is informed in intelligible terms of the offense charged, as in this case.
That being said, I shall now proceed to a discussion on the substantive merits of the case.
In concept, a demurrer to evidence is "an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt."[36]
After a careful study of this case, it is my view that the Sandiganbayan gravely abused its discretion in denying Arroyo's demurrer to evidence on account of lack of sufficient evidence to prove her complicity in the alleged Plunder of CIF funds.
To recall, the Sandiganbayan found that there was sufficient evidence to prove Arroyo's participation as a co-conspirator in the Plunder of CIF funds because of her unqualified "OK" notations in Uriarte's multiple letter-requests for additional CIF funds. From its point of view, these notations violated LOI 1282 and COA Circular Nos. 92-385 and 2003-002. Accordingly, the Sandiganbayan denied her demurer to evidence.
I disagree with the Sandiganbayan's findings.
For a conspiracy charge to prosper, it is important to show that the accused had prior knowledge of the criminal design; otherwise, it would hardly be the case that his alleged participation would be in furtherance of such design. In theory, conspiracy exists when two (2) or more persons come to an agreement concerning the commission of a felony and decide to commit it. To prove conspiracy, the prosecution must establish the following requisites: (1) two or more persons came to an agreement; (2) the agreement concerned the commission of a crime; and (3) the execution of the felony was decided upon.[37] "Prior agreement or assent is usually inferred from the acts of the accused showing concerted action, common design and objective, actual cooperation, and concurrence of sentiments or community of interests."[38]
In this case, I am hard-pressed to find that Arroyo's periodic approvals of Uriarte's multiple letter-requests for additional CIF funds -which was the sole justification behind the Sandiganbayan ruling under present scrutiny - amount to sufficient evidence which would prove her complicity in the Plunder of CIF funds. While she may have approved the use of CIF funds which would be the determinative act for which Uriarte was able to amass, acquire, or accumulate the questioned funds, the prosecution failed to satisfactorily establish any overt act on Arroyo's part that would clearly show that she knew that the funds she had approved for release was intended to further the alleged criminal design. In other words, while Arroyo's approval was an indispensable act in ultimately realizing the objective of the scheme or pattern of criminal acts alleged in the Plunder Information, there is no sufficient evidence - whether direct or circumstantial - to prove that she had knowledge of such objective, and hence, could have given her assent thereto. Without knowledge, there can be no agreement, which is precisely the essence of conspiracy.
The Sandiganbayan pointed to Arroyo's supposed breach of LOI 1282, from which one would supposedly infer her knowledge and eventual assent to the alleged Plunder scheme. For context, LOI 1281 was issued by then President Ferdinand E. Marcos on January 12, 1983, reflecting the government's policy on intelligence funds at that time. In reference to the duty of the President, LOI 1282 requires that all requests for the allocation and release of intelligence funds shall: (a) indicate the specific purposes for which the funds will be spent; (b) provide detailed explanations as to the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished by the release of funds; and (c) be presented personally to the President for his perusal and examination.
The pertinent portions of LOI 1282 are highlighted below:
From this, it may be deduced that the President's approval of a request for intelligence funds which lacks any detailed explanation on the intended purpose or specifics thereof would be tantamount to an overt act that would support the finding that he/she facilitated the conspiratorial design.LETTER OF INSTRUCTIONS NO. 1282
To: All Ministries and Offices Concerned
In recent years[,] intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was often left unaware of how these funds had been utilized.
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished.
The requests and the detailed explanations shall be submitted to the President personally.
It is imperative that such detailed presentations be made to the President in order to avoid such duplication of expenditures as has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.
Full compliance herewith is desired.[39] (Emphases and underscoring supplied)
In this case, records reveal that Uriarte indeed personally delivered to Arroyo the letter-requests for CIF funds in the aggregate amount of P295 Million, and that the latter provided her "OK" notations in each of those letter-requests.[40] In the April 2, 2008 letter-request, Uriarte provided the following purposes of additional CIF funds amounting to P25 Million:
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:In the letter-request dated August 13, 2008, seeking additional CIF funds in the amount of P50 Million, Uriarte detailed the purposes as follows:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.[41]
- Donated medicines sometimes end up in drug stores for sale even if they were labelled "Donated by PCSO-Not for Sale";
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as willing (sic) tickets;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put PCSO in bad light.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:In the letter-request dated April 27, 2009, for P10 Million, the purposes were as follows:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.[42]
- Donated medicines sometimes end up in drug stores for sale even if they were labelled "Donated by PCSO-Not for Sale";
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put PCSO in bad light.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:In the letter-request dated July 2, 2009, for another P10 Million, the stated purposes were:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.[43]
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
- Conduct of illegal gambling games (jueteng) under [the] guise of Small Town Lottery;
- Other fraudulent schemes and activities which put PCSO in bad light.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:In the letter-request dated August 19, 2009 seeking additional CIF amounting to P50 Million, the following purposes were stated:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.[44]
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
- Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
- Other fraudulent schemes and activities which put PCSO in bad light.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:Finally, in the letter-request dated January 4, 2010, for additional CIF funds amounting to P150 Million, Uriarte revealed the following purposes:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of the intelligence fund, PCSO can protect its image and integrity of its operations.[45]
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
- Conduct of illegal gambling games (jueteng) under [the] guise of Small Town Lottery;
- Other fraudulent schemes and activities which put PCSO in bad light.
The Philippine Charity Sweepstakes Office (PCSO) had been conducting the experimental test run for the Small Town Lottery (STL) Project since February 2006. During the last semester of 2009, the PCSO Board has started to map out the regularization of the STL in 2010.To my mind, the foregoing letter-requests show that, while they are indeed all similarly worded - as pointed out by the Sandiganbayan[47] - it is nonetheless apparent that there was substantial compliance with the guidelines set forth in LOI 1282. In particular, Uriarte's letter-requests: (a) indicated the specific purposes for which the additional CIF funds will be spent (e.g., to protect the image and integrity of PCSO operations); (b) provided detailed explanations as to the circumstances giving rise for the expenditure and the particular aims to be accomplished by the release of additional CIF funds (e.g., the proliferation of fraudulent schemes that affect the integrity of PCSO operations and the need to curb the same); and (c) were presented personally to Arroyo for her approval.
Its regularization will counter the illegal numbers game but will entail massive monitoring and policing using confidential agents in the area to ensure that all stakeholders are consulted in the process.
STL regularization will also require the acceptance of the public. Hence, public awareness campaigns will be conducted nationwide. In the process, we will need confidential funds to successfully implement all these.
On top of these, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:In order to save PCSO operating funds, we suggest that the General Manager's Office be given at most, twenty percent (20%) of the [P]ublic Relations [(PR)] Fund or a minimum of 150 Million Pesos, to be used as intelligence/confidential fund. PCSO spent 760 Million for PR in 2009.
- Donated medicines sometimes end up in drug stores for sale even of (sic) they are labeled "Donated by PCSO-Not for Sale";
- Unauthorized expenditures endowment fund for charity patients and organizations;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put PCSO in bad light.
The approval on the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues. PCSO will no longer need to seek approval for additional intelligence fund without first utilizing the amount allocated from the PR Fund.[46]
To stress, LOI 1282 merely required that requests for additional CIF funds shall "indicate in full detail the specific purposes for which said funds shall be spent," and "explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."[48] It did not provide for any other parameter as to how the purposes and the underlying circumstances should be particularized, thereby giving the President ample discretion to scrutinize and deem by himself/herself whether or not a letter-request indeed complied with the requirements of LOI 1282. In this case, it must be pointed out that as General Manager of the PCSO, Uriarte enjoyed the full trust and confidence not only of the PCSO Board of Directors who appointed her as such, but also of the President (Arroyo, in this instance), who is the appointing authority of the said board.[49] Hence, when Arroyo placed her "OK" notations on Uriarte's letter-requests, it is as if she deemed such letter-requests compliant with the requirements of LOI 1282. Thus, while the Sandiganbayan correctly examined Arroyo's alleged participation under the lens of her duties under LOI 1282, it, however, erroneously concluded that there was sufficient evidence to prove that she knew of any Plunder conspiracy and henceforth, proceeded to approve the release of CIF funds in furtherance thereof.
The error of the Sandiganbayan is even more evident in relation to COA Circular Nos. 92-385 and 2003-002. This is because there appears to be no basis to render Arroyo accountable under the guidelines and control measures stated in these circulars. Reading their provisions, these issuances apply only to lower-level officials, particularly, the department heads, heads of government owned and controlled corporations, accountable officers, and other COA officers. At most, they only mention that the approval of the President is required before intelligence and confidential funds are to be released.[50] However, the document showing the President's approval is but part of the requirements needed to be ascertained by the various heads and accountable officers as part of their duty to "institute and maintain sound and effective internal control measures to discourage and prevent irregular, unnecessary, excessive, extravagant and unconscionable expenditures as well as promote prudence in the use of government resources by those involved in intelligence/confidential operations."[51] Outside of the duty to approve requests under LOI 1282, the circulars do not articulate any active responsibility on the part of the President so as to render him/her accountable for the irregular processing of CIF funds. The foregoing observation is buttressed by the testimony of prosecution witness Flerida Africa Jimenez, Director IV and Head of the Intelligence and Confidential Fund Audit Unit (ICFAU), Office of the Chairman, COA,[52] to wit:
It is not the duty of the President of the Philippines to make or submit the liquidation of the GOCCs. It was not the duty of accused President Arroyo to submit these liquidations to COA. She also did not prepare these reports. She did not have any participation in the preparation of these reports. The reason for this is that she is not the payee or recipient of the CIF. Under the law, the special disbursing officer, who is the accountable officer, prepares the liquidation report. The President is not the accountable officer for CIF because she did not receive or use the CIF.[53]In sum, considering that Arroyo's "OK" notations in Uriarte's letter-requests are the only pieces of evidence which the Sandiganbayan used to link her to the Plunder charge, and that the same does not sufficiently prove that she assented to or committed any irregularity so as to facilitate the criminal design, it is my considered opinion that the Sandiganbayan patently erred - and in so doing, gravely abused its discretion - in denying Arroyo's demurrer to evidence. As I see it, the evidence of the prosecution has failed to prove Arroyo's commission of the crime, and her precise degree of participation under the evidentiary threshold of proof of guilt beyond reasonable doubt. While the records do reveal circumstances that may point to certain irregularities that Arroyo may or may not have knowingly committed, in the context of this criminal case for the high crime of Plunder, there lingers reasonable doubt as to her actual knowledge of the criminal design and that her approval of the release of CIF funds was in furtherance thereof. Case law instructs that "[i]ndeed, suspicion no matter how strong must never sway judgment. Where there is reasonable doubt, the accused must be acquitted even though their innocence may not have been established. The Constitution presumes a person innocent until proven guilty by proof beyond reasonable doubt. When guilt is not proven with moral certainty, it has been our policy of long standing that the presumption of innocence must be favored, and exoneration granted as a matter of right."[54] Also, everyone is entitled to the presumption of good faith.[55] While it is indeed tempting to cast the former President in a negative light because of the numerous anomalies involving her, the allure of publicity should not influence the outcome of a decision. Magistrates must be impartial to all that seek judicial succor. Every case should be decided based on the record and on its merits. The refuge of all presumptions, both of innocence and good faith, should not distinguish between similarly situated suitors.
In contrast, no grave abuse of discretion may be attributed to the Sandiganbayan in denying the demurrer of Aguas as his complicity to the said scheme appears to be supported by sufficient evidence on record. As PCSO Budget and Accounts Manager, Aguas was tasked to audit CIF liquidation reports.[56] In this light, he is bound to comply with the provisions of CO A Circular Nos. 92-385 and 2003-002 on the audit of CIF, which includes, inter alia, the proper scrutiny of liquidation reports with the corresponding supporting documents, as well as the submission of the same to the COA chairman before subsequent cash advances may be made. As exhaustively discussed by the Sandiganbayan, Aguas committed various irregularities in such audit, resulting in the release of additional CIF funds to Uriarte, viz.:
In all of the disbursement vouchers covering the cash advances/releases to Uriarte of the CIF funds, Aguas certified that:Since the records show how Aguas evidently ignored his auditing duties and responsibilities in defiance of guidelines and control measures set therefor, there appears to be sufficient evidence to link him as a co-conspirator who had assented and eventually, facilitated Uriarte's amassment, accumulation, or acquisition of CIF funds subject of the present Plunder charge. Therefore, no grave abuse of discretion was committed by the Sandiganbayan in denying Aguas's demurrer to evidence.CERTIFIED: Adequate _________ available ___________ funds/budgetary allotment in the amount of P ________;expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.These certifications, after close scrutiny, were not true because: 1) there were no documents which lent support to the cash advances on a per project basis. The particulars of payment simply read: "To draw cash advance from the CIF Fund of the Office of the Vice-Chairman and General Manager." No particular purpose or project was specified contrary to the requirement under COA Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each cash advance, Aguas could not certify that supporting documents existed simply because he would not know what project was being funded by the cash advances; and 2) There were no previous liquidations made of prior cash advances when Aguas made the certifications. COA Circular 2003-002 required that cash advances be liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If completion of the projects mentioned were for more than one month, a monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation made was wholesale, i.e., these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation progress report. How then could Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas's certification, the disbursement vouchers could not have been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have been alerted that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is, therefore, present in the case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was conformed to by Uriarte, made it self-evident that the bulk of the CIF funds in 2009 and 2010 were allegedly spent for non-PCSO related activities, e.g., bomb threats, kidnapping, terrorism, and others.[57] (Emphases and underscoring supplied)
As a final point, allow me to submit my reservations on the ponencia's characterization of the concept of a "raid of public treasury" under the auspices of Section 1 (d) of the Plunder Law, viz.:
SECTION 1. Definition of Terms. — As used in this Act, the term -I disagree that the said concept requires - purportedly similar to the accompanying words in the above-cited provision - that personal benefit be derived by the public officer/s so charged. The gravamen of plunder is the amassing, accumulating, or acquiring of ill-gotten wealth by a public officer. Section 1 (d) of the Plunder Law states the multifarious modes under which the amassment, accumulation, or acquisition of public funds would be tantamount to the Plunder of ill-gotten wealth. There is simply no reasonable relation that the requirement of personal benefit commonly inheres in the sense of the words accompanying the predicate act of "raids on public treasury." For one, "misuse" is such a broad term that would encompass the gamut of illegal means and methods for which public funds may be amassed, accumulated, or acquired, without necessarily meaning that the public officer so amassing, accumulating, or acquiring the same had derived any personal benefit therefrom. Equally perceivable is the connotation given to the word "malversation," which under Article 217 of the Revised Penal Code, can be classified into a type known as "technical malversation." In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.[58] In such instance of malversation, there is no necessity to prove that any personal benefit was derived. Thus, based on these observations, I respectfully submit that the doctrine of associated words, or noscitur a sociis was misapplied.
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury[.] (Emphasis supplied)
In addition, the Sandiganbayan noted that there is no basis under the Congressional deliberations of Plunder Law that personal benefit was required. As may be gleaned therefrom, the phrase "knowingly benefited" had been stricken off from the final text of the law.[59]
Finally, the Sandiganbayan aptly pointed out that: "to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already illegally amassed, acquired, or accumulated P50 Million or more of government funds and just decided to keep it in his vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went up in flames or recovered by the police, negating any opportunity for the person to actually benefit, would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still be evidence-based must fail."[60] The ponencia's appreciation of the Plunder Law tends to deleteriously impact the prosecution of other pending Plunder cases. Unfortunately, the majority has imposed a rule which now requires the State to submit direct proof of personal benefit for an accused plunderer, as well as those who have conspired with him to be convicted. I strongly criticize this approach as it is practically the case that those who have raided the coffers of our government, especially in light of the fairly recent PDAF[61] controversy and now current litigations, would, in great likelihood, had already hidden the money they stole through ingenious schemes and means. Regrettably, the majority's interpretation tends to enervate the potency of the Plunder Law's force.
ACCORDINGLY, for the reasons above-stated, I vote to GRANT the petition filed by petitioner Gloria Macapagal-Arroyo in G.R. No. 220598 and DENY the petition filed by petitioner Benigno B. Aguas in G.R. No. 220953.
[1] The Information is reproduced in the ponencia, pp. 2-3.
[2] Entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER," approved on July 12, 1991.
[3] Entitled "AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES," approved on December 13, 1993.
[4] See ponencia, p. 3.
[5] Id. at 3-4.
[6] Id. at 19. See also Sandiganbayan Resolution dated April 6, 2015, pp. 3-28.
[7] See rollo (G.R. No. 220598), Vol. I, pp. 139-194. Penned by Associate Justice Rafael R. Lagos with Associate Justices Efren N. De La Cruz and Napoleon E. Inotura. Associate Justices Rodolfo A. Ponferrada and Alex L. Quiroz submitted their respective concurring and dissenting opinion.
[8] See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, pp. 73-78, attached as Annex "R" of Arroyo's Petition in G.R. No. 220598.
[9] Dated January 12, 1983.
[10] Subject: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds dated October 1, 1992.
[11] Subject: Audit and Liquidation of Intelligence and Confidential Funds for National and Corporate Sectors dated July 30, 2003.
[12] See discussions in the April 6, 2015 Sandiganbayan Resolution, pp. 30-36.
[13] The respective motions for reconsideration of petitioners were both dated April 22, 2015. See rollo (G.R. No. 220598), Vol. I, p. 195.
[14] Id. at 195-211.
[15] Ponencia, p. 28.
[16] Id. at 47.
[17] Id. at 28.
[18] Id. at 41.
[19] Id. at 43.
[20] Id. at 35.
[21] Id. at 36.
[22] Id.
[23] Id. at 40.
[24] SECTION 1. Definition of Terms. — As used in this Act, the term —
x x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury[.]
[25] Ponencia, p. 45.
[26] Aisporna v. Court of Appeals, 198 Phil. 838, 847 (1982).
[27] Ponencia, pp. 44-45.
[28] See id. at 46.
[29] 568 Phil. 297 (2008).
[30] Id. at 309-310.
[31] In Estrada v. Sandiganbayan [421 Phil. 290, 351 (2001)], it was explained:
Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law[.]
[32] See Section 12 of RA 7659, amending Section 2 of RA 7080.
[33] See portions of the Information as reproduced in the ponencia pp 2-3.
[34] See id. at 34-36.
[35] People v. Cinco, 622 Phil. 858, 866-867 (2009), citing Section 6, Rule 110 of the Revised Rules of Criminal Procedure.
[36] People v. Go, G.R. No. 191015, August 6, 2014, 732 SCRA 216, 237-238; citations omitted.
[37] See People v. Fabros, 429 Phil. 701, 713-714 (2002).
[38] Id. at 714; emphasis and italics supplied.
[39] See portions of LOI 1282 as reproduced in the ponencia, pp. 36-37.
[40] See id. at 7.
[41] See Omnibus Opposition (to the Demurrer to Evidence by accused Arroyo, Valencia, Morato, Roquero, Taruc V, Aguas, and Villar) filed by the Official of the Special Prosecutor dated September 14, 2014, p. 73, attached as Annex "P" in Arroyo's Petition in G.R. No. 220598. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
[42] Attached as Annex "Q" in Arroyo's Petition in G.R. No. 220598, p. 74. See also April 6, 2015 Sandiganbayan Resolution, p. 28.
[43] Attached as Annex "S" in Arroyo's Petition in G.R. No. 220598, p. 76. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[44] Attached as Annex "T" in Arroyo's Petition in G.R. No. 220598, p. 77. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[45] Attached as Annex "R" in Arroyo's Petition in G.R. No. 220598, p. 75. See also April 6, 2015 Sandiganbayan Resolution, p. 29 (erroneously dated as "January 19, 2009 in the Sandiganbayan Resolution).
[46] Attached as Annex "W" in Arroyo's Petition in G.R. No. 220598, p. 78. See also April 6, 2015 Sandiganbayan Resolution, p. 29.
[47] See April 6,2015 Sandiganbayan Resolution, p. 41.
[48] See ponencia, p. 37.
[49] See RA 1169 entitled "AN ACT PROVIDING FOR CHARITY SWEEPSTAKES, HORSE RACES, AND LOTTERIES" (As Amended by Batas Pambansa Blg. 42 and Presidential Decree No. 1157) (June 18, 1954).
[50] See 2nd Whereas clause of COA Circular No. 92-385 and Documentary Requirements, Item 2 of COA Circular No. 2003-002.
[51] See COA Circular No. 2003-002.
[52] See April 6, 2015 Sandiganbayan Resolution, pp. 20-27.
[53] See id. at 23.
[54] People v. Maraorao, 688 Phil. 458, 467 (2012).
[55] "It is a standing rule that every public official is entitled to the presumption of good faith in the discharge of official duties, such that, in the absence of any proof that a public officer has acted with malice or bad faith, he should not be charged with personal liability for damages that may result from the performance of an official duty. Good faith is always presumed and he who alleges the contrary bears the burden to convincingly show that malice or bad faith attended the public officer's performance of his duties." Dimapilis-Baldoz v. Commission on Audit, G.R. No. 199114, July 16, 2013, 703 SCRA 318, 337.
[56] See Petition of Aguas in G.R. No. 220953, pp. 8 and 46.
[57] See April 6, 2015 Sandiganbayan Resolution, pp. 32-33.
[58] Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).
[59] See also September 10, 2015 Sandiganbayan Resolution, pp. 8-9.
[60] See September 10, 2015 Sandiganbayan Resolution, p. 10.
[61] "Priority Development Assistance Fund.
DISSENTING OPINION
LEONEN, J:
With respect, I dissent.
Gloria Macapagal-Arroyo was a highly intelligent President who knew what she was doing. Having had an extraordinary term of nine (9) years as President of the Philippines, she had the experience to make her wise to many, if not all, of the schemes perpetrated within the government bureaucracy that allowed the pilferage of public coffers especially if these were repeated acts in ever-increasing amounts reaching millions of pesos. As President, it was her duty to stop—not abet or participate—in such schemes.
Gloria Macapagal-Arroyo, as a highly intelligent and experienced President, was aware that the power to increase the allocation and, therefore, disbursement of additional confidential and intelligence funds (CIF) of the Philippine Charity and Sweepstakes Office (PCSO) was hers alone. She was aware that this power was discretionary on her part. She did not have to approve any request for increase if it was not properly supported by adequate funds and the enumeration of specific activities.
She was also aware that, as President who occupied the highest office imbued with public trust, it was her duty under the Constitution and our laws that all the financial controls supported by audit observations be complied with to ensure that all funds be disbursed in a regular manner and for legitimate purposes. She knew that it was her duty to scrutinize if repeated requests for increases in these funds especially in ever-increasing amounts in the millions of pesos were done regularly and for legitimate ends.
After all, the President is the Chief Executive. Along with the awesome powers and broad discretions is likewise the President's duty to ensure that public trust is respected. The regular and legitimate allocation, disbursement, and use of funds—even confidential and intelligence funds—are matters of grave public trust.
It is not possible to assume that Gloria Macapagal Arroyo, the President of the Philippines, was not intelligent, not experienced and, at the time she held office, powerless to command the huge bureaucracy once under her control and to stop schemes that plundered our public coffers.
Increases in the allocation of CIF of PCSO were made possible only with the approval of Gloria Macapagal-Arroyo as President. Within the period from 2008 to 2010, there was not only one increase. There were several. The additional allocations for CIF were of increasing amounts running into the hundreds of millions of pesos. In 2010 alone, it was One Hundred Fifty Million Pesos (P150,000,000.00). The General Manager of the PCSO was able to disburse more than One Hundred Thirty Eight Million Pesos (P138,000,000.00) to herself. That disbursement remains unaccounted.
There was testimony that during these years, the PCSO was in deficit. Despite continued annual warnings from the Commission on Audit with respect to the illegality and irregularity of the co-mingling of funds that should have been allocated for the Prize Fund, the Charitable Fund, and the Operational Fund, this co-mingling was maintained. This made it difficult to ensure that the CIF will only be charged to the Operational Fund and that the Operational Fund would be kept at the required percentage of the revenues of the PCSO.
Gloria Macapagal-Arroyo, as President, approved the increases in the allocation and thus facilitated the disbursement of CIF despite the irregular co-mingling of funds. She approved the ever-increasing additions to the CIF of PCSO even without a showing that this government corporation had savings. She approved the additional allocation in increasing amounts on the strength of pro-forma requests without anything on record to show that she required explanation why the regular budget for CIF was insufficient. There was nothing to show that her repeated approval of ever-increasing amounts running into the millions of pesos was preceded with her inquiry as to why there was really a need to continue to increase the allocations and the disbursements in those amounts.
In 2008, 2009, and 2010, she approved increases in allocation for the CIF in millions of pesos even before the PCSO Board was able to approve its regular corporate budget (COB).
All these are supported by the evidence presented by the prosecution.
The scheme to amass and accumulate P365,997,915.00 in cash of CIF required the indispensable participation of the President in its approval and its actual disbursement in cash by the General Manager of the PCSO. The raid on public coffers was done in a series or combination of acts. The use of the funds was not properly accounted.
The Information fded against petitioners and their co-accused unequivocally charged them with conspiring to commit this type of plunder.
The demurrers to evidence of petitioners Gloria Macapagal-Arroyo and Benigno B. Aguas were properly denied as the prosecution's evidence showed that, as part of a conspiracy, they engaged in acts constituting plunder. The evidence demonstrated that they participated in a protracted scheme of raiding the public treasury aimed at amassing ill-gotten wealth.
It is of no consequence, as the ponencia harps on, that petitioners' specific and direct personal benefit or enrichment is yet to be established with unmitigated certainty. I echo the position taken by Associate Justice Estela Perlas-Bernabe: "raids on the public treasury"—as articulated in Section 1 (d) of Republic Act No. 7080, the law penalizing plunder—does not require "that personal benefit be derived by the [persons] charged."[1]
The rule on demurrer to evidence in criminal proceedings is clear and categorical.[2] If the demurrer to evidence is denied, trial must proceed and, thereafter, a judgment on the merits rendered. If the accused is convicted, he or she may then assail the adverse judgment, not the order denying demurrer to evidence.
It is true that we have the power of judicial review. This power, however, must be wielded delicately. Its exercise must be guided by a temperament of deference. Otherwise, the competence of trial courts will be frustrated. We will likewise open ourselves to the criticism that we use our power to supplant our own findings of fact with those of the Sandiganbayan.
The extraordinary power of certiorari granted under Article VIII, Section 1 of the Constitution allows the exercise of judicial review of other branches and constitutional organs. With respect to courts under our supervision, the use of certiorari is covered by our Rules.
Certainly, we cannot grant certiorari and annul the denial of the demurrer to evidence when we ourselves, through our Rules of Court, prohibit the review or appeal of any denial of the demurrer to evidence.
The unique circumstances of this case provide us with the temptation of an inopportune, overzealous intervention by a superior court. We have the potential to frustrate the unique competence of specially designed public instrumentalities. In this case, it is the Sandiganbayan.[3] This can similarly entail the undermining of mechanisms for exacting public accountability. In this case, it is for the criminal prosecution of what is possibly the most severe offense that public officers may commit, and of charges that are raised against the highest official of the executive branch of government.
This Court's principal task is to preserve the rule of law. Animated by this purpose, we should exercise the better part of restraint, defer to the original jurisdiction of the constitutionally mandated "anti-graft court,"[4] and prudently bide for a more opportune time to involve ourselves with the factual and evidentiary intricacies of the charges against petitioners.
We should allow the Sandiganbayan to proceed with trial, weigh the evidence, and acquit or convict on the basis of its evaluation of evidence received over the course of several months. Only after final judgment and in the proper course of an appeal should we intervene, if warranted.
At the core of these criminal proceedings is the charge of conspiracy. Petitioners and their co-accused are charged with "conniving, conspiring and confederating with one another . . . to amass, accumulate and/or acquire, directly or indirectly, ill-gotten wealth."[5]
This allegation of conspiracy is as pivotal to these proceedings as the basic requisites of the offense with which petitioners were charged.
Plunder is defined in Section 2 of Republic Act No. 7080,[6] as amended:
Section 2. Definition of the Crime of Plunder; Penalties. — Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.Estrada v. Sandiganbayan[7] has clarified the elements that must be established for a successful prosecution of this offense:
Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus —The definition of plunder in Section 2 makes explicit reference to Section 1 (d)[9] of Republic Act No. 7080 and the six (6) "means or similar schemes" enumerated in it. It is these means which Section 2's second element describes as "over or criminal acts." The statutory text's use of the disjunctive "or" indicates a distinction between "overt" acts and "criminal" acts.
- That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
- That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
- That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.[8]
It is a distinction critical to appreciating the nature of the predicate means or schemes enumerated in Section 1 (d). While some of these means or schemes may coincide with specific offenses (i.e., "criminal" acts) defined and penalized elsewhere in our statutes, it is not imperative that a person accused of plunder be also shown to have committed other specific criminal offenses by his or her predicate acts. That there be an overt showing of engaging in such means or schemes suffices.
The Information filed against petitioners and their co-accused properly alleged the elements of plunder.
First, it stated that petitioners were public officers. Petitioner Gloria Macapagal-Arroyo (Former President Arroyo) is Former President of the Republic, and petitioner Benigno B. Aguas (Aguas) was former Budget and Accounts Manager of PCSO.[10]
Second, it alleged that the accused, in conspiracy with each other, transferred a total amount of P365,997,915.00 from PCSO's 2008 to 2010 Confidential and Intelligence Fund (CIF) in PCSO's accounts to their control and possession.[11]
Third, it stated that this diversion or transfer of funds was accomplished through three (3) of the six (6) acts enumerated in Section 1 (d) of Republic Act No. 7080:
(a) diverting, in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence Fund that could be accessed and withdrawn at any time with minimal restriction, and converting, misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures, for their personal gain and benefit;As expressly stated in the Information, the charge against petitioners is grounded on the assertion that there was a conspiracy.[13] On this assertion, petitioners' claim that the Information, let alone the evidence presented, fails to substantiate the charged offense—as it allegedly fails to specify who among the accused amassed, accumulated, or acquired the amount of P365,997,915.00[14]—crumbles.
(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or conveying the same into their possession and control through irregularly issued disbursement vouchers and fictitious expenditures; and
(c) taking advantage of their respective official positions, authority, relationships, connections or influence, in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and to the damage and prejudice of the Filipino people and the Republic of the Philippines.[12]
By definition, plunder may be a collective act, just as well as it may be an individual act. Section 2 of Republic Act No. 7080 explicitly states that plunder may be committed "in connivance":
Section 2. Definition of the Crime of Plunder; Penalties. — Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons[.] (Emphasis supplied)In stating that plunder may be committed collectively, Section 2 does not require a central actor who animates the actions of others or to whom the proceeds of plunder are funneled.
It does, however, speak of "[a]ny public officer."[15] This reference is crucial to the determination of plunder as essentially an offense committed by a public officer. Plunder is, therefore, akin to the offenses falling under Title VII of the Revised Penal Code. Likewise, this reference highlights the act of plundering as essentially one that is accomplished by taking advantage of public office or other such instrumentalities.
Contrary to what the ponencia postulates, there is no need for a "main plunderer."[16] Section 2 does not require plunder to be centralized, whether in terms of its planning and execution, or in terms of its benefits. All it requires is for the offenders to act out of a common design to amass, accumulate, or acquire ill-gotten wealth, such that the aggregate amount obtained is at least P50,000,000.00. Section 1 (d) of Republic Act No. 7080, in defining "ill-gotten," no longer even speaks specifically of a "public officer." In identifying the possessor of ill-gotten wealth, Section 1 (d) merely refers to "any person":
Section 1. Definition of Terms. — As used in this Act, the term —With the allegation of conspiracy as its crux, each of the accused was charged as a principal. In a conspiracy:
. . . .
d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person[.] (Emphasis supplied)
the act of one is the act of all the conspirators, and a conspirator may be held as a principal even if he did not participate in the actual commission of every act constituting the offense. In conspiracy, all those who in one way or another helped and cooperated in the consummation of the crime are considered co-principals since the degree or character of the individual participation of each conspirator in the commission of the crime becomes immaterial.[17]From an evidentiary perspective, to be held liable as a co-principal, there must be a showing of an
overt act in furtherance of the conspiracy, either by actively participating in the actual commission of the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy.[18]Direct proof, however, is not imperative:
Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved. Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only.[19] (Citations omitted)
II
This is not an appeal from definitive findings of fact that have resulted in the conviction or acquittal of the accused. It is only a Petition for Certiorari seeking to supplant the discretion of the Sandiganbayan to hear all the evidence.
Section 4 of Republic Act No. 7080 provides:
Section 4. Rule of Evidence. — For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.(Emphasis supplied)The sufficiency of showing "a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" is particularly crucial. It emphasizes how absence of direct proof of every conspirator's awareness of, as well as participation and assent in, every single phase of the overall conspiratorial design is not fatal to a group of conspirators' prosecution and conviction for plunder.
Section 4 was correctly applied in this case.
It would be inappropriate to launch a full-scale evaluation of the evidence, lest this Court—an appellate court, vis-a-vis the Sandiganbayan's original jurisdiction over plunder—be invited to indulge in an exercise which is not only premature, but also one which may entirely undermine the Sandiganbayan's competence. Nevertheless, even through a prima facie review, the prosecution adduced evidence of a combination or series of events that appeared to be means in a coherent scheme to effect a design to amass, accumulate, or acquire ill-gotten wealth. Without meaning to make conclusions on the guilt of the accused, specifically of petitioners, these pieces of evidence beg, at the very least, to be addressed during trial. Thus, there was no grave abuse of discretion on the part of the Sandiganbayan.
The Resolution of the Sandiganbayan, with respect to Former President Arroyo, deserves to be reproduced:
The following observations from the evidence bears repeating for emphasis:Pertinent Dates & Facts
2008
On April 2, 2008, accused Uriarte asked accused Arroyo for additional Confidential and Intelligence Funds in the amount of P25 million. This was approved.
On May 14, 2008, the Board issued Resolution No. 305 adopting and approving the PCSO's proposed Corporate Operating Budget (COB). In the COB was an allocation of P28 million as PCSO's CIF for 2008.
On August 13, 2008, Uriarte again asked Arroyo for additional CIF in the amount of P50 million. This was also approved.
2009
On February 18, 2009, the Board confirmed the additional CIF granted by Arroyo and designated Uriarte as Special Disbursing Officer through Resolution No. 217.
On May 11, 2009, Plaras issued Credit Advice Nos. 2009-05-0216-C and 2009-05-0217-C, in relation to the cash advances drawn from PCSO's CIF for 2008 in the amount of P29,700,000.00 and P55,152,000.00.
On March 31, 2009, the Board approved the 2009 PCSO COB. The allocation in the COB for the CIF was increased to P60 million.
On January 19, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P50 million. This was approved.
On April 27, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P10 million. This was approved.
On July 2, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P10 million. This was approved.
On October 19, 2009, Uriarte asked Arroyo for an additional CIF in the amount of P20 million. This was approved. On the same date, Valencia wrote to Villar to liquidate the CIF under the Office of the Chairman in the amount of P2,498,300.00. Enclosed in the said letter was the Certification of the Chairman, the original copy of the cash disbursement and liquidation vouchers, Board Resolution No. 469, a copy of the Maintenance and Other Operating Expenses Budget and the Matrix of Expenses incurred from the fund.
On December 9, 2009, the Board confirmed through Resolution No. 2356 the additional CIF approved by Arroyo and designated Uriarte as Special Disbursing Officer.
2010
On January 4, 2010, Uriarte asked Arroyo for an additional CIF in the amount of P150 million. This was approved.
On January 6, the Board issued Resolution No. 029 confirming the additional CIF and designated Uriarte as Special Disbursing Officer.
On March 10, 2010 the Board approved the proposed PCSO COB for 2010. The allocation of P60 million was made for the CIF.
On July 14, 2010, Plaras issued Credit Advice no. 2010-07-0413-C in relation to cash advances in 2009 from the CIF amounting to P116,386,800.00
On July 15, 2010, Plaras asked Uriarte to submit various documents to support the requested liquidation.
On July 19, 2010, Uriarte submitted an accomplishment report, a single-page matrix of intelligence accomplishments prepared by Aguas and a two-page report on the utilization of the 2010 CIF.
On January 13, 2011, Plaras issued Credit Advice Nos. 2011-01-008-C in relation to the cash advances drawn by accused Uriarte and Valencia in 2010.DISCUSSION
Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court then ascertains whether there is a competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.
Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded to accord to circumstances. To be considered sufficient therefore, the evidence must prove (a) the commission of the crime, and (b) the precise degree of participation therein by the accused.
The demurrers of each of the accused should thus be measured and evaluated in accordance with the High Court's pronouncement in the Gutib case. Focus must therefore be made as to whether the Prosecution's evidence sufficiently established the commission of the crime of plunder and the degree of participation of each of the accused.
A. Demurrer filed by Arroyo and Aguas:
It must be remembered that in Our November 5, 2013 Resolution, We found strong evidence of guilt against Arroyo and Aguas, only as to the second predicate act charged in the Information, which reads:In the November 5, 2013 Resolution, We said:
x x x
x x x
Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on the public treasury, and therefore fall into the category of ill-gotten wealth.
x x x
x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period 2008-2010. Uriarte was able accumulate during that period CIF funds in the total amount of P352,681,646. This was through a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement vouchers and checks issued and encashed by her, through her authorized representative.
These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to "misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic v. Sandiganbayan. The encashment of the checks, which named her as the "payee," gave Uriarte material possession of the CIF funds which she disposed of at will.
As to the determination whether the threshold amount of P50 million was met by the prosecution's evidence, the Court believes this to have been established. Even if the computation is limited only to the cash advances/releases made by accused Uriarte alone AFTER Arroyo had approved her requests and the PCSO Board approved CIF budget and the "regular" P5 million CIF budget accorded to the PCSO Chairman and Vice Chairman are NOT taken into account, still the total cash advances through accused Uriarte's series of withdrawals will total P189,681,646. This amount surpasses the P50 million threshold.
The evidence shows that for the year 2010 alone, Uriarte asked for P150 million additional CIF funds, and Arroyo granted such request and authorized its use. From January 8, 2010 up to June 18, 2010, Uriarte made a series of eleven (11) cash advances in the total amount of P138,223,490. According to Uriarte's testimony before the Senate, the main purpose for these cash advances was for the "roll-out" of the small town lottery program. However, the accomplishment report submitted by Aguas shows that P137,500,000 was spent on non-related PCSO activities, such as "bomb threat, kidnapping, terrorism and bilateral and security relations." All the cash advances made by Uriarte in 2010 were made in violation of LOI 1282, and CO A Circulars 2003-002 and 92-385. These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete freedom to dispose of, but was not able to properly account for.The evidence shows that Arroyo approved not only Uriarte's request for additional CIF funds in 2008-2010, but also authorized the latter to use such funds. Arroyo's "OK" notation and signature on Uriarte's letter-requests signified unqualified approval of Uriarte's request to use the additional CIF funds because the last paragraph of Uriarte's requests uniformly ended with this phrase: "With the use of intelligence fund, PCSO can protect its image and integrity of its operations."As to Aguas's involvement, Our June 6, 2013 Resolution said:
The letter-request of Uriarte in 2010 was more explicit because it categorically asked for: "The approval on the use of the fifty percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues."
Arroyo cannot, therefore, successfully argue that what she approved were only the request for the grant or allocation of additional CIF funds, because Arroyo's "OK" notation was unqualified and, therefore, covered also the request to use such funds, through releases of the same in favor of Uriarte.
x x xIn all of the disbursement vouchers covering the case advances/releases to Uriarte of the CIF funds, Aguas certified that:With the additional evidence presented by the Prosecution after the bail hearings, the question now before the Court is whether such evidence elevated the quantum and weight of the evidence against the accused from strong evidence to sufficient evidence to convict, thereby justifying denial of their demurrers. Otherwise stated, was the "presumption great" finding in the; bail hearings against Arroyo and Aguas further buttressed by the additional evidence presented bu the prosecution or was diluted by the same?
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P_________; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.
These certifications, after close scrutiny, were not true because: 1.) there were no documents which lent support to the cash advances on a per project basis. The particulars of payment simply read: "To draw cash advance from the CIF Fund of the Office of the Vice-Chainnan and General Manager." No particular purpose or project was specified contrary to the requirement under COA Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each cash advance, Aguas could not certify that supporting documents existed simply because he would not know what project was being funded by the cash advances; and 2.) There were no previous liquidations made of prior cash advances when Aguas made the certifications. COA Circular 2003-002 required that cash advances be liquidated within one (1) month from the date the purpose of the cash advance was accomplished. If the completion of the projects mentioned were for more than one month, a monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation made was wholesale, i.e. these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation progress report. How then coulde Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also violated Sec. 89 of P.D. 1445 which states:
Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting thereof is made.
There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular CIF funds in contravention of the rules on CIF funds. Without Aguas's certification, the disbursement vouchers could not have been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.
By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have been alerted that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is therefore, present in the case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was conformed to by Uriarte, made it self-evident that the bulk of the CIF funds in 2009 and 2010 were allegedly spent for non-PCSO related activities, e.g. bomb threats, kidnapping, terrorism, and others.
The Court believes that there is sufficient evidence that Uriarte accumulated more than P50 million of CIF funds in violation of COA circulars 92-385 and 2003-02, and LOI 1282, thus characterizing such as ill-gotten wealth. Uriarte used Arroyo's approval to illegally accumulate these CIF funds which she encashed during the period 2008-2010. Uriarte utilized Arroyo's approval to secure PCSO Board confirmation of such additional CIF funds and to "liquidate" the same resulting in the questionable credit advices issued by accused Plaras. These were simply consummated raids on public treasury.
In an attempt to explain and justify the use of these CIF funds, Uriarte together with Aguas, certified that these were utilized for the following purposes:a) Fraud and threat that affect integrity of operation.According to Uriarte and Aguas, these purposes were to be accomplished through "cooperation" of law enforcers which include the military, police and the NBI. The second and third purposes were never mentioned in Uriarte's letter-requests for additional CIF funds addressed to Arroyo. Aguas, on the other hand, issued an accomplishment report addressed to the COA, saying that the "Office of the President" required funding from the CIF funds of the PCSO to achieve the second and third purposes abovementioned. For 2009 and 2010, the funds allegedly used for such purposes amounted to P244,500,00.00.
b) Bomb threat, kidnapping, destabilization and terrorism
c) Bilateral and security relation.
Such gargantuan amounts should have been covered, at the very least, by some documentation covering fund transfers or agreements with the military, police or the NBI, notwithstanding that these involved CIF funds. However, all the intelligence chiefs of the Army, Navy, Air Force, the PNP and the NBI, testified that for the period 2008-2010, their records do not show any PCSO-related operations involving any of the purposes mentioned by Uriarte and Aguas in their matrix of accomplishments. Neither were there any memoranda of agreements or any other documentation covering fund transfers or requests for assistance or surveillance related to said purposes. While the defense counsels tried to question the credibility of the intelligence chiefs by drawing our admissions from them that their records were not 100% complete, it seems highly incredulous that not a single document or record exists to sustain Uriarte's and Aguas's report that CIF funds were used for such purposes. Uriarte, who was obliged to keep duplicate copies of her supporting documents for the liquidation of her CIF funds, was unable to present such duplicate copies when she was investigated by the Senate and the Ombudsman. As it stands, the actual use of these CIF funds is still unexplained.
Arroyo and Aguas's degree of participation as co-conspirators of Uriarte are established by sufficient evidence.
In Jose "Jinggoy" Estrada v. Sandiganbayan, the gravamen of conspiracy in plunder cases was discussed by the Supreme Court, as follows:There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonality - to help the former President amass, accumulate or acquire ill-gotten. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused order the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada.It seems clear that in a conspiracy to commit plunder, the essence or material point is not the actual receipt of monies or unjust enrichment by each conspirator, but that a conspirator had participated in the accumulation of ill-gotten wealth, directly or indirectly.
In Our February 19, 2014 Resolution, We stated:The overt act, therefore, which establishes accused Macapagal-Arroyo's conspiracy with accused Uriarte is her unqualified "OK" notation on the letter-requests. All the badges of irregularities were there for accused Macapagal-Arroyo to see, but still she approved the letter-requests. Consider the following: accused Macapagal-Arroyo approved accused Uriarte's requests despite the absence of full details on the specific purpose for which the additional CIF were to be spent for. There was also no concrete explanation of the circumstances which gave rise to the necessity for the expenditures, as required by LOI 1282. Accused Macapagal-Arroyo did not question accused Uriarte's repetitive and simplistic basis for the requests, as she readily approved accused Uriarte's requests without any qualification or condition. Accused Macapagal-Arroyo apparently never questioned accused Uriarte why the latter was asking for additional GIF funds. All of accused Uriarte's requests did not state any balance or left-over CIF funds which PCSO still had before accused Uriarte made the requests. As President of the Republic, accused Macapagal-Arroyo was expected to be aware of the rules governing the use of CIF. Considering that accused Macapagal-Arroyo's approval also covered the use and release of these funds, it was incumbent upon her to make sure that accused Uriarte followed and complied with the rules set forth by the COA and LOI 1282.The findings on the conspiratorial acts of Arroyo and Aguas have been strengthened by the testimonies and certifications presented by the intelligence officers. Even granting, arguendo, that their testimonies should not be accorded great weight, the fact that Uriarte and Aguas certified that these CIF funds were used for purposes other than PCSO related activities, sufficiently established the conclusion that CIF monies were diverted to fund activities of the Office of the President. Therefore, Arroyo and Aguas's demurrers must be denied.[20] (Emphasis in the original, citations omitted)
First, evidence was adduced to show that there was co-mingling of PCSO's Prize Fund, Charity Fund, and Operating Fund. In the Annual Audit Report of PCSO for 2007, the Commission on Audit already found this practice of having a "combo account" questionable.[21] The prosecution further alleged that this co-mingling was "to ensure that there is always a readily accessible fund from which to draw CIF money."[22]
Section 6 of PCSO's Charter, Republic Act No. 1169,[23] as amended by Batas Pambansa Blg. 42 and Presidential Decree No. 1157, stipulates how PCSO's net receipts (from the sale of tickets) shall be allocated. It specifies three separate funds - the Prize Fund, the Charity Fund, and funds for the operating expenses (or operating fund) - and defines the apportionment of gross receipts:
SECTION 6. Allocation of Net Receipts. — From the gross receipts from the sale of sweepstakes tickets, whether for sweepstakes races, lotteries, or similar activities, shall be deducted the printing cost of such tickets, which in no case shall exceed two percent of such gross receipts to arrive at the net receipts. The net receipts shallbe allocated as follows:Co-mingling PCSO's funds into a single account runs against the plain text of PCSO's Charter. Accordingly, in 2007, the Commission on Audit's Annual Audit Report of PCSO found the practice of having a "combo account" questionable.[24] In this same Report, the Commission on Audit further observed that "said practice will not ensure the use of the fund for its purpose and will not account for the available balance of each fund as of a specified date."[25] Thus, it recommended that there be a corresponding transfer of funds to the specific bank accounts created for the different funds of PCSO:[26]
- Fifty-five percent (55%) shall be set aside as a prize fund for the payment of prizes, including those for the owners, jockeys of running horses, and sellers of winning tickets.
Prizes not claimed by the public within one year from date of draw shall be considered forfeited, and shall form part of the charity fund for disposition as stated below.- Thirty percent (30%) shall be set aside as contributions to the charity fund from which the Board of Directors, in consultation with the Ministry of Human Settlement on identified priority programs, needs, and requirements in specific communities and with approval of the Office of the President (Prime Minister), shall make payments or grants for health programs, including the expansion of existing ones, medical assistance and services and/or charities of national character, such as the Philippine National Red Cross, under such policies and subject to such rules and regulations as the Board may from time establish and promulgate. The Board may apply part of the contributions to the charity fund to approved investments of the Office pursuant to Section 1 (B) hereof, but in no case shall such application to investments exceed ten percent (10%) of the net receipts from the sale of sweepstakes tickets in any given year.
Any property acquired by an institution or organization with funds given to it under this Act shall not be sold or otherwise disposed of without the approval of the Office of the President (Prime Minister), and that in the event of its dissolution all such property shall be transferred to and shall automatically become the property of the Philippine Government.- Fifteen (15%) percent shall be set aside as contributions to the operating expenses and capital expenditures of the Office.
- All balances of any funds in the Philippine Charity Sweepstakes Office shall revert to and form part of the charity fund provided for in paragraph (B), and shall be subject to disposition as above stated. The disbursements of the allocation herein authorized shall be subject to the usual auditing rules and regulations.
7. No corresponding transfer of cash was made to prize and charity funds whenever receivables were collected.Second, the prosecution demonstrated—through Former President Arroyo's handwritten notations—that she personally approved PCSO General Manager Rosario C. Uriarte's (Uriarte) "requests for the allocation, release and use of additional [Confidential and Intelligence Fund.]"[28] The prosecution stressed that these approvals were given despite Uriarte's generic one-page requests, which ostensibly violated Letter of Instruction No. 1282's requirement that, for intelligence funds to be released, there must be a specification of: (1) specific purposes for which the funds shall be used; (2) circumstances that make the expense necessary; and (3) the disbursement's particular aims. The prosecution further emphasized that Former President Arroyo's personal approvals were necessary, as Commission on Audit Circular No. 92-385's stipulates that confidential and intelligence funds may only be released upon approval of the President of the Philippines.[29] Unrefuted, these approvals are indicative of Former President Arroyo's indispensability in the scheme to plunder.
. . . .7. 3 Management commented that it is maintaining a combo (mother) account for the three funds where drawings or transfer of funds are being made as the need arises. Thus, there is no prejudice or danger in financing the charity mandate of the office.7.4 In our opinion, said practice will not ensure the use of fund for its purpose and will not account for the available balance of each fund as of a specific date.7. 5 In order to avoid juggling/ using of one fund to/for another fund, we have recommended that all collections be deposited in on Cash in bank general account. Upon computation of the allocation of net receipts to the three funds, a corresponding transfer of funds to the specific bank accounts created for the prize, charity and operating funds be effected.[27] (Emphasis supplied)
Letter of Instruction No. 1282 states:
Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished. (Emphasis supplied)Uriarte's April 2, 2008 request stated:
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P25 Million Pesos for the year 2008.The wording and construction of the August 13, 2008 request is markedly similar:
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance, From the sales of P7.32 B registered in 2000, the office has generated actual sales of P18.69 B in 2007.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
- Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale",
- Unwarranted or unofficial use of ambulance by beneficiary-donees;
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put the PCSO in bad light.
(sgd.)
ROSARIO C. URIARTE[30]
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P50 Million Pesos for the year 2008.The same is true of the January 19, 2009 request:
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P18.69 B in 2007.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
- Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale",
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put the PCSO in bad light.
(sgd.)
ROSARIO C. URIARTE[31]
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P50 Million Pesos for the year 2009.Subsequent requests made on April 27, 2009 and July 2, 2009, respectively, also merely followed the formula employed in previous requests:
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P21 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
- Unwarranted or unofficial use of ambulance by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
- Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
- Other fraudulent schemes and activities which put the PCSO in bad light.
(sgd.)
ROSARIO C. URIARTE[32]
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P10 Million Pesos for the year 2009.The request made on January 24, 2010 had some additions, but was still noticeably similar:
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P23 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:. . . .
- Unwarranted or unofficial use of ambulance by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
- Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
- Other fraudulent schemes and activities which put the PCSO in bad light.
PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.(sgd.)
ROSARIO C. URIARTE[33]
The Philippine Charity Sweepstakes Office (PCSO) respectfully requests that Office of the Vice Chairman and General Manager Rosario C. Uriarte be given additional intelligence fund in the amount of P10 Million Pesos for the year 2009.
Since you took over the administration in 2001, we were able to continuously increase the funds generated for charity due to substantial improvement in our sales performance. From the sales of P7.32 B registered in 2000, the office has generated actual sales of P23 B in 2008.
In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a continuing basis which affect the integrity of our operations, to wit:PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities. With the use of intelligence fund, PCSO can protect its image and integrity of its operations.
- Unwarranted or unofficial use of ambulance by beneficiary-donees;
- Lotto and Sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets.
- Conduct of illegal gambling games (jueteng) under the guise of Small Town Lottery;
- Other fraudulent schemes and activities which put the PCSO in bad light.
(sgd.)
ROSARIO C. URIARTE[34]
The Philippine Chanty Sweepstakes Office (PCSO) has been conducting the experimental test run for the Small Town Lottery (STL) Project since February 2006. During the last semester of 2009, the PCSO Board has started to map out the regularization of the STL in 2010.These similarly worded requests relied on the same justification; that is, "a number of fraudulent schemes and nefarious activities . . . which affect the integrity of [PCSO's] operations[.]" The different requests used various permutations of any of the following seven (7) such schemes and activities:
Its regularization will encounter the illegal numbers game but it will entail massive monitoring and policing using confidential agents in the area to ensure that all stakeholders are consulted in the process.
STL regularization will also require the acceptance of the public. Hence, public awareness campaign will be conducted nationwide. In the process, we will need confidential operations, to wit:In order to save on PCSO operating funds, we suggest that the General Manager's Office be given at most, twenty percent (20%) of the Public Relations Fund or a minimum of 150 Million Pesos, to be used as intelligence/confidential fund. PCSO spent 760 Million pesos for PR in 2009.
- Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO-Not for Sale";
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Other fraudulent schemes and activities which put the PCSO in bad light.
The approval on the use of the fifty percent of the PR fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address urgent issues. PCSO will no longer need to seek approval for additional intelligence fund without first utilizing the amount allocated from the PR fund.
For Her Excellency's approval.[sgd.]
ROSARIO C. URIARTE[35]
Citing "a number of fraudulent schemes and nefarious activities . . . which affect the integrity of [PCSO's] operations"[37] hardly seems to be sufficient compliance with Letter of Instruction No. 1282. This Letter of Instruction requires a request's specification of three (3) things: first, the specific purposes for which the funds shall be used; second, circumstances that make the expense necessary; and third, the disbursement's particular aims.[38] Citing "fraudulent schemes and nefarious activities" may satisfy the requirement of stating the circumstances that make the expense necessary. It may also imply that the disbursement's overarching (though not its particular) aim is to curtail such schemes and activities. Still, merely citing these fails to account for the first requirement of the specific purposes for which the funds shall be used. There was no mention of specific projects, operations, or activities "for which said funds shall be spent."[39]
- Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO - Not for Sale";
- Unwarranted or unofficial use of ambulances by beneficiary-donees;
- Unauthorized expenditures of endowment fund for charity patients and organizations;
- Lotto and sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;
- Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical Assistance Program;
- Conduct of illegal gambling games (jueteng) under [the] guise of Small Town lottery; and
- Other fraudulent schemes and activities which put PCSO in [a] bad light.[36]
The requests likewise failed to account for why additional amounts—which ballooned to P150,000,000.00, as shown in the January 4, 2010 request—were necessary. Instead, these requests merely relied on the repeated refrain of how "PCSO at all instances must be on guard and have ready available resources to conduct surveillance, discreet investigations, purchase of information and other related activities."[40] These requests also relied on the claim that "[w]ith the use of intelligence fund, PCSO can protect its image and integrity."[41]
Commission on Audit Circular No. 92-385[42] emphasizes that funds provided for in the General Appropriations Act, which are released for intelligence operations, must be specifically designated as such in the General Appropriations Act. It further identifies the President of the Philippines as the sole approving authority for the release of confidential and intelligence funds:
WHEREAS, no amount appropriated in the General Appropriations Act shall be released or disbursed for confidential and intelligence activities unless specifically identified and authorized as such intelligence or confidential fund in said Act;Similarly, Commission on Audit Circular 03-002[43] includes the "Approval of the President of the Release of the Confidential and Intelligence Fund"[44] as among the documentary requirements for the audit and liquidation of confidential and intelligence funds.
WHEREAS, intelligence and confidential funds provided for in the budgets of departments, bureaus, offices or agencies of the national government, including amounts from savings authorized by Special Provisions to be used for intelligence and counter intelligence activities, shall be released only upon approval of the President of the Philippines.
The prosecution presented evidence to show that Former President Arroyo personally approved the release of additional CIF to the PCSO on several occasions from 2008 to 2010. This she did by handwriting the notation "OK, GMA."[45] In addition, the prosecution showed that these releases were in excess of amounts initially allocated as such CIF and were facilitated despite PCSO's having had to operate under a deficit.
Prosecution witness, Atty. Aleta Tolentino (Atty. Tolentino), Head of the Audit Committee of PCSO, emphasized that the approval and disbursements of the CIF were irregular as they did not comply with Commission on Audit Circular 92-385's requirement of there being an amount "specifically identified and authorized as such intelligence or confidential fund" before disbursements may be made for confidential and intelligence activities.
Atty. Tolentino noted that, as a consequence of Commission on Audit Circular 03-002, a government-owned and controlled corporation must first have an allocation for the CIF specified in its Corporate Operating Budget or "taken from savings authorized by special provisions."
In 2008, only P28,000,000.00 was allocated as CIF.[46] Nevertheless, Former President Arroyo approved the requests of Uriarte—separately, on April 2, 2008 and on August 13, 2008—to increase the budget allotted for PCSO Confidential and Intelligence Expenses, with an amount totaling P75,000,000.00.[47] For this year, an amount totaling P86,555,060.00 was disbursed.[48]
In 2009, the original budget of P60,000,000.00[49] was increased by a total of P90,000,000.00, through the approval of separate requests made by Uriarte to increase the budget by P50,000,000.00 on January 19, 2009;[50] P10,000,000.00 on April 27, 2009;[51] and P10,000,000.00 on July 2, 2009.[52] A letter[53] dated October 19, 2009 issued by former Executive Secretary Eduardo Ermita showed that Former President Arroyo also approved the release of additional CIF amounting to P20,000,000.00.[54] Total 2009 disbursements amounted to P138,420,875.00.[55]
In 2010, P141,021,980.00 was disbursed as of June 2010,[56] even as the CIF allocation for the entire year was only P60,000,000.00.[57] This comes at the heels of an increase of P150,000,000.00,[58] again through Former President Arroyo's approval of the request made by Uriarte.
It was similarly impossible for PCSO to have sourced these funds from savings. As Atty. Tolentino emphasized, PCSO was running on a deficit from 2004 to 2009.[59] She added that the financial statements for the years 2006 to 2009, which she obtained in her capacity as the Head of the Audit Committee of the PCSO, specifically stated that the PCSO was operating on a deficit in 2006 to 2009.
Third, the prosecution demonstrated that Uriarte was enabled to withdraw from the CIF solely on the strength of Former President Arroyo's approval and despite not having been designated as a special disbursing officer, pursuant to Commission on Audit Circulars 92-385 and 03-002.[60]
Commission on Audit Circular 92-385 provides:
3 - The following must be submitted whenever a new Disbursing Officer is appointed.In addition, Commission on Audit Circular 2003-02 specifically requires that:
- Certified xerox copy of the designation of Special Disbursing Officers.
- Certified xerox copy of their fidelity bonds.
- Specimen signature of officials authorized to sign cash advances and liquidation vouchers. (Emphasis supplied)
Whenever a new Disbursing Officer is appointed or designated, the following must likewise be submitted:The prosecution pointed out that Uriarte was only designated as Special Disbursing Office on February 18, 2009,[61] after several disbursements had already been made.[62] Thus, he managed to use the additional CIF at least three (3) times in 2008 and in early 2009, solely through Former President Arroyo's approval.[63]
- Certified copy of the designation of the Special Disbursing Officer (SDO)
- Certified copies of the Fidelity Bond of the designated SDO.
- Specimen signatures of officials authorized to sign cash advances and liquidation reports (formerly liquidation vouchers), particularly:
c.1 Special Disbursing OfficerWhen the Head of Agency is the Special Disbursing Officer, the Head of Agency must make a signed statement to that effect. (Emphasis supplied)
c.2 Head of Agency
c.3 Chief Accountant
c.4 Budget Officer
Fourth, there were certifications on disbursement vouchers issued and submitted by Aguas, in his capacity as PCSO Budget and Accounts Manager, which stated that: there were adequate funds for the cash advances; that prior cash advances have been liquidated or accounted for; that the cash advances were accompanied by supporting documents; and that the expenses incurred through these were in order.[64] As posited by the prosecution, these certifications facilitated the drawing of cash advances by PCSO General Manager Uriarte and Chairperson Sergio Valencia.[65]
Aguas repeatedly made the certifications in the disbursement vouchers twenty-three (23) times[66] in the following tenor:
CERTIFIED: Adequate available funds/budgetary allotment in the amount of P__________; expenditure properly certified; supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance liquidated/accounted for.[67]However, as the prosecution pointed out, the certifications were false and irregular because there were no documents that lent support to the cash advances on a per project basis. Moreover, there were no liquidations made of prior cash advances when the certifications were made.[68]
Fifth, officers from the Philippine National Police, the Armed Forces of the Philippines, and the National Bureau of Investigation gave testimonies to the effect that no intelligence activities were conducted by PCSO with their cooperation, contrary to Uriarte's claims.[69]
These officers were:
(1) | Colonel Ernest Marc P. Rosal of the Intelligence Service of the Armed Forces of the Philippines;[70] |
(2) | Captain Ramil Roberto B. Enriquez, Assistant Chief of Naval Staff for Intelligence of the Philippine Navy;[71] |
(3) | Colonel Teofilo Reyno Bailon, Jr., Assistant Chief of Air Staff for Intelligence, A2 at the Philippine Air Force;[72] |
(4) | Lieutenant Colonel Vince James de Guzman Bantilan, Chief of the Intelligence and Operations Branch of the Office of the Assistant Chief of Staff for Intelligence, G2 at the Philippine Army;[73] |
(5) | Colonel Orlando Suarez, Chief of the Operations Control Division of the Office of the Chief of Staff for Intelligence, J2 at the Armed Forces of the Philippines;[74] |
(6) | Atty. Ruel M. Lasala, Head of Special Investigation Services of the National Bureau of Investigation;[75] |
(7) | Atty. Reynaldo Ofialdo Esmeralda, Deputy Director for Intelligence Services of the National Bureau of Investigation;[76] |
(8) | Atty. Virgilio Mendez, former Deputy Director for Regional Operations Services of the National Bureau of Investigation;[77] and |
(9) | Director Charles T. Calima, Jr., former Director for Intelligence of the Philippine National Police.[78] |
The prosecution added that no contracts, receipts, correspondences, or any other documentary evidence exist to support expenses for PCSO's intelligence operations.[79] These suggest that funds allocated for the CIF were not spent for their designated purposes, even as they appeared to have been released through cash advances. This marks a critical juncture in the alleged scheme of the accused. The disbursed funds were no longer in the possession and control of PCSO and, hence, susceptible to misuse or malversation.
Sixth, another curious detail was noted by the prosecution: that Former President Arroyo directly dealt with PCSO despite her having issued her own executive orders, which put PCSO under the direct control and supervision of other agencies.
On November 8, 2004, Former President Arroyo issued Executive Order No. 383, Series of 2004, which placed PCSO under the supervision and control of the Department of Welfare and Development. Section 1 of this Executive Order stated:
SECTION 1. The Philippine Charity Sweepstakes Office shall hereby be under the supervision and control of the Department of Social Welfare and Development.[80] (Emphasis supplied)Amending Executive Order No. 383 on August 22, 2005, Former President Arroyo issued Executive Order No. 455, Series of 2005. This put PCSO under the supervision and control of the Department of Health. Section 1 of this Executive Order stated:
SECTION 1. The Philippine Charity Sweepstakes Office shall hereby be under the supervision and control of the Department of Health.[81] (Emphasis supplied)As Atty. Tolentino emphasized, with the set-up engendered by Executive Orders 383 and 455, it became necessary for PCSO projects to first be approved at the department-level before being referred to the Office of the President for approval. Nevertheless, PCSO General Manager Uriarte made her requests directly to Former President Arroyo, who then acted favorably on them, as shown by her handwritten notations.[82]
PCSO General Manager Uriarte had intimate access to the Office of the President and was likewise critical in the allocation, disbursement, and release of millions of pesos in cash.
Summing up, the prosecution adduced evidence indicating that Former President Arroyo and Aguas were necessary cogs to a machinery effected to raid the public treasury. It is hardly of consequence, then, that their direct personal gain has not been indubitably established.
For Former President Arroyo, this came through her capacity as the sole and exclusive approving authority. The funds, demarcated as confidential and intelligence funds, would not have been at any prospective plunderer's disposal had their release not been sanctioned. As the prosecution asserted, her own handwriting attests to her assent.
It defies common sense to think that other malevolent actors could have so easily misled Former President Arroyo into giving her assent. The more reasonable inference is that she acted with awareness, especially considering the large amounts involved, as well as the sheer multiplicity in the number of times her assent was sought.
Violations of regulations must necessarily be presumed to not have been made out of ignorance. This is especially true of senior government officials. The greater one's degree of responsibility, as evinced by an official's place in the institutional hierarchy, the more compelling the supposition that one acted with the fullness of his or her competence and faculty. The person involved here was once at the summit of the entire apparatus of government: a former President of the Republic.
These commonsensical and soundly logical suppositions arising from the prosecution's evidence demand a process through which the defendant Former President Arroyo may prove the contrary. Trial, then, must continue to afford her this opportunity.
We cannot assume that the President of the Philippines, the Chief Executive, was ignorant of these regulations and these infractions.
For Aguas, he was in a position to enforce internal control mechanisms to ensure that the PCSO's financial mechanisms comply with the relevant laws and regulations. As the prosecution pointed out, his task was far from merely being perfunctory and ministerial.[83] By his certifications on disbursement vouchers, he attested that: "(1) the expenditure for which disbursements are made have been verified; (2) the expenditure for which the disbursements are made are supported by documents; (3) that account codes from which the fund[s] are to be sourced are proper; and (4) the previous cash advance has been liquidated/accounted."[84]
His very act of making these certifications presume an active effort to verify and make the necessary confirmations. Doing so without these prerequisites is tantamount to knowingly making false declarations. Still, Aguas appears to have proceeded to certify anyway, thereby enabling his co-accused PCSO General Manager Uriarte and Chairperson Sergio Valencia to draw cash advances. This drew the proverbial door open to the larger scheme of plunder, which the Information averred. As the prosecution explained:
5.11. Petitioner, despite committing a falsification knew well that he had to sign and certify the [disbursement vouchers] because he knew that without his false certification, no check to pay for the disbursement vouchers thus prepared can be issued and no money can be withdrawn by Uriarte and Valencia. Petitioner Aguas' certification truly facilitated the release of the checks in favor of Uriarte and Valencia. Without his false certification, the scheme of repeatedly raiding the coffers of PCSO would not have been accomplished.[85]The proof adduced by the prosecution raises legitimate questions. It is well within the reasonable exercise of its competencies and jurisdiction that the Sandiganbayan opted to proceed with the remainder of trial so that these issues could be addressed. Thus, it was in keeping with the greater interest of justice that the Sandiganbayan denied petitioners' demurrers to evidence and issued its assailed resolutions.
Parenthetically, even assuming without conceding that petitioners could not be convicted of plunder, the prosecution still adduced sufficient evidence to convict them with malversation of public funds, as penalized by Article 217 of the Revised Penal Code. Hence, trial should still proceed to receive their evidence on this point.
At the heart of the offense of plunder is the existence of "a combination or series of overt or criminal acts." Estrada v. Sandiganbayan[86] clarified that "to constitute a "series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1)."
Accordingly, this Court has consistently held that the lesser offense of malversation can be included in plunder when the amount amassed reaches at least P50,000,000.00.[87] This Court's statements in Estrada v. Sandiganbayan are an acknowledgement of how the predicate acts of bribery and malversation (if applicable) need not be charged under separate informations when one has already been charged with plunder:
A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirty-nine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. Republic Act No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural problem. (Emphasis in the original, citations omitted)In Atty. Serapio v. Sandiganbayan,[88] the accused assailed the information for charging more than one offense: bribery, malversation of public funds or property, and violations of Sec. 3(e) of Republic Act No. 3019 and Section 7(d) of Republic Act No. 6713. This Court observed that "the acts alleged in the information are not separate or independent offenses, but are predicate acts of the crime of plunder."[89] The Court, quoting the Sandiganbayan, clarified:
It should be stressed that the Anti-Plunder law specifically Section 1 (d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation,' 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees.[90]The observation that the accused in these petitions may be made to answer for malversation was correctly pointed out by Justice Ponferrada of the Sandiganbayan in his separate concurring and dissenting opinion:
There is evidence, however, that certain amounts were released to accused Rosario Uriarte and Sergio Valencia and these releases were made possible by certain participatory acts of accused Arroyo and Aguas, as discussed in the subject Resolution. Hence, there is a need for said accused to present evidence to exculpate them from liability which need will warrant the denial of their Demurrer to Evidence, as under the variance rule they maybe held liable for the lesser crimes which are necessarily included in the offense of plunder.[91]Significantly, the Sandiganbayan's Resolution to the demurrers to evidence includes the finding that the PCSO Chairperson Valencia, should still be made to answer for malversation as included in the Information in these cases.[92] Since the Information charges conspiracy, both petitioners in these consolidated cases still need to answer for those charges. Thus, the demurrer to evidence should also be properly denied. It would be premature to dismiss and acquit the petitioners.
The sheer absence of grave abuse of discretion is basis for denying the consolidated Petitions. There, however, lies a more basic reason for respecting the course taken by the Sandiganbayan.
Rule 119, Section 23 of the Revised Rules on Criminal Procedure articulates the rules governing demurrers to evidence in criminal proceedings:
A demurrer to evidence is "an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue."[93]RULE 119
TRIAL
SEC. 23. Demurrer to evidence. — After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period often (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
It works by "challeng[ing] the sufficiency of the whole evidence to sustain a verdict."[94] In resolving the demurrer to evidence, a trial court is not as yet compelled to rule on the basis of proof beyond reasonable doubt[95]—the requisite quantum of proof for conviction in a criminal proceeding[96]—but "is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt."[97]
A demurrer to evidence is a device to effect one's right to a speedy trial[98] and to speedy disposition of cases.[99] This has been settled very early on in our jurisprudence:
[T]here seems now to be no reason for putting the defendant to the necessity of presenting his proof, if, at the time of the close of the proof of the prosecution, there is not sufficient evidence to convince the lower court that the defendant is guilty, beyond a reasonable doubt, of the crime charged in the complaint. . . .Indeed, if there is not even "competent or sufficient evidence"[101] to sustain a prima facie case, there cannot be proof beyond reasonable doubt to ultimately justify the deprivation of one's life, liberty, and/or property, which ensues from a criminal conviction. There is, then, no need for even burdening the defendant with laying out the entirety of his or her defense. If proof beyond reasonable doubt is so far out of the prosecution's reach that it cannot even make a prima facie case, the accused may as well be acquitted. On the part of the court before which the case is pending, it may likewise then be disburdened of the rigors of a full trial. A demurrer to evidence thereby incidentally serves the interest of judicial economy.
. . . [W]e see no reason now . . . for denying the right of the lower court to dismiss a case at the close of the presentation of the testimony by the prosecuting attorney, if at that time there is not sufficient evidence to make out a prima facie case against the defendant. If, however, the lower court, at that time, in the course of the trial, refuses to dismiss the defendant, his dismissal can not be made the basis of an appeal for the purpose of reversing the sentence of the lower court.[100]
In Spouses Condes v. Court of Appeals:[102]
The purpose of a demurrer to evidence is precisely to expeditiously terminate the case withput the need of the defendant's evidence. It authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part as he would ordinarily have to do, if it is shown by plaintiffs evidence that the latter is not entitled to the relief sought.[103]
V
The competence to determine whether trial must continue and judgment on the merits eventually rendered is exclusively lodged in the trial court:
Whether or not the evidence presented by the prosecuting attorney, at the time he rests his cause, is sufficient to convince the court that the defendant is guilty, beyond a reasonable doubt, of the crime charged, rests entirely within the sound discretion and judgment of the lower court.[104] (Emphasis supplied)This is because it is before the trial court that evidence is presented and the facts are unraveled. By its very nature as a "trial" court, the adjudicatory body has the opportunity to personally observe the demeanor of witnesses delivering testimonial evidence, as well as to peruse the otherwise sinuous mass of object and documentary evidence. It is the tribunal with the capacity to admit and observe and, in conjunction with this case, the principal capacity to test and counterpoise. Thus, it entertains and rules on objections to evidence.
Therefore, it follows that if a demurrer to evidence is denied, the correctness of this denial may only be ascertained when the consideration of evidence has been consummated. There is no better way of disproving the soundness of the trial court's having opted to continue with the proceedings than the entire body of evidence:
Whether he committed an error in denying the [demurrer to evidence], for insufficiency of proof, can only be determined upon appeal, and then not because he committed an error, as such, but because the evidence adduced during the trial of the cause was not sufficient to show that the defendant was guilty of the crime charged.[105] (Emphasis supplied)The settled wisdom is that while a demurrer is an available option to the accused so that he may speedily be relieved of an existing jeopardy, it is the tribunal with the opportunity to scrutinize the evidence that can best determine if the interest of justice—not of any particular party—is better served by either immediately terminating the trial (should demurrer be granted) or still continuing with trial (should demurrer be denied). It is this wisdom that animates Rule 119, Section 23's proscription against reyiews "by appeal or by certiorari before judgment."
Accordingly, in the event that a demurrer to evidence is denied, "the remedy is . . . to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law."[106] The proper subject of the appeal is the trial court's judgment convicting the accused, not its prior order denying the demurrer. The denial order is but an interlocutory order rendered during the pendency of the case,[107] while the judgment of conviction is the "judgment or final order that completely disposes of the case"[108] at the level of the trial court.
People v. Court of Appeals[109] involved two assailed Resolutions of the Court of Appeals. The first assailed Resolution granted the accused's Motion to consider the trial court's denial order not as an interlocutory order but as a "judgment of conviction." In granting this Motion, the first assailed Resolution also considered the Petition for Certiorari subsequently filed before the Court of Appeals as an "appeal" from that "judgment of conviction." This Resolution ruled that the Court of Appeals should proceed to rule on the "appeal" as soon as the parties' appeal briefs or memoranda had been filed. The second assailed Resolution considered the "appeal" submitted for resolution.
This Court found grave abuse of discretion on the part of the Court of Appeals in issuing the assailed Resolutions, particularly in "preempt[ing] or arrogat[ing] unto itself the trial court's original and exclusive jurisdiction."[110]
In making its conclusions, this Court emphasized an appellate court's lack of competence or jurisdiction to render an original judgment on the merits, i.e., one which, at the first instance, is based on the evidence or the facts established. It further explained that the exercise of appellate jurisdiction is contingent on a prior judgment rendered by a tribunal exercising original jurisdiction:
Manifestly, respondent court was bereft of jurisdiction to grant accused's counsel's motion, supra, to by-pass the trial court and itself "find the accused guilty and impose upon them the requisite penalty provided by law" (with their proposal to consider the trial court's denial order as a "judgment of conviction") and then review its own verdict and imposition of penalty (with the conversion of the certiorari petition into one of review on appeal).For the same reason that a denial order is an interlocutory order, it may not be assailed through a petition for certiorari. However, Resoso v. Sandiganbayan[112] explained that the non-availability of a petition of certiorari is premised not only on the interlocutory nature of a denial order, but more so on how "certiorari does not include the correction of evaluation of evidence":[113]
The exclusive and original jurisdiction to hear the case for estafa involving the sum of US$999,000.00 and pass judgment upon the evidence and render its findings of fact and in the first instance adjudicate the guilt or non-guilt of the accused lies with the trial court i.e. the Court of First Instance concurrently with the Circuit Criminal Court, as in this case.
On the other hand, the certiorari petition before it was filed only in aid of its appellate jurisdiction on the narrow issue of whether the trial court committed a grave abuse of discretion in denying the motion to dismiss the criminal case. Such a petition merited outright dismissal, more so with the accused's motion to consider the denial order as a verdict of conviction as above shown.
There was no judgment of the trial court over which respondent court could exercise its appellate jurisdiction. The mandate of Article X, section 9 of the Constitution requires that "Every decision of a court of record shall state the facts and the law on which it is based." Rule 120, section 2 of the Rules of Court requires further that "The judgment must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts proved or admitted by the defendant and upon which the judgment is based. If it is of conviction the judgment or sentence shall state (a) the legal qualification of the offense constituted by the acts committed by the defendant, and the aggravating or mitigating circumstances attending the commission thereof, if there is any; (b) the participation of the defendant in the commission of the offense, whether as principal, accomplice or accessory after the fact; (c) the penalty imposed upon the defendant party; and (d) the civil liability or damages caused by the offended party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved." It is obvious that the denial order was not such a judgment.[111] (Emphasis supplied, citations omitted)
Petitioner would have this Court review the assessment made by the respondent Sandiganbayan on the sufficiency of the evidence against him at this time of the trial. Such a review cannot be secured in a petition for certiorari, prohibition, and mandamus which is not available to correct mistakes in the judge's findings and conclusions or to cure erroneous conclusions of law and fact. Although there may be an error of judgment in denying the demurrer to evidence, this cannot be considered as grave abuse of discretion correctible by certiorari, as certiorari does not include the correction of evaluation of evidence. When such an adverse interlocutory order is rendered, the remedy is not to resort to certiorari or prohibition but to continue with the case in due course and when an unfavorable verdict is handed down, to take an appeal in the manner authorized by law.[114] (Emphasis supplied, citations omitted)The invariable import of the entire body of jurisprudence on demurrer to evidence is the primacy of a trial court's capacity to discern facts. For this reason, the last paragraph of Rule 119, Section 23 is cast in such certain and categorical terms that its text does not even recognize a single exception:
SEC. 23. Demurrer to evidence. — . . .
. . . .
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
VI
It is true that the Revised Rules on Criminal Procedure is subordinate to and must be read in harmony with the Constitution. Article VIII, Section 1 of the 1987 Constitution spells out the injunction that "[j]udicial power includes the duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Judicial review of a denial order is, therefore, still possible.
However, the review must be made on the narrowest parameters, consistent with the Constitution's own injunction and the basic nature of the remedial vehicle for review, i.e., a petition for certiorari:
Though interlocutory in character, an order denying a demurrer to evidence may be the subject of a certiorari proceeding, provided the petitioner can show that it was issued with grave abuse of discretion; and that appeal in due course is not plain, adequate or speedy under the circumstances. It must be stressed that a writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction, not errors of judgment. Where the issue or question involves or affects the wisdom or legal soundness of the decision — not the jurisdiction of the court — the same is beyond the province of a petition for certiorari.[115] (Emphasis supplied)Relief from an order of denial shall be allowed only on the basis of grave abuse of discretion amounting to lack or excess of jurisdiction. At the core of this requirement is the existence of an "abuse." Further, the operative qualifier is "grave." Thus, to warrant the grant of a writ of certiorari, the denial of demurrer must be so arbitrary, capricious, or whimsical as to practically be a manifestation of the trial court's own malevolent designs against the accused or to be tantamount to abject dereliction of duty:
[T]he abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. Mere abuse of discretion is not enough: it must be grave.[116]Even then, grave abuse of discretion alone will not sustain a plea for certiorari. Apart from grave abuse of discretion, recourse to a petition for certiorari must be impelled by a positive finding that "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law."[117]
A sweeping reference to the power of judicial review does not sanction an ad hoc disregard of principles and norms articulated in the Rules of Court, such as those on the basic nature and availability of a Rule 65 petition, as well as the availability of relief from orders denying demurrers to evidence. These are Rules which this Court itself promulgated and by which it voluntarily elected to be bound. More importantly, these Rules embody a wisdom that was articulated in an environment removed from the ephemeral peculiarities of specific cases. They are not to be rashly suspended on a provisional basis. Otherwise, we jeopardize our own impartiality.
The power of judicial review through a petition for certiorari must be wielded delicately. The guiding temperament must be one of deference, giving ample recognition to the unique competence of trial courts to enable them to freely discharge their functions without being inhibited by the looming, disapproving stance of an overzealous superior court.
The need for prudence and deference is further underscored by other considerations: first, a policy that frowns upon injunctions against criminal prosecution; and second, the need to enable mechanisms for exacting public accountability to freely take their course.
As a rule, "injunction will not lie to enjoin a criminal prosecution."[118] This is because "public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society except in specified cases among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights."[119]
"What cannot be done directly, cannot be done indirectly."[120] The quoted statements were made in jurisprudence and specifically pertained to the issuance of writs of injunction. Nevertheless, granting a petition for certiorari assailing the denial of demurrer to evidence will similarly mean the cessation of proceedings that, in the trial court's wisdom, were deemed imperative. By the stroke of another court's hand, the conduct of trial is peremptorily cast aside, and a full-scale inquiry into the accused's complicity is undercut.
The public interest that impels an uninhibited full-scale inquiry into complicity for criminal offenses, in general, assumes even greater significance in criminal offenses committed by public officers, in particular. If the legal system is to lend truth to the Constitution's declaration that "[p]ublic office is a public trust,"[121] all means must be adopted and all obstructions cleared so as to enable the unimpaired application of mechanisms for demanding accountability from those who have committed themselves to the calling of public service.
This is especially true in prosecutions for plunder. It is an offense so debased, it may as well be characterized as the apex of crimes chargeable against public officers:
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office.[122] (Emphasis supplied)This is especially true of prosecution before the Sandiganbayan. Not only is the Sandiganbayan the trial court exercising exclusive, original jurisdiction over specified crimes committed by public officers; it is also a court that exists by express constitutional fiat.
The Sandiganbayan was created by statute, that is, Presidential Decree No. 1486. However, this statute was enacted pursuant to a specific injunction of the 1973 Constitution:
SECTION 5. The National Assembly shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.[123]Under the 1987 Constitution, the Sandiganbayan continues to exist and operate by express constitutional dictum:
SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.[124]Though the Sandiganbayan is not an independent constitutional body, that it owes its existence to an express and specific constitutional mandate is indicative of the uniqueness of its competence. This "expertise-by-constitutional-design" compels a high degree of respect for its findings and conclusions within the framework of its place in the hierarchy of courts.
Guided by these principles, animated by the wisdom of deferring to the Sandiganbayan's competence—both as a trial court and as the constitutionally ordained anti-graft court—and working within the previously discussed parameters, this Court must deny the consolidated Petitions.
This Court is not a trier of facts. Recognizing this Court's place in the hierarchy of courts is as much about propriety in recognizing when it is opportune for this Court to intervene as it is about correcting the perceived errors of those that are subordinate to it.
Prudence dictates that we abide by the established competence of trial courts. We must guard our own selves against falling into the temptation (against which we admonished the Court of Appeals in People v. Court of Appeals) to "preempt or arrogate unto [ourselves] the trial court's original and exclusive jurisdiction."[125]
We are faced with an independent civil action, not an appeal. By nature, a petition for certiorari does not enable us to engage in the "correction of evaluation of evidence."[126] In a Rule 65 petition, we are principally equipped with the parties' submissions. It is true that in such petitions, we may also require the elevation of the records of the respondent tribunal or officer (which was done in this case). Still, these records are an inadequate substitute for the entire enterprise that led the trial court—in this case, the Sandiganbayan—to its conclusions.
The more judicious course of action is to let trial proceed at the Sandiganbayan. For months, it received the entire body of evidence while it sat as a collegiate court. Enlightened by the evidence with which it has intimate acquaintance, the Sandiganbayan is in a better position to evaluate them and decide on the full merits of the case at first instance. It has the competence to evaluate both substance and nuance of this case. Thus, in this important case, what would have emerged is a more circumspect judgment that should have then elevated the quality of adjudication, should an appeal be subsequently taken.
The cardinal nature of the offense charged, the ascendant position in government of the accused (among them, a former President of the Republic), and the sheer amount of public funds involved demand no less. Otherwise, the immense public interest in seeing the prosecution of large-scale offenders and in the unbridled application of mechanisms for public accountability shall be undermined.
I dissent from the view of the majority that there was insufficient evidence to support a finding beyond reasonable doubt that the accused were in conspiracy to commit a series or combination of acts to amass and accumulate more than Three Hundred Million Pesos within 2008 to 2010 through raids of the public coffers of the PCSO.
If any, what the majority reveals as insufficient may be the ability of the judiciary to correctly interpret the evidence with the wisdom provided by the intention of our laws on plunder and the desire of the sovereign through a Constitution that requires from public officers a high degree of fidelity to public trust. We diminish the rule of law when we deploy legal interpretation to obfuscate rather than to call out what is obvious.
A total of Php365,997,915.00 was disbursed in cash as additional Confidential and Intelligence Fund (CIF) from the PCSO. Where it went and why it was disbursed was not fully explained. It is clear that the cash was taken out by the General Manager and the Chair of the PCSO among others. Its disbursement was made possible only by repeated acts of approval by the former President. The General Manager had intimate access to the President herself. She bypassed layers of supervision over the PCSO. The approvals were in increasing amounts and each one violating established financial controls. The former President cannot plead naivete. She was intelligent and was experienced.
The scheme is plain except to those who refuse to see.
ACCORDINGLY, I vote to DENY the consolidated Petitions for Certiorari. Public respondent Sandiganbayan committed no grave abuse of discretion in issuing the assailed April 6, 2015 and September 10, 2015 Resolutions.
[1] J. Bernabe, Separate Opinion, p. 17.
[2] RULES OF COURT, Rule 119, sec. 23 provides:
SEC. 23. Demurrer to evidence. — . . .
The order denying the motion for leave of 5court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
[3] CONST. (1973), art. XIII, sec. 5 provides:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
[4] CONST., art. XI, sec. 4 provides:
SEC. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law.
[5] Rollo (G.R. No. 220598), p. 24, Petition.
[6] An Act Defining and Penalizing the Crime of Plunder (1991).
[7] 421 Phil. 290(2001) [Per J. Bellosillo, En Banc].
[8] Id. at 343-344.
[9] Rep. Act No. 7080 (1991), sec. I provides:
Section 1. Definition of Terms. — As used in this Act, the term —
. . . .
d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or - controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
[10] Rollo (G.R. No. 220598), p. 306, Information.
[11] Id. at 306-307.
[12] Id. at 307.
[13] Id. at 306-307.
[14] Id. at 51-53, Petition.
[15] Rep. Act No. 7080 (1991), sec. 2.
[16] Ponencia, p. 34.
[17] People v. Medina, 354 Phil. 447, 460 (1998) [Per J. Regalado, En Banc], citing People v. Paredes, 133 Phil. 633, 660 (1968) [Per J. Angeles, En Banc]; Valdez v. People, 255 Phil. 156, 160-161 (1986) [Per J. Cortes, En Banc]; People v. De la Cruz, 262 Phil. 838, 856 (1990) [Per J. Melencio-Herrera, Second Division]; People v. Camaddo, G.R. No. 97934, January 18, 1993, 217 SCRA 162, 167 [Per J. Bidin, Third Division].
[18] People v. Peralta, 134 Phil. 703, 723 (1968) [Per Curiam, En Banc].
[19] Alvizo v. Sandiganbayan, 454 Phil. 34, 106 (2003) [Per J. Austria-Martinez, En Banc].
[20] Rollo (G.R. No. 220598), p. 157-165.
[21] Rollo (G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandigunbayan records, Exhibit "E" for the Prosecution.
[22] Id. at 1644, Comment filed by the Ombudsman in G.R. No. 220598.
[23] Otherwise known as "An Act Providing for Charity Sweepstakes, Horse Races, and Lotteries".
[24] Rollo (G.R. No. 220598), p. 3416, Comment filed by the Ombudsman in G.R. No. 220953; Sandiganbayan records, Exhibit "E" for the Prosecution.
[25] Id. at 1671, Annex 1 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
[26] Id.
[27] Id.
[28] Id. at 1644.
[29] Id. at 1642, Comment filed by the Ombudsman in G.R. No. 220598.
[30] Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
[31] Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution.
[32] Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
[33] Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
[34] Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
[35] Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan Records Exhibit "W" for the Prosecution.
[36] Id. at 1591-1611, Comment filed by the Ombudsman in G.R. No. 220598.
[37] See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[38] L.O.I. No. 1282 (1983), par. 2 provides: "Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure and the particular aims to be accomplished."
[39] L.O.I. No. 1282 (1983).
[40] See rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbaynn records, Exhibit "P" for the Prosecution
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution; and
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[41] Id.
[42] In re: Restatement with Amendments of COA Issuances on the Audit of Intelligence and/or Confidential Funds (1992).
[43] In re: Audit and Liquidation of Confidential and Intelligence Funds For National and Corporate Sectors (2003).
[44] The following must be submitted whenever a new Disbursing Officer is appointed.
- Certified xerox copy of the designation of Special Disbursing Officers.
- Certified xerox copy of their fidelity bonds.
- Specimen signature of officials authorized to sign cash advances and liquidation vouchers. (Emphasis supplied)
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records. Exhibit "Q" for the Prosecution;
Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution;
Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution;
Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[46] Id. at 1829, Annex 4 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "K" for the Prosecution.
[47] Id. at 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution;
Id. at 1832, Annex 6 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "Q" for the Prosecution;
[48] Ponencia, p. 7.
[49] Id. at 1952, Annex 22 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "L" for the Prosecution.
[50] Id. at 1953, Annex 23 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "R-2" for the Prosecution.
[51] Id. at 1955, Annex 25 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "S" for the Prosecution.
[52] Id. at 1956, Annex 26 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "T" for the Prosecution.
[53] Id. at 1957, Annex 27 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "V" for the Prosecution.
[54] Id.
[55] Ponencia, p. 7.
[56] Ponencia, p. 7.
[57] Id. at 2062, Annex 36 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "E" for the Prosecution.
[58] Id. at 2063, Annex 37 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "W" for the Prosecution.
[59] Ponencia, p.5.
[60] Id. at 1652-1653, Comment filed by the Ombudsman in G.R. No. 220598.
[61] Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "M" for the Prosecution.
[62] At that time, three (3) disbursements were already made based on the approval of the requests of PCSO General Manager Uriarte. These were made on April 2, 2008, August 13, 2008, and January 19, 2009.
[63] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[64] Id. at 1653, Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records. Exhibits "JJ" to "H" for the Prosecution.
[65] Id.
[66] Sandiganbayan records. Exhibits "JJ" to "H3" for the Prosecution.
[67] Sandiganbayan records, Exhibits "JJ" to "H3" for the Prosecution.
[68] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[69] Id.
[70] TSN, February 12, 2014.
[71] TSN, January 29, 2014.
[72] TSN, February 5, 2014.
[73] TSN, February 19, 2014.
[74] TSN, February 26, 2014.
[75] TSN, March 5, 2014.
[76] TSN, March 12, 2014.
[77] TSN, March 19, 2014.
[78] TSN, March 26, 2014.
[79] Rollo (G.R. No. 220598), p. 1653, Comment filed by the Ombudsman in G.R. No. 220598.
[80] Executive Order No. 383, series of 2004.
[81] Executive Order No. 455, series of 2005.
[82] See Rollo (G.R. No. 220598), p. 1831, Annex 5 of the Comment filed by the Ombudsman in G.R. No. 220598; Sandiganbayan records, Exhibit "P" for the Prosecution.
[83] Id. at 3476-3479, Comment filed by the Ombudsman in G.R. No. 220953.
[84] Id.
[85] Id. at 3478, Comment filed by the Ombudsman in G.R. No. 220953.
[86] 427 Phil. 820 (2002) [Per J. Puno, En Banc].
[87] Estrada v. Sandiganbayan, 421 Phil. 290 (2001) [Per J. Bellosillo, En Banc]; Enrile v. People, G.R. No. 213455, August 11, 2015, 766 SCRA 1 [Per J. Brion, En Banc]; Serapio v. Sandiganbayan, 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc]; Estrada v. Sandiganbayan, 427 Phil. 820 (2002) [Per J. Puno, En Banc].
[88] 444 Phil. 499 (2003) [Per J. Callejo Sr., En Banc].
[89] Id. at 524-525.
[90] Id.
[91] Petition, Annex "B", People v. Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-crm-0174 Concurring and Dissenting, April 6, 2016, p. 5, per Ponferrada J.
[92] Petition, Annex "A", People v. Gloria Macapagal Arroyo et al., Crim. Case No. SB-12-CRM-0174, Resolution, April 6, 2016, pp. 44-52, per Lagos J.
[93] Choa v. Choa, 441 Phil. 175, 183 (2002) [Per J. Panganiban, Third Division], citing Black's Law Dictionary 433 (6th ed, 1990).
[94] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
[95] Cf. Spouses Condes v. Court of Appeals, 555 Phil. 311, 323-324 (2007) [Per J. Nachura, Third Division], on demurrer to evidence in civil cases: "In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence. 'Preponderance of evidence' means evidence which is of greater weight, or more convincing than that which is offered in opposition to it. It is, therefore, premature to speak of 'preponderance of evidence' in a demurrer to evidence because it is filed before the defendant presents his evidence." (Emphasis supplied)
[96] RULES OF COURT, Rule 133, sec. 2 provides:
SEC. 2. Proof beyond reasonable doubt. — In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt docs not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.
[97] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division], emphasis supplied.
[98] CONST., art. III, sec. 14 provides:
SECTION 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
[99] CONST., art. III, sec. 16 provides:
SECTION 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.
[100] Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division].
[101] Gutib v. Court of Appeals, 371 Phil. 293, 300 (1999) [Per J. Bellosillo, Second Division].
[102] 555 Phil. 311 (2007) [Per J, Nachura, Third Division].
[103] Id. at 324, citing Heirs of Emilio Santioque v. Heirs of Emilio Calma, 536 Phil. 524, 540-541 (2006) [Per J. Callejo, First Division].
[104] Romero v. U.S., 22 Phil. 565, 569 (1912) [Per J. Johnson, First Division]. In the context of this Decision, "lower court" was used to mean "trial court."
[105] Id.
[106] Soriquez v. Sandiganbayan, 510 Phil. 709, 719 (2005) [Per J. Garcia, Third Division], citing Quiñon v. Sandiganbayan, 338 Phil. 290, 309 (1997) [Per C.J. Narvasa, Third Division].
[107] Azor v. Sayo, 273 Phil. 529, 533 (1991) [Per J. Paras, En Banc]: "[A] denial of the demurrer is not a final order but merely an interlocutory one. Such an order or judgment is only provisional, as it determines some point or matter but is not a final decision of the whole controversy."
[108] RULES OF COURT, Rule 41, sec. 1 provides:
SECTION 1. Subject of appeal. — An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable.
No appeal may be taken from:
. . . .
(c) An interlocutory order;
[109] 204 Phil. 511 (1982) [Per J. Teehankee, First Division].
[110] Id. at 517.
[111] Id. at 528-529.
[112] 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division].
[113] Id. at 256, citing International Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].
[114] Id.
[115] Spouses Condes v. Court of Appeals, 555 Phil. 311, 322 (2007) [Per J. Nachura, Third Division] citing Choa v. Choa, 441 Phil. 175, 181 (2002) [Per J. Panganiban, Third Division], Deutsche Bank Manila v. Chua Yok See, 517 Phil. 212 (2006) [Per J. Callejo, First Division].
[116] Mitra v. Commission on Elections, 636 Phil. 753, 777 (2010) [Per J. Brion, En Banc].
[117] RULES OF COURT, Rule 65, sec. 1 provides:
SECTION 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
[118] Asutilla v. Philippine National Bank, 225 Phil. 40, 43 (1986) [Per J. Melencio-Herrera, First Division].
[119] Id.
[120] Director of Prisons v. Teodoro, 97 Phil. 391, 397 (1955) [Per J. Labrador, First Division].
[121] CONST., art. XI, sec. 1.
[122] Estrada v. Sandiganbayan, 421 Phil. 290, 366-367 (2001) [Per J. Bellosillo, En Banc].
[123] CONST. (1973), art. XIII, sec. 5 was subsequently amended to read as:
SEC. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law.
[124] CONST., art. XI, sec. 4.
[125] People v. Court of Appeals, 204 Phil. 511,517(1982) [Per J. Teehankee, First Division].
[126] Resoso v. Sandiganbayan, 377 Phil. 249 (1999) [Per J. Gonzaga-Reyes, Third Division], citing Interorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 503 (1996) [Per J. Panganiban, Third Division].