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GAERLAN, J.:
That on November 11, 2011, or sometime prior or subsequent thereto, in the Municipality of Binmaley, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, above-named accused LORENZO M. CEREZO, a public officer, being then the Municipal Mayor of Binmaley, Pangasinan, WHILE IN THE PERFORMANCE OF HIS OFFICIAL FUNCTION, AND TAKING ADVANTAGE OF HIS POSITION, CONSPIRING AND CONFEDERATING WITH PRIVATE INDIVIDUAL accused EDWIN G. CASTILLO, owner and operator of MTAC's Merchandising, ACTING WITH EVIDENT BAD FAITH, MANIFEST PARTIALITY OR GROSS INEXCUSABLE NEGLIGENCE, did then and there willfully, unlawfully and criminally GIVE UNWARRANTED BENEFIT, ADVANTAGE OR PREFERENCE TO THE AFORE-NAMED PRIVATE INDIVIDUAL BY ENTERING IN BEHALF OF THE MUNICIPALITY INTO A CONTRACT OF SERVICE dated November 11, 2011 with MTAC's Merchandising for the lease of Two (2) units of Dump Truck with rental rate of One Thousand Pesos (P1,000.00) per hour/unit or for a total amount of Eighty Thousand Pesos (P80,000.00) for the period November 7, 8, 9, 10 and 11, 2011 WITHOUT THE BENEFIT OF PUBLIC BIDDING AND THE REQUIRED BIDS AND AWARDS COMMITTEE (BAC) RESOLUTION RECOMMENDING TO ACCUSED CEREZO TO RESORT TO ALTERNATIVE MODE[S] OF PROCUREMENT, TO THE PREJUDICE OF PUBLIC INTEREST.The other 20 Informations corresponding to SB-15-CRM-0321 to 0340 are couched in the same language except for particulars pertaining to the date of the contract of lease, the equipment leased, the rate, total contract price, and the period covered by the lease contract.[8]
CONTRARY TO LAW.[7]
Evidence for the Prosecution
- Accused Cerezo and Castillo admitted the following proposed stipulations of the prosecution:
- Identity of Lorenzo M. Cerezo and Edwin G. Castillo as the same persons named in the twenty-one Informations; and
- Accused Cerezo was the duly elected and sitting mayor of Binmaley, Pangasinan from June 30, 2010 to June 30, 2013.
- Accused Cerezo admitted the following proposed stipulations of accused Castillo, to wit:
- The disbursement vouchers prepared by the Municipality of Binmaley as payments made to MTAC's Merchandising were never disallowed by the Commission on Audit (COA);
- There was no disallowance relative to the subject contracts in any COA Report;
- Accused Castillo is the owner/proprietor of MTAC's Merchandising, a legitimate business entity.[11]
Anita U. Urbano was the whistleblower who filed her complaint-affidavit before the Office of the Ombudsman on November 27, 2013. x x xEvidence for the Defense
x x x x
Gertrude C. Reyes was the Municipal Accountant of Binmaley, Pangasinan from 1993 to August 2013. x x x She certified the disbursement vouchers (DVs) vis a vis the contract of lease of heavy equipment between the municipality of Binmaley and MTAC's Merchandising. Thence, "the expenses were lawful" and "there was actually a need for garbage collections." None of the DVs were disallowed by the Commission on Audit (COA).
x x x x
Dr. Cecilio P. Terrado, Jr. was the Municipal Administrator of Binmaley, Pangasinan from July 2010 to June 30, 3013 x x x [H]e signed Obligation Slips (OS), thereby "certifying that there is an allotment for the obligation and that the same is necessary, lawful, and under [his] direct supervision." The contracts of lease for heavy equipment were "necessary because there's the need to immediately collect the garbage that were piling up."
x x x x
Jeffrey De los Angeles, Municipal Budget Officer of Binmaley from 2011 to 2018, certified several Obligation Slips in relation to the contracts of lease of heavy equipment entered into by the municipality from 2011 to 2013. x x x
x x x x
Erlinda C. Erguiza, the Municipal Treasurer of Binmaley, Pangasinan from 2007 to 2015, was the custodian of the checks issued by the municipality. x x x [S]he signed Box "B" of several disbursement vouchers, as well as the checks for the payment of heavy equipment leased by the municipality from MTAC's Merchandising. x x x She clarified that "before [she] issued the check, a disbursement voucher and all other documents to support the disbursement vouchers will have to be approved first by the Mayor."
x x x x
Evangeline L. Payumo, Statistician I, was designated as Bids and Awards Committee (BAC) Secretariat from 2010 to 2013. She categorically stated that based on her personal knowledge, no public bidding was conducted by the BAC from 2010 to 2013 in connection with the lease of heavy equipment by the municipality of Binmaley from MTAC's Merchandising. She could not recall taking any minutes of any BAC meeting in connection with the subject lease contracts. Neither could she remember having prepared any document in connection with a BAC Resolution pertaining thereto.
x x x x
Antonio S. Royeca was designated as Officer-in-Charge, Municipal Accountant of Binmaley from August 2016 to December 2017. He issued certified true copies of checks related to the payment of rentals of heavy equipment to MTAC's Merchandising.
x x x x
Josephine F. Anchiboy, then-Assistant Municipal Treasurer of Binmaley, Pangasinan from 2007 to 2015, identified each check vis a vis the corresponding disbursement voucher in connection with the payment of rentals for the lease of heavy equipment by the municipality of Binmaley, Pangasinan from MTAC's Merchandising.
x x x x
State Auditor IV Lydia P. Baysic identified and submitted certified true copies of disbursement vouchers, obligation slips, contracts and official receipts relative to the payment of rentals for heavy equipment that were leased by the municipality of Binmaley, Pangasinan from MTAC's Merchandising.[13]
Froilando V. Fernandez, Punong Barangay of Barangay Gayaman, Binmlaey, Pangasinan from 2010 to 2013, had personal knowledge of the garbage problem in his locale. This was aggravated by the accumulation of typhoon debris. He brought this matter to the attention of Mayor Cerezo who in turn, referred it to Dr. Cecilio P. Terrado, the Municipal Administrator, for immediate action. Eventually, dump trucks collected solid wastes regularly, especially during the typhoon season.
x x x x
x x x x
Annie B. Manuel, Administrative Officer III / Records Officer II of the Sangguniang Panlalawigan Secretariat of the Province of Pangasinan, presented certified copies from the Office of the Sangguniang Panlalawigan of said local government unit (LGU). x x x
x x x x
Avenix S. Arenas is the Local Disaster Risk Reduction and Management Officer (LDRRMO) IV / Deputy Provincial Disaster Risk Management Officer (PDRRMO)) of the province of Pangasinan. She identified and authenticated the following documents [.][16]
WHEREFORE, premises considered, the Court hereby finds and so holds that –Hence, the present appeal.
SB-15-CRM-0321;
SB-15-CRM-0322;
SB-15-CRM-0323;
SB-15-CRM-0324;
SB-15-CRM-0325;
SB-15-CRM-0326;
SB-15-CRM-0327;
SB-15-CRM-0328;
SB-15-CRM-0329;
SB-15-CRM-0333;
SB-15-CRM-0334;
SB-15-CRM-0335;
SB-15-CRM-0336;
SB-15-CRM-0338;
SB-15-CRM-0339;
SB-15-CRM-0331;
SB-15-CRM-0332;
SB-15-CRM-0337;
SB-15-CRM-0340
Accordingly, in Criminal Case Nos. –accused CEREZO is sentenced to suffer the indeterminate penalty of six (6) years and one (1) month, as minimum, to ten (10) years and one (1) day, as maximum, with perpetual disqualification from public office, and loss of all retirement and gratuity benefits under any law, for each violation of Republic Act No. 3019, as amended, in the Criminal Cases mentioned above; Provided, however, that the duration of CEREZO's total imprisonment shall not exceed forty (40) years.
- SB-15-CRM-0320;
- SB-15-CRM-0321;
- SB-15-CRM-0322;
- SB-15-CRM-0323;
- SB-15-CRM-0324;
- SB-15-CRM-0325;
- SB-15-CRM-0326;
- SB-15-CRM-0327;
- SB-15-CRM-0328;
- SB-15-CRM-0329;
- SB-15-CRM-0333;
- SB-15-CRM-0334;
- SB-15-CRM-0335;
- SB-15-CRM-0336;
- SB-15-CRM-0338; and
- SB-15-CRM-0339
For his part, accused CASTILLO is sentenced to suffer the indeterminate penalty of six (6) years and one (1) month, as minimum, to ten (10) years and one (1) day, as maximum, with perpetual disqualification from public office for each violation of Republic Act No. 3019, as amended, in the Criminal Cases mentioned above; Provided, however, that the duration of CASTILLO'S total imprisonment shall not exceed forty (40) years.
With respect to Criminal Case Nos. -Accused CEREZO and CASTILLO are ACQUITTED.
- SB-15-CRM-0330;
- SB-15-CRM-0331;
- SB-15-CRM-0332;
- SB-15-CRM-0337; and
- SB-15-CRM-0340
SO ORDERED.[23]
Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:To sustain a conviction under Section 3(e) of R.A. No. 3019, the following elements must be proven beyond reasonable doubt:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
The second element provides for the three distinct modes of committing the violation of Section 3(e) of R.A. No. 3019, that is, through "manifest partiality," or with "evident bad faith," or through "gross inexcusable negligence." In Coloma, Jr. v. Sandiganbayan,[39] this Court held that:
- [T]he accused must be a public officer discharging administrative, judicial, or official functions;
- [He or She] must have acted with manifest partiality, or evident bad faith or [gross] inexcusable negligence; and
- [His or Her] action caused any undue injury to any party, including the Government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his [or her] functions.[38]
The second element of Section 3(e) of R.A. No. 3019 may be committed in three ways, that is, through manifest partiality, evident bad faith or gross inexcusable negligence. Proof of any of these three in connection with the prohibited acts mentioned in Section 3(e) of R.A. No. 3019 is enough to convict.There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.[41] Similarly, bad faith per se is not enough for one to be held criminally liable for violation of Section 3(e) of R.A. No. 3019, it must be evident and must partake the nature of fraud or a manifest deliberate intent on the part of the accused to do wrong or to cause damage.[42]
On the meaning of "partiality," "bad faith," and "gross negligence," the Court has elucidated:
"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith" does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud. "Gross negligence" has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.[40] (Citations omitted)
The subject "Contract[s] of Service" are, for all intents and purposes, contracts of lease of equipment. A contract of lease, as defined in Civil Law, calls for some form of collaboration or association between the parties since lease is a "consensual, bilateral, onerous and commutative contract by which one person binds himself to grant temporarily the use of a thing or the rendering of some service to another who undertakes to pay some rent, compensation or price."In Bahilidad v. People,[50] this Court summarized the basic principles in determining whether there exists conspiracy or not, to wit:
x x x x
A conspiracy of silence and inaction arising from gross inexcusable negligence would almost always be inferred only from the surrounding circumstances and the parties' acts or omissions, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and concurrence of sentiments respecting the commission of the offense. x x x[49]
There is conspiracy "when two or more persons come to an agreement concerning the commission of a felony and decide to commit it." Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct, evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.In Macapagal-Arroyo v. People,[52] this Court discussed how conspiracy, express or implied, is proven, viz.:
It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-Âconspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction.[51] (Citations omitted)
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. 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.[53] (Emphasis and underscoring supplied; citations omitted)Also, in Sistoza v. Desierto,[54] this Court held that for implied conspiracy or a conspiracy of silence and inaction to exist, there must be conscious criminal design evinced by circumstances where the silence of the accused is tantamount to tacit approval of the crime.
The instant case brings to the fore the importance of clearly differentiating between acts simply negligent and deeds grossly and inexcusably negligent punishable under Sec. 3, par. (e), of the Anti-Graft and Corrupt Practices Act. While we do not excuse petitioner's manner of reviewing the award of the supply of tomato paste in favor of Elias General Merchandising, whereby he cursorily perused the purchase order and readily affixed his signature upon it, since he could have checked the supporting documents more lengthily, it is our considered opinion that his actions were not of such nature and degree as to be considered brazen, flagrant and palpable to merit a criminal prosecution for violation of Sec. 3, par. (e), of RA 3019. To paraphrase Magsuci v. Sandiganbayan, petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official documents and assessments of his subordinates, but for conspiracy of silence and inaction to exist it is essential that there must be patent and conscious criminal design, not merely inadvertence, under circumstances that would have pricked curiosity and prompted inquiries into the transaction because of obvious and definite defects in its execution and substance. To stress, there were no such patent and established flaws in the award made to Elias General Merchandising that would have made his silence tantamount to tacit approval of the irregularity.[55] (Emphasis and underscoring supplied; citations omitted)Contrary to the ruling of Sandiganbayan, there is reasonable doubt as to Castilllo's knowing participation in the charged offenses. His mere consent to the lease contracts does not ipso facto show that he intentionally participated in the transaction with a view to the furtherance of the common criminal design and purpose, i.e., the commission of a crime. Verily, the "collaboration" necessary for the execution of lease contracts does not rise to the level of criminal collaboration, i.e., a conspiracy, especially here where there is absence of any allegation or evidence that Castillo entered into the lease contracts with knowledge that the same was defective, or should have known that the same is defective, for failure of the municipality of Binmaley to conduct public bidding with respect to the same.
Thus, in order to successfully prosecute the accused under Section 3(e) of R.A. 3019 based on a violation of procurement laws, the prosecution cannot solely rely on the fact that a violation of procurement laws has been committed. The prosecution must prove beyond reasonable doubt that: (1) the violation of procurement laws caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference, and (2) the accused acted with evident bad faith, manifest partiality, or gross inexcusable negligence. This the prosecution failed to do. Specifically, the prosecution miserably failed to prove beyond reasonable doubt that petitioners acted with evident bad faith, manifest partiality, or gross inexcusable negligence in relation to the subject procurements.[59] (Emphasis and underscoring supplied)As will be shown below, the Prosecution failed to discharge its burden to prove beyond reasonable doubt that the violation of procurement laws caused undue injury to any party, including the government or gave any private party unwarranted benefits, advantage or preference.
This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury, or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.In Sison v. People,[62] this Court defined the terms "unwarranted," "advantage," and "preference" in this wise:
In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property[; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.
x x x x
Furthermore, damages must not only be capable of proof, but must be actually proven with a reasonable degree of certainty. They cannot be based on flimsy and non-substantial evidence or upon speculation, conjecture or guesswork. They cannot include speculative damages which are too remote to be included in an accurate estimate of the loss or injury.[61] (Emphasis and underscoring supplied; citations omitted)
Aside from the allegation of undue injury to the government, petitioner was also charged with having given unwarranted benefit, advantage or preference to private suppliers. Under the second mode, damage is not required.Moreover, in Macairan v. People[64] (Macairan), this Court held that it is not enough that unwarranted benefits were given to another or that there was damage to the government as a result of a violation of a law, the same must be done with corrupt intent, a dishonest design, or some unethical interest, viz.:
The word "unwarranted" means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.[63] (Citations omitted)
In addition, the granting of unwarranted benefits, advantage or preference or the causing of undue injury to the government must be inextricably linked to the existence of fraudulent or corrupt motive on the part of the accused. x x xHere, there was no finding by the Sandiganbayan that Cerezo and Castillo caused undue injury to the government.[66] In any event, the prosecution failed to specify, quantify, and prove to the point of moral certainty that the government suffered any undue injury due to Cerezo entering into the lease contracts with MTAC's Merchandising. Verily, aside from establishing that the leasing of heavy machinery was in violation of government procurement laws, the prosecution failed to prove that the local government suffered any damage due to the same. There was no evidence that: (a) there was in fact no need to lease heavy equipment to haul garbage and debris brought about by typhoons and monsoon rains; (b) that the municipality of Binmaley could have gotten a better rate from a different service provider; or (c) that MTAC's Merchandising failed to satisfactorily perform the service that they were contracted for. In fact, the testimonial evidence on record shows that during the time material to the instant case, Binmaley had a problem with their solid waste management which was subsequently solved by the local government.[67]
The Court further notes that there is no iota of proof that petitioners in this case profited from the questioned transactions. In Martel, the Court En Banc highlighted the intent of R.A. No. 3019 in this wise:As its title implies, and as what can be gleaned from the deliberations of Congress, R.A. 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under R.A. 3019 is corruption. As explained by one of the sponsors of the law, Senator Arturo M. Tolentino, ['][w]hile we are trying to penalize, the main idea of the bill is graft and corrupt practices. x x x Well, the idea of graft is the one emphasized.['] Graft entails the acquisition of gain in dishonest ways.Thus, following Martel, it is not enough that unwarranted benefits were given to another or that there was damage to the government as a result of a violation of a law, rule or regulation. The acts constituting the elements of a violation of R.A. No. 3019 must be effected with corrupt intent, a dishonest design, or some unethical interest — which are clearly wanting in the instant case.[65] (Emphasis and underscoring supplied; citations omitted)
Certainly, the possibility of leasing heavy equipment at lower rentals from a different supplier cannot be ruled out. It is thus clear that MTAC's Merchandising, having profited from its irregular selection as supplier/lessor, was given unwarranted benefit and preference over all other potential supplier/lessors that could have made a better offer to the municipality. x x x[68]Moreover, it must be stressed that it was not proven beyond reasonable doubt that Cerezo's act of entering into the lease contracts with MTAC's Merchandising on behalf of the municipality of Binmaley was in any way animated by any corrupt intent, dishonest design, or any unethical interest. In the assailed Decision, while there was no finding that Cerezo was in evident bad faith with respect to his acts in the subject procurement, the Sandiganbayan nonetheless held that Cerezo "demonstrated his manifest partiality x x x when despite foreknowledge that the Sangguniang Bayan has yet to give him the legislative fiat to sidestep public bidding and directly contract with MTAC's Merchandising, he swiftly and arbitrarily took matters into his own hands [and that] worse, he repeatedly did it."[69] However, it must be noted that due to the absence of any evidence that there existed other business entities from which the municipality of Binmaley could have alternatively leased the heavy equipment from, it cannot be said with moral certainty that Cerezo intentionally favored MTAC's Merchandising over any other business entity. Likewise, there is absence of any evidence that Cerezo's act of directly contracting with MTAC's Merchandising was spurred by a malicious motive or fraudulent intent.