Posadas vs. Sandiganbayan, GR No. 168951 - 169000

G.R. Nos. 168951 & 169000. July 17, 2013.
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DR. ROGER R. POSADAS and DR. ROLANDO P. DAYCO, petitioners, vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
Remedial Law; Courts; Sandiganbayan; Under the Rules of Sandiganbayan,
effective January 10, 1979, a petition for reconsideration of a judgment or final order
may be filed upon the grounds, in the form and subject to the requirements, for motions
for new trial in criminal cases under Rule 121 of the Rules of Court.―Under the Rules of
Sandiganbayan, effective January 10, 1979, a petition for reconsideration of a judgment
or final order may be filed upon the grounds, in the form and subject to the requirements,
for motions for new trial in criminal cases under Rule 121 of the Rules of Court. In the
case of Alvarez v. Sandiganbayan, 201 SCRA 557 (1991), decided in 1991, the Court
upheld the Sandiganbayan in not considering “the
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* FIRST DIVISION.
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40 SUPREME COURT REPORTS
4 ANNOTATED
Posadas vs. Sandiganbayan
failure of the movant to fix the place, date and time of the hearing of his motion a
substantial defect, for instead of giving the motion a short shrift, it set the incident for
hearing, and even granted the prosecution ten days from [notice] within which to
oppose/comment.” The Court noted what was then the practice of the Sandigabayan
itself, rather than the movant, to determine the date and time of hearings of motions. The
peculiar circumstances of said case heavily weighed in favor of relaxation of the rules,
with the Court’s finding that the evidence presented against the petitioner does not fulfill
the test of moral certainty and may not be deemed sufficient to support a conviction.
Hence, the Court was not prepared “to declare that [petitioner’s] omission to set his
motion for hearing is so grievous an error as to foreclose the award to him of the relief to
which he is otherwise entitled.”
Criminal Law; Anti-Graft and Corrupt Practices Act (R.A. No. 3019); Elements
of.―The essential elements of the crime defined in Section 3(e) of R.A. No. 3019,
otherwise known as The Anti-Graft and Corrupt Practices Act, are: 1. The accused must
be a public officer discharging administrative, judicial or official functions; 2. He must
have acted with manifest partiality, evident bad faith or inexcusable negligence; and 3.
That his action caused any undue injury to any party, including the government, or giving
any private party unwarranted benefits, advantage or preference in the discharge of his
functions.
Same; Bad Faith; Evident bad faith connotes a manifest deliberate intent on the part
of the accused to do wrong or cause damage.―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. It contemplates a state of mind affirmatively
operating with furtive design or some motive of self interest or ill will for ulterior
purposes. Evident bad faith connotes a manifest deliberate intent on the part of the
accused to do wrong or cause damage.
Same; Injury; Words and Phrases; In Pecho v. Sandiganbayan, 238 SCRA 116
(1994), the Supreme Court en banc defined injury as “any wrong or damage done to
another, either in his person, or in his rights, reputation or property; the invasion of any
legally protected
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interests of another.”―In Pecho v. Sandiganbayan, 238 SCRA 116 (1994), the
Court en banc defined injury as “any wrong or damage done to another, either in his
person, or in his rights, reputation or property; the invasion of any legally protected
interests of another.” It must be more than necessary or are excessive, improper or illegal.
It is required that the undue injury caused by the positive or passive acts of the accused
be quantifiable and demonstrable and proven to the point of moral certainty. “Undue”
means illegal, immoral, unlawful, void of equity and moderations.
Administrative Law; Appointments; Coterminous Employees; Under Section 2(d),
Rule III of the Revised Omnibus Rules on Appointments and Other Personnel Actions,
appointments of personnel under Foreign-assisted projects shall be issued and approved
as coterminous with the project.―Under Section 2(d), Rule III of the Revised Omnibus
Rules on Appointments and Other Personnel Actions, appointments of personnel under
Foreign-assisted projects shall be issued and approved as coterminous with the project.
The MOA itself provides that the “services of the contractual personnel of the University
for the Project shall be discontinued upon its completion or termination.” The
appointment of Dr. Posadas as TMC Project Director falls within the prohibition against
holding of multiple positions since there is no distinction in Section 7, Article IX-B as to
the employment status, i.e., whether permanent, temporary or coterminous. Petitioners
failed to cite any law to justify Dr. Posadas’ holding of concurrent positions as
Chancellor and TMC Project Director.
Same; Civil Service Rules; Under civil service rules, appointments of personnel
under foreign-assisted projects shall be issued and approved as coterminous with the
project, that is, they are considered employees for the duration of the project, in which
case, the name of the project and its completion date shall be indicated in the
appointment.―The status of Dr. Posadas’ employment as TMC Project Director is a
coterminous one. Under civil service rules, appointments of personnel under foreign-
assisted projects shall be issued and approved as coterminous with the project, that is,
they are considered employees for the duration of the project, in which case, the name of
the project and its completion date shall be indicated in the appointment. This status of
employment is to be distinguished from contract of services which covers lump sum
work or services such as
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janitorial, security or consultancy services, whose appointments need not be
submitted to the CSC for approval.
Same; Consultancy; Consultancy is deemed private practice of
profession.―Consultancy is deemed private practice of profession. Under CSC
Resolution 021264 dated September 27, 2002, accepting a consultancy job under a part-
time status is subject to the following conditions: 1. It must not violate the rule against
holding multiple positions; 2. The employee/officer must obtain permission or authority
from his/her head of agency as the same constitutes private practice of profession; 3. The
consultancy job must not conflict or tend to conflict with his/her official functions; and 4.
It must not affect the effective performance of his/her duty.
Criminal Law; Conspiracy; A conspiracy is proved by evidence of actual
cooperation; of acts indicative of an agreement, a common purpose or design, a
concerted action or concurrence of sentiments to commit the felony and actually pursue
it.―A conspiracy is proved by evidence of actual cooperation; of acts indicative of an
agreement, a common purpose or design, a concerted action or concurrence of sentiments
to commit the felony and actually pursue it. For the accused to be held as conspirators, it
is not necessary to show that two or more persons met together and entered into an
explicit agreement setting out the details of an unlawful scheme or the details by which
an illegal objective is to be carried out.” Therefore, 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 sentiment, then a conspiracy may be inferred though no actual meeting
among them to concert means is proved.
Same; Penalties; Anti-Graft and Corrupt Practices Act (R.A. No. 3019); The Code of
Conduct and Ethical Standards for Public Officials and Employees (R.A. No. 6713;
Penalties for Violation of the Anti-Graft and Corrupt Practices Act and Code of Conduct
and Ethical Standards for Public Officials and Employees.―Any person guilty of
violating Section 3(e) of R.A. No. 3019 is punishable with imprisonment for not less than
six (6) years and one (1) month nor more than fifteen (15) years and perpetual
disqualification from public office. Thus, the penalty imposed by the Sandiganbayan
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which is an indeterminate penalty of nine (9) years and one day as minimum and
twelve (12) years as maximum, with the accessory penalty of perpetual disqualification
from public office, is in accord with law. Petitioners shall also indemnify the Government
of the Republic of the Philippines the amount of THREE HUNDRED THIRTY SIX
THOUSAND PESOS (P336,000.00) representing the compensation/salaries paid to Dr.
Posadas as TMC Project Director. As to the offense defined in Section 7(b) of R.A. No.
6713, Section 11 of said law provides that violations of Section 7 shall be punishable
with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand
pesos (P5,000), or both, and, in the discretion of the court, disqualification to hold public
office. The Sandiganbayan imposed the maximum penalty of five (5) years imprisonment
and disqualification to hold public office.
Administrative Law; Public Officers; Our Constitution stresses that a public office is
a public trust and public officers must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.―This Court’s mandate is to uphold the Constitution and
the laws. Our Constitution stresses that a public office is a public trust and public officers
must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.
These constitutionally-enshrined principles, oft-repeated in our case law, are not mere
rhetorical flourishes or idealistic sentiments. They should be taken as working standards
by all in the public service.
ABAD, J., Dissenting Opinion:
Administrative Law; Bad Faith; View that 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.―As the Court said in Marcelo v. Sandiganbayan
(Third Division), 185 SCRA 346 (1990), bad faith partakes of the nature of fraud. “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
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nature of fraud. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It
contemplates a state of mind affirmatively operating with furtive design or some motive
of self interest or ill will for ulterior purposes. (Air France v. Carrascoso, 18 SCRA 155,
166-167). Evident bad faith connotes a manifest deliberate intent on the part of the
accused to do wrong or cause damage.”
Same; Disallowances of Benefits; View that disallowances of benefits paid to
government officials and employees will provide ground for treating the disallowed
payment as equivalent to giving “unwarranted advantage to a private party through
manifest partiality, evident bad faith, or gross inexcusable negligence,” a mode of
corruption.―Dr. Dayco and Dr. Posadas did not willfully defraud the government. Dr.
Posadas was qualified for the job of Project Director and Consultant of the TMC Project
more than any other. There is no evidence that he did not adequately discharge the extra
responsibilities and labor that were given him. In the future, disallowances of benefits
paid to government officials and employees will provide ground for treating the
disallowed payment as equivalent to giving “unwarranted advantage to a private party
through manifest partiality, evident bad faith, or gross inexcusable negligence,” a mode
of corruption.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Yorac, Arroyo, Chua, Caedo & Coronel Law Firm for petitioners.
The Law Office of Dante S. David collaborating counsel for petitioners.
The Solicitor General for respondents.
VILLARAMA, JR., J.:
Petitioners assail their conviction for Violation of Section 3(e) of Republic Act (R.A.)
No. 3019 (The Anti-Graft and Corrupt Practices Act) and Section 7(b) of R.A. No. 6713
(The Code of Conduct and Ethical Standards for Public Officials
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and Employees) under Decision1 dated June 28, 2005 of the Sandiganbayan in Crim.
Case Nos. 25465-66.
The Facts
Petitioner Dr. Roger R. Posadas (Dr. Posadas), a Ph.D. in Relativity Physics graduate
from the University of Pittsburgh, is a longtime professor and former Dean of the College
of Science at the University of the Philippines-Diliman Campus (UP Diliman). He was
appointed by the Board of Regents (BOR) of the University of the Philippines System as
UP Diliman Chancellor for a three-year term starting November 1, 1993 and ending
October 31, 1996.
During his term as Chancellor, Dr. Posadas is one of the leading figures in the
emerging inter-disciplinary field of technology management in the Philippines. Upon the
recommendation of the UP Diliman Task Force on Science and Technology Assessment,
Management and Planning composed of deans and professors from the various colleges
in UP Diliman, the BOR on February 23, 1995 approved the establishment of the
Technology Management Center (TMC) under the direct supervision of the Office of the
Chancellor, UP Diliman. When the TMC became operational in June 1995, the Task
Force on Science and Technology Assessment, Management and Planning wrote then UP
President Dr. Emil Q. Javier, nominating Dr. Posadas for the position of TMC Director.
For undisclosed reason, Dr. Posadas declined the nomination and instead he (Dr.
Posadas) designated Prof. Jose Tabbada of the College of Public Administration as
Acting Director of TMC.
On July 26, 1995, Dr. Posadas submitted to the National Economic and Development
Authority (NEDA) an Application
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1 Rollo, pp. 48-71. Penned by Associate Justice Jose R. Hernandez with Associate
Justices Gregory S. Ong and Rodolfo A. Ponferrada concurring.
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410 SUPREME COURT REPORTS ANNOTATED
for Funding of his proposed project entitled “Institutionalization of Technology
Management at the University of the Philippines in Diliman” (TMC Project). The TMC
Project, to be funded by a grant from the Canadian International Development Agency
(CIDA), aimed to design and develop ten new graduate courses in technology
management for the diploma, master’s and doctoral programs to be offered by TMC.2
On September 18, 1995, a Memorandum of Agreement3 (MOA) was executed between
Dr. Posadas, on behalf of UP-Diliman, and the Philippine Institute for Development
Studies (PIDS) as the Local Executing Agency of the Policy, Training and Technical
Assistance Facility (PTTAF) of CIDA. Under the MOA, CIDA shall provide the funding
for the total project cost (P5,442,400.00), with the NEDA as the designated PTTAF
Project Implementor for the Government of the Philippines, while UP-Diliman shall
direct, manage and implement all activities under the approved project with counterpart
funding in the amount of P4,228,524.00.
In a letter dated July 30, 1995, the President of Hua Qiao University in Fujian
Province, China invited Dr. Posadas and a delegation from UP Diliman to visit on
October 30 to November 6, 1995. On October 5, 1995, then Senior Deputy Executive
Secretary Leonardo A. Quisumbing (retired Member of this Court) issued the Authority
to Travel for the UP Diliman delegation headed by Dr. Posadas. Among those who joined
the delegation were Dr. Amaryllis Torres and Dr. Rosario Yu, UP Diliman’s Vice-
Chancellor for Academic Affairs and Vice-Chancellor for Student Affairs,
respectively.4 Under Administrative Order (AO) No. 95-170 dated October 24, 1995, Dr.
Posadas designated petitioner Dr. Rolando P. Dayco (Dr. Dayco), Vice-Chancellor for
Administrative Affairs, as Officer-In-Charge (OIC) of UP Diliman effective Oc-
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2 Exhibits “2” - “2-a,” folder of exhibits (Defense).
3 Exhibit “24,” id.
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tober 30, 1995 until November 6, 1995. This was followed by AO No. 95-170-A dated
October 27, 1995, which amended the previous order by extending the OIC designation
of Dr. Dayco to November 7, 1995.5
On November 7, 1995, Dr. Dayco appointed Dr. Posadas as Project Director of UP
TMC effective September 18, 1995 up to September 17, 1996. In another undated
“Contract for Consultancy Services” signed by Dr. Dayco, Dr. Posadas was hired as
Consultant for the TMC Project for the same period.6 As evidenced by disbursement
vouchers and admitted by Dr. Posadas, the latter received his “honoraria” (P30,000.00
per month) and consultancy fees (totaling P100,000.00) as Project Director and
Consultant of the TMC Project until May 1996 when the Commission on Audit (COA)
raised questions on the legality of the said fees.7
In August 1996, payment of the subject “honoraria” and fees was suspended by COA
Resident Auditor Romeo J. Pulido who noted the following deficiencies:
1. Honoraria were in excess of the rates provided for under the National
Compensation Circular No. 73, dated March 1, 1996, x x x.
2. Legal basis for designating the incumbent Chancellor as Project Director by the
Officer-In-Charge (OIC), considering that the latter can assume the post only in the
absence of the former. An OIC cannot validly designate since the authority to
designate/appoint is among the functions of the Chancellor which cannot be
delegated as provided in the University Charter. Moreover, the authority to appoint
can never be delegated since it involves discretion.
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5 Exhibits “7” and “8,” id.
6 Exhibits “C-4” and “C-5,” folder of exhibits (Prosecution).
7 Joint Stipulation of Facts, records, Vol. I, p. 284; Exhibits “D-2,” “E-2” to “E-4,”
folder of exhibits (Prosecution).
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3. On the assumption that the designation of the Chancellor as Project Director and
Consultant is valid, collecting the remuneration for both positions amount to double
compensation which is contrary to existing auditing rules and regulations.8
In a Memorandum9 dated September 16, 1996, UP’s Chief Legal Officer Marichu C.
Lambino addressed the foregoing concerns of COA Auditor Pulido. Atty. Lambino stated
that (a) the compensation received by Dr. Posadas are in the nature of consultancy fees
and hence expressly exempted by Department of Budget and Management (DBM)
National Compensation Circular (NCC) No. 75 dated March 11, 1995; (b) the TMC
Project, being a training program, is likewise exempted from the coverage of NEDA
Guidelines on the Procurement of Consulting Services for Government Projects; and (c)
under Civil Service Commission (CSC) Memorandum Circular (MC) No. 43, series of
1993 “Streamlining and Deregulating Human Resource Development Functions” UP is
authorized, without prior approval from the CSC, to determine the rates of honorarium
for government personnel participating as resource persons, coordinator, and facilitator,
in training programs. On the issue of double compensation, Atty. Lambino pointed out
that Dr. Posadas was appointed Project Director because of managerial expertise, and his
skills in supervising personnel who are involved in an academic undertaking, and as
Consultant because of his expertise in technology management. Finding these
explanations/justifications acceptable, Auditor Pulido lifted the notices of suspension in
September 1997.
However, even before the issuance of the suspension notices, then UP President Dr.
Emil Q. Javier, ordered an investigation on the basis of an administrative complaint filed
by Mrs. Ofelia L. Del Mundo, a staff of the University Library
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8 Exhibit “12,” folder of exhibits (Defense).
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who was detailed at the TMC as its Administrative Officer. On July 24, 1996, President
Javier created a Fact-Finding Committee to gather, review and evaluate pertinent
documents regarding certain transactions of the TMC.10 After the conduct of a
preliminary investigation and finding a prima facie case against the petitioners, President
Javier issued the formal charges11 for Grave Misconduct and Abuse of Authority.
Pursuant to the University’s “Rules and Regulations on the Discipline of Faculty
Members and Employees approved at the 704th Meeting of the Board of Regents on
January 11, 1963,”12 an Administrative Disciplinary Tribunal (ADT) was constituted,
chaired by Atty. Arturo E. Balbastro, a faculty member of the UP College of Law.
On August 21, 1998, the ADT submitted its Report 13 (ADT Case 96-001) to President
Javier. The ADT found petitioners guilty of serious or grave misconduct and
recommended the penalty of dismissal in accordance with CSC Memorandum Circular
No. 30, series of 1989, as well as Article 250 of the University Code. The Report likewise
stated that the acts of petitioners for which they were held administratively liable may
warrant prosecution under Section 3(h) and (i) of R.A. No. 3019. Under the Order 14 dated
August 25, 1998 signed by President Javier, petitioners were dismissed from the service.
On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity as General Counsel
of UP formally endorsed the findings and recommendations of the ADT to the
Ombudsman.15 The case was docketed as OMB-0-98-1843.
Meanwhile, the BOR at its 1126th meeting on November 26, 1998, resolved
petitioners’ appeal in ADT Case 96-001, as follows:
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11 Exhibits “A-4” and “A-5,” folder of exhibits (Prosecution).
12 Exhibit “A-2,” id.
15 Exhibit “A,” id.
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1. The Board affirmed the ADT decision finding the respondents guilty of grave
misconduct and imposed on them the penalty of forced resignation with the
accessory penalties defined in the Omnibus Rules Implementing Book V of
Executive Order 292 and other Pertinent Civil Service Laws – i.e., cancellation of
eligibility, forfeiture of all leave credits and retirement benefits, and disqualification
from government service for one year.
2. If after one year they should reapply to the University, they must render an apology
to the University and their reappointments will be subject to Board approval.
3. The respondents are permanently disqualified from holding any administrative
position in the University.
4. The decision takes effect immediately.16
Satisfied with the BOR’s action, petitioners caused the withdrawal of their appeal
before the CSC.17
On June 9, 1999, the Evaluation and Preliminary Investigation Bureau of the Office of
Ombudsman recommended the dismissal of the charges against petitioners for
insufficiency of evidence. However, said recommendation was disapproved by then
Ombudsman Aniano A. Desierto who ordered that petitioners be indicted for violation of
Section 3(e) of R.A. No. 3019 and Section 7(b) in relation to Section 11 of R.A. No.
6713.18
The corresponding Informations19 were thus filed against the petitioners before the
Sandiganbayan (Criminal Case Nos. 25465-66), as follow:
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16 Exhibit “G,” id.
17 Exhibit “H,” id.
18 Records, Vol. I, pp. 3-11.
19 Records, Vol. III, pp. 1-4.
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Criminal Case No. 25465
That on or about 7 November 1995, or sometime prior or subsequent thereto, in
Quezon City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, both high-ranking public officers, ROGER DELA ROSA
POSADAS, being then the Chancellor and a faculty member of the University of
the Philippines-Diliman Campus, and ROLANDO PASCUAL DAYCO, being then
the Vice-Chancellor of the said university and Officer-In-Charge of the Office of
the Chancellor, committing the crime herein charged in relation to, while in the
performance and taking advantage of their official and administrative functions, and
conspiring and confederating with and mutually helping each other, did then and
there willfully, unlawfully and criminally give unwarranted benefits, privilege or
advantage to accused POSADAS, when accused DAYCO appointed or designated
accused POSADAS as a Project Director of the lone project, Institutionalization of
the Management of Technology at U.P. Diliman, of the Technology Management
Center (TMC) of the Office of the Chancellor, U.P. Diliman, which enabled or
caused the disbursement and payment of monthly salary of P30,000.00 of accused
POSADAS, duly received by the latter, for the period 18 September 1995 to 17
September 1996, with accused POSADAS also receiving his salaries as Chancellor
and faculty member of U.P. Diliman during this period, and both accused knowing
fully well that the appointment of accused POSADAS was beyond the power or
authority of accused DAYCO as an OIC and likewise violative of the law, rules and
regulations against multiple positions, double compensation and retroactivity of
appointment, thereby causing undue injury to the Government in the amount
of PESOS: THREE HUNDRED SIXTY THOUSAND (P360,000.00), to the damage
and prejudice of the Government.
CONTRARY TO LAW.416
Criminal Case No. 25466
That on or about 7 November 1995, or sometime prior or subsequent thereto, in
Quezon City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, both high-ranking public officers, ROGER DELA ROSA
POSADAS, being then the Chancellor and a faculty member of the University of
the Philippines-Diliman Campus, and ROLANDO PASCUAL DAYCO, being then
the Vice-Chancellor of the said university and Officer-In-Charge of the Office of
the Chancellor, committing the crime herein charged in relation to, while in the
performance and taking advantage of their official and administrative functions, and
conspiring and confederating with and mutually helping each other, did then and
there willfully, unlawfully and criminally engage in the unauthorized private
practice of accused POSADAS’s profession as a technology manager, when accused
DAYCO appointed or designated accused POSADAS as a consultant to the project,
Institutionalization of the Management of Technology at U.P. Diliman, of the
Technology Management Center (TMC) of the Office of the Chancellor, U.P.
Diliman, which enabled or caused the disbursement and payment of consultancy
fees in the amount of P100,000.00 to accused POSADAS, duly received by the
latter, with respondent POSADAS also receiving his salaries as Chancellor and
faculty member of U.P. Diliman, and both accused knowing fully well that the
appointment to and acceptance of the position of consultant by respondent
POSADAS was without authority from the latter’s superior(s) or the U.P. Board of
Regents, to the damage and prejudice of the Government service.
CONTRARY TO LAW.
Dr. Dayco and Dr. Posadas were duly arraigned on June 15, 2000 and May 28, 2001,
respectively, both pleading not guilty to the charges against them.20
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20 Records, Vol. I, pp. 89 and 219.
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Ruling of the Sandiganbayan
After due proceedings, the Sandiganbayan rendered its Decision 21 dated June 28, 2005,
the decretal portion of which reads:
ACCORDINGLY, this Court finds both accused Roger R. Posadas and Rolando
P. Dayco GUILTY beyond reasonable doubt of violating Section 3(e) of RA 3019
and Section 7(b) of RA 6713 and are sentenced to suffer the following penalties:
For violation of Section 3(e) of RA 3019: accused Posadas and Dayco are
sentenced to suffer in prison the indeterminate penalty of nine (9) years and one day
as minimum and twelve (12) years as maximum, with the accessory penalty of
perpetual disqualification from public office. Both accused are directed to jointly
and severally indemnify the Government of the Republic of the Philippines the
amount of THREE HUNDRED THIRTY SIX THOUSAND PESOS (P336,000.00).
For violation of Section 7(b) of RA 6713: accused Posadas and Dayco are
sentenced to suffer in prison the maximum penalty of five (5) years and
disqualification to hold public office.
SO ORDERED.22
The Sandiganbayan held that the evidence supports a finding of evident bad faith on
the part of petitioners who, knowing very well the limitations of Dr. Dayco’s power as
OIC, effected the appointment of Dr. Posadas as TMC Project Director and Consultant.
These limitations are based on the nature of the power to appoint which is merely
delegated to the Chancellor by the BOR, Section 204 of the Government Accounting and
Auditing Manual, and CSC MC No. 38, s. 1993 on non-retroactivity of appointments.
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21 Rollo, pp. 48-71.
22 Id., at p. 70.
418
The Sandiganbayan concluded that petitioners’ acts caused undue injury to the
Government with the receipt by Dr. Posadas of salaries and consultancy fees. Petitioners’
contention that the Government did not suffer loss or damage since the funding for the
TMC Project came from CIDA was rejected by the Sandiganbayan which stated that
from the moment UP received the CIDA funds intended for the TMC Project, said funds
became “impressed with public attributes or character,” as in fact it was subjected to the
control of UP and audited by the COA.
The Sandiganbayan likewise found no merit in petitioners’ claim that they were just
victims of “university politics” as they were staunch critics of President Javier.
Petitioners adduced documentary and testimonial evidence to show that Ms. Del Mundo’s
filing of a complaint against petitioners was triggered by the fact that it was Dr. Posadas
who ordered an administrative investigation against her and recalled her to the University
Library, which incident led to the resignation of Prof. Tabbada from TMC. However, the
Sandiganbayan stressed that regardless of the reason for the filing of the cases against
petitioners at the university level, these cases would not have come into being if no law
has been violated in the first place.
Petitioners filed a motion for reconsideration but it was denied due course for the
reason that it has not been set for hearing as required by the rules, hence the motion
is pro forma.
In this petition for certiorari, petitioners allege grave abuse of discretion and blatant
violation of their constitutionally guaranteed right to due process.
The Issues
The Court is asked to resolve whether the Sandiganbayan committed grave abuse of
discretion amounting to lack of or in excess of jurisdiction: (1) in denying petitioners’
motion for
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reconsideration on the ground that it was not set for hearing; and (2) in convicting
petitioners of Violation of Section 3(e) of R.A. No. 3019 and Section 7(b) of R.A. No.
6713 on the basis of facts not supported by evidence and on inapplicable rules and
principles.
Petitioners’ Arguments
Petitioners argue that the July 19, 2005 Resolution denying their motion for
reconsideration is not only baseless, but capricious, arbitrary and most unjust because
the Revised Internal Rules of the Sandiganbayan does not require that the motion for
reconsideration be set for hearing. They cite the case of Alvarez v.
Sandiganbayan23 where this Court ruled that motions for reconsideration of decisions or
final orders of the Sandiganbayan are not governed by Rule 15 of the Rules of Court, as
these may be filed within 15 days from promulgation or notice of the judgment or final
order “upon the grounds, in the form and subject to the requirements, for motions for new
trial in criminal cases under Rule 121 of the Rules of Court.”
On the charges of graft, petitioners assert that they did not act with bad faith, manifest
partiality or gross inexcusable negligence. They reiterate that Dr. Dayco’s designation as
OIC Chancellor was adjusted for one day merely to accommodate the change in the
official travel schedule of Dr. Posadas to China. The appointment of Dr. Posadas as TMC
Project Director and Consultant was a valid appointment and was made retroactive for no
other reason than to synchronize the activities relative to the TMC Project with the
project schedule as approved by the funding agency. The power of appointment was
within the power of the Chancellor to delegate to the OIC Chancellor, it not being
expressly prohibited by the University rules. Such practice, in fact, is not an unusual
occurrence in UP.
_______________
23 278 Phil. 566, 577; 201 SCRA 557, 566 (1991).
420
Petitioners also contend that no injury was caused to the government because the TMC
Project budget came from foreign funds, hence not an expense incurred by the
Government and neither did UP incur any expense in relation to the said project, its
counterpart funding was not in the form of money. Consequently, there can be no
conviction under the law in the absence of real or actual damage suffered.
On the “honoraria” and fees received by Dr. Posadas as Project Director and
Consultant, petitioners insist they cannot be held liable for double compensation because
these were given for separate services rendered by Dr. Posadas. As opined by the UP
Chief Legal Officer, the compensation were in the nature of consultancy fees being
received by UP personnel in their capacity as private persons for services to a project
outside of their official time, hence it is not covered by the DBM NCC No. 75. Moreover,
petitioners stress that Dr. Posadas did not receive any unwarranted benefit, advantage or
preference in his appointment as TMC Project Director and Consultant. Dr. Posadas
possesses the superior qualifications and expertise in the field of technology management
necessary to ensure that the project was a success. In fact, his colleagues were expecting
him to head the TMC Project and did not oppose his appointment.
As to the charge of unauthorized outside employment, petitioners point out that the
University rules do not require clearance from the UP President to engage in consultancy
work and the same rules do not prohibit him from performing consultancy work for a
project such as TMC. Therefore, Dr. Posadas’ appointment as TMC Project Director and
Consultant were not prohibited outside employment.
Petitioners reiterate their “university politics” defense, claiming that President Javier at
the time chose to champion Del Mundo’s complaint motivated by vengeance and spite
against two of his staunch critics. Thus, despite knowledge of the opinion of the UP Chief
Legal Officer clearing petitioners
421
VOL. 701, JULY 17, 2013 421
of any wrongdoing, President Javier underhandedly caused the filing of administrative
charges in the ADT.
Petitioners further submit that the complainant before the Ombudsman, Atty.
Carmelita Yadao, was incompetent as she had no personal knowledge of the contents
thereof, which were merely narrated or reported to her in her capacity as General Counsel
of UP at that time. The letter-complaint should not have been given due course as it was
based on pure hearsay and its main proponent suffered from conflicting interests because
she had earlier endorsed the MOA which included the compensation package for TMC
Project Director and Consultant.
Finally, petitioners deny having acted in conspiracy as there was no evidence to prove
it. The only assumed fact considered by the Sandiganbayan is based on its erroneous
hypothesis — the alleged act of “extending” the period of OIC Chancellor for one day to
accommodate Dr. Posadas. Dr. Dayco did not even gain anything from his designation of
Dr. Posadas. Thus, in the absence of clear and convincing proof, petitioners cannot be
held liable as conspirators.
Our Ruling
The petition has no merit.
Notice of Hearing in Motions for
Reconsideration Is Mandatory
Contrary to petitioners’ stance, the 2002 Revised Internal Rules of the
Sandiganbayan requires a motion for reconsideration to be set for hearing, as it provides
under Rule VII:
SECTION 1. Motion Day.—Except for motions which may be acted upon ex
parte, all motions shall be scheduled for hearings on a Friday, or if that day is a
non-working holiday, on the next working day.522
Motions requiring immediate action may be acted upon on shorter notice.
In appealed cases, the provisions of Sec. 3, Rule 49 of the 1997 Rules of Civil
Procedure, as amended, on Motions shall apply. (Emphasis supplied.)
Under the Rules of Sandiganbayan, effective January 10, 1979, a petition for
reconsideration of a judgment or final order may be filed upon the grounds, in the form
and subject to the requirements, for motions for new trial in criminal cases under Rule
121 of the Rules of Court.24 In the case of Alvarez v. Sandiganbayan25 decided in 1991,
the Court upheld the Sandiganbayan in not considering “the failure of the movant to fix
the place, date and time of the hearing of his motion a substantial defect, for instead of
giving the motion a short shrift, it set the incident for hearing, and even granted the
prosecution ten days from [notice] within which to oppose/comment.” The Court noted
what was then the practice of the Sandigabayan itself, rather than the movant, to
determine the date and time of hearings of motions. The peculiar circumstances of said
case heavily weighed in favor of relaxation of the rules, with the Court’s finding that the
evidence presented against the petitioner does not fulfill the test of moral certainty and
may not be deemed sufficient to support a conviction. Hence, the Court was not prepared
“to declare that [petitioner’s] omission to set his motion for hearing is so grievous an
error as to foreclose the award to him of the relief to which he is otherwise entitled.”
In any event, the mandatory setting for hearing a motion for reconsideration to reverse
or modify a judgment or final order of the Sandiganbayan is already settled. This Court
categorically ruled in the recent case of Flores v. People.26
_______________
24 Rule XII.
25 Supra note 23, at pp. 576-578; p. 567.
26 G.R. No. 181354, February 27, 2013, 692 SCRA 127.
423
VOL. 701, JULY 17, 2013 423
Flores filed a motion for the reconsideration. As the motion did not contain any
notice of hearing, the Prosecution filed its Motion to Expunge from the Records
Accused’s Motion for Reconsideration.”
In its Resolution, dated November 29, 2007, the Sandiganbayan denied the
motion for being a mere scrap of paper as it did not contain a notice of hearing and
disposed as follows:
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration of accused Flores is considered pro forma which did not toll
the running of the period to appeal, and thus, the assailed judgment of this
Court has become FINAL and EXECUTORY.
SO ORDERED.
x x x x
Flores claims that the outright denial of his motion for reconsideration by the
Sandiganbayan on a mere technicality amounts to a violation of his right to due
process. The dismissal rendered final and executory the assailed decision which was
replete with baseless conjectures and conclusions that were contrary to the evidence
on record. He points out that a relaxation of procedural rules is justified by the
merits of this case as the facts, viewed from the proper and objective perspective,
indubitably demonstrate self-defense on his part.
Flores argues that he fully complied with the requirements of Section 2 of Rule
37 and Section 4 of Rule 121 of the Rules of Court when the motion itself was
served upon the prosecution and the latter, in fact, admitted receiving a copy. For
Flores, such judicial admission amounts to giving due notice of the motion which is
the intent behind the said rules. He further argues that a hearing on a motion for
reconsideration is not necessary as no further proceeding, such as a hearing, is
required under Section 3 of Rule 121.
Flores’ argument fails to persuade this Court.424
Section 5, Rule 15 of the Rules of Court reads:
SECTION 5. Notice of hearing.—The notice of hearing shall be
addressed to all parties concerned, and shall specify the time and date of the
hearing which must not be later than ten (10) days after the filing of the
motion.
Section 2, Rule 37 provides:
SEC. 2. Contents of motion for new trial or reconsideration and notice
thereof.—The motion shall be made in writing stating the ground or grounds
therefore, a written notice of which shall be served by the movant on the
adverse party.
x x x x
A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
Section 4, Rule 121 states:
SEC. 4. Form of motion and notice to the prosecutor.—The motion for a
new trial or reconsideration shall be in writing and shall state the grounds on
which it is based. x x x. Notice of the motion for new trial or reconsideration
shall be given to the prosecutor.
As correctly stated by the Office of the Special Prosecutor (OSP), Sec. 2 of Rule
37 and Sec. 4 of Rule 121 should be read in conjunction with Sec. 5 of Rule 15
of the Rules of Court. Basic is the rule that every motion must be set for hearing by
the movant except for those motions which the court may act upon without
prejudice to the rights of the adverse party. The notice of hearing must be
addressed to all parties and must specify the time and date of the hearing, with
proof of service.425
VOL. 701, JULY 17, 2013 425
This Court has indeed held, time and again, that under Sections 4 and 5 of Rule
15 of the Rules of Court, the requirement is mandatory. Failure to comply with
the requirement renders the motion defective. “As a rule, a motion without a
notice of hearing is considered pro forma and does not affect the reglementary
period for the appeal or the filing of the requisite pleading.”
In this case, as Flores committed a procedural lapse in failing to include a notice
of hearing, his motion was a worthless piece of paper with no legal effect
whatsoever. Thus, his motion was properly dismissed by the
Sandiganbayan.27 (Emphasis supplied.)
We thus find no grave abuse of discretion committed by the Sandiganbayan when it
denied due course to petitioners’ motion for reconsideration on the ground that it “has not
been set for hearing as required by the rules” and the same is “deemed pro forma.”
Violation of Section 3(e) of R.A. No. 3019
The essential elements of the crime defined in Section 3(e) of R.A. No. 3019,
otherwise known as The Anti-Graft and Corrupt Practices Act, are:
1. The accused must be a public officer discharging administrative, judicial or official
functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and
3. That his action caused any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions.28
_______________
27 Id., at pp. 6-8; pp. 135-138.
28 Jacinto v. Sandiganbayan, 258-A Phil. 20, 26; 178 SCRA 254, 259 (1989).
426
There is no question regarding the presence of the first requisite considering that at the
time the subject appointments were made, both petitioners were faculty members and
holding administrative positions in UP Diliman. What petitioners dispute is the existence
of the second and third requisites.
In Criminal Case No. 25465, the information charged that petitioners willfully,
unlawfully and criminally gave unwarranted benefits to Dr. Posadas in appointing him as
TMC Project Director, in violation of the prohibition against multiple positions and the
rule on non-retroactivity of appointments, thereby causing undue injury to the
Government.
In Cabrera v. Sandiganbayan,29 this Court explained that there are two (2) ways by
which a public official violates Section 3(e) of R.A. No. 3019 in the performance of his
functions, namely: (a) by causing undue injury to any party, including the
Government; or (b) by giving any private party any unwarranted benefits, advantage or
preference. The accused may be charged under either mode or under both. Moreover,
in Quibal v. Sandiganbayan,30 the Court held that the use of the disjunctive term “or”
connotes that either act qualifies as a violation of Section 3(e) of R.A. No. 3019. 31 Here,
petitioners were charged with committing the offense under both modes.
Upon the entire evidence on record, the Sandiganbayan was convinced that petitioners
were guilty of causing undue injury to the Government. In Llorente, Jr. v.
Sandiganbayan,32 this Court said that to hold a person liable for causing undue injury
under Section 3(e), the concurrence of the following elements must be established
beyond reasonable doubt by the prosecution:
_______________
29 484 Phil. 350, 360; 441 SCRA 377, 386 (2004).
30 314 Phil. 66; 244 SCRA 224 (1995).
31 Velasco v. Sandiganbayan, 492 Phil. 669, 677; 452 SCRA 593, 602 (2005).
32 350 Phil. 820, 837; 287 SCRA 382, 398 (1998).
427
VOL. 701, JULY 17, 2013 427
(1) that the accused is a public officer or a private person charged in conspiracy with
the former;
(2) that said public officer commits the prohibited acts during the performance of his
or her official duties or in relation to his or her public positions;
(3) that he or she causes undue injury to any party, whether the government or a
private party; and
(4) that the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence.
We sustain the decision of the Sandiganbayan holding petitioners liable for causing
undue injury to the Government in appointing Dr. Posadas as TMC Project Director with
evident bad faith.
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. 33 It
contemplates a state of mind affirmatively operating with furtive design or some motive
of self interest or ill will for ulterior purposes. 34 Evident bad faith connotes a manifest
deliberate intent on the part of the accused to do wrong or cause damage.35
In Pecho v. Sandiganbayan,36 the Court en banc defined injury as “any wrong or
damage done to another, either in his person, or in his rights, reputation or property; the
invasion of any legally protected interests of another.” It must be more than necessary or
are excessive, improper or illegal. It is re-
_______________
33 Llorente, Jr. v. Sandiganbayan, id., at p. 843; p. 404, citing Spiegel v. Beacon
Participations, 8 NE 2nd Series, 895, 1007.
34 Id., citing Air France v. Carrascoso, No. L-21438, September 28, 1966, 18 SCRA
155, 166-167.
35 Id., citing Marcelo v. Sandiganbayan, G.R. No. 69983, May 14, 1990, 185 SCRA
346.
36 G.R. No. 111399, November 14, 1994, 238 SCRA 116, 133.
428
quired that the undue injury caused by the positive or passive acts of the accused be
quantifiable and demonstrable and proven to the point of moral certainty. 37 “Undue”
means illegal, immoral, unlawful, void of equity and moderations.38
In this case, that petitioners acted in evident bad faith was duly established by the
evidence. We recall that the MOA was executed on September 18, 1995 and became
effective upon the signature of the parties. 39 Between that date and the China trip
scheduled in the first week of November (the invitation was dated July 30, 1995), Dr.
Posadas could have already appointed the Project Director and Consultant as indeed the
retroactive appointment was even justified by them because supposedly “project
activities” have already started by September 18, 1995. And yet, he waited until the
China trip so that in his absence the designated OIC Chancellor, Dr. Dayco, would be the
one to issue the appointment. Apparently, Dr. Posadas’ appointment by Dr. Dayco in an
OIC capacity was pre-conceived. Prof. Jose Tabbada testified that when he was
summoned by Dr. Posadas to his office, the latter asked him how he (Posadas) could be
appointed TMC Project Director. He then suggested that Dr. Dayco as OIC Chancellor
can appoint him to the position and even drafted the memo for this purpose. He admitted
that he gave such advice with some reservations but it turned out to have been pursued by
petitioners.40
However, the Sandiganbayan ruled that the delegated authority of the OIC Chancellor
has limitations and did not include the power to appoint.
_______________
37 Cabrera v. Sandiganbayan, supra note 29, at pp. 364-365; pp. 390-391,
citing Jacinto v. Sandiganbayan, supra note 28, at p. 27; p. 260 and Llorente v.
Sandiganbayan, supra note 32, at p. 838; p. 401.
38 Id., at p. 364; p. 390.
39 MOA, Sec. 19, Exhibit “24,” folder of exhibits (Defense).
40 TSN, January 7, 2002, pp. 14-16, 18-19.
429
VOL. 701, JULY 17, 2013 429
Section 204 of the Government Accounting and Auditing Manual (Volume I on
Government Auditing Rules and Regulations) provides:
Sec. 204. Appointment issued by an officer-in-charge.—A person designated
in an acting capacity may be differentiated from one who is designated merely as an
Officer-in-Charge (OIC). In the latter case, the OIC enjoys limited powers which,
are confined to functions of administration and ensuring that the office continues its
usual activities. The OIC may not be deemed to possess the power to appoint
employees as the same involves the exercise of discretion which is beyond the
power of an OIC (CSC Res. 1692, Oct. 20, 1978).
To prove the alleged practice in the University of an OIC appointing a Chancellor to a
certain position, petitioners presented copies of temporary appointment papers issued by
OIC Chancellor Paz G. Ramos to former Chancellor Ernesto G. Tabujara who was
appointed Consultant-In-Charge of the Campus Planning, Development and Maintenance
Office, UP Diliman with P2,000.00 monthly honorarium effective January 1, 1986 to
December 31, 1986. It must be noted, however, that the said appointment was made by
the OIC “by authority of the Board of Regents” and these were actually approved and
signed by then Secretary of the University, Prof. Martin V. Gregorio, while the renewal
appointment was approved by Secretary of the University Prof. Emerlinda R. Roman.
Both Gregorio and Roman signed the Notification of Approval of Temporary
Appointment.41
Petitioners nonetheless argue that the appointments made by Dr. Dayco were valid on
the basis of Section 9(a) of the Resolution of the BOR reorganizing UP into the UP
System adopted at its 828th meeting on December 21, 1972, as amended at its 863rd
meeting on July 31, 1975. Under said
_______________
41 Exhibits “19,” “19-A,” “19-B,” “20,” “20-A,” “20-B,” “21” and “21-A,” folder of
exhibits (Defense).
430
resolution, the BOR authorized the Chancellor of an autonomous university of the UP
System to delegate his functions and responsibilities which have been assigned or
delegated to him by the BOR, unless instructed otherwise by the BOR. It also enumerated
those functions that may not be delegated, among which is:
B. Functions That May Not Be Delegated
x x x x
f. Authority to approve the following appointments—
(1) those covered in II, C, 1, and e of the President’s Memorandum Circular
No. 30 dated August 28, 1975; and
(2) those covered in II, C, 4, a through c of the aforecited memorandum
circular of the President;
x x x x 42
MC No. 30 dated August 28, 1975 issued by former UP President Onofre D. Corpuz
provided for “Operating Guidelines on Appointments and Related Personnel Transactions
in the University System,” which specifically delineated the authority to appoint of
university officials.
The pertinent provisions of said MC No. 30 read:
C. Delegated Authority of the Chancellor to Appoint
1. The Chancellor of an autonomous University approves appointments to the
following positions:
a. directors or heads and assistant directors or assistant heads of units
supervised by or attached to principal units, except those whose starting
salaries are equal to or higher than that of associate professor;
_______________
431
VOL. 701, JULY 17, 2013 431
b. program or project directors;
x x x x
5. The Chancellor approves the appointment of personnel, regardless of rank or
salary range, incidental to employment in research projects, study and training
programs and other programs or projects undertaken in collaboration with,
or with the support of, public or private institutions or persons.
TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:
Appointment as used in II, C, 5 above includes all types of appointment and
personnel action pertaining to appointment, except transfer to permanency of
faculty members. (Emphasis supplied.)
According to petitioners, since appointments falling under II, C, 5 was not specifically
mentioned in the enumeration of those functions of the Chancellor that may not be
delegated, it follows that such appointments may be validly delegated, as in this case, the
appointments issued by OIC Chancellor Dayco to Dr. Posadas as TMC Project Director
and Consultant. Moreover, it is argued that in the BOR Resolution itself, the designated
OIC Chancellor was granted full powers:
E. Extent of Authority of One Appointed in an Acting/Officer-in-Charge Capacity
One appointed/designated, in an acting or officer-in-charge capacity, to the office
of chancellor shall discharge all the functions of the position unless instructed
otherwise by the regular incumbent, and in any case, subject to the latter’s
instructions, to the policies of the Board of Regents and to the provisions of D
hereinabove and of F hereinbelow; provided, that “all the functions of the position”
as used in and for purposes of this resolution shall be construed as inclusive of all
the functions assigned to the position by competent University authority and all
such functions as usually per-
432
tain, or are “inherent,” to the position although not expressly assigned thereto by
competent University authority.
Petitioners’ argument fails to persuade.
It must be emphasized that the subject appointments involve not an ordinary personnel
or faculty member but the Chancellor himself who was also vested with administrative
supervision over the institution implementing the TMC Project, TMC. Note that while II,
C, 5 in MC No. 30 speaks of “personnel, regardless of rank or salary range, incidental to
employment,” the same could not possibly refer to the Chancellor himself. This is evident
from the exception provided in II, B, 1 where it is the President himself who approves the
appointment, viz.:
B. Delegated Authority of the President to Appoint
1. The President approves the appointment of officers and employees (including
faculty members if there are any) who are not included in or covered by the
enumerations in II, A above and of those who are covered in II, C, 5 below
who are:
a. in or directly under the Office of the President; or
b. in University-wide units; or
c. in other offices or units, academic or non-academic, that are not part of
any autonomous University;
to the same extent and under the same conditions stipulated in II, C below for the
delegated authority of the Chancellor of an autonomous University to appoint.
TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:
Appointment as used in II, B, 1 above includes all types of appointment and
personnel action pertaining to appointment, ex-
433
VOL. 701, JULY 17, 2013 433
cept transfer to permanency of faculty members. (Emphasis supplied.)
Considering that it is the Chancellor himself who is being appointed to a project
covered in II, C, 5, the BOR resolution on the authority of the Chancellor to delegate his
functions may not be invoked because the situation is covered by II, B, 1, the Chancellor
being directly under the administrative supervision of the UP President as the Chief
Executive Officer of the University. The Chancellor, on the other hand, is the executive
officer and the head of the faculty of the Constituent University, who likewise performs
other functions that the BOR or the President may delegate to her/him. This is clearly
indicated in the organizational structure of the UP Diliman, sourced from the Faculty
Manual of the University of the Philippines Diliman:43
_______________
43 Published in 2003.
434
Thus, even granting that the subject appointments in UP Diliman, an autonomous
educational institution, are not covered by Section 204 of the Government Accounting
and Auditing Manual, they are still invalid and illegal, because the delegated authority to
appoint in this case, involving as it does the Chancellor himself, pertains to the President
of the University. Indeed, the Chancellor cannot exercise the delegated authority to
appoint in the situations covered by II, C, 5 when he himself is the appointee. The
designated OIC likewise had no authority to make the appointment.
As to the prohibition on government officials and employees, whether elected or
appointed, from holding any other office or position in the government, this is contained
in Section 7, Article IX-B of the 1987 Constitution, which provides:
x x x x
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government,
or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. (Emphasis supplied.)
The prohibition on dual employment and double compensation in the government
service is further specified under Sections 1 and 2, Rule XVIII of the Omnibus Rules
Implementing Book V of E.O. No. 292,44 as follows:
Sec. 1. No appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations with original
_______________
44 See Re: Gross Violation of Civil Service Law on the Prohibition Against Dual
Employment and Double Compensation in the Government Service Committed by Mr.
Eduardo V. Escala, SC Chief Judicial Staff Officer, Security Division, Office of
Administrative Services, A.M. No. 2011-04-SC, July 5, 2011, 653 SCRA 141, 149-150.
435
VOL. 701, JULY 17, 2013 435
charters or their subsidiaries, unless otherwise allowed by law or by the primary
functions of his position.
Sec. 2. No elective or appointive public officer or employee shall receive
additional, double, or indirect compensation, unless specifically authorized by law,
x x x.
Under Section 2(d), Rule III of the Revised Omnibus Rules on Appointments and
Other Personnel Actions,45 appointments of personnel under Foreign-assisted projects
shall be issued and approved as coterminous with the project. The MOA itself provides
that the “services of the contractual personnel of the University for the Project shall be
discontinued upon its completion or termination.” The appointment of Dr. Posadas as
TMC Project Director falls within the prohibition against holding of multiple positions
since there is no distinction in Section 7, Article IX-B as to the employment status, i.e.,
whether permanent, temporary or coterminous. Petitioners failed to cite any law to justify
Dr. Posadas’ holding of concurrent positions as Chancellor and TMC Project Director.
Another legal infirmity in the appointment of Dr. Posadas as TMC Project Director is
the fact that it was made retroactive, in violation of CSC MC No. 38, Series of 1993, the
Omnibus Guidelines on Appointments and Other Personnel Actions. Section II, 5 B (7)
thereof reads:
7. Effectivity of Appointment
a. The effectivity of an appointment shall be the date of actual assumption by
the appointee but not earlier than the date of issuance of the appointment,
which is the date of signing by the appointing authority.
b. No appointment shall be made effective earlier than the date of issuance,
except in the
_______________
45 CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum
Circular No. 15, s. 1998.
436
case of change of status in view of qualifying in written examination, the effectivity of
which is the date of release of the result of the examination. However, the issuance of
such appointments shall be within the period of the temporary appointment or provided
the temporary appointment has not yet expired.
x x x x
Petitioners assert that appointment as TMC Project Director is not covered by the
above rule because it is in the nature of consultancy which is no longer required to be
submitted to the CSC.
A perusal of the duties and responsibilities of the TMC Project Director reveals that
the latter is tasked to perform the following:
 Provide overall direction to the Project;
 Exercise supervision over Project personnel, including the visiting experts;
 Approve the recruitment of personnel, disbursement of Project funds, and changes in
the Project activities and schedule;
 Coordinate with other persons, agencies and institutions involved in technology
management;
 Perform such other functions as may be necessary to ensure the efficient, orderly and
effective management and timely completion of the Project.46
The foregoing duties and responsibilities are not susceptible of partial performance or
division into parts as would justify its classification into lump sum work. Neither are
these advisory in nature as would make it fall under the scope
_______________
46 Exhibit “55-A,” folder of exhibits (Defense).
437
VOL. 701, JULY 17, 2013 437
of a consultancy service.47 The status of Dr. Posadas’ employment as TMC Project
Director is a coterminous one. Under civil service rules, appointments of personnel under
foreign-assisted projects shall be issued and approved as coterminous with the
project,48 that is, they are considered employees for the duration of the project, in which
case, the name of the project and its completion date shall be indicated in the
appointment.49 This status of employment is to be distinguished from contract of services
which covers lump sum work or services such as janitorial, security or consultancy
services, whose appointments need not be submitted to the CSC for approval.
We also find no merit in petitioners’ argument that the element of injury caused to the
Government is lacking since the budget for TMC Project came from a foreign source and
hence no public funds are involved. Under the MOA, UP shall be “principally
accountable for the project funds” which shall be released to and properly managed by it
to ensure the attainment of the Project’s objectives. Clearly, these funds are in the nature
of “trust fund” which is defined by Presidential Decree No. 1445 as “fund that officially
comes in the possession of an agency of the government or of a public officer as trustee,
agent or administrator, or that is received for the fulfillment of some obligation. 50 A trust
fund may be utilized only for the “specific purpose for which the trust was created or the
funds received.”51 The Sandiganbayan thus correctly held that the funds received for the
TMC Project were im-
_______________
47 See CSC Resolution No. 030102 dated January 22, 2003 (Edmundo R. Calo).
48 Chua v. Civil Service Commission, G.R. No. 88979, February 7, 1992, 206 SCRA
65, 74.
49 Rule III, Sec. 2,d (e), CSC Memorandum Circular No. 40, Series of 1998.
50 Sec. 3(4), P.D. No. 1445.
51 Sec. 4(3), id.
438
pressed with public attributes or character from the time it came into UP’s possession.
The disbursement and payment of the P30,000.00 monthly salary as TMC Project
Director to Dr. Posadas was improper, in view of his invalid appointment. Said amount
represents the actual injury to the Government. The third requisite of Section 3(e) of R.A.
No. 3019, therefore, was sufficiently established by the prosecution.
Violation of Section 7(b), R.A. No. 6713
In Criminal Case No. 25466, the charge involves the private practice of profession
prohibited under Section 7(b) of R.A. No. 6713, otherwise known as the Code of Conduct
and Ethical Standards for Public Officials and Employees, by appointing Dr. Posadas as
Consultant of the TMC Project. Said provision reads:
SEC. 7. Prohibited Acts and Transactions.—In addition to acts and omissions
of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be unlawful:
x x x x
(b) Outside employment and other activities related thereto.—Public officials
and employees during their incumbency shall not:
x x x x
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided that such practice will not conflict or tend to conflict
with their official functions; or
x x x x
Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a contract for
consultancy services is not covered by
439
VOL. 701, JULY 17, 2013 439
Civil Service Law, rules and regulations because the said position is not found in the
index of position titles approved by DBM. Accordingly, it does not need the approval of
the CSC.52 CSC MC No. 38, series of 1993 expressly provides that consultancy services
are not considered government service for retirement purposes. A “consultant” is defined
as one who provides professional advice on matters within the field of his special
knowledge or training. There is no employer-employee relationship in the engagement of
a consultant but that of client-professional relationship.53
Consultancy is deemed private practice of profession. Under CSC Resolution
02126454 dated September 27, 2002, accepting a consultancy job under a part-time status
is subject to the following conditions:
1. It must not violate the rule against holding multiple positions;
2. The employee/officer must obtain permission or authority from his/her head of
agency as the same constitutes private practice of profession;
3. The consultancy job must not conflict or tend to conflict with his/her official
functions; and
4. It must not affect the effective performance of his/her duty.
In convicting petitioners, the Sandiganbayan cited Article 250 of the University Code,
which provides:
_______________
52 See COA Circular No. 95-001 dated January 20, 1995 citing Office Memorandum
No. 55, series of 1993 of the CSC relative to the new policies on appointment.
53 CSC Resolution No. 95-6939 (Pagaduan v. Malonzo) dated November 2, 1995,
cited in Justice Arturo D. Brion’s Dissenting Opinion in A.M. No. 10-9-15-SC, Re:
Request of (Ret.) Chief Justice Artemio V. Panganiban for Recomputation of His
Creditable Service for the Purpose of Re-computing His Retirement Benefits, February
12, 2013, 690 SCRA 242.
54 Query re: Consultancy, Mayumi Juris A. Luna.
440
Art. 250. No member of the academic staff, officer or employee of the
University shall, without permission from the President or the Chancellor, as
the case may be, practice any profession or manage personally any private
enterprise which in any way may be affected by the functions of his office, nor shall
he be directly financially interested in any contract with the University unless
permitted by the Board. Violation of this provision shall be punishable by
reprimand, suspension, or dismissal from the service. (Emphasis supplied.)
Since Dr. Posadas and Dr. Dayco entered into the contract for consultancy services for
the TMC Project without prior permission from the University President, the
Sandiganbayan ruled that they violated Section 7(b) of R.A. No. 6713.
Petitioners contend that the section of the University Code cited by the Sandiganbayan
had already been superseded by the guidelines on outside activities promulgated by the
BOR at its 1031st Meeting on June 28, 1990. Thus, in the Faculty Manual of the
University of the Philippines Diliman while the consultancy at TMC Project falls under
the coverage of “outside activities,” prior authorization by the University President is no
longer required. The pertinent provisions of the manual read:
10.3 Guidelines on Outside Activities [1031st BOR meeting, June 28, 1990]
10.3.1 Coverage
Outside activities of University personnel shall include: limited practice of
profession, management of private enterprises, outside consultancy, secondment,
teaching in other educational or training institutions with which the University has a
Memorandum of Agreement, as well as research and other activities or projects
under the auspices of outside agencies which are not considered integral functions
of the University. Such activities
441
VOL. 701, JULY 17, 2013 441
shall not be considered part of the regular workload of the personnel concerned.
10.3.2 Prior Authorization
No member of the University personnel shall engage in outside activities without
prior authorization from the Chancellor, upon endorsement by the Dean,
Director, or head of office concerned, subject to the exigencies of the service.
x x x x
10.3.5 Penalties
Violation of any of the rules on outside activities shall be ground for disciplinary
action. The immediate superior of the faculty/staff member shall immediately
submit a report on any violation of the rules to the Office of the Chancellor, through
channels.
Disciplinary action on any faculty/staff member may be imposed, but only in
accordance with the law, and after due process.
10.3.6 Types
x x x x
c. Limited/private practice of profession
Permission to engage in private practice of the profession of faculty members
may be granted only if such private practice may enhance their usefulness to the
University or improve their efficiency. [Art. 252]
The privilege of private practice, when granted, shall be for a definite period of
one (1) year, renewable at the discretion of the Chancellor for one-year periods, and
under such conditions as may be prescribed by him/her regarding the nature of the
work, the time of performance, and other circumstances. [Art. 253; amended at
BOR meetings: 839th, Nov. 29, 1973; 1031st, June 28, 1990]442
The limited practice of one’s profession shall be governed by the following
guidelines:
1) No member of the academic staff, officer or employee of the University
shall, without prior permission from the Chancellor, practice any
profession or manage personally any private enterprise which in any way may
be affected by the functions of her/his office; nor shall s/he be directly
financially interested in any contract with the University unless permitted by
the Board. Violation of this provision shall be punishable by reprimand,
suspension, or dismissal from the service. [Art. 250; amended at 1031st BOR
meeting, June 28, 1990]
2) Permission to engage in private practice of profession may granted provided
that such practice:
 is NOT ADVERSE to the interests of the University;
 shall NOT be conducted on official time;
 will improve the person’s efficiency and usefulness to the University;
and
 shall be subject to such other requirements as may be imposed by law or
University rules and regulations. (Emphasis supplied.)
Notwithstanding the supposed amendment of the rule on limited practice of profession
as contained in Article 250 of the University Code, we sustain the Sandiganbayan in
holding that petitioners should have obtained prior permission from the University
President for the contract for consultancy services in the TMC Project. As with our
conclusion on the
443
VOL. 701, JULY 17, 2013 443
issue of authority to appoint the TMC Project Director, considering that it is the
Chancellor himself who was engaged as TMC Project Consultant, the contract for
consultancy services of Dr. Posadas should have been authorized by the University
President as the chief executive officer of the UP System. To hold otherwise is to leave
the matter of determining the criteria or conditions for allowing the private practice of
profession provided in the University rules entirely to Dr. Posadas himself as then UP
Diliman Chancellor. Consistent with the Civil Service rules that prior authorization by
the head of the agency or institution must be sought by the government officer or
employee who desires to accept a consultancy job, it is no less than the University
President who should have given permission to Dr. Posadas, the latter being directly
under his administrative supervision.
Upon the established facts and applicable law and jurisprudence, we hold that no grave
abuse of discretion was committed by the Sandiganbayan in convicting petitioners for
violation of Section 7(b) of R.A. No. 6713.
Conspiracy
A conspiracy is proved by evidence of actual cooperation; of acts indicative of an
agreement, a common purpose or design, a concerted action or concurrence of sentiments
to commit the felony and actually pursue it. 55 For the accused to be held as conspirators,
it is not necessary to show that two or more persons met together and entered into an
explicit agreement setting out the details of an unlawful scheme or the details by which
an illegal objective is to be carried out.” Therefore, 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
_______________
55 Lazarte, Jr. v. Sandiganbayan (First Division), G.R. No. 180122, March 13, 2009,
581 SCRA 431, 450.
444
closeness of personal association and a concurrence of sentiment, then a conspiracy may
be inferred though no actual meeting among them to concert means is proved.56
The Sandiganbayan’s finding of conspiracy rests on firm factual support. Although Dr.
Dayco tried to downplay his participation, stating that he did not benefit from the subject
appointments and that there were many other appointment papers he had signed in the
absence of Dr. Posadas, it is clear as daylight that he had a principal and indispensable
role in effecting the said appointments. To stress the point, the Sandiganbayan quoted the
relevant portions of the Report submitted by the ADT, as follows:
It would be the height of naiveté to assume that before making the two (2)
appointments of respondent Posadas as Director of the TMC Project and as
Consultant to the TMC, respondent Dayco did not, in any manner, confer with
respondent Posadas about the matter. To believe the claim of respondent Posadas
that he just saw his appointment papers at his desk when he came back from his trip
is to tax human credulity too much.
Under the said circumstances, the natural course of events necessarily points to
connivance between respondent Posadas and respondent Dayco in the making of the
questioned appointments.
Despite the claim of respondent Posadas that he just saw the appointment papers
on his desk when he returned from his trip, the admitted fact is that respondent
Dayco made those appointments for respondent Posadas and the latter acted upon
the same favourably as he (respondent Posadas) collected the compensation therein
(Exhibits “E” and “E-1”). In fact, as Chancellor, respondent Posadas approved his
own Disbursement Voucher
_______________
56 Guy v. People, G.R. Nos. 166794-96, 166880-82 & 167088-90, March 20, 2009,
582 SCRA 107, 125, citing People v. Quinao, et al., 336 Phil. 475, 488-489; 269 SCRA
495, 509 (1997) and People v. Layno, 332 Phil. 612, 629; 264 SCRA 558, 575 (1996).
445
VOL. 701, JULY 17, 2013 445
for payment from the coffers of the University, covering his honoraria and
consultancy fees as Project Director for the TMC Project and as consultant to the
TMC, respectively (Exhibit “E-2”).57
Penalty
Any person guilty of violating Section 3(e) of R.A. No. 3019 is punishable with
imprisonment for not less than six (6) years and one (1) month nor more than fifteen (15)
years and perpetual disqualification from public office. 58 Thus, the penalty imposed by
the Sandiganbayan which is an indeterminate penalty of nine (9) years and one day as
minimum and twelve (12) years as maximum, with the accessory penalty of perpetual
disqualification from public office, is in accord with law. Petitioners shall also indemnify
the Government of the Republic of the Philippines the amount of THREE HUNDRED
THIRTY SIX THOUSAND PESOS (P336,000.00) representing the
compensation/salaries paid to Dr. Posadas as TMC Project Director.
As to the offense defined in Section 7(b) of R.A. No. 6713, Section 11 of said law
provides that violations of Section 7 shall be punishable with imprisonment not
exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both,
and, in the discretion of the court, disqualification to hold public office. The
Sandiganbayan imposed the maximum penalty of five (5) years imprisonment and
disqualification to hold public office.
The Court is aware of the sentiments of the succeeding BOR who agonized while
deliberating whether to readmit petitioners into the faculty of UP Diliman, with majority
of the Regents lamenting the loss of two of its distinguished
_______________
57 ADT Report in re: ADT Case No. 96-001, p. 15, Exhibit “A-6,” folder of exhibits
(Prosecution).
58 Sec. 9, R.A. No. 3019; Sison v. People, G.R. Nos. 170339, 170398-403, March 9,
2010, 614 SCRA 670, 682.
446
intellectuals and scientists who had served the University for so long despite the meager
compensation UP has to offer compared to private educational institutions. 59 The BOR
eventually allowed them to teach part-time in the TMC even waiving the conditions the
previous BOR had imposed — a move perceived to be a first step in the healing process
for the academic community that was “torn into pieces” by the issue.
However, this Court’s mandate is to uphold the Constitution and the laws. Our
Constitution stresses that a public office is a public trust and public officers must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives. 60 These
constitutionally-enshrined principles, oft-repeated in our case law, are not mere rhetorical
flourishes or idealistic sentiments. They should be taken as working standards by all in
the public service.61
WHEREFORE, the petition is DISMISSED. The Decision dated June 28, 2005 of
the Sandiganbayan in Criminal Cases Nos. 25465-66 is
hereby AFFIRMED and UPHELD.
With costs against the petitioners.
SO ORDERED.
Bersamin (Acting Chairperson), Mendoza** and Reyes, JJ., concur.
Abad,*** J., See my dissenting opinion.
_______________
59 Transcription on the case of Dr. Roger Posadas, 1150th BOR meeting, May 24,
2001, Exhibit “53,” folder of exhibits (Defense).
60 Duque III v. Veloso, G.R. No. 196201, June 19, 2012, 673 SCRA 676, 687,
citing Japson v. Civil Service Commission, G.R. No. 189479, April 12, 2011, 648 SCRA
532, 545.
61 Id.
** Desinated additional member per Raffle dated May 27, 2013.
*** Designated additional member per Raffle dated July 1, 2013.
447
VOL. 701, JULY 17, 2013 447
DISSENTING OPINION
ABAD, J.:
I am compelled to dissent from the majority opinion that upheld the Sandiganbayan’s
conviction of petitioners for violation of Section 3(e) of Republic Act (R.A.) 3019, the
Anti-Graft and Corrupt Practices Act, and Section 7(b) of R.A. 6713, the Code of
Conduct and Ethical Standards for Public Officials and Employees.
The Facts and the Case
The facts as gathered from the Sandiganbayan decision are as follows:
Dr. Roger R. Posadas served as Chancellor of the University of the Philippines (UP)
Diliman from November 1, 1993 to October 31, 1996. This made him chief operating
officer or overall administrator of UP Diliman.
On September 19, 1994 Dr. Posadas, as Chancellor, formed a Task Force on Science
and Technology Assessment, Management and Policy, (Task Force) “to prepare curricular
proposals for the institution of masteral and doctoral programs in ‘technology
management, innovation studies, science and technology and related areas.’ ” On June 6,
1995 the university established, upon the Task Force’s recommendation, the UP
Technology Management Center (UP TMC). The Task Force members nominated Dr.
Posadas for the position of Center Director but he declined it, resulting in the designation
of Professor Jose B. Tabbada as Acting UP TMC Director.
Shortly after, Dr. Posadas asked the Philippine Institute of Development
Studies/Policy, Training and Technical Assistance Facility (PIDS/PTTAF) to fund the
UP TMC’s 10 new graduate courses. This resulted in the execution on September 18,
1995 of a Memorandum of Agreement (MOA) between UP PIDS/PTTAF and the
National Economic Development
448
Authority. The MOA established a project they named Institutionalization of
Management and Technology in the University of the Philippines in Diliman (the TMC
Project). The Canadian International Development Agency agreed to fund the same.
Two weeks later or on October 5, 1995 Malacañang granted Chancellor Posadas and
15 other UP Diliman officials authority to travel to Fujian, China, from October 30 to
November 6, 1995 to attend a state university’s foundation day. Anticipating his
departure, on October 27, 1995 Chancellor Posadas issued Administrative Order 95-170-
A, designating petitioner Dr. Rolando P. Dayco, then UP Diliman Vice-Chancellor for
Administration, as Officer-in-Charge (OIC) in Dr. Posadas’ absence.
On November 7, 1995, his last day as OIC Chancellor, Dr. Dayco designated Dr.
Posadas as “Project Director of the PIDS/PTTAF-UP Diliman on the TMC Project
effective September 18, 1995 until September 17, 1996.” In an undated letter, Dr. Dayco
also appointed Dr. Posadas Consultant to the TMC Project. The designation and
appointment were to retroact to September 18, 1995 when the project began.
On August 22, 1996 the Commission on Audit (COA) Resident Auditor issued a
Notice of Suspension covering payments made to the personnel of UP TMC, including
the second payment to Dr. Posadas of P36,000 for his services as TMC Project’s Local
Consultant. On August 23 the Resident Auditor issued another Notice of Suspension
covering the payment to Dr. Posadas of a P30,000 honorarium per month as Project
Director from September 18 to October 17, 1995.
On September 16, 1996 the UP Diliman Legal Office issued a Memorandum to the
COA Resident Auditor, explaining to him that the amounts due to the personnel of the
TMC Project “were legal, being in the nature of consultancy fees.” The legal office also
“confirmed the authority of Dr. Dayco, while he was OIC Chancellor, to appoint Dr.
Posadas as Project Director and Consultant of the TMC Project.” Finding this
449
VOL. 701, JULY 17, 2013 449
explanation “acceptable,” the COA Resident Auditor lifted his previous notices of
suspension.
Notwithstanding the lifting of the suspension, UP President Emil Javier constituted
an Administrative Disciplinary Tribunal (ADT) to hear and decide the administrative
complaint that he himself filed against Dr. Posadas and Dr. Dayco for grave misconduct
and abuse of authority. On August 18, 1998, after hearing, the ADT recommended the
dismissal of the two from the service.
On appeal to the UP Board of Regents, however, it modified the penalties against them
to “forced resignation with the accessory penalties defined in the Omnibus Rules
Implementing Book V of Executive Order 292 and other Pertinent Civil Service Laws
x x x.” Further, the Board of Regents stated in its decision that Dr. Posadas and Dr.
Dayco may reapply after one year provided they render a public apology. Relying on this
decision, the UP General-Counsel filed on behalf of UP a complaint that led to the filing
of the present cases against the respondents before the Sandiganbayan.
On June 28, 2005, after trial, the Sandiganbayan found petitioners Dr. Posadas and Dr.
Dayco guilty of violation of Section 3(e) of R.A. 3019 and imposed on them an
indeterminate penalty of imprisonment for 9 years and 1 day as minimum and 12 years as
maximum, with the accessory penalty of perpetual disqualification from public office.
The court also found them guilty of violation of Section 7(b) of R.A. 6713 and imposed
on them the penalty of imprisonment for 5 years and disqualification to hold public
office. They were further ordered to indemnify the government in the sum of P336,000.1
The Issues Presented
The issues in this case are:
_______________
62 Rollo, pp. 48-70.
450
1. Whether or not, acting in conspiracy with one another, Dr. Dayco, then OIC
Chancellor, caused undue injury to the government or gave unwarranted advantage to a
private party through manifest partiality, evident bad faith, or gross inexcusable
negligence when he appointed Dr. Posadas as Project Director of the TMC Project and
further designated him as its consultant in violation of Section 3(e) of R.A. 3019; and
2. Whether or not the same acts of Dr. Dayco and Dr. Posadas constitute a violation
of Section 7(b) of R.A. 6713.
The Dissenting View
Since the evidence and the rationalization for the two issues are the same, they shall be
jointly discussed.
Clearly, the prosecution evidence failed to prove the guilt of petitioners beyond
reasonable doubt and the Sandiganbayan committed grave abuse of discretion in ruling
otherwise.
First. The prosecution did not prove that Dr. Dayco, then OIC Chancellor, was
prompted by “manifest partiality or evident bad faith” in appointing Dr. Posadas as
Project Director and designating him as Project Consultant of the TMC Project.
No evidence was presented to show that there were others more qualified than Dr.
Posadas to serve as its Project Director and Consultant. The idea for the project was
essentially his. And it came within his area of expertise — technical management.
Further, it was he, applying that expertise, who worked to convince the PIDS/PTTAF to
arrange funding for the project. In the world of the academe, that project was the
equivalent of his thesis. The choice of Dr. Posadas to head the project was not a case of
“manifest partiality” but of simple “manifest fairness.”
The only weakness in petitioners’ case is that, apparently, they took advantage of Dr.
Posadas’ official travel to China
451
VOL. 701, JULY 17, 2013 451
and his designation of Dr. Dayco as OIC Chancellor, so the latter could use his authority
as such OIC to designate Dr. Posadas as Project Director and Consultant of the TMC
Project. That looks bad from the point of view of the justices of the Sandiganbayan who
just assumed that all public officials know that an OIC does not have such power.
The bottom issue, truly, is whether or not Dr. Dayco and Dr. Posadas acted in bad faith
knowing fully well that an OIC Chancellor cannot make the questioned appointment and
designation. True, it appears that the two officials expressly or impliedly agreed that Dr.
Dayco could officially take those actions, relying on his OIC powers. They probably
thought that by doing this, they could get around the fact that Dr. Posadas, as Chancellor
of UP Diliman, could not designate himself to head the project even if he was really
entitled to it. Still, Dr. Dayco’s subsequent action and Dr. Posadas’ concurrence to it
cannot amount to bad faith.
Actually, the test of bad faith in this case is whether or not Dr. Dayco and Dr. Posadas
were in fact aware that the law did not empower Dr. Dayco as OIC Chancellor to make
the questioned designation and appointment. If they thought that it could be legally done,
Dr. Posadas’ travel grant to China presented an opportunity for Dr. Dayco to make the
designations in question. After all, to his mind, there is no question that Dr. Posadas was
highly qualified for the job. No evidence has been adduced to show that UP academic
officials were prohibited from receiving compensation for work they render outside the
scope of their normal duties as administrators or faculty professors.
The prosecution, which carried the burden of proof, did not present evidence that Dr.
Dayco or Dr. Posadas knew beforehand that the designations were void for lack of
authority of Dr. Dayco to make such designations. The Sandiganbayan merely assumed
that they were familiar with the rules and regulations of the Civil Service Commission
regarding the matter. But such assumption is unwarranted. The two UP
452
officials were scientists, not lawyers. Familiarity with those rules and regulations does
not exist in their world. Indeed, even the UP Diliman Legal Office was unfamiliar with
the limitation to the OIC’s power. It rendered a legal opinion that “confirmed the
authority of Dr. Dayco, while he was OIC Chancellor, to appoint Dr. Posadas as Project
Director and Consultant of the TMC Project.”
Besides, the COA Resident Auditor, who at first thought that the payments were
invalid, expressed satisfaction at the explanation that the head of the UP Diliman Legal
Office gave. In fact, the Resident Auditor officially withdrew the Notices of Suspension
of payment that he issued. Since the Office of the Ombudsman did not implicate these
two officials in the charge of conspiracy that it filed against Dr. Dayco and Dr. Posadas,
it may be assumed that the head of that legal office and the COA Resident Auditor acted
in good faith in affirming Dr. Dayco’s authority.
Parenthetically, had the UP Diliman Legal Office and the COA Resident Auditor
rendered opinions or rulings against Dr. Dayco and Dr. Posadas, the next step would have
been for the latter to reimburse what he received as payments for his services in the
project in view of the disallowance order or appeal such order. But they did not give him
that chance.
In other government offices, the case against Dr. Dayco and Dr. Posadas would have
been treated as purely partaking of an administrative character. COA’s orders of
suspension or disallowance are abundant and commonplace and are hardly regarded as
cause for filing criminal charges of corruption. But, undoubtedly, other considerations
entered the picture.
Dr. Posadas had earlier created a Fact-Finding Committee at UP Diliman that
investigated UP Library Administrative Officer Ofelia del Mundo, resulting in her being
charged with grave abuse of authority, neglect of duty, and other wrongdoings. This
prompted Professor Tabbada, the Acting UP TMC Director, to resign from his post in
protest to the recall of Ms. Del Mundo. In turn, the latter instigated the UP Presi-
453
VOL. 701, JULY 17, 2013 453
dent to go after Dr. Posadas and Dr. Dayco in this case. Apparently, the Office of the
Ombudsman and the Sandiganbayan played into these intense mutual hatred and rivalry
that enlarged what was a simple administrative misstep.
As the Court said in Marcelo v. Sandiganbayan (Third Division),2 bad faith partakes of
the nature of fraud.
“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. (Spiegel v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It
contemplates a state of mind affirmatively operating with furtive design or some
motive of self interest or ill will for ulterior purposes. (Air France v. Carrascoso, 18
SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the
part of the accused to do wrong or cause damage.”
Dr. Dayco and Dr. Posadas did not willfully defraud the government. Dr. Posadas was
qualified for the job of Project Director and Consultant of the TMC Project more than
any other. There is no evidence that he did not adequately discharge the extra
responsibilities and labor that were given him. In the future, disallowances of benefits
paid to government officials and employees will provide ground for treating the
disallowed payment as equivalent to giving “unwarranted advantage to a private party
through manifest partiality, evident bad faith, or gross inexcusable negligence,” a mode
of corruption.
Second. The fault of these professors-scientists, who have spent the best parts of their
lives in the service of UP, does not warrant their going to jail for 9 years, minimum, to 12
years, maximum, for what they did. They did not act with
_______________
63 263 Phil. 1060, 1065; 185 SCRA 346, 349 (1990), cited in Sidro v. People, G.R.
No. 149685, April 28, 2004, 428 SCRA 182, 194.
454
manifest partiality or evident bad faith. Indeed, the UP Board of Regents, the highest
governing body of that institution and the most sensitive to any attack upon its revered
portals, did not believe that Dr. Dayco and Dr. Posadas committed outright corruption.
Indeed, it did not dismiss them from the service; it merely ordered their forced
resignation and the accessory penalties that went with it.
The Board did not also believe that the two deserved to be permanently expelled from
UP. It meted out to them what in effect amounted to mere suspension for one year since
the Board practically invited them to come back and teach again after one year provided
they render a public apology for their actions. The Board of Regents did not regard their
offense so morally detestable as to take away from them the privilege of again teaching
the young.
ACCORDINGLY, I vote to grant the petition, reverse and set aside the judgment of
conviction of the Sandigaubayan in Criminal Cases 25465-66 dated June 28, 2005, and
acquit Dr. Roger R. Posadas and Dr. Rolando P. Dayco for failure of the State to prove
their guilt of the two oftenses beyond reasonable doubt.
Petition dismissed, judgment affirmed and upheld.
Notes.―It is a recognized practice in this country, a fact the Court takes judicial notice
of, for companies to continue to avail of the expertise and experience of their retired
employees by retaining them either as employees or as consultants. (Rivera vs. United
Laboratories, Inc., 586 SCRA 269 [2009])
It was ruled that the right to security of tenure is not available to those employees
whose appointments are contractual and co-terminous in nature. (Civil Service
Commission vs. Magnaye, Jr., 619 SCRA 347 [2010])
――o0o――
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