G.R. No.

172602             September 3, 2007

HENRY T. GO, petitioner,
vs.
THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE SPECIAL PROSECUTOR,
OFFICE OF THE OMBUDSMAN, respondents.

RESOLUTION

YNARES-SANTIAGO, J.:

This resolves the Motion for Reconsideration filed by petitioner of the Decision dated April 13, 2007.

Petitioner, a private individual, stands charged with violation of Section 3(g) of Republic Act No.
3019, the clear terms of which punishes public officers who, on behalf of the government, enter
into contracts or transactions manifestly and grossly disadvantageous to the government, whether or
not the public officer profited or will profit thereby.

The first element of the crime is that the accused must be a public officer who enters into a contract
on behalf of the government. The philosophy behind this is that the public officer is duty bound to
see to it that the interest of the government is duly protected. Thus, should the contract or
transaction entered into by such public officer is manifestly or grossly disadvantageous to the
government’s interests, the public officer is held liable for violation of Section 3(g), whether or not
this public officer profited or will profit thereby.

In Luciano v. Estrella,1 Justice J.B.L. Reyes opines that the act treated in Section 3(g) partakes of
the nature of malum prohibitum; it is the commission of that act as defined by the law, and not the
character or effect thereof, that determines whether or not the provision has been violated. An act
which is declared malum prohibitum, malice or criminal intent is completely immaterial.2 Section 3(g),
however, applies restrictively only to public officers entering into a contract on behalf of the
government manifestly or grossly disadvantageous to the government.

The pronouncement in Luciano v. Estrella3 is instructive:

Second, herein respondent municipal officials were charged with violation of Republic Act
3019 under its Section 3(g), or specifically, for having entered, on behalf of the government,
into a contract or transaction manifestly and grossly disadvantageous to the government. It is
not at all difficult to see that to determine the culpability of the accused under such provision,
it need only be established that the accused is a public officer; that he entered into a contract
or transaction on behalf of the government; and that such a contract is grossly and
manifestly disadvantageous to that government. In other words, the act treated thereunder
partakes of the nature of malum prohibitum; x x x

In Luciano v. Estrella, the private persons who were charged with "conspiring and confederating
together" with the accused public officers to have unlawfully and feloniously, on behalf of the
municipal government of Makati, Rizal, entered into a contract or transaction with the JEP
Enterprises, were also charged with violation of Section 4(b) of Republic Act No. 3019, for knowingly
inducing or causing the above-mentioned public officials and officers to enter into the
aforementioned contract or transaction.
These private individuals were acquitted for insufficiency of evidence, which simply means that the
criminal liability of the public officers for violation of Section 3(g) is separate and distinct from the
liability of private persons under Section 4(b) of Republic Act No. 3019. In other words,
notwithstanding the allegation of conspiracy to violate Section 3(g), the liability of private individuals
who participated in the transaction must be established under the appropriate provision which is
Section 4(b), for knowingly inducing or causing the public officers to commit Section 3(g) where
criminal intent must necessarily be proved. This is in clear recognition that Section 3(g), a malum
prohibitum, specifically applies to public officers only.

The information in this case, reads:

The undersigned Graft Investigation and Prosecution Officer II, Office of the Deputy Ombudsman for
Luzon, accuses VICENTE C. RIVERA, JR. and HENRY T. GO with violation of Sec. 3(g), R.A. No.
3019 committed as follows:

On or about November 26, 1998, or sometime prior or subsequent thereto, in Quezon City,
Philippines and within the jurisdiction of this Honorable Court, the accused VICENTE C.
RIVERA, JR., Secretary of the Department of Transportation and Communications
(DOTC), committing the offense in relation to his office and taking advantage of the
same, in conspiracy with accused HENRY T. GO, Chairman and President of the
Philippine International Air Terminals, Co., Inc. (PIATCO), did then and there willfully,
unlawfully and feloniously enter into an Amended and Restated Concession Agreement
(ARCA), after the project for the construction of the Ninoy Aquino International Passenger
Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which ARCA
substantially amended the draft Concession Agreement covering the construction of the
NAIA IPT III under Republic Act 6957 as amended by Republic Act 7718 (BOT Law)
providing that the government shall assume the liabilities of PIATCO in the event that the
latter defaults specifically Article IV, Section 4.04 © in relation to Article I, Section 1.06 of the
ARCA which term is more beneficial to PIATCO and in violation of the BOT law, and
manifestly and grossly disadvantageous to the government of the Republic of the
Philippines.

CONTRARY TO LAW.

From a cursory reading of the Information, it indubitably shows that all the elements enumerated for
the violation of Section 3(g) relate to the public officer, not to the private individual, for as have
been emphasized, Section 3(g) is a crime that can only be committed by public officers.

This brings to the fore the overstated point that Section 3(g), by its clear terms, can only be
committed by public officers, for if it were otherwise, then the law itself would have clearly provided
for it. Notably, even certain paragraphs of Section 3 of Republic Act No. 3019 provide for its
application to private individuals, but not Section 3(g), thus:

SEC. 3. Corrupt practices of public officers. – xxx

xxxx

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs
(b) and (c); or offering or giving to the public officer the employment mentioned in
subparagraph (d); or urging the divulging or untimely release of the confidential information
referred to in subparagraph (k) of this section shall, together with the offending public officer,
be punished under Section nine of this Act and shall be permanently or temporarily
 disqualified, in the discretion of the Court, from transacting business in any form with the
Government.

It is clear that sub-paragraph (g) is not included in the quoted portion of Section 3. There are indeed
offenses punishable under the Revised Penal Code or other special laws where the mere allegation
of conspiracy will suffice in order to validly charge the persons who connived in the commission of
the offense. In Section 3(g), however, and other penal provisions, which can only be committed by a
certain class of persons, an allegation of conspiracy to indict those which are clearly not within its
purview, is deficient, as shown in Luciano v. Estrella where the public officers were convicted under
Section 3(g) and yet the private parties therein were acquitted inspite of the allegation of conspiracy
in the Information.

In voting to grant the motion for reconsideration, I am not saying that petitioner is innocent or that he
can no longer be prosecuted if indeed he is liable for any crime relating to his acts that led to the
signing of the ARCA. As emphasized in my Dissenting Opinion dated April 13, 2007, Section 4 of
Republic Act No. 3019 provides for the prohibition on private individuals, thus:

SEC. 4. Prohibition on private individuals. – (a) It shall be unlawful for any person having
family or close personal relation with any public official to capitalize or exploit or take
advantage of such family or close personal relation by directly or indirectly requesting or
receiving any present, gift or material or pecuniary advantage from any other person having
some business, transaction, application, request or contract with the government, in which
such public official has to intervene. Family relation shall include the spouse or relatives by
consanguinity or affinity in the third civil degree. The word "close personal relation" shall
include close personal relationship, social and fraternal connections, and professional
employment all giving rise to intimacy which assures free access to such public officer.

(b) It shall be unlawful for any person knowingly to induce or cause any public official to
commit any of the offenses defined in Section 3 hereof.

It is well-settled that penal statutes are strictly construed against the State and liberally for the
accused, so much so that the scope of a penal statute cannot be extended by good intention or by
implication. The Information lumping petitioner with a public official for conspiracy to violate Section
3(g), is totally infirm. Section 3(g) can only be violated by a public officer. The acts for which private
persons can be charged together with the public officials are enumerated in the last paragraph of
Section 3 and Section 4, paragraphs (a) and (b) of Republic Act No. 3019. If warranted, petitioner
Go should be charged for violation of Section 4(b) in relation to Section 3(g).

In my Dissent to the Decision dated April 13, 2007, reference was made to Articles 210 (Direct
Bribery) and 212 (Corruption of Public Officials) of the Revised Penal Code. In Direct Bribery, the
public officer agrees to perform an act either constituting or not constituting a crime, in consideration
of any offer, promise, gift or present received by such officer. Only the public officer may be charged
under and be held liable for Direct Bribery under Article 210, while the person who conspired with
the public officer, who made the promise, offer or gave the gifts or presents, may be indicted only
under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.

Another concrete example is Campomanes v. People.4 Petitioner Campomanes, a private individual,

was charged with conspiring with a public officer who failed to render account for public funds
disbursed punishable under Article 218 of the Revised Penal Code, the elements of which are as
follows: (1) the offender is a public officer; (2) he must be an accountable officer for public funds or
property; (3) the offender is required by law to render accounts to the Commission on Audit; and (4)
fails to render an account for a period of two months.
The Sandiganbayan acknowledged that Campomanes is not a public officer and applied Article 222
in relation to Article 218. Article 222 also involves failure to render an account not by a public officer,
but by a private individual who has charge of any national, provincial or municipal funds, revenues or
property. Notwithstanding the charge of conspiracy, petitioner Campomanes was made to
answer not to Article 218, which pertains only to public officers, but to Article 222.

ACCORDINGLY, the Motion for Reconsideration is GRANTED and the Decision dated April 13,

2007 is REVERSED and SET ASIDE. The Resolutions of the Sandiganbayan in Criminal Case No.
28092 dated December 6, 2005 denying petitioner’s Motion to Quash and its March 24, 2006
Resolution denying petitioner’s Motion for Reconsideration are REVERSED and SET ASIDE. The
Sandiganbayan is DIRECTED to DISMISS Criminal Case No. 28092 in so far as petitioner Henry T.
Go is concerned.

SO ORDERED.