G.R. No.

L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA
FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE
CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION,
CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO
GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO
GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA
as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents.

Federico N. Alday for petitioners.

Dakila F. Castro for respondents.

FERNANDO, C.J.:

The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that
their rights to due process and equal protection of the laws were violated as the licenses previously
given to them was in effect withdrawn without judicial hearing. 2

The assailed ordinance is worded as follows:

"Section 1.— Title of Ordinance.— This Ordinance shall be known and may be cited as the [Prohibition
and Closure Ordinance] of Bocaue, Bulacan.

Section 2. — Definitions of Terms — 

(a) 'Night Club' shall include any place or establishment selling to the public food or drinks where
customers are allowed to dance.

(b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where dancing is permitted to the
public and where professional hostesses or hospitality girls and professional dancers are employed.

(c) 'Professional hostesses' or 'hospitality girls' shall include any woman employed by any of the
establishments herein defined to entertain guests and customers at their table or to dance with them.

(d) 'Professional dancer' shall include any woman who dances at any of the establishments herein
defined for a fee or remuneration paid directly or indirectly by the operator or by the persons she
dances with.

(e) 'Operator' shall include the owner, manager, administrator or any person who operates and is
responsible for the operation of any night club, cabaret or dance hall.
Section 3. — Prohibition in the Issuance and Renewal of Licenses, Permits. — Being the principal cause
in the decadence of morality and because of their other adverse effects on this community as
explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued
permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be
issued to any professional hostess, hospitality girls and professional dancer for employment in any of
the aforementioned establishments. The prohibition in the issuance of licenses/permits to said
persons and operators of said establishments shall include prohibition in the renewal thereof.

Section 4.— Revocation of Permits and Licenses.— The licenses and permits issued to operators of night
clubs, cabarets or dance halls which are now in operation including permits issued to professional
hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the
thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these
establishments within the jurisdiction of the municipality shall be illegal.

Section 5.— Penalty in case of violation.  — Violation of any of the provisions of this Ordinance shall be
punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at
the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the
management and/or operation thereof shall be liable for the penalty provided herein.

Section 6. — Separability Clause.— If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby.

Section 7.— Repealing Clause.— All ordinance, resolutions, circulars, memoranda or parts thereof that
are inconsistent with the provisions of this Ordinance are hereby repealed.

Section 8.— Effectivity.— This Ordinance shall take effect immediately upon its approval; provided,
however, that operators of night clubs, cabarets and dance halls now in operation including professional
hostesses, hospitality girls and professional dancers are given a period of thirty days from the approval
hereof within which to wind up their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of
First Instance of Bulacan. 5 The grounds alleged follow:

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.

2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the
law, as the license previously given to petitioners was in effect withdrawn without judicial hearing.

3. That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to
license and regulate tourist-oriented businesses including night clubs, has been transferred to the
Department of Tourism." 6 

The cases were assigned to respondent Judge, now Associate Justice Paras of the Intermediate Appellate
Court, who issued a restraining order on November 7, 1975.

The answers were thereafter filed. It was therein alleged:

" 1. That the Municipal Council is authorized by law not only to regulate but to prohibit the
establishment, maintenance and operation of night clubs invoking Section 2243 of the RAC, CA 601,
Republic Acts Nos. 938, 978 and 1224.

2. The Ordinance No. 84 is not violative of petitioners' right to due process and the equal protection of
the law, since property rights are subordinate to public interests.

3. That Presidential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction
to regulate or prohibit night clubs." 7 There was the admission of the following facts as having been
established:

"l. That petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses
by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz,
since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972;

2. That petitioners had invested large sums of money in their businesses;

3. That the night clubs are well-lighted and have no partitions, the tables being near each other;

4. That the petitioners owners/operators of these clubs do not allow the hospitality girls therein to
engage in immoral acts and to go out with customers;

5. That these hospitality girls are made to go through periodic medical check-ups and not one of them is
suffering from any venereal disease and that those who fail to submit to a medical check-up or those
who are found to be infected with venereal disease are not allowed to work;

6. That the crime rate there is better than in other parts of Bocaue or in other towns of Bulacan." 8 Then
came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84
and dismissing the cases. Hence this petition for certiorari by way of appeal.

In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set
forth in the opening paragraph thus:

"Those who lust cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan,
stigmatized as it has been by innuendos of sexual titillation and fearful of what the awesome future
holds for it, had no alternative except to order thru its legislative machinery, and even at the risk of
partial economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also why
this Court, obedient to the mandates of good government, and cognizant of the categorical imperatives
of the current legal and social revolution, hereby [upholds] in the name of police power the validity and
constitutionality of Ordinance No. 84, Series of 1975, of the Municipal Council of Bocaue, Bulacan. The
restraining orders heretofore issued in these two cases are therefore hereby rifted, effective the first
day of February, 1976, the purpose of the grace period being to enable the petitioners herein to apply to
the proper appellate tribunals for any contemplated redress." 9 This Court is, however, unable to agree
with such a conclusion and for reasons herein set forth, holds that reliance on the police power is
insufficient to justify the enactment of the assailed ordinance. It must be declared null and void.

1. Police power is granted to municipal corporations in general terms as follows: "General power of

council to enact ordinances and make regulations. - The municipal council shall enact such ordinances
and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge
the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide
for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection of property
therein." 10 

It is practically a reproduction of the former Section 39 of Municipal Code. 11 An ordinance enacted by
virtue thereof, according to Justice Moreland, speaking for the Court in the leading case of United States
v. Abendan 12 "is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of
the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial,
discriminating, or in derogation of common right. Where the power to legislate upon a given subject,
and the mode of its exercise and the details of such legislation are not prescribed, the ordinance passed
pursuant thereto must be a reasonable exercise of the power, or it will be pronounced invalid." 13

 In another leading case, United States v. Salaveria, 14 the ponente this time being Justice Malcolm,
where the present Administrative Code provision was applied, it was stated by this Court: "The general
welfare clause has two branches: One branch attaches itself to the main trunk of municipal authority,
and relates to such ordinances and regulations as may be necessary to carry into effect and discharge
the powers and duties conferred upon the municipal council by law. With this class we are not here
directly concerned.

The second branch of the clause is much more independent of the specific functions of the council
which are enumerated by law. It authorizes such ordinances as shall seem necessary and proper to
provide for the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of
property therein.' It is a general rule that ordinances passed by virtue of the implied power found in the
general welfare clause must be reasonable, consonant with the general powers and purposes of the
corporation, and not inconsistent with the laws or policy of the State." 15 

If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would
pass the test of validity. In the two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations, as well as
consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a
lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a
field.

Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be achieved
could have been attained by reasonable restrictions rather than by an absolute prohibition.

The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property rights under the guise of police
regulation." 16 It is clear that in the guise of a police regulation, there was in this instance a clear invasion
of personal or property rights, personal in the case of those individuals desirous of patronizing those
night clubs and property in terms of the investments made and salaries to be earned by those therein
employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted
on June 20, 1953.

It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO
REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT
WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS.' 18 

Its first section insofar as pertinent reads: "The municipal or city board or council of each chartered city
shall have the power to regulate by ordinance the establishment, maintenance and operation of night
clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and
other similar places of amusement within its territorial jurisdiction: ... " 19 

Then on May 21, 1954, the first section was amended to include not merely "the power to regulate, but
likewise "Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No.
938. It is to be admitted that as thus amended, if only the above portion of the Act were considered, a
municipal council may go as far as to prohibit the operation of night clubs. If that were all, then the
appealed decision is not devoid of support in law.

That is not all, however. The title was not in any way altered. It was not changed one whit. The exact
wording was followed. The power granted remains that of regulation, not prohibition. There is thus
support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the
prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution
mandates: "Every bill shall embrace only one subject which shall be expressed in the title thereof.
" 21 Since there is no dispute as the title limits the power to regulating, not prohibiting, it would result in
the statute being invalid if, as was done by the Municipality of Bocaue, the operation of a night club was
prohibited. There is a wide gap between the exercise of a regulatory power "to provide for the health
and safety, promote the prosperity, improve the morals, 22 in the language of the Administrative Code,
such competence extending to all "the great public needs, 23 to quote from Holmes, and to interdict any
calling, occupation, or enterprise. In accordance with the well-settled principle of constitutional
construction that between two possible interpretations by one of which it will be free from
constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A
construction that would save rather than one that would affix the seal of doom certainly commends
itself. We have done so before We do so again. 24

3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-
enacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative Code
provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as may
be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall
be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition provisions
that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses,
except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory power of the
Ministry of Tourism which shall exercise such authority without infringing on the taxing or regulatory
powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or
massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical
performances, circuses and other forms of entertainment; ..." 27 It is clear that municipal corporations
cannot prohibit the operation of night clubs. They may be regulated, but not prevented from carrying on
their business. It would be, therefore, an exercise in futility if the decision under review were sustained.
All that petitioners would have to do is to apply once more for licenses to operate night clubs. A refusal
to grant licenses, because no such businesses could legally open, would be subject to judicial correction.
That is to comply with the legislative will to allow the operation and continued existence of night clubs
subject to appropriate regulations. In the meanwhile, to compel petitioners to close their
establishments, the necessary result of an affirmance, would amount to no more than a temporary
termination of their business. During such time, their employees would undergo a period of deprivation.
Certainly, if such an undesirable outcome can be avoided, it should be. The law should not be
susceptible to the reproach that it displays less than sympathetic concern for the plight of those who,
under a mistaken appreciation of a municipal power, were thus left without employment. Such a
deplorable consequence is to be avoided. If it were not thus, then the element of arbitrariness enters
the picture. That is to pay less, very much less, than full deference to the due process clause with its
mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal forbids
such a backward step. Legislation of that character is deserving of the fullest sympathy from the
judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to measures
that can be characterized as falling within that aspect of the police power. Reference is made by
respondents to  Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did
not prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to
put an end to practices which could encourage vice and immorality. This is an entirely different case.
What was involved is a measure not embraced within the regulatory power but an exercise of an
assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel
and Motel Operators Association, Inc. decision that there must be a factual foundation of invalidity, it
was likewise made clear that there is no need to satisfy such a requirement if a statute were void on its
face. That it certainly is if the power to enact such ordinance is at the most dubious and under the
present Local Government Code non-existent.

WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976
reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is
declared void and unconstitutional. The temporary restraining order issued by this Court is hereby made
permanent. No costs.
G.R. No. 192330               November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those suffering
from malnutrition to the beneficiaries of reconsideration projects affecting the homes of victims of
calamities.

The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code. 1

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte, Leyte,
operated a Core Shelter Assistance Program (CSAP) that provided construction materials to indigent
calamity victims with which to rebuild their homes. The beneficiaries provided the labor needed for
construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was 70%
done, the beneficiaries stopped reporting for work for the reason that they had to find food for their
families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction stoppage
could result in the loss of construction materials particularly the cement. Thus, she sought the help of
Cristina Polinio (Polinio), an officer of the MSWDO in charge of the municipality’s Supplemental Feeding
Program (SFP) that rationed food to malnourished children. Polinio told Garcia that the SFP still had
sacks of rice and boxes of sardines in its storeroom. And since she had already distributed food to the
mother volunteers, what remained could be given to the CSAP beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek his
approval. After explaining the situation to him, Ysidoro approved the release and signed the withdrawal
slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP. 2 Mayor Ysidoro instructed
Garcia and Polinio, however, to consult the accounting department regarding the matter. On being
consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s Office, signed the
withdrawal slip based on her view that it was an emergency situation justifying the release of the goods.
Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards, Garcia reported the matter to
the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the present
complaint against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified that the
subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished children. She also
pointed out that the Supplemental Feeding Implementation Guidelines for Local Government Units
governed the distribution of SFP goods.3 Thus, Ysidoro committed technical malversation when he
approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the
poor of the municipality was valid since they came from the savings of the SFP and the Calamity Fund.
Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries were also in
urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor conducted a
comprehensive audit of their municipality in 2001 and found nothing irregular in its transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage or embarrassment to public service, it only fined
him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied public
property to a pubic purpose other than that for which it has been appropriated by law or ordinance. On
May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On June 8, 2010 Ysidoro
appealed the Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation. He
particularly raises the following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose different from
their originally intended purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that could be used
to augment the other authorized expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code 4 has
three elements: a) that the offender is an accountable public officer; b) that he applies public funds or
property under his administration to some public use; and c) that the public use for which such funds or
property were applied is different from the purpose for which they were originally appropriated by law
or ordinance.5 Ysidoro claims that he could not be held liable for the offense under its third element
because the four sacks of rice and two boxes of sardines he gave the CSAP beneficiaries were not
appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted Resolution
00-133 appropriating the annual general fund for 2001. 6 This appropriation was based on the executive
budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the Comprehensive and Integrated
Delivery of Social Services8 which covers the CSAP housing projects. 9 The creation of the two items shows
the Sanggunian’s intention to appropriate separate funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used for
SFP’s needs, observing the rules prescribed for identifying the qualified beneficiaries of its feeding
programs. The target clientele of the SFP according to its manual 10 are: 1) the moderately and severely
underweight pre-school children aged 36 months to 72 months; and 2) the families of six members
whose total monthly income is P3,675.00 and below. 11 This rule provides assurance that the SFP would
cater only to the malnourished among its people who are in urgent need of the government’s limited
resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing
free labor for the rebuilding of their own homes. This is technical malversation. If Ysidoro could not
legally distribute the construction materials appropriated for the CSAP housing beneficiaries to the SFP
malnourished clients neither could he distribute the food intended for the latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore,
the same could already be diverted to the CSAP beneficiaries. He relies on Abdulla v. People 12 which
states that funds classified as savings are not considered appropriated by law or ordinance and can be
used for other public purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could say in mid-June 2001 that SFP had already finished its
project, leaving funds or goods that it no longer needed. The fact that Polinio had already distributed
the food items needed by the SFP beneficiaries for the second quarter of 2001 does not mean that the
remaining food items in its storeroom constituted unneeded savings. Since the requirements of hungry
mouths are hard to predict to the last sack of rice or can of sardines, the view that the subject goods
were no longer needed for the remainder of the year was quite premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly apply
funds, already appropriated for a determined public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the specific
purpose for which they have been appropriated. No ordinance shall be passed authorizing any transfer
of appropriations from one item to another. However, the local chief executive or the presiding officer
of the sanggunian concerned may, by ordinance, be authorized to augment any item in the approved
annual budget for their respective offices from savings in other items within the same expense class of
their respective appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law gives
the Sanggunian the power to determine whether savings have accrued and to authorize the
augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence and
the presumption of regularity in the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his
testimony would have been adverse to the mayor. The municipal auditor’s view regarding the
transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the CSAP
beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the accounting
department if the goods could be distributed to those beneficiaries. Having no criminal intent, he argues
that he cannot be convicted of the crime.1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a particular public purpose to another public
purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but
becomes a criminal offense because positive law forbids its commission based on considerations of
public policy, order, and convenience. 13 It is the commission of an act as defined by the law, and not the
character or effect thereof, that determines whether or not the provision has been violated. Hence,
malice or criminal intent is completely irrelevant. 14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes the
crime of technical malversation. The law and this Court, however, recognize that his offense is not grave,
warranting a mere fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in Criminal
Case 28228 dated February 8, 2010.

SO ORDERED.

A.M. No. P-04-1795               March 25, 2009

[Formerly OCA I.P.I No. 02-1447-P]

ROQUE R. MARTINEZ, MARIA ELENA M. FELIPE, ROBERT R. MIñANO, ROSALINDA G. MACASA and
CIRIACO D. MARIVELES, JR., Complainants,
vs.
NORVELL R. LIM, Sheriff III, Regional Trial Court of Romblon, Romblon, Branch 81, Respondent.

RESOLUTION

CORONA, J.:

This complaint involves two interrelated administrative charges against respondent Norvell R. Lim,
Sheriff III of the Regional Trial Court of Romblon, Romblon, Branch 81.

On March 11, 2002, respondent sent a letter to Arsenio

R.M. Almaddin, officer-in-charge of the Office of the Provincial Prosecutor (OPP) of Romblon stating:

I wish to inform you that today, Monday, March 11, 2002, at 8 a.m., and for the month of March 2002,
[it] is the turn of the [OPP] to lead the flag ceremony.

However, this morning, this was not done because none of the personnel of your office was present.

We hope that we would be able to look forward to seeing all the personnel of [the OPP] in the Hall of
Justice, Romblon, Romblon, participate in [the flag ceremony] every Monday morning and Friday
afternoon.1
On May 16, 2002 complainants Roque R. Martinez, Maria Elena M. Felipe, Robert R. Miñano, Rosalinda
G. Macasa and Ciriaco D. Mariveles, Jr., all employees of the OPP, filed an administrative complaint for
grave misconduct against respondent in the Office of the Ombudsman. 2 They asserted that respondent’s
March 11, 2002 letter portrayed them as unpatriotic Filipinos, tarnished their reputation as public
officers and cast dishonor, disrepute and contempt on their persons.

Respondent explained that, in the absence of the presiding judge, he was the administrative officer-in-
charge of the Hall of Justice. As such, it was his duty to require complainants to attend the flag
ceremony. Thus, he wrote Almaddin to remind him that the OPP had been assigned to lead the flag
ceremony for the month of March 2002 and to inform him that no one from his office attended the
ceremony that morning. Respondent denied ill-will against complainants.

Subsequently, complainants filed another complaint against respondent charging him of violation of
PD3 264 which provides:

(1) Judges of the Courts of First Instance, Circuit Criminal Courts, Juvenile and Domestic Relations
Courts, Courts of Agrarian Relations, Court of Industrial Relations, Military Tribunals and City and
Municipal Courts, may transmit in the mail, free of charge, all official communications and papers
directly connected with the conduct of judicial proceedings.

(2) The envelope or wrapper of the privileged mail matter shall bear on the left upper corner the name,
official designation and station of the official sending such mail matter and on the right upper corner,
the words: "Private or unauthorized use to avoid payment of postage is penalized by fine or
imprisonment or both." (emphasis supplied)

Complainants stated that respondent did not pay for postage stamps when he mailed copies of his
counter-affidavit to them. Since the mailed matter neither involved a court process nor was in any way
connected to the conduct of judicial proceedings, he was guilty of violating the said decree.

Respondent asserted that the allegations against him were baseless. In fact, the Ombudsman dismissed
for lack of probable cause the complaint for violation of PD 26. 5

But the Ombudsman referred the administrative aspect of the complaints against respondent to the
Office of the Court Administrator (OCA). 6

With regard to the complaint for grave misconduct, the OCA found that respondent bore no malice
when he sent the March 11, 2002 letter. It noted:

There is nothing in the letter that is suggestive of complainants’ lack of patriotism as to impute bad faith
on the part of respondent. Respondent was merely expressing his concern so that any similar incident
may not happen again mindful of everyone’s bounden duty to express and manifest their patriotism and
love of country and respect for the flag.

Thus, it recommended the dismissal of the complaint for lack of merit.

With regard to the complaint for violation of PD 26, the OCA found that respondent mailed his counter-
affidavit in the previous complaint (for grave misconduct) using envelopes intended for free postage.
Inasmuch as the mailed matter was not an official communication related to the conduct of judicial
proceedings, respondent was guilty of violating the law. Hence, it recommended that complainant be
fined ₱1,000.

We adopt the findings of the OCA with a modification of the penalty.

Misconduct implies wrongful intention and not a mere error of judgment; an act that is corrupt or
inspired by an intention to violate the law or a persistent disregard of well-known legal rules. 7

Flag ceremonies inspire patriotism and evoke the finest sentiments of love of country and
people.8 Section 18 of RA9 8491 provides:

Section 18. All government offices and educational institutions shall henceforth observe the flag-raising
ceremony every Monday morning and the flag lowering ceremony every Friday afternoon. The
ceremony shall be simple and dignified and shall include the playing or singing of the Philippine National
Anthem.

Pursuant to this mandate, Supreme Court Circular No. 62-2001 (dated September 21, 2001) provides:

All Executive Judges shall supervise the holding of the flag raising and flag lowering ceremonies in their
respective Hall of Justice buildings or courthouses and shall ensure the attendance of all judges and
court personnel in the rites.

In deference to these mandates, the Chief State Prosecutor directed the personnel of the OPP to attend
the flag ceremony.10lawphil.net

Consequently, as administrative officer-in-charge of the Hall of Justice of Romblon, respondent was

duty-bound to remind the employees to attend the flag ceremony. Furthermore, the March 11, 2002
letter (quoted above) was courteously written. Respondent neither used offensive language nor
insinuated that complainants were unpatriotic. Thus, there was no misconduct on the part of
respondent.

Nonetheless, we agree that respondent violated PD 26. In Bernadez v. Montejar,11 we held that the
franking privilege granted by PD 26 extended only to judges and referred to official communications and
papers directly connected with the conduct of judicial proceedings. 12 Respondent was not a judge nor
was the mailed matter related to the discharge of judicial functions. Thus, respondent violated PD 26 for
which a fine of ₱500 should be imposed on him. Considering that respondent compulsorily retired on
September 7, 2003, the fine of ₱500 shall be deducted from his retirement benefits.

WHEREFORE, the complaint for grave misconduct against Sheriff Norvell R. Lim is hereby dismissed for
lack of merit. But he is found guilty of violating Presidential Decree No. 26 and is hereby fined ₱500
which shall be deducted from his retirement benefits.

SO ORDERED.