928 Phil.

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SPECIAL FIRST DIVISION

[ G.R. Nos. 243029-30. August 22, 2022 ]
TITO S. SARION, PETITIONER, V.S. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
RESOLUTION

GAERLAN, J.:

This resolves the Motion for Reconsideration[1] of the Court's March 18, 2021
Decision[2] which denied the petition for review on certiorari under Rule 45 of the
Rules of Court of petitioner Tito S. Sarion (petitioner), thereby affirming the
Decision[3] dated September 29, 2017, and Resolution[4] dated November 8, 2018, of
the Sandiganbayan in SB-11-CRM-0256 to 0257, convicting the petitioner of the
crime of Malversation of Public Funds under Article 217 of the Revised Penal Code
(RPC) and of violating Section 3(e) of Republic Act (R.A.) No. 3019.

In the assailed Decision, the Court ruled that the issues raised by the petitioner are
factual in nature, and as such beyond the province of a petition for review on
certiorari. As none of the jurisprudentially established exceptions obtain in this case,
the Court concluded that there is no reason to deviate from the factual findings of the
Sandiganbayan.[5]

Just the same, the Court deliver into the merits of the charges and found that the
Sandiganbayan correctly convicted the petitioner of the charges.

Addressing the petitioner's defense in the crime of Malversation, the Court opined
that the petitioner, by the nature of his functions as then Mayor, is an accountable
officer of the public funds of the Municipality of Daet. As such, petitioner must
ensure that these funds are disbursed only for their "intended municipal use."[6]

In the case of the petitioner, the Court found that Malversation was committed

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 through gross inexcusable negligence when the petitioner permitted Markbilt
Construction (Markbilt) to receive payment of the price escalation despite not being
entitled thereto. The Court explained that by approving the disbursement voucher and
signing the Landbank check, despite the absence of appropriation and failure to
comply with the requirements of Section 61 of Republic Act (R.A.) No. 9184 or the
Government Procurement Reform Act, the petitioner facilitated the illegal release of
public funds to Markbilt.[7]

Notably, contrary to the findings of the Sandiganbayan, the Court found that the
petitioner is guilty of two acts both constitutive of malversation: 1) failure to comply
with the requirements of R.A. 9184, and 2) the payment of price escalation despite
the absence of appropriation.[8] The Court ruled that the petitioner cannot claim good
faith as a defense, in view of the existence of circumstances which should have
alerted petitioner to inquire further before approving the payment to Markbilt.[9]

With respect to the charge for violation of Section 3(e) of R.A. No. 3019, the Court
likewise affirmed the petitioner's conviction after finding that he is guilty of gross
inexcusable negligence when he violated basic rules 10 in disbursement, thus causing
undue injury to the Municipality of Daet.[10]

Aggrieved, the petitioner filed the instant Motion for Reconsideration. In his motion,
the petitioner argued that he is not guilty of gross inexcusable negligence. In support
thereof, he quoted the Dissenting Opinion of Associate Justice Alfredo Benjamin S.
Caguioa which stated in gist that the Information violated the petitioner's
constitutional right to information as it alleged "the absence of CAF, not irregularity";
[11] that in fact there is no irregularity in the CAF as the price escalation claim of
Markbilt contained in Supplemental Budget No. 01 was approved by Appropriation
Ordinance No. 1.[12] In so far as non-compliance with Section 61 of R.A. No. 9184,
that the same did not pertain to the petitioner, but to "Architect ltturalde for Aceron";
and that even assuming that it pertains to him, R.A. No. 9184 does not penalize the
said irregularity.[13] Ultimately, the petitioner argues that he exerted the required
diligence under the circumstances.[14]

In further support of his motion, the petitioner cited the legal opinion of Legal Officer
Edmundo R. Deveza II (Legal Officer Deveza II), stating that the Municipal
Engineering Office had been consulted and found no irregularity in the computation
of the price escalation. And that the petitioner, in signing the disbursement voucher
"relied in good faith on the diligent exercise of functions of the municipal officers

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 who were primarily tasked with accounting, budgeting, and addressing legal matters."
Hence, there is no "patent irregularity" which should have prompted him to inquire
further.[15]

The Court denies the motion.

The petitioner in entreating that this Court review the factual findings of the
Sandiganbayan under the instant petition for review on certiorari must demonstrate
and prove that the case clearly falls under the exceptions to the rule.[16] In this case,
the petitioner failed to discharge this burden. In his petition for review, the petitioner
directly proceeded with the discussion of the alleged errors committed by the
Sandiganbayan in evaluating the evidence and eventually in finding that they
establish the elements of the crime charged. It is only in the instant motion for
reconsideration, after the Court has pointed out the error, that the petitioner alleged
that this case falls under the exceptions, and specified what these exceptions are.
This, the Court cannot countenance.

Even then, the Court sees no reason to reverse the judgment of conviction.

The thrust of the instant motion for reconsideration centered on the Court's finding
that the petitioner committed gross inexcusable negligence, a common element of the
charges for Malversation and Section 3(e) of R.A. No. 3019. The same is a mere
reiteration of his arguments in the petition for review and already passed upon by the
Court in arriving at its Decision dated March 18, 2021.

There is no violation of the petitioner's constitutional right to information. There is

indeed, as alleged in the Information, an absence of appropriation, not with respect to
the entire project, as the same has admittedly been provided for with the statement of
the contract price, but specifically for the payment of price escalation.

To recall, the Contract Agreement[17] entered into on December 29, 2003, provided
only for one specific appropriation, that is for the amount of P71,499,875.29, relative
to the Phase II construction of the Daet Public Market. Such contract price had
already been fully released, and the payment of price escalation to Markbilt and
subject of this case is over and beyond such amount.

The source of Markbilt's right to claim for price escalation is also based on the same
contract, albeit contrarily, without any mention as to the source of funds for its
satisfaction, viz.:

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 4. The Implementing Rules and Guidelines regarding Adjustment of
contract prices adopted and approved by the Government will be applied
in this contract.[18]

To authorize payment, there must initially be a statement of source of funding for the
price escalation in accordance with the requirement of Section 86 of P.D. No. 1445;
there is none in this case. As such the aforequoted clause in the Contract Agreement
cannot be a source of an enforceable right on the part of Markbilt. As the Court
elucidated in its decision:

Section 85 in relation to Section 86 of P.D. No. 1445, requires the

existence of a prior sufficient appropriation, as certified by he prop r
accounting official, before any contract for expenditure of public funds is
authorized, viz.:

Section 85. Appropriation before entering into contract.

(1) No contract involving the expenditure of public funds shall be entered

into unless there is an appropriation therefor, the unexpended balance of
which, free of other obligations, is sufficient to cover the proposed
expenditure.

xxxx

Section 86. Certificate showing appropriation to meet contract.

Except in the case of a contract for personal service, for supplies for
current consumption or to be carried in stock not exceeding the estimated
consumption for three months, or banking transactions of government
owned or controlled banks, no contract involving the expenditure of
public funds by any government agency shall be entered into or
authorized unless the proper accounting official of the agency concerned
shall have certified to the officer entering into the obligation that funds
have been duly appropriated for the purpose and that the amount
necessary to cover the proposed contract for the current fiscal year is
available for expenditure on account thereof, subject to verification by the
auditor concerned. The certificate, signed by the proper accounting
official and the auditor who verified it, shall be attached to and become an
integral part of the proposed contract, and the sum so certified shall not
thereafter be available for expenditure for any other purpose until the
obligation of the government agency concerned under the contract is fully

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 extinguished. (Underscoring supplied.)

The only appropriation in this case is the original contract price of Php
71,499,875.29. Consequently, no payment can be made beyond such amount. In the
same way, as there is no funding to support the price escalation clause in the said
Contract Agreement, no public funds can be disbursed in payment thereof. The clause
is void and of no effect.[19] It cannot be enforced and the public officer who entered
into the contract without such appropriation and certification shall be liable for any
resulting damage to the government. [20]

At the risk of repetition, if only to emphasize the point, Section 86 of P.D. No. 1445
requires the existence of a prior specific appropriation, as certified by the proper
accounting official, before any contract for expenditure of public funds is authorized.
In this case, there is no such prior specific appropriation for the satisfaction of price
escalation at the time the parties agreed to its payment on December 29, 2003, which
renders such undertaking in the Contract Agreement, void and of no effect. To the
Court, this is the "absence" referred to in the Information.

At any rate, even granting for the sake of argument that the failure of the Information
to employ the word "irregularity" violated the petitioner's constitutional right to
information, and as such may not be considered in. determining the offense with
which the petitioner may be prosecuted, the decision would remain the same.

The petitioner may still be convicted of the crime of Malversation and for violation
of Section 3(e) of the R.A. No. 3019 on account of his approval of the disbursement
voucher without first referring the matter to the National Economic and Development
Authority (NEDA) for the determination of the of the existence of extraordinary
circumstances and securing the approval of the Government Procurement Policy
Board (GPPB). The petitioner's failure to comply with these requirements were
clearly stated and alleged in the subject Informations. While it is true that non-
compliance with these I requirements under Sec. 61 of R.A. No. 9184 is not
penalized under the Act, the inaction may, however, constitute a different offense. In
fine, the imposition of penalty is not on account of R.A. No.9184, but of his acts that
translate into violation of R.A. 3019 and the RPC.

The petitioner cannot rely on the doctrine in Arias v. Sandiganbayan[21] to exculpate

himself from liability. As the Court stated in its Decision,

"[t]he Arias doctrine is not a magic cloak that car, be used as a cover by a
public officer to conceal himself in the shadows of his subordinates and

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 necessarily escape liability." When there are circumstances that should
have alerted heads of offices to exercise a higher degree of circumspection
in the performance of their duties, they cannot invoke the doctrine to
escape liability. In this scenario, heads of offices are expected to exercise
more diligence and go beyond what their subordinates have prepared.

xxxx

In this case, the Court finds the existence of such circumstances which
could have alerted the petitioner to inquire further prior to his approval of
the disbursement voucher, beyond the certifications and documents issued
by municipal officials.

To recall, the Contract Agreement for the construction of the Daet Public
Market (Phase II) was entered into on December 29, 2003, during the
petitioner's term as Municipal Mayor. Actual construction commenced in
January 2005. Months thereafter or in December 2005, allegedly on
account of spiraling costs of materials during the construction period,
Markbilt filed claim for the adjustment of contract price pursuant to the
price escalation clause of the Contract Agreement. This was followed by
successive requests for price escalation, viz.:

Billing Date Amount Period Covered

February
April 25, 19, 2004-
P 76,282.99
2004 April 16,
2004

April 17,
July 15,
2,041,842.15 2004- Julv
2004
13, 2004

July 14,
September 2004-
1,647,087.36
26, 2004 September
23, 2004

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 February September
28, 2005 1,457,700.24 24, 2004-
February
23, 2005

Total P5,222,903.74

During the intervening period or in May 2004, Mayor Panotes was elected
as Municipal Mayor of Daet. It was sometime in June 2005, during his
term that the Phase II construction project was completed. Thereafter,
Markbilt continued to file several letter-requests reiterating its claim for
price escalation. However, then Mayor Panotes refused to act upon the
claims until the end of his term in June 2007. It was when the petitioner
was re-elected that Markbilt's claim was processed and eventually paid in
May 2008.

Considering that two years has passed since the project's completion and
more than three years since the first demand for payment of price
escalation was made by Markbilt, the petitioner could have inquired into
the circumstances attending the demand and the construction project and
why the same was unacted upon by his predecessor. Instead of
immediately instructing Administrator Nagera to look for sources of
funds, he should have sought the opinion of the Municipal Engineer.
Petitioner should have at the very least referred the documents relative to
construction project to the appropriate municipal officials for study in
order to verify the basis of Markbilt's claim. This is particularly relevant
as majority of the project was undertaken and ultimately completed prior
to his term. As well, the amount appropriated for the Daet Public Market
(Phase II) construction project has already been fully released. Markbilt's
demand is over and beyond the contract price and dependent upon the cost
of materials almost three (3) years passed. Simply, the propriety of
Markbilt's additional claim depends upon the prevailing market prices at
the time they were purchased vis-a-vis the costs when the contract was
entered into. In this regard, prudence dictates that further verification be
conducted as to the veracity of the amount claimed by Markbilt. The
amount involved is by no means trivial; it involves millions of pesos of
public funds. Petitioner, as head of office, should have taken this
precaution in order to safeguard the government funds for which he is
responsible and protect the interests of the municipality.[22] (Citations

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 omitted.)

Notably, it was not the petitioner who sought the opinion of Municipal Legal Officer
Deveza II which he now strongly relies upon to prove that he exercised the diligence
demanded by the circumstances. It was Accountant Robles acting on the advice of
the- COA Auditor assigned to the municipality, who sought the opinion of Legal
Officer Deveza II.[23] What is clear from the records is that the petitioner,
immediately upon receiving the request of Markbilt for payment of price escalation,
immediately ordered Administrator Nagera to look for sources of funds to satisfy the
claim, thus prompting the creation and approval of Supplemental Budget No. 1, and
the preparation of the disbursement voucher payable to Markbilt, all prior to the
referral of the propriety of the additional claim to the concerned municipal officials.
[24] Verily, the petitioner already approved the amount of Markbilt's claim without
first verifying whether the same is the correct amount, as he already authorized the
release of partial payment covered by Disbursement Voucher No. 08041239.
Contrary to his claim therefore, petitioner failed to exert diligence demanded by the
circumstances in this case.

The petitioner holds the position of Municipal Mayor, he is not an ordinary public
official. He occupies the highest position in the municipality; as such head of office,
he exercises administrative supervision over all officials and employees in the
locality. His imprimatur to the disbursement is not ministerial. It is incumbent upon
him to ensure compliance with the basic requirements of the law prior to authorizing
payment, particularly as the Contract Agreement which served as basis for the claim
for price escalation was entered into during his prior term as Municipal Mayor. His
gross inexcusable negligence in this case is therefore manifest when he immediately
gave his imprimatur to Markbilt's claim by directing Administrator Nagera to look
for funds for its satisfaction.

As the Court stated in its decision, a simple consultation and/or verification could
have alerted the petitioner of the fact that Markbilt' s claim for price escalation was
not supported by a separate funding at the time it was made, and of the requirements
that must be complied with under Sec. 61 of R.A. No. 9184, before any approval and
payment of price escalation can be made.

The petitioner's failure to observe sufficient diligence under the circumstances

coupled by and resulting to violation of the law and rules relating to disbursement of
public funds amount to gross inexcusable negligence.

WHEREFORE, premises considered, petitioner Tito S. Sarion,'s Motion for

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 Reconsideration is hereby DENIED. Consequently, the Court's Decision dated March
18, 2021 is AFFIRMED.

SO ORDERED.

Zalameda and Dimaampao, JJ., concur.

Caguioa, J., I dissent. See dissenting opinion.
Kho, Jr., J., I join the dissenting opinion.

[1] Rollo, pp.762-790.

[2] Id. at 709-732.

[3] Id. at 95-119b. Penned by Associate Justice Sarah Jane T. Fernandez, with
Presiding Justice Amparo M. Cabotaje-Tang and Associate Justice Bernelito R.
Fernandez, concurring.

[4] Id. at 121-130.

[5] Id. at 716-717.

[6] Id. at 717-718.

[7] Id. at 719-723.

[8] Id. at 723-724.

[9] Id. at 726-728.

[10] Id. at 728-730.

[11] Id. at 763, 775-779.

[12] Id. at 764, 772-774.

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 [13]
Id. at 764-765.

[14] Id. at 765-771, 780-789.

[15] Id. at 767, 780-789.

[16] Pascual v. Burgos, 776 Phil. 167, 184 (2016).

[17] Rollo, pp. 169-172.

[18] Id. at 170.

[19] Section 87. Void contract and liability of officer. Any contract entered into
contrary to the requirements of the two immediately preceding sections shall be void,
and the officer or officers entering into the contract shall be liable to the government
or other contracting party for any consequent damage to the same extent as if the
transaction had been wholly between private parties.

[20] Id.

[21] 259 Phil. 794(1989).

[22] Rollo, pp. 726-728.

[23] Id. at 109.

[24] Id. at 108b-109, 176, 710-711.

SPECIAL FIRST DIVISION

G.R. Nos. 243029-30 - TITO S. SARION, petitioner, versus PEOPLE OF THE

PHILIPPINES, respondent

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 x-----------------------------------------------------x

DISSENTING OPINION

CAGUIOA, J.;

The Resolution[1] denies the Motion for Reconsideration[2] (MR) filed by. petitioner
Tito S. Sarion (petitioner), thereby affirming the March 18, 2021 Decision[3] (main
Decision) of the Court, which affirmed the Decision[4] dated September 29, 2017,
and Resolution[5] dated November 8, 2018, of the Sandiganbayan in SB-11-CRM-
0256 to 0257, convicting petitioner of the crime of Malversation of Public Funds
under Article 217 of the Revised Penal Code (RPC) and of violating Section 3(e) of
Republic Act (R.A.) No. 3019.

To recall, this case arose from a Contract Agreement entered into on December 29,
2003 by herein petitioner, in his capacity as Municipal Mayor for the Municipal
Government of Daet, Camarines Norte, and Mr. Billy Aceron (Aceron), General
Manager of Markbilt Construction (Markbilt), represented by his attorney-in-fact,
Architect Romeo B. Itturalde (Architect Itturalde). The agreement was for the Phase
II construction of the Daet Public Market for the amount of P71,499,875.29, which
was to be completed within a period of 365 calendar days.[6]

On November 27, 2008, Zenaida Baluca (complainant), a resident of Daet,

Camarines Norte, filed a complaint against petitioner before the Deputy Ombudsman
for Luzon.[7] The complainant charged petitioner with violation of Section 3(e) of
R.A. No. 3019 relative to the payment of contract price escalation in the Daet Public
Market (Phase II) Project.[8] After investigation, Graft Investigation and Prosecution
officer Judy Anne Doctor-Escalona found merit in the complaint and charged
petitioner with violation of Section 3(e) of R.A. No. 3019, and Malversation of
Public Funds, in two separate Informations.[9] After trial, the Third Division of the
Sandiganbayan rendered on September 29, 2017 its Decision finding petitioner guilty
beyond reasonable doubt for violation of Section 3(e) of R.A. No. 3019 and
Malversation of Public Funds.[10]

The main Decision affirmed the Sandiganbayan's Decision and found petitioner
guilty of the crimes charged.

In affirming the conviction of petitioner for the crime of Malversation of Public

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 Funds, the Court ruled that the prosecution was able to prove all of the elements of
said crime:[11] (1) that petitioner is a public officer, being the then elected Municipal
Mayor of Daet and that the funds involved are public in character, as they belong to
the Municipality of Daet;[12] (2) that, by reason of his office, he is an accountable
officer based on Section 340 of the Local Government Code, as well as Presidential
Decree No. 1445 or the Government Auditing Code of the Philippines;[13] (3) that
the disbursement or release of funds had petitioner's approval as Mayor; and that
payment in favor of Markbilt was released only after petitioner's signature in the
disbursement voucher and the corresponding Landbank check;[14] and (4) agreeing
with the Sandiganbayan, that petitioner was guilty of gross inexcusable negligence
when he permitted Markbilt to receive partial payment of price escalation despite not
being entitled thereto.[15]

On the other hand, in affirming petitioner's conviction for violation of. Section 3(e) of
R.A. No. 3019, the Comi again anchored this on the finding that petitioner is guilty of
gross inexcusable negligence "amounting to bad faith."[16] The Court justified its
ruling on the following: (1) petitioner was remiss in his duty when he failed to
exercise diligence in ensuring compliance with basic requirements demanded by the
laws, rules, and regulations in the disbursement of public funds;[17] (2) as the
signatory to the Contract Agreement. with Markbilt, he is presumed to know the
contents thereof;[18] thus (3) upon receipt of Markbilt's demand for price escalation,
petitioner should have first verified the propriety of the said claim and whether the
said claim satisfied. the requirements of applicable laws.[19]

In denying petitioner's MR, the ponencia maintains that:

First there is no violation of petitioner's right to information as there is indeed a

absence of appropriation, as alleged in the Information, not with respect to the entire
project, but specifically for the payment of price escalation.[20]

Second, petitioner may still be convicted of the crime of Malversation of Public

Funds and for violation of Section 3(e) of R.A. No. 3019 on account of his approval
of the disbursement voucher without first referring the matter to the National
Economic and Development Authority (NEDA) for the determination of the
existence of extraordinary circumstances and securing the approval of the
Government Procurement Policy Board (GPPB). The ponencia further rules that
while it is true that non-compliance with these requirements under Section 61 of R.A.
No. 9184 is not penalized under the Act, the inaction may, however, constitute a

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 different offense. In fine, the imposition of penalty is not on account of R.A. No.
9184, but of his acts that translate into violation of R.A. No. 3019 and the RPC.[21]

To these points, I respectfully maintain my dissent.

First, I emphasize anew that the Information for violation of Section 3(e) of R.A. No.
3019 alleges that petitioner approved the disbursement "in the absence of certificate
of availability of funds [(CAFs)]."[22] However, the Sandiganbayan found as a fact
that there were indeed CAFs, ruling only that there was an irregularity in the CAF.
[23] However, in spite of the Sandiganbayan's ruling that it cannot find petitioner
culpable for the alleged irregularity in the CAF since "the Information alleges the
absence of, not the infirmity in, the [CAF],"[24] the ponencia still insists that it is the
absence of certification as to the availability of or source of funds pertaining
specifically to the payment of price escalation, that rendered the clause void and the
subsequent approval by petitioner of the disbursement voucher invalid. It is this
irregularity, according to the ponente, which rendered the payment in favor of
Markbilt illegal.[25] However, the foregoing ruling violates petitioner's right, as an
accused, to be properly informed of the charges against him.[26] As correctly pointed
out by petitioner, he cannot be found guilty for an irregularity in the CAFs because
this violates his right to be informed of the accusation against him under Section
14(1), Article III of the 1987 Constitution since the Information merely alleged the
absence of CAFs, and not irregularity.[27] Stated differently, petitioner prepared for
trial to prove, as he did, that there was a CAF. To convict him now on the reasoning
that the CAF was "irregular" unduly deprived him the opportunity to directly traverse
this.

More importantly, even the finding that there was an "irregularity" is wrong - it is
completely belied by the evidence. This finding of "irregularity" in the CAF is based
on the belief that "[t]here was no appropriation to pay for the contract price
escalation."[28] The Sandiganbayan,

As well as the ponencia, holds that Appropriation Ordinance No. 01[29] contained no
appropriation for the payment of Pl,000,000.00 to Markbilt.[30] At the point of being
repetitive, this is just plain error.

The plain language of Supplemental Budget No. 1[31] belies this factual finding. To
recall, Resolution No. 063 approved Supplemental Budget No.1. for CY[32] 2008 for

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 the Municipality of Daet. It was this Supplemental Budget No.1 that was approved in
Appropriation Ordinance No.01. [33] Stated simply, Appropriation Ordinance No. 01
approved each and every proposeditemin Supplemental Budget No. 1, including the
payment of Pl,000,000.00 for the price escalation claim of Markhilt.[34] As
correctly shown by petitioner:

The title of Resolution No.063 is revealing as to what was approved by

the Sangguniang Bayan, that is, Supplemental Budget No. 1, which
contained an appropriation of P1,000,000.00 to partially pay Markbilt
Construction's claim for price escalation -

Resolution Approving the Supplemental Budget No.01 for

CY 2008 for the Municipality of Daet Appropriating the
Amount of Six Million Eight Hundred Twenty Two Thousand
Eighty Eight Pesos (P6,822,088.00) for Various Municipal
Projects/Expenditures under the General Fund Proper and for
Special Account (Market)- Construction of Public Market
Amounting to Four Million Four Hundred Thousand Pesos
(P4,400,000.00) with a Total Amount of Eleven Million Two
Hundred Twenty Two Thousand Eighty Eight Pesos
(P11,222,088.00).[35]

Likewise, it is apparent in the title of Appropriation Ordinance No. 01 as

to what was approved by the Sangguniang Bayan:

An Ordinance Approving the Supplemental Budget No. 01

for CY 2008 for the Municipality of Daet Appropriating the
Amount of Six Million Eight Hundred Twenty Two Thousand
Eighty Eight Pesos (P6,822,088.00 )for Various Municipal
Projects/Expenditures under the General Fund Proper and for
Special Account (Market) Construction of Public Market
Amounting to Four Million Four Hundred Thousand Pesos
(P4,400,00.00) with a Total Amount of Eleven Million Two
Hundred Twenty Two Thousand Eighty Eight Pesos
(P11,222,088.00).[36]

The portion of Appropriation Ordinance No.01, which appropriated the

amount of P4,400,000.00 as Special Account (Market) Construction of
Market" exactly corresponded to the appropriated items in that portion.of
Supplemental Budget No.1 sub-marked as Exhibit21-Q-l,which to repeat

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 had these components:.

Subsidy to Special Account-Market

Construction of Market 1,500,000.00

Price Escalation 1,000,000.00

Improvement/Repair Market 1,900,000.00[37]

These appropriated items would add up toP4,400,000.00, which is Exhibit

9-A-1 of the prosecution.

A cursory examination of Supplemental Budget No. 1 would show that

the proposed appropriations therein were all approved and adopted in
Appropriation Ordinance No. 01, as shown by the fact that Supplemental
Budget No.1 proposed a total appropriation of P11,222,088.00, which was
the same approved amount in Appropriation Ordinance No. 01.

In other words, Appropriation Ordinance No. 01 approved each and every

proposed item in Supplemental Budget No. 01, including the payment of
Pl,000,000.00 for the price escalation claim of Markbilt Construction.[38]
(Emphasis and under scoring in the original)

In other words, contrary to the findings of the Sandiganbayan and the ponencia,
there was a valid appropriation to pay for the contract priceescalation.

Second, on the alleged non-compliance with Section 61 of R.A. No. 9184, the
evidence shows that: (1) the alleged non-compliance with Section 61 of R.A.
No.9184 did not pertain to petitioner; and (2) even assuming that compliance with
Section 61 of R.A. No. 9184 pertained to petitioner, R.A. No. 9184 does not penalize
the alleged irregularity.[39]

As correctly pointed out by petitioner, in the Notice of Disallowance[40] with ND No.

2010-001-101(2008) dated March 17, 2010, the obligation to secure the documents
required under Section 61 of R.A. No. 9184 did not pertain to petitioner, but to
Architect ltturalde for Aceron. This is, in turn, fully corroborated by the admission of
prosecution witnesses Jesus R. Reblora, Jr..and Lourdes G. Cribe (Cribe) that the
obligation to submit the required documents in compliance with Section 61 of R.A.

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 No. 9184 did not pertain to petitioner, but to Architect Itturalde for Aceron.[41] Cribe,
who was the Commission on Audit State Auditor V and Supervising Auditor who
issued the Notice of Disallowance, likewise admitted that the failure to submit the
required documents in compliance with Section 61 of R.A. No. 9184 did not appear
in the line pertaining to petitioner.[42]

Moreover, even assuming that compliance with Section 61 of R.A.No. 9184 pertained
to him, said law does not actually penalize the alleged irregularity[43] R.A. No. 9184
does not contain a penal clause for not securing a GPPB and a NEDA clearance
before payment of price escalation.[44]

In this relation, the Court held in Sabaldan, Jr. v. Office of the Ombudsman or
Mindanao,[45] that violations of procurement laws do not ipso facto give rise to
violation of R.A. No. 3019:

More importantly, it must be emphasized that the instant case involves a

finding of probable cause for; criminal case for violation of Section 3(e)
of R.A. No. 3019, and not for violation of R.A. No. 9184. Hence, even
granting that there may be violations of the applicable procurement
laws, the same does not mean that the elements of violation of Section
3(e) of RA. No. 3019 are already present as a matter of course. For
there to be a violation under Section 3(e) of R.A. No. 3019 based on a
breach of applicable procurement laws, one cannot solely rely on the
mere fact that a violation of procurement laws has been committed.
xx x.[46] (Emphasis supplied)

Thus, in the recent case of Martel v. People,[47] the Court ruled that in order to
successfully prosecute the accused under Section 3(e) of R.A. No. 3019 based,on a
violation of procurement laws, the prosecution must prove be),1ond reasonable doubt
that: (1) the violation of procurement laws caused undue injury to any party,
including the government, or gave any private party unwarranted benefits, advantage
or preference, and (2) the accused acted with evident bad faith, manifest partiality, or
gross inexcusable negligence.

However, in the instant case, the Sandiganbayan conceded that petitioner did not act
with evident bad faith or manifest partiality. Also, as discussed in my Dissenting
Opinion on the main Decision, the prosecution failed to prove that petitioner acted;
with gross.inexcusable negligence. Thus, the second element is absent.

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 Further, as I stated in my Concurring Opinion in Villarosa v. People,[48] an accused
should not be punished with imprisonment for violations of non penal laws. Again,
R.A. No. 9184 and R.A. No. 3019 are distinct laws with distinct requisites for their
violation. A. violation of one does not ipso facto result in a violation of the other.[49]
Thus, even assuming that petitioner committed a violation of some provisions of R.A.
No. 9184, he cannot and should not be convicted under R.A. No. 3019 without proof.
beyond reasonable doubt that the elements of a violation of R.A. No. 3019 are all
present.

The ponencia restates in the MR Resolution that a simple consultation and/or

verification could have alerted petitioner of.the fact that Markbilt's claim for price
escalation was not supported by a separate funding at the time it was made, and of the
requirements that must be complied with under Section 61 of R.A. No. 9184, before
any approval and payment of price escalation can be made. Petitioner's failure to
observe sufficient diligence under the circumstances.coupled by and resulting to
violation of the law and rules relating to disbursement of public funds amount to
gross inexcusable negligence.[50]

This is egregious error. With all due respect, under the factual milieu of this case, the
evidence shows that petitioner did exercise the required diligence. The fault ascribed
to him by the ponencia simply does not exist.

The fact remains that Municipal Legal Officer Edmundo Deveza II (Legal Officer
Deveza) gave his legal opinion that the demand of Markbilt should be paid. For
petitioner to be labelled as negligent for not "direct[ing] municipal officials [to direct
municipal officers] to inquire on"[51] Markbilt's demands "prior to release of[52]
Legal Officer Deveza's opinion is, with respect, nonsensical. Again, the fact is that
Legal Officer Deveza gave his imprimatur to the payment.

In this regard, contrary to the ponencia's stand, petitioner's reliance on Arias v.

Sandiganbayan[53] is very apropos:

We would be setting a bad precedent if a head of office plagued by all too

common problems? dishonest or negligent subordinates, overwork,
multiple assignments or positions, or plain incompetence? is suddenly
swept into a conspiracy conviction simply because he did not personally
examine every single detail, painstakingly trace every step from inception,
and investigate the motives of every person involved in a transaction
before affixing his signature as the final approving authority.

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 xxxx

We can, in retrospect, argue that Adas should have probed records,

inspected documents, received procedures, and questioned persons. It
is doubtful if any auditor for a fairly sized office could personally do
all these things in all vouchers presented for his signature. The Court
would be asking for the impossible. All heads of offices have to rely to
a reasonable extent on their subordinates and on the good faith of
those prepare bids, purchase supplies, or enter into negotiations. If a
department secretary entertains important visitors, the auditor is not
ordinarily expected to call the restaurant about the amount of the bill,
question each guest whether he was present at the luncheon, inquire
whether the correct amount of food was served, and otherwise personally
look into the reimbursement voucher's accuracy, propriety, and
sufficiency. There has to be some added reason why he should examine
each voucher in such detail. Any executive head of even small
government agencies or commissions can attest to the volume of papers
that must be signed. There are hundreds of documents, letters,
memoranda, vouchers, and supporting papers that routinely pass through
his hands. The number in bigger offices or departments is even more
appalling.

There should be other grounds than the mere signature or approval

appearing on a voucher to sustain a conspiracy charge and conviction.[54]
(Emphasis and underscoring supplied; italics in the original)

Likewise, in Sistoza v. Desierto,[55] the Court held:

There is no question on the need to ferret out and expel public officers
whose acts make bureaucracy synonymous with graft in the public eye,
and to eliminate systems of government acquisition procedures which
covertly ease corrupt practices. But the remedy is not to indict and jail
every person who happens to have signed a piece of document or had a
hand in implementing routine government procurement, nor does the
solution fester in the indiscriminate use of the conspiracy theory which
may sweep into jail even the most innocent ones. To say the least, this
response is excessive and would simply engender catastrophic
consequences since prosecution will likely not end with just one civil
servant but must, logically, include like an unsteady streak of dominoes

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 the department secretary, bureau chief, commission chairman, agency
head, and all chief auditors who, if the flawed reasoning were followed,
are equally culpable for every crime arising from disbursements they
sanction.

Stretching the argument further, if a public officer were to personally

examine every single detail, painstakingly trace every step from
inception, and investigate the motives of every person involved in a
transaction before affixing his signature as the final approving
authority, if only to avoid prosecution, our bureaucracy would end up
with public managers doing nothing else but superintending minute
details in the acts of their subordinates. x x x[56] (Emphasis arid
underscoring supplied)

Thus, there being no "irregularity" in the CAF, or any other patent irregularity in the
transaction that had gone through the proper procedure as certified by the officers
concerned before petitioner signed the disbursement voucher, as well as the fact that
petitioner relied on a legal opinion, it is erroneous to insist that petitioner is guilty of
gross inexcusable negligence, more so that he acted in bad faith.

All in all the records of this case compel me to maintain my dissent. I accordingly
vote that petitioner be acquitted of the crimes charged. Any other disposition would
be injustice.

(SGD.) ALFREDO BENJAMIN S. CAGUIOA

Associate Justice

[1] Ponencia, pp. 1-10.

[2] Rollo, pp. 762-790.

[3] Id. at 709-733. Penned by Associate Justice Samuel 1-1. Gaerlan with Associate
Justices Rosmari D. Caranding and Rodil V. Zalameda, concurring while Associate
Justice Alfredo Benjamin S. Caguioa with Dissenting Opinion joined by Chief
Justice Diosdado M. Peralta.

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 [4] Id. at 95-1 19b. Penned by Associate Justice Sarah Jane T. Fernandez with
Presiding Justice and Chairperson Amparo M. Cabotaje-Tang and Associate Justice
Bernelito R. Fernandez, concurring.

[5] Id. at 121-130.

[6] Id. at 709-710.

[7] Id.at 712.

[8] Id.

[9] Id.

[10] Id. at 713-714.

[11] Id. at 738.

[12] Id.

[13] Id.

[14] Id. at 738-739.

[15] Id. at 739.

[16] Id. 11

[17] Id.

[18] Id.

[19] Id.

[20] Ponencia; p. 4.

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 [21] Id. at 6.

[22] Rollo, p. 712; emphasis supplied.

[23] Id. at 47-48, 112.

[24] Id. at I 12.

[25] Id. at 723-724.

[26] Id. at 47.

[27] Id.

[28] Id. at 112.

[29] Spelled "Appropriation Ordinance No.1 "in some parts of the rollo.

[30] Ponencia,pp.4-5.

[31] Rollo,p.49.

[32] Calendar Year.

[33] Rollo,p.50.

[34] Id. at 51.

[35] Id. at 23-24.

[36] Id. at 24.

[37] Exhibit 21-Q-1, id. at 49.

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 [38] Rollo, pp. 50-5l.

[39] Id. at 52.

[40] Exhibit 20 ,id.

[41] Rollo, pp. 53-54.

[42] Id.

[43] Id. at 54.

[44] Id.

[45] G.R. No. 238014, June 15, 2020,-938 SCRA 17.

[46] Id. at 29.

[47] G.R. Nos. 224720-23 & 224765-68, February 2, 2021, accessed at .

[48] G.R. Nos. 233155-63, june 23, 2020, 939 SCRA 502, 596.

[49] Sabaldan, Jr. v. Office of the Ombudsman for mindanao, supra note 45, at 30.

[50] Ponencia, p. 8.

[51] Rollo, p. 730.

[52] Id.

[53] 259 Phil. 794 (1989).

[54] Id. at 801-802.

[55] 437 Phil. 117 (2002).

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 [56] Id. at. 120-121.

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