Jurisprudence on the exemption to the Command Responsibility rule

a. G.R. No. 126557 (Ramon Albert vs. GANGAN, in his capacity as Chairman,
Commission on Audit)

RULING:

The mere fact that a public officer is the head of an agency does not
necessarily mean that he is the party ultimately liable in case of
disallowance of expenses for questionable transactions of his agency.
Petitioner, as head of the agency, cannot be held personally liable for the
disallowance simply because he was the final approving authority of the
transaction in question and that the officers/employees who processed the
same were directly under his supervision.25 Though not impossible, it would
be improbable for him to check all the details and conduct physical
inspection and verification of the application of AMAKO considering the
voluminous paperwork attendant to his office. He has to rely mainly on the
certifications, recommendations and memoranda of his subordinates in
approving the loan. The processing, review and evaluation of the loan
application passed through the responsible and authorized officers of the
CMP Task Force. As admitted by the Director of the Corporate Audit Office,
Emma M. Espina, the officers of the CMP Task Force erred in discharging
these assigned duties.26 Moreover, the high appraisal of the subject
property cannot be attributed to herein petitioner because the valuation of
the said property is undertaken by the HIGC,27 an entity separate and
distinct from the NHMFC and over which petitioner exercises no control or
supervision.

The Supreme Court has consistently held that every person who signs or
initials documents in the course of transit through standard operating
procedures does not automatically become a conspirator in a crime which
transpired at a stage where he had no participation. His knowledge of the
conspiracy and his active and knowing participation therein must be proved
by positive evidence. The fact that such officer signs or initials a voucher as
it is going the rounds does not necessarily follow that the said person
becomes part of a conspiracy in an illegal scheme. The guilt beyond
reasonable doubt of each supposed conspirator must be established.

The actions taken by petitioner involved the very functions he had to

discharge in the performance of official duties. He cannot, therefore, be
held civilly liable for such acts unless there is a clear showing of bad faith,
malice or gross negligence.34 Inasmuch as no evidence was presented to
show that petitioner acted in bad faith and with gross negligence in the
performance of his official duty, he is presumed to have acted in the regular
 performance of his official duty. Similarly, it is a basic tenet of due process
that the decision of a government agency must state the facts and the law
on which the decision is based. The COA decision merely stated conclusions
of law. Facts and circumstances, as well as the why's, the what's and the
how's of the disallowance, were patently missing, inaccurate or incomplete.
The COA cannot just perform its constitutional function of disallowing
expenditures of government funds at sheer discretion. There has to be
factual basis why the expenditure is alleged to be fraudulent or why was
there a misrepresentation. Liability depends upon the wrong committed
and not solely by reason of being the head of a government agency. The
COA even mentioned the anti-graft law which imputes liability for a grossly
disadvantageous contract entered into by a government functionary. But as
to why and how the disbursement of funds in this case was considered
disadvantageous must be duly supported by findings of facts.

Consequently, respondent COA committed a grave abuse of its discretion

when it held petitioner personally liable for the subject disallowance.

WHEREFORE, the assailed Decision and Resolution of the respondent

Commission on Audit are hereby REVERSED and SET ASIDE, insofar as they
refer to petitioner

b. Pareño vs. Sandiganbayan2, ,

The Supreme Court held that:

"It is rather apparent that under the Sandiganbayan's decision, a

department secretary, bureau chief, commission chairman, agency head,
department head or chief of office would be equally culpable of every
crime arising from transactions or held guilty of conspiracy simply
because he was the last of a long line of officials or employees who acted
upon or affixed their signatures to a transaction. We cannot allow this
because guilt must be premised on a more knowing personal and
deliberate participation of each individual who is charged with others as
part of a conspiracy. There must be more convincing proof which in this
case is wanting." (Underscoring Supplied)

c. In the case of Arias vs. Sandiganbayan, the Supreme Court emphatically

ruled:

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

"x x x xxx xxx

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

"There should be other grounds than the mere signature or approval

appearing on a voucher to sustain a conspiracy charge and conviction."
(Italics Supplied)

Here, the Supreme Court held that all heads of offices have to rely to a
reasonable extent on the good faith of their subordinates. The case
specifically involved the liability of the head of office in the preparation of
bids, purchase of supplies and contract negotiations done by his
subordinates. In the same fashion, petitioners in this case owing to their
high ranks cannot be expected to acquaint themselves with such minutiae
as the flow of files and documents which leave their desks. Myriad details
such as those are, by office practice, left to subalterns and minor
employees. Delegation of function is part of sound management.

From another perspective, the negligence of the subordinate cannot be

ascribed to his superior in the absence of evidence of the latter’s own
negligence. Indeed, the negligence of the subordinate is not tantamount to
negligence of the superior official so the Court ruled in a case13 where the
mandated responsibilities of the superior do not include actual monitoring
of projects. In another case,14 this Court rejected the principle of command
responsibility although the case involved a provincial constabulary
commander, aptly noting that there was neither allegation nor proof that
he had been in any way guilty of fault or negligence in connection with the
unlawful raid and arrest effected by his subordinates.

The immunity of public officers from liability for the non-feasances,

negligence or omissions of duty of their official subordinates and even for
the latter’s misfeasances or positive wrongs rests, according to Mechem,
"upon obvious considerations of public policy, the necessities of the public
service and the perplexities and embarrassments of a contrary
doctrine."15 These official subordinates, he notes further, are themselves
public officers though of an inferior grade, and therefore directly liable in
the cases in which any public officer is liable, for their own misdeeds or
defaults.16

Significantly, Mechem’s disquisition provides the mooring of the

Administrative Code of 1987 which provides that a head of a department or
a superior officer shall not be civilly liable for the wrongful acts, omissions
of duty, negligence, or misfeasance of his subordinates, unless he has
actually authorized by written order the specific act or misconduct
complained of.

Neither will the allegation of the principle of command responsibility make

the respondents liable. In the absence of substantial evidence of gross
negligence of the respondents, administrative liability could not be based
on the principle of command responsibility.[37] Without proof that the head
of office was negligent, no administrative liability may attach. Indeed, the
negligence of subordinates cannot always be ascribed to their superior in
the absence of evidence of the latters own negligence.

On the charge that the respondents acted unlawfully in approving the

transactions enumerated despite the absence of the required request and
signature of the end-user, they answered that the act of affixing their
signatures in the transactions is purely a ministerial act. Further, they
alleged that there is good faith in the performance of their public function.

d. G.R. No. 144784. September 3, 2002]

PEDRO G. SISTOZA, petitioner, vs. ANIANO DESIERTO in his capacity as

Ombudsman, and ELISEO CO, respondents

RULING:

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

Stretching the argument further, if a public officer were to personally

examine every single detail, painstakingly trace every step from inception,
and investigate the motives of every person involved in a transaction
before affixing his signature as the final approving authority, if only to avoid
prosecution, our bureaucracy would end up with public managers doing
nothing else but superintending minute details in the acts of their
subordinates. It is worth noting that while no charges of violation of Sec. 3,
par. (e), of RA 3019 otherwise known as the Anti-Graft and Corrupt
Practices Act, as amended, were filed against the responsible officials of the
Department of Justice and officers of other government agencies who
similarly approved the procurement subject of the instant petition and
authorized the disbursement of funds to pay for it, all the blame
unfortunately fell upon petitioner Pedro G. Sistoza as then Director of the
Bureau of Corrections who merely acted pursuant to representations made
by three (3) office divisions thereof, in the same manner that the other
officials who were not charged but who nonetheless authorized the
transaction in their respective capacities, relied upon the assurance of
regularity made by their individual subordinates.

In truth, it is sheer speculation to perceive and ascribe corrupt intent and

conspiracy of wrongdoing for violation of Sec. 3, par. (e), of the Anti-Graft
and Corrupt Practices Act, as amended, solely from a mere signature on a
purchase order, although coupled with repeated endorsements of its
approval to the proper authority, without more, where supporting
documents along with transactions reflected therein passed the unanimous
approval of equally accountable public officers and appeared regular and
customary on their face.

Stated otherwise, in situations of fallible discretion, good faith is

nonetheless appreciated when the document relied upon and signed shows
no palpable nor patent, no definite nor certain defects or when the public
officer's trust and confidence in his subordinates upon whom the duty
primarily lies are within parameters of tolerable judgment and permissible
margins of error. As we have consistently held, evidence of guilt must be
premised upon a more knowing, personal and deliberate participation of
each individual who is charged with others as part of a conspiracy.
 Furthermore, even if the conspiracy were one of silence and inaction arising
from gross inexcusable negligence, it is nonetheless essential to prove that
the breach of duty borders on malice and is characterized by flagrant,
palpable and willful indifference to consequences insofar as other persons
may be affected. Anything less is insufferably deficient to establish
probable cause. Thus, when at the outset the evidence offered at
preliminary investigation proves nothing more than the signature of a
public officer and his statements verifying the regularity of prior procedure
on the basis of documents apparently reliable, the prosecution is duty-
bound to dismiss the affidavit-complaint as a matter of law and spare the
system meant to restore and propagate integrity in public service from the
embarrassment of a careless accusation of crime as well as the unnecessary
expense of a useless and expensive criminal trial.

e. In Alejandro v. People,[23] evident bad faith was ruled out because the
accused gave his approval to the questioned disbursement after relying on
the certification of the bookkeeper on the availability of funds for the
expenditure and since the act of relying upon a subordinate's certification
of regularity cannot be considered gross inexcusable negligence. In Magsuci
v. Sandiganbayan[24] this Court similarly rejected the theory of criminal
liability where the head of office in discharging his official duties relied
upon an act of his subordinate.