3a. EDITED - Posadas - v. - Sandiganbayan - 2013

FIRST DIVISION
[G.R. Nos. 168951 & 169000. July 17, 2013.]
DR. ROGER R. POSADAS and DR. ROLANDO P. DAYCO ,

petitioners, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
DECISION
VILLARAMA, JR., J : p
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 and Employees) under Decision 1 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. HaTAEc
On July 26, 1995, Dr. Posadas submitted to the National Economic and
Development Authority (NEDA) an Application 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
CD Technologies Asia, Inc. © 2021 cdasiaonline.com
be offered by TMC. 2
On September 18, 1995, a Memorandum of Agreement 3 (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. ETDaIC
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
October 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 HEDaTA
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, . . .
.
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.
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 Memorandum 9 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. EAHDac
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 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 charges 11 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. TESICD
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:
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 Informations 19 were thus filed against the
petitioners before the Sandiganbayan (Criminal Case Nos. 25465-66), as
follow:
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. EDaHAT
CONTRARY TO LAW.
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. cITCAa
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
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 CcaASE
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.
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 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. Sandiganbayan 23 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.
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. DAETcC
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 of any wrongdoing, President Javier underhandedly caused the
filing of administrative charges in the ADT. THCSEA
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.
Motions requiring immediate action may be acted upon on
shorter notice. SDAcaT

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. Sandiganbayan 25 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
Sandiganbayan 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
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: TADcCS
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 F I N A L and
EXECUTORY.
SO ORDERED.
xxx xxx xxx

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.
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.
IDcAHT
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.
xxx xxx xxx
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. . . . . 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. ITCcAD
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: CITSAc
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
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; o r (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. EcATDH
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:
(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 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. 37 "Undue" means illegal, immoral, unlawful, void of
equity and moderations. 38 EaTCSA
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.
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).
cHAaEC
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 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
xxx xxx xxx

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 aDSHIC
(2) those covered in II, C, 4, a through c of the

aforecited memorandum circular of the President;
xxx xxx xxx 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;
b. program or project directors;

xxx xxx xxx
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.)TDSICH
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: DAEICc
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 pertain, 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 DSIaAE
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, except
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

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. cAaTED
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:
xxx xxx xxx
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.)
DHEACI
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 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, . . . .
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 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. DCScaT
xxx xxx xxx

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 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 impressed with public attributes or character from the time it
came into UP's possession. SAHIaD
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: SEDICa
xxx xxx xxx
(b) Outside employment and other activities related thereto.

— Public officials and employees during their incumbency shall not:
xxx xxx xxx
(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
xxx xxx xxx
Pursuant to CSC Resolution No. 93-1881 dated May 25, 1993, a

contract for consultancy services is not covered by 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 021264 54 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
cEAHSC
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:
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 shall not be considered part of the regular
workload of the personnel concerned. ACcDEa
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.
xxx xxx xxx
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
xxx xxx xxx
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]
AcIaST
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]
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:
• NOT ADVERSE to the interests of the University;
EDACSa
• 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 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 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 SIDEaA
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 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 SIAEHC
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 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. CTDAaE
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 Case Nos. 25465-66 is hereby
AFFIRMED and UPHELD.
With costs against the petitioners.
SO ORDERED.
Bersamin, Mendoza ** and Reyes, JJ., concur.
Abad, * J., see my dissenting opinion.
Separate Opinions
ABAD, J., dissenting:
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. CHcESa
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 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. DCcHAa
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 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. SHCaEA
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 . . . ." 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:
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. EAcTDH
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 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. STADIH
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 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."
cDCIHT
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 President 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." EcTDCI
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 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 Sandiganbayan 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 offenses beyond
reasonable doubt. HTDCAS
Footnotes
*Designated additional member per Raffle dated July 1, 2013.

**Designated additional member per Raffle dated May 27, 2013.
1.Rollo , pp. 48-71. Penned by Associate Justice Jose R. Hernandez with Associate
Justices Gregory S. Ong and Rodolfo A. Ponferrada concurring.
2.Exhibits "2"-"2-a," folder of exhibits (Defense).
3.Exhibit "24," id.

4.Exhibit "5," id.
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).
8.Exhibit" 12," folder of exhibits (Defense).
9.Exhibit "13," id.
10.Exhibit "50," id.

11.Exhibits "A-4" and "A-5," folder of exhibits (Prosecution).
12.Exhibit "A-2," id.

15.Exhibit "A," id.
16.Exhibit "G," id.

17.Exhibit "H," id.
18.Records, Vol. I, pp. 3-11.
19.Records, Vol. III, pp. 1-4.

20.Records, Vol. I, pp. 89 and 219.
21.Rollo , pp. 48-71.
22.Id. at 70.
23.278 Phil. 566, 577 (1991).

24.Rule XII.
25.Supra note 23, at 576-578.
26.G.R. No. 181354, February 27, 2013.

27.Id. at 6-8.
28.Jacinto v. Sandiganbayan, 258-A Phil. 20, 26 (1989).
29.484 Phil. 350, 360 (2004).

30.314 Phil. 66 (1995).
31.Velasco v. Sandiganbayan, 492 Phil. 669, 677 (2005).
32.350 Phil. 820, 837 (1998).
33.Llorente, Jr. v. Sandiganbayan, id. at 843, 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.
37.Cabrera v. Sandiganbayan, supra note 29, at 364-365, citing Jacinto v.

Sandiganbayan, supra note 28, at 27 and Llorente v. Sandiganbayan, supra
note 32, at 838.
38.Id. at 364.
39.MOA, Sec. 19, Exhibit "24," folder of exhibits (Defense).
40.TSN, January 7, 2002, pp. 14-16, 18-19.
41.Exhibits "19," "19-A," "19-B," "20," "20-A," "20-B," "21" and "21-A," folder of
exhibits (Defense).
42.Exhibit "25," id.
43.Published in 2003.
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.
45.CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum
Circular No. 15, s. 1998.
46.Exhibit "55-A," folder of exhibits (Defense).

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.
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.
54.Query re: Consultancy, Mayumi Juris A. Luna.
55.Lazarte, Jr. v. Sandiganbayan (First Division), G.R. No. 180122, March 13, 2009,
581 SCRA 431, 450.
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
(1997) and People v. Layno , 332 Phil. 612, 629 (1996).
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.
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.
ABAD, J., dissenting:

1.Rollo , pp. 48-70.
2.263 Phil. 1060, 1065 (1990), cited in Sidro v. People , G.R. No. 149685, April 28,
2004, 428 SCRA 182, 194.

3a. EDITED - Posadas - v. - Sandiganbayan - 2013

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

3a. EDITED - Posadas - v. - Sandiganbayan - 2013

Uploaded by

Copyright:

Available Formats

FIRST DIVISION

[G.R. Nos. 168951 & 169000. July 17, 2013.]

DR. ROGER R. POSADAS and DR. ROLANDO P. DAYCO ,

Petitioners assail their conviction for Violation of Section 3 (e) of

On September 18, 1995, a Memorandum of Agreement 3 (MOA) was

In August 1996, payment of the subject "honoraria" and fees was

2. Legal basis for designating the incumbent Chancellor as Project

3. On the assumption that the designation of the Chancellor as

In a Memorandum 9 dated September 16, 1996, UP's Chief Legal Oﬃcer

However, even before the issuance of the suspension notices, then UP

On September 3, 1998, Atty. Carmelita Yadao-Guno in her capacity as

Satisﬁed with the BOR's action, petitioners caused the withdrawal of

CONTRARY TO LAW. cITCAa

For violation of Section 3(e) of RA 3019: accused Posadas and

The Sandiganbayan held that the evidence supports a ﬁnding of

On the "honoraria" and fees received by Dr. Posadas as Project Director

Petitioners further submit that the complainant before the

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

Under the Rules of Sandiganbayan, eﬀective January 10, 1979, a

In its Resolution, dated November 29, 2007, the Sandiganbayan

WHEREFORE, in view of the foregoing, the Motion for

xxx xxx xxx

SECTION 5. Notice of hearing. — The notice of hearing

Section 2, Rule 37 provides:

Section 4, Rule 121 states:

We thus ﬁnd no grave abuse of discretion committed by the

1. The accused must be a public oﬃcer discharging administrative,

2. He must have acted with manifest partiality, evident bad faith or

There is no question regarding the presence of the ﬁrst requisite

Upon the entire evidence on record, the Sandiganbayan was convinced

We sustain the decision of the Sandiganbayan holding petitioners liable

To prove the alleged practice in the University of an OIC appointing a

xxx xxx xxx

(1) those covered in II, C, 1, and e of the President's

(2) those covered in II, C, 4, a through c of the

xxx xxx xxx 42

a. directors or heads and assistant directors or assistant

b. program or project directors;

5. The Chancellor approves the appointment of personnel,

TYPES OF APPOINTMENT/PERSONNEL ACTION COVERED:

According to petitioners, since appointments falling under II, C, 5 was

E. Extent of Authority of One Appointed in an Acting/Oﬃcer-in-

One appointed/designated, in an acting or oﬃcer-in-charge

Petitioners' argument fails to persuade.

c. in other oﬃces or units, academic or non-academic,

to the same extent and under the same conditions stipulated in

Appointment as used in II, B, 1 above includes

Considering that it is the Chancellor himself who is being appointed to

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

As to the prohibition on government oﬃcials and employees, whether

Unless otherwise allowed by law or by the primary functions of

The prohibition on dual employment and double compensation in the

Sec. 2. No elective or appointive public oﬃcer or employee

xxx xxx xxx

• Approve the recruitment of personnel, disbursement of Project

• Coordinate with other persons, agencies and institutions involved

• Perform such other functions as may be necessary to ensure the

CD Technologies Asia, Inc. © 2021 cdasiaonline.com

The disbursement and payment of the P30,000.00 monthly salary as

xxx xxx xxx

(b) Outside employment and other activities related thereto.

(2) Engage in the private practice of their profession unless

xxx xxx xxx