FIRST DIVISION

G.R. No. 109376. January 20, 2000.

PANFILO O. DOMINGO, petitioner, vs. THE SANDIGANBAYAN (Second Division) and THE PEOPLE OF THE PHILIPPINES, respondents.

Bausa Ampil Suarez Paredes & Bausa for petitioner.

The Solicitor General for respondents.

SYNOPSIS

In a complaint filed by PNB against former Pres. Marcos and 2 other respondents, petitioner, past President of PNB, was subpoenaed, but the same was returned unserved. On September 1, 1987, he was impleaded and an information for violation of Section 3 (e) in relation to Section 4 (a) of

A motion to quash on the ground that the allegations in the information did not constitute an offense should be resolved on the basis of said allegations. In the case at bar it was readily discernible that the allegations in the information sufficiently describes all the elements of the offense charged, hence, the motion to quash must fail.

Violations of the

The applicable rule in the computation of the prescriptive period for violations of

Delay caused by the reorganization of the Office of the Ombudsman and to afford petitioner another opportunity to submit his counter-affidavit, which is beneficial to the accused, did not constitute violation of the right to speedy trial. The petition was dismissed and the Sandiganbayan was directed to try and decide Criminal Case No. 17847.

SYLLABUS

1. CRIMINAL LAW; PRESCRIPTION OF CRIMES; VIOLATION OF REPUBLIC ACT NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT); PRESCRIPTIVE PERIOD INCREASED BY BATAS PAMBANSA BLG. 195 FROM TEN (10) YEARS TO FIFTEEN (15) YEARS. The

2. ID.; ID.; ID.; COMMENCEMENT OF PERIOD. Since the law alleged to have been violated, i.e., discovery of the unlawful nature of the constitutive act or acts.

3. ID.; ID.; ID.; ID.; DISCOVERY OF OFFENSE IN CASE AT BAR COMMENCED AFTER EDSA REVOLUTION. In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetrate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.

4. ID.; ID.; ID.; ID.; INTERRUPTED UPON INSTITUTION OF PROCEEDINGS AGAINST GUILTY PARTY. As to when the period of prescription is interrupted, the second paragraph of Section 2 of

5. REMEDIAL LAW, CRIMINAL PROCEDURE; MOTION TO QUASH; TEST OF VIABILITY THEREOF. The fundamental test on the viability of a motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts asseverated would establish the essential elements of the crime defined in the law. In this examination, matters aliunde are not considered. As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. The informations need only state the ultimate facts; the reasons therefor could be proved during the trial.

6. CRIMINAL LAW; REPUBLIC ACT NO. 3019 (ANTI-GRAFT AND CORRUPT PRACTICES ACT); CAUSING UNDUE INJURY UNDER SECTION 3(e) THEREOF; ELEMENTS. The elements of the offense under Section 3(e) are the following: (1) that the accused is a public officer or a private person charged in conspiracy with the former; (2) that the 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; (4) that such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

7. CONSTITUTIONAL LAW; RIGHTS OF ACCUSED; RIGHT TO SPEEDY DISPOSITION OF CASES; CONCEPT. The concept of speedy disposition of cases is a relative term and must necessarily be a flexible concept. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are the length of delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. The right of an accused to a speedy trial is guaranteed to him by the Constitution, but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to an accused, but it does not preclude the rights of public justice.

8. ID.; ID.; ID.; NOT DENIED WHERE DELAY WAS TO AFFORD PARTY ANOTHER OPPORTUNITY TO SUBMIT HIS COUNTER-AFFIDAVIT. DOMINGO cannot validly claim that he was denied due process of law considering that one of the principal reasons for the delay was precisely to afford him the opportunity to submit his counter-affidavit since the first subpoena was returned unserved. After DOMINGO filed his counter-affidavit on 9 March 1992, the corresponding information was in due time filed on 30 July 1992. The delay, if any, was actually more beneficial, rather than prejudicial, to petitioner in that it was intended to afford him the opportunity to refute the charges made against him.

9. REMEDIAL LAW; PROVISIONAL REMEDIES; INJUNCTION OR PROHIBITION; WILL NOT LIE TO RESTRAIN CRIMINAL PROSECUTION. It is also worthy to note at this point the long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. The writ may issue only in specified cases, among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. Such exceptions do not obtain in this case.

PARDO, J., dissenting opinion:

REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH INFORMATION FOR VIOLATION OF SECTION 3 (e) IN RELATION TO SECTION 4(a) RA 3019; FAILURE TO ALLEGE UNDUE INJURY OR DAMAGE TO GOVERNMENT; CASE AT BAR. In my view, the information fails to allege specifically the third element of the offense charged of causing undue injury or damage to the government by acts of manifest partiality, evident bad faith or gross inexcusable negligence causing actual injury or damage. As bank president, it was actually petitioner's duty to make a recommendation on the bank client's application for letter of credit as a business decision. The information does not allege that petitioner's act of "facilitating" or "making possible" or "recommending" the PNB board's approval of CBCP's application for a US$40 million letter of credit was done through manifest partiality, evident bad faith or gross inexcusable negligence and caused actual damage to the bank or the government, and in what amount. On the contrary, "good faith is always presumed" to use the words of the ponente in a precedent case. Quashal is proper where the facts stated in the information are incomplete and do not convey the elements of the crime. Consequently, the facts charged against petitioner do not constitute the offense of violation of Section 3 (e), Republic Act No. 3019, as amended.

D E C I S I O N

DAVIDE, JR., C.J p:

In this special civil action for certiorari, prohibition and mandamus with prayer for temporary restraining order and/or preliminary injunction, petitioner Panfilo O. Domingo (hereafter DOMINGO) seeks to nullify the resolution of 15 March 1993 of the Second Division of the Sandiganbayan denying his motion to quash the information against him for violation of Section 3(e) in relation to Section 4(a) of

The records show that on 26 May 1987, the Philippine National Bank (PNB) filed a complaint with the Tanodbayan against former President Ferdinand E. Marcos; Rodolfo M. Cuenca, then president of the Construction and Development Corporation of the Philippines (CDCP); and Joaquin T. Venus, Jr., former Deputy Presidential Assistant. The complaint was docketed as TBP Case No. 87-02391. LLphil

In an Order dated 1 September 1987, Special Prosecutor Juan T. Templonuevo dropped from the complaint Ferdinand Marcos, who was out of the country and therefore outside the criminal jurisdiction of the Tanodbayan, so as not to delay the preliminary investigation against the other respondents. In the same order, it was also directed that a subpoena be issued to DOMINGO, the President of PNB at the time of the questioned transactions, it appearing from the evidence on record that he was involved in the case. However, the subpoena addressed to DOMINGO at PNB, Escolta, Manila, his last known address, was returned "unserved," since he was no longer connected with the said bank at the time it was served.

On 8 June 1988, in line with the ruling in , then Ombudsman Conrado M. Vasquez issued Administrative Order No. 1 addressed to the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors authorizing them to continue the preliminary investigation of cases pending as of 27 April 1988 until the same are terminated.

On 6 February 1992, after a finding of probable cause to implead DOMINGO in the case, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos issued an order directing him to submit a counter-affidavit. DOMINGO submitted on 9 March 1992 his counter-affidavit with the Office of the Special Prosecutor.

On 9 July 1992, SPO III Diaz-Baldos issued a resolution recommending that DOMINGO and Rodolfo M. Cuenca be prosecuted for violation of Section 3(e) in relation to Section 4(a) of This was approved by Ombudsman Conrado M. Vasquez, and the corresponding information was filed with the Sandiganbayan on 30 July 1992. The case was docketed therein as Criminal Case No. 17847. The information reads as follows:

That on or about the month of July 1980, and for sometime prior or subsequent thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, PANFILO O. DOMINGO, being then the President of the Philippine National Bank, a government financial institution, and hence a public officer, while in the performance of his official functions, committing the offense in relation to his office and conspiring and confederating with then President Ferdinand E. Marcos and with RODOLFO M. CUENCA, a private individual, being then the Chairman of the Board of Directors of the Construction and Development Company of the Philippines (CDCP), a corporation duly organized and existing in accordance with the laws of the Philippines, did then and there willfully, unlawfully, criminally, with evident bad faith and manifest partiality cause undue injury to the Philippine National Bank and grant unwarranted benefits to CDCP in the following manner: accused RODOLFO M. CUENCA, capitalizing and exploiting his close personal association with the then President Ferdinand E. Marcos to obtain favorable loan accommodations for CDCP, requested the latter's assistance and intervention in securing the approval by the Philippine National Bank Board of Directors of the application of the CDCP for a U.S. $40 Million Letter of Credit and in foregoing the collateral requirements of CDCP, as a result of which accused Panfilo O. Domingo, acceding to the pressure exerted by President Marcos in relation to accused Cuenca's requests, facilitated and made possible the passage by the PNB Board of Directors of Board Resolution No. 144 whereby the U.S. $40 Million Standby Letter of Credit applied for by CDCP to secure the principal and interest on its loan with the Republic National Bank of Dallas was approved, notwithstanding a collateral deficiency by CDCP on its previous accounts with PNB, and again subsequently recommended to the PNB Board of Directors the approval of Board Resolution No. 180 amending Board Resolution No. 144 in order to allow CDCP to use its loan proceeds secured by the aforementioned letter of credit for its other international projects and thereafter allowed CDCP to forego its collateral requirements, which act of the accused inflicted undue injury and prejudice to PNB which was unjustly forced to assume CDCP's obligation to the Republic National Bank of Dallas after the latter had defaulted in the payment thereof, amounting to U.S. $29 Million, and which likewise granted unwarranted benefits to CDCP in the same amount. cdll

On 11 August 1992, DOMINGO filed a petition for reinvestigation with the Sandiganbayan. The latter directed the prosecution to treat the petition as a motion for reconsideration of the 9 July 1992 resolution. The motion was, however, denied by the Office of the Special Prosecutor on 14 January 1993.

On 19 February 1993, petitioner filed with the Sandiganbayan a motion to quash the information against him on the grounds that (1) the criminal action or liability has been extinguished by prescription, and (2) the facts charged do not constitute an offense. In its Resolution of 15 March 1993 the Sandiganbayan denied the motion to quash.

Not satisfied, DOMINGO filed the instant petition alleging that the respondent Sandiganbayan acted with grave abuse of discretion amounting to lack of jurisdiction when it denied his motion to quash the information.

Meanwhile, on 17 August 1993, during his arraignment in Criminal Case No. 17847, DOMINGO refused to enter a plea; hence, the Sandiganbayan ordered that a plea of "not guilty" be entered for him.

We shall first take up the issue of prescription.

DOMINGO contends that his alleged criminal liability has already been extinguished by prescription. In support thereof he claims that the prescriptive period commenced to run in July 1980 when the crime was allegedly committed, and was only tolled on 6 February 1992, when he was impleaded as party-respondent by Prosecutor Diaz-Baldos. The filing of the complaint with the Tanodbayan on 26 May 1987 produced no legal effect and could never be deemed to have validly interrupted the running of the prescriptive period, considering that effective 2 February 1987, the Tanodbayan was divested of its authority to conduct preliminary investigation unless duly authorized by the Ombudsman.

We are not persuaded.

In resolving the issue of prescription of the offense charged, the following should be considered: (1) the period of prescription for the offense charged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was interrupted. llcd

The , approved on 16 March 1982, which increased the prescriptive period of the crime from ten years to fifteen years.

Since the law alleged to have been violated, as amended, which provides:

SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

This simply means that if the commission of the crime is known, the prescriptive period shall commence to run on the day the crime was committed. However, if the violation of the special law is not known at the time of its commission, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts.

In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known the violations committed at the time the questioned transactions were made because both parties to the transactions were allegedly in conspiracy to perpetrate fraud against the government. The alleged anomalous transactions could only have been discovered after the February 1986 Revolution when one of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date, no person would have dared to question the legality or propriety of those transactions. Hence, the counting of the prescriptive period would commence from the date of discovery of the offense, which could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed.

As to when the period of prescription is interrupted, the second paragraph of Section 2 of

We now come to the question of whether the facts charged in the information constitute an offense.

The fundamental test on the viability of a motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts asseverated would establish the essential elements of the crime defined in the law. In this examination, matters aliunde are not considered.

As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter, should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. The informations need only state the ultimate facts; the reasons therefor could be proved during the trial.

DOMINGO, together with Rodolfo Cuenca, was charged with violation of Section 3(e), in relation to Section 4(a), of

SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing laws, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: LLpr

xxx xxx xxx

(e). Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

xxx xxx xxx

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.

The elements of the offense under Section 3(e) are the following: (1) that the accused is a public officer or a private person charged in conspiracy with the former; (2) that the 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; (4) that such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

The information specifically stated as follows:

(1) That DOMINGO was a public officer, being then the president of PNB, a government financial institution, and Rodolfo Cuenca was a private individual, then Chairman of the Board of Directors of the CDCP, who conspired and confederated with DOMINGO, capitalizing and exploiting his close personal association with then President Marcos to obtain favorable loan accommodations for CDCP;

(2) That DOMINGO committed the offense in relation to his office and while in the performance of his official functions;

(3) That he facilitated and made possible the passage by the PNB Board of Directors of Resolution No. 144, thereby causing undue injury and prejudice to PNB which was unjustly forced to assume CDCP's obligation to the Republic National Bank of Dallas after the CDCP defaulted in the payment of the loan amounting to US$29 Million;

(4) That such undue injury was caused by his facilitation of the approval of the Letter of Credit and the waiver of the collateral deficiency, thereby granting unwarranted benefits to CDCP in the same amount; and

(5) That he acted with evident bad faith and manifest partiality.

Clearly, the facts alleged in the information constitute a violation of Section 3(e) of

Finally, DOMINGO avers that the long and inordinate delay in the termination of the preliminary investigation and the filing of the information violated his right to speedy trial, invoking the ruling enunciated in .

The concept of speedy disposition of cases is a relative term and must necessarily be a flexible concept. Hence, the doctrinal rule is that in the determination of whether that right has been violated, the factors that may be considered and balanced are the length of delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. The right of an accused to a speedy trial is guaranteed to him by the Constitution, but the same shall not be utilized to deprive the State of a reasonable opportunity of fairly indicting criminals. It secures rights to an accused, but it does not preclude the rights of public justice.

A review of the records show that his right has not been violated. The Office of the Special Prosecutor, in its Comment/Opposition to the Motion to Quash, has adequately explained the reason for the said delay, to wit:

The records show that accused Domingo filed his counter affidavit on March 3, 1992, and the case was resolved on July 9, 1992. There was no undue delay in the resolution of this case despite the gargantuan volume of cases filed with the Office of the Special Prosecutor.

There might have been a delay in the conduct of the preliminary investigation but which is not undue and intended as they were brought about by unforeseen peculiar circumstances. cda

Sometime in 1987, when this case was in its initial stage of preliminary investigation, the authority of the Office of the Special Prosecutor to conduct preliminary investigation and file cases with the Sandiganbayan was questioned and was subsequently nullified by the Supreme Court in the cases of Zaldivar vs. Gonzales and Zaldivar vs. Sandiganbayan (supra.). This necessitated the issuance of Administrative Order No. 1 (supra.) in order that the Office of the Special Prosecutor will continue to function as part of the Ombudsman. Following this event was the retirement of the assigned Prosecutor, Juan T. Templonuevo, in the early part of 1989. When RA 6770 was enacted in November 1989, the OSP was reorganized by the Ombudsman. After its reorganization in 1990, the present case was assigned to SPO III Teresita Diaz-Baldos. The said SPO instead of resolving the case, considering that the respondents have already been subpoenaed, gave another opportunity for the accused herein to file their counter affidavits. She forthwith issued subpoena for the accused to file their counter-affidavits. Accused-movant, Domingo filed his counter-affidavit in March 1992. Hence, the Resolution.

Perforce, DOMINGO cannot validly claim that he was denied due process of law considering that one of the principal reasons for the delay was precisely to afford him the opportunity to submit his counter-affidavit since the first subpoena was returned unserved. After DOMINGO filed his counter-affidavit on 9 March 1992, the corresponding information was in due time filed on 30 July 1992. The delay, if any, was actually more beneficial, rather than prejudicial, to petitioner in that it was intended to afford him the opportunity to refute the charges made against him.

It is also worthy to note at this point the long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. The writ may issue only in specified cases, among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights. Such exceptions do not obtain in this case.

Thus, there being no grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Sandiganbayan, the Resolution denying DOMINGO's Motion to Quash must be, and is hereby, AFFIRMED.

WHEREFORE, the petition in this case is hereby DISMISSED. The Sandiganbayan is DIRECTED to try and decide Criminal Case No. 17847 with purposeful dispatch. cdtai

Costs against the petitioner.

SO ORDERED.

Puno and Ynares-Santiago, JJ., concur.

Kapunan, J., joins Justice Pardo's dissenting opinion.

Pardo, J., see dissenting opinion.

Separate Opinions

PARDO, J., dissenting:

I am constrained to dissent.

Let me review the facts.

On May 26, 1987, the Philippine National Bank (PNB) filed a complaint with the Tanodbayan against the following: Ferdinand E. Marcos, Rodolfo M. Cuenca and Joaquin T. Venus, Jr. Petitioner was not one of the respondents therein.

On September 1, 1987, Special Prosecutor Juan T. Templo-Nuevo issued a subpoena to petitioner upon the ground that on the basis of the evidence on record, petitioner, along with others, is involved in the case. The subpoena, however, was not served upon petitioner since he was no longer connected with PNB, Escolta, Manila, the address indicated in the subpoena.

On June 8, 1988, Ombudsman Justice Conrado M. Vasquez (ret.) issued Administrative Order No. 1 addressed to the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors authorizing them to continue the preliminary investigation of cases pending as of April 27, 1988, until the same are terminated.

On February 6, 1992, almost five (5) years after the complaint had been filed, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos, issued an order directing petitioner to submit his counter-affidavit, holding that there is probable cause to implead him in the case.

On March 9, 1992, petitioner submitted his counter-affidavit to the Office of the Special Prosecutor. prLL

On July 9, 1992, SPO III Teresita V. Diaz-Baldos issued a resolution recommending that petitioner be prosecuted for violation of Section 3(e) in relation to Section 4(a), of Republic Act (R.A.) No. 3019.

Without giving petitioner a chance to seek a reconsideration/review of the resolution, on July 30, 1992, Prosecutor Baldos filed directly with the Sandiganbayan an information charging petitioner Panfilo O. Domingo and Rodolfo M. Cuenca, with violation of Section 3(e) in relation to Section 4(a) of Republic Act No. 3019, as amended, dropping two (2) of the original respondents, namely, Ferdinand E. Marcos and Joaquin T. Venus, Jr.

On August 11, 1992, petitioner filed with the Sandiganbayan a petition for reinvestigation.

On October 28, 1992, the Sandiganbayan partially granted the petition for reinvestigation in the sense that it directed the prosecution to consider the petition for reinvestigation as a motion for reconsideration of the July 9, 1992 resolution.

On January 14, 1993, the Special Prosecutor denied petitioner's motion for reconsideration.

On February 19, 1993, petitioner filed with the Sandiganbayan a motion to quash the information against him upon the grounds that (1) the criminal action or liability has been extinguished by prescription, and (2) the facts charged do not constitute an offense.

On March 10, 1993, respondent People of the Philippines filed with the Sandiganbayan an opposition with motion to admit.

On March 15, 1993, the Sandiganbayan promulgated its resolution denying the motion to quash ruling that if the facts alleged were true, the offense had been committed.

Hence, this petition.

Petitioner submits that the facts charged in the information do not constitute an offense. I agree.

Parenthetically, the prosecution itself dismissed or dropped the case against former president Ferdinand E. Marcos and Joaquin T. Venus, without stating the reason why. And more, the prosecution did not include in the information the members of the board of directors of the Philippine National Bank who approved the application for letter of credit.

The charge is for violation of Section 3(e) of Republic Act No. 3019, as amended. The elements of this offense are as follows:

"(1) The accused is a public officer or a private person charged in conspiracy with the former;

"(2) The 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; cdll

"(4) Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and

"(5) That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.

In a later case, the Court clarified that the third element of causing undue injury could only mean actual injury or damage.

The "Information" against petitioner reads as follows:

"xxx xxx xxx

"Accused Rodolfo M. Cuenca, capitalizing and exploiting his close personal association with the then President Ferdinand E. Marcos to obtain favorable loan accommodations for CDCP, requested the latter's assistance and intervention in securing the approval by the Philippine National Bank Board of Directors of the application of the CDCP for a U.S. $40 Million Letter of Credit and in foregoing the collateral requirements of CDCP, as a result of which accused Panfilo O. Domingo, acceding to the pressure exerted by President Marcos in relation to accused Cuenca's requests, facilitated and made possible the passage by the PNB Board of Directors of Board Resolution No. 144 whereby the U.S. $40 Million Standby Letter of Credit applied for by CDCP to secure the principal and interest on its loan with the Republic National Bank of Dallas was approved, notwithstanding a collateral deficiency by CDCP on its previous accounts with PNB, and again subsequently recommended to the PNB Board of Directors the approval of Board Resolution No. 180 amending Board Resolution No. 144 in order to allow CDCP to use its loan proceeds secured by the aforementioned Letter of Credit for its other international projects and thereafter allowed CDCP to forego its collateral requirements, which act of the accused inflicted undue injury and prejudice to PNB which was unjustly forced to assume CDCP's obligation to the Republic National Bank of Dallas after the latter had defaulted in the payment thereof, amounting to U.S. $29 Million, and which likewise granted unwarranted benefits to CDCP in the same amount. . . .

"xxx xxx xxx"

In my view, the information fails to allege specifically the third element of the offense charged of causing undue injury or damage to the government by acts of manifest partiality, evident bad faith or gross inexcusable negligence causing actual injury or damage. As bank president, it was actually petitioner's duty to make a recommendation on the bank client's application for letter of credit as a business decision. The information does not allege that petitioner's act of "facilitating" or "making possible" or "recommending" the PNB board's approval of CBCP's application for a US$40 million letter of credit was done through manifest partiality, evident bad faith or gross inexcusable negligence and caused actual damage to the bank or the government, and in what amount. On the contrary, "good faith is always presumed" to use the words of the ponente in a precedent case. Quashal is proper where the facts stated in the information are incomplete and do not convey the elements of the crime. Consequently, the facts charged against petitioner do not constitute the offense of violation of Section 3 (e), Republic Act No. 3019, as amended.

IN VIEW WHEREOF, I vote to grant the petition and to quash the information in Criminal Case No. 17847 of the Sandiganbayan. cdphil

Footnotes

1. Per Atienza, N., J., with Escareal, R. and Amores, A., JJ., concurring. Rollo, 32-34.

2. Rollo, 35-44.

3. Id., 69.

4. Id., 70.

5. 160 SCRA 843 1988.

6. Rollo, 71-72.

7. Id., 73.

8. Id., 74-90.

9. Rollo, 107-113.

10. Id., 114-116.

11. Id., 117-125.

12. Id., 141-143.

13. Rollo, 144-146.

14. Id., 147-153.

15. Id., 32-34.

16. Id., 242.

17.

18. , G.R. No. 130140, 25 October 1999, citing , 212 SCRA 607 1992.

19. Supra, note 18.

20. Id.

21. , 272 SCRA 563, 573 1997.

22. Id.

23. , 98 SCRA 190, 196 1980; , 249 SCRA 281, 289 1995.

24. , 115 SCRA 793 1982.

25. , 238 SCRA 116, 128 1994; , supra note 32; , 287 SCRA 382, 398 1998.

26. 159 SCRA 70 1988.

27. , 220 SCRA 55, 63-64 1993.

28. et al., 197 SCRA 481, 488 1991.

29. Rollo, 126-130.

30. Petition, Annex "K"; Rollo, 128-129.

31. , 205 SCRA 162 1992.

PARDO, J., dissenting:

1. Docketed as TBP Case No. 87-02391. Respondents were former president Ferdinand E. Marcos, Construction and Development Company of the Philippines (CDCP) president and Marcos crony Rodolfo M. Cuenca, and former presidential assistant Joaquin T. Venus, Jr.

2. Petition, Annex "B", Rollo, pp. 35-43.

3. Petition, Annex "D", Rollo, p. 70.

4. Petition, Annex "E", Rollo, pp. 71-72.

5. Petition, Annex "F", Rollo, p. 73.

6. Petition, Annex "G", Rollo, pp. 74-90.

7. Petition, Annex "H", Rollo, pp. 107-113.

8. Petition, Annex "I", Rollo, pp. 114-116.

9. Petition, Annex "J", Rollo, pp. 117-125.

10. Petition, Annex "M", Rollo, pp. 141-143.

11. Petition, Annex "N", Rollo, pp. 145-146.

12. Petition, Annex "O", Rollo, pp. 147-153.

13. Petition, Annex "P", Rollo, pp. 154-157.

14. Petition, Annex "A", Rollo, pp. 32-34.

15. Petition filed on April 1, 1993, Rollo, pp. 2-30.

16. Pecho vs. Sandiganbayan, 238 SCRA 116, 128 1994; Llorente, Jr. vs. Sandiganbayan, 287 SCRA 382, 398 1998; Ingco vs. Sandiganbayan, 272 SCRA 563, 574 1997.

17. People vs. Sandiganbayan, G.R. No. 125534, October 13, 1999; Pecho vs. Sandiganbayan, supra.

18. Petition, Annex "I", Rollo, pp. 114-115.

19. Pecho vs. Sandiganbayan, supra; Llorente, Jr. vs. Sandiganbayan, supra, on pp. 398-399.

20. Venus vs. Desierto, 298 SCRA 196, 217 1998.

21. People vs. Purisima, 86 SCRA 542 1978; People vs. Asuncion, 161 SCRA 490 1988.

22. Llorente, Jr. vs. Sandiganbayan, supra; Pecho vs. Sandiganbayan, supra, on p. 131; Venus vs. Desierto, supra, citing Fernando vs. Sandiganbayan, 212 SCRA 680, 687-688 1992; Enrile vs. Salazar, 186 SCRA 217 1990; Allado vs. Diokno, 232 SCRA 192 1994.