Republic
of the
Philippines
SUPREME
COURT
ManilaTHIRD
DIVISION
JOSE P.
DANS, JR.,
Petitioner,
G.
R.
No. 127073
January
29, 1998
-versus-
PEOPLE OF
THE
PHILIPPINES,
Respondent.
___________________________
IMELDA R.
MARCOS,
Petitioner,
G.
R.
No. 126995
January
29, 1998
-versus-
HONORABLE
SANDIGANBAYAN
(FIRST DIVISION)
AND THE
PEOPLE OF
THE PHILIPPINES,
Respondents.
DECISION
ROMERO,
J :
A
man's signature, even
if merely a flourish or even if indecipherable, may signify authority,
agreement, acknowledgment and ownership. As indelible as his
fingerprints,
dental records or DNA genetic map, it denotes trust and honor. But the
same trust and honor may be tainted by polluted intentions, as when
signing
is done in bad faith, or to perpetrate; a fraud, to deceive others, or
to commit a crime. The petitions at bar will illustrate how one's John
Hancock can bring a man, or a woman for that matter, to ruin.
Sometime in 1984, then
Minister of Human Settlements, Imelda R. Marcos, and then
Transportation
and Communications Minister, Jose P. Dans, Jr., petitioners herein,
entered
into several contracts involving the Light Rail Transit Authority
(LRTA)
and the Philippine General Hospital Foundation, Inc. (PGHFI).
Concurrently
and respectively, Marcos and Dans served as ex-oficio Chairman
and
ex-oficio Vice-Chairman of the LRTA, and as Chairman and
Director
of the Board of Trustees of the PGHFI. By virtue of these agreements,
which
were authorized and in fact ratified by the LRTA Board of Directors,
two
vacant LRTA lots consisting of a 7,340-square meter parcel of land
located
in Pasay City (the Pasay lot), and a 1,141.20-square meter lot in
Carriedo,
Sta. Cruz, Manila (the Sta. Cruz lot), were leased out to the PGHFI.
Specifically,
the LRTA and the PGHFI, represented by Dans and Marcos, respectively,
approved
three deeds, namely, an "Agreement for the Development of the Areas
Adjacent
to the Light Rail Transit System Stations and the Management and
Operation
of the Concession Areas Therein," [1]
and two lease agreements[2]
dated June 8 and June 18, 1984, covering the Pasay and the Sta. Cruz
lots.
The terms of the lease agreements were identical except as to the
price:
the lease would be good for 25 years subject to an annual escalation of
7.5%; PGHFI had the right to sublease the lots; and the monthly lease
was
P102,760.00 for the Pasay lot and P92,437.20 for the Sta. Cruz lot.
Within
the same month, the Pasay lot was subleased by PGHFI, through Marcos,
to
Transnational Construction Corporation (TNCC)[3]
for P734,000.00 a month, while the Sta. Cruz lot was allegedly[4]
subleased to Joy Mart Consolidated Corporation (Joy Mart)[5]
for P199,710.00 per month.
Because of these deeds,
petitioners were charged on January 14, 1992, with a violation of
Republic
Act No. 3019 (the Anti-Graft and Corrupt Practices Act), to wit:
Criminal Case No.
17449
"The undersigned
Special
Prosecution Officer I, Office of the Special Prosecutor, hereby accuses
Imelda R. Marcos and Jose P. Dans, Jr. of Violation of Section
3(g)
of RA 3019, as amended, committed as follows:
That on or about
September
8, 1982, and for sometime prior or subsequent thereto, in Manila,
Philippines,
and within the jurisdiction of this Honorable Court, the accused Imelda
R. Marcos and Jose P. Dans, Jr., public officers, being then the
Chairman
and Vice-Chairman, respectively, of the Light Rail Transit Authority
(LRTA),
a government corporate entity created under Executive Order No. 603 of
the former President Ferdinand E. Marcos, while in the performance of
their
official functions, taking advantage of their positions and committing
the crime in relation to their offices, did then and there wilfully,
unlawfully
and criminally conspiring with one another, enter on behalf of the
aforesaid
government corporation into an agreement for the development of the
areas
adjacent to the LRTA stations and the management and operation of the
concession
areas therein, with the Philippine General Hospital Foundation, Inc.
(PGHFI),
a private enterprise, under terms and conditions manifestly and grossly
disadvantageous to the government.
CONTRARY TO LAW."
Criminal Case No.
17450
"The undersigned
Special
Prosecution Officer I, Office of the Special Prosecutor, hereby accuses
Imelda R. Marcos and Jose P. Dans, Jr. of Violation of Section 3(g) of
RA 3019, as amended, committed as follows:
That on or about
June
8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable
Court,
the accused Imelda R. Marcos and Jose P. Dans, Jr., public officers,
being
then the Chairman and Vice-Chairman, respectively, of the Light Rail
Transit
Authority (LRTA), a government corporate entity created under Executive
Order No. 603 of the former President Ferdinand E. Marcos, while in the
performance of their official functions, taking advantage of their
positions
and committing the crime in relation to their offices, did then and
there
wilfully, unlawfully and criminally conspiring with one another, enter
on behalf of the aforesaid government corporation into a Lease
Agreement
covering LRTA property located in Pasay City, with the Philippine
General
Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms
and
conditions manifestly and grossly disadvantageous to the government.
CONTRARY TO LAW."
Criminal Case No.
17451
"The undersigned
Special
Prosecution Officer I, Office of the Special Prosecutor, hereby accuses
Imelda R. Marcos of Violation of Section 3(d) of RA 3019, as amended,
committed
as follows:
That on or about
June
8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable
Court,
the accused Imelda R. Marcos, a public officer, being then the Chairman
of the Light Rail Transit Authority (LRTA), a government corporate
entity
created under Executive Order No. 603 of the former President Ferdinand
E. Marcos, while in the performance of her official functions, taking
advantage
of her position and committing the offense in relation to her office,
did
then and there wilfully, unlawfully and criminally accepted employment
and/or acted as Chairman of (the) Philippine General Hospital
Foundation,
Inc. (PGHFI), a private corporation duly organized under the laws of
the
Philippines, which private enterprise had, at that time(,) pending
business
transactions with the accused, in her capacity as Chairman of LRTA.
CONTRARY TO LAW."
Criminal Case No.
17452
"The undersigned
Special
Prosecution Officer I, Office of the Special Prosecutor, hereby accuses
Jose P. Dans, Jr. of Violation of Section 3(d) of RA 3019, as amended,
committed as follows:
That on or about
June
8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable
Court,
the accused Jose P. Dans, Jr., a public officer, being then the
Vice-Chairman
of the Light Rail Transit Authority (LRTA), a government corporate
entity
created under Executive Order No. 603 of the former President Ferdinand
E. Marcos, while in the performance of his official functions, taking
advantage
of his position and committing the offense in relation to his office,
did
then and there wilfully, unlawfully and criminally accepted employment
and/or acted as Director of (the) Philippine General Hospital
Foundation,
Inc. (PGHFI), a private corporation duly organized under the laws of
the
Philippines, which private enterprise had, at that time(,) pending
business
transactions with the accused, in his capacity as Vice-Chairman of
LRTA.
CONTRARY TO LAW."
Criminal Case No.
17453
"The undersigned
Special
Prosecution Officer, Office of the Special Prosecutor, hereby accuses
Imelda
R. Marcos and Jose P. Dans, Jr. of Violation of Section 3(g) of RA
3019,
as amended, committed as follows:
That on or about
June
18, 1984, and for sometime prior or subsequent thereto, in Makati,
Metro
Manila, Philippines, and within the jurisdiction of this Honorable
Court,
the accused Imelda R. Marcos and Jose P. Dans, Jr., public officers,
being
then the Chairman and Vice-Chairman, respectively, of the Light Rail
Transit
Authority (LRTA), a government corporate entity created under Executive
Order No. 603 of the former President Ferdinand E. Marcos, while in the
performance of their official functions, taking advantage of their
positions
and committing the crime in relation to their offices, did then and
there
wilfully, unlawfully and criminally conspiring with one another, enter
on behalf of the aforesaid government corporation into a Lease
Agreement
covering LRTA property located in Sta. Cruz, Manila, with the
Philippine
General Hospital Foundation, Inc. (PGHFI), a private enterprise, under
terms and conditions manifestly and grossly disadvantageous to the
government.
CONTRARY TO LAW."
In short, Marcos and Dans
were separately charged under Criminal Cases Nos. 17451 and 17452 for
accepting
employment in and/or acting as Chairman and Director, respectively, of
the PGHFI while the latter had pending business (the lease agreements)
with the LRTA, which they both also headed. With regard to the other
cases,
Criminal Case Nos. 17449, 17450 and 17453, the accusations against both
of them stemmed from the contracts they signed in representation of the
LRTA and of the PGHFI which were allegedly entered into "under terms
and
conditions manifestly and grossly disadvantageous to the government."
When arraigned,
petitioners
pleaded "not guilty" to all of the charges. Before trial could
commence,
Dans moved for the advance examination of defense witness Ramon F.
Cuervo,
Jr., a real estate broker, appraiser and friend of Dans who, as an
expert
witness, was in a position to inform the Court that the agreed lease
prices
stated in the subject agreements were fair based on standard industry
valuation
standards. The Court a quo granted said motion, and Cuervo was
allowed
to testify on August 12, 13, and 19, 1992. During this time, Marcos
never
questioned Cuervo and later expressed that she had no desire to further
examine him.[6]
Five days after the final hearing of Cuervo's testimony, the trial of
the
five cases opened with the formal offer of the prosecution's
documentary
evidence, which included, inter alia, the five agreements mentioned
earlier.
On November 23, 1992, the court issued an order admitting all the
exhibits
except Exhibits "D" and "E" as to Dans, who challenged the two sublease
agreements, and Exhibit "E-1 as to Marcos, who, while accepting the
validity
of said sublease agreement, nevertheless questioned the authenticity of
her signature thereon.
In Criminal Case No.
17543, Dans filed a Motion to Dismiss (Demurrer to Evidence) dated
December
7, 1992, but the court denied the same, as well as his motion for
reconsideration
thereof.
By the time the case
was submitted for decision, Marcos had neither submitted a formal offer
of evidence, despite notice of the court's orders[7]
to do so, nor the required memorandum. She did file a motion for
inhibition
of the justices of the Sandiganbayan's First Division on the ground of
pre-judgment of her case based on the Court's denial of Dans' Demurrer
to Evidence, but this was denied in the Court's Resolution of May 20,
1993.
On September 24, 1993,
the Court a quo rendered judgment,[8]
acquitting petitioners in Criminal Cases Nos. 17449, 17451, and 17452,
but convicting them in Criminal Cases Nos. 17450 and 17453. The
decretal
portion of the assailed decision is reproduced hereunder:
"WHEREFORE, judgment
is now rendered:
1. Acquitting the
accused
IMELDA R. MARCOS and the accused JOSE P. DANS, JR. of the charge in
Criminal
Case No. 17449, there being no manifest and gross disadvantage brought
about by the contract dated September 8, 1982;
2. Acquitting accused
IMELDA R. MARCOS in Criminal Case No. 17451, it not having been
demonstrated
that the information charging her had given her adequate notice of the
acts for which she could be held liable under the law;
3. Acquitting accused
JOSE P. DANS, JR. in Criminal Case No. 17452, it not having been
demonstrated
that the Information charging him had given him adequate notice of the
acts for which he could be held liable under the law;
and considering that
the charges against them have been proved beyond reasonable doubt
4. Convicting accused
IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17450 under
Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and
Corrupt
Practices Act, and hereby imposes upon each accused the penalty of
imprisonment
for an indeterminate period of nine (9) years and one (1) day as
minimum
to twelve (12) years and ten (10) days as maximum.
Both accused shall
also suffer the additional penalty of perpetual disqualification from
public
office as provided in Sec. 9 of R.A. No. 3019;
5. Convicting accused
IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17453 under
Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and
Corrupt
Practices Act, and hereby imposes upon each accused the penalty of
imprisonment
for the indeterminate period of nine (9) years and one (1) day as
minimum
to twelve (12) years and ten (10) days as maximum.
Both accused shall
also suffer the additional penalty of perpetual disqualification from
public
office as provided in Sec. 9 of R.A. No. 3019.
The Ombudsman is
given
thirty (30) days from today within which to make a determination of
whether
or not the other members of the Board of Directors of the Light Rail
Transit
Authority during the relevant periods with respect to the lease
contracts
dated June 8, 1984 and June 18, 1984 executed by said Authority with
the
Philippine General Hospital Foundation, Inc. may also be prosecuted
under
Sec. 3(g) of R.A. No. 3019, and to report to this Court at the end of
said
period whatever determination he has made including the steps intended
to be taken hereon towards a new preliminary investigation, if the same
is appropriate.
The bonds posted for
the provisional liberty of accused IMELDA R. MARCOS and accused JOSE P.
DANS, JR. in Criminal Case No. 17449, No. 17451 and No. 17452 are
hereby
CANCELLED.
SO ORDERED."
Petitioners filed their
respective Motions for Reconsideration of the Court's Decision on
October
8, 1993. The Office of the Solicitor General also filed a Motion for
Partial
Reconsideration on the same date, seeking civil indemnity for the
People
of the Philippines. On November 13, 1996, respondent Court promulgated
two resolutions, one denying the motion of Dans,[9]
and another denying that of Marcos and modifying the assailed September
24, 1993, decision with the addition of a sixth paragraph in the
dispositive
portion which dealt with the civil liability of petitioners, viz.:[10]
"6. Accused Imelda
R. Marcos and Jose P. Dans, Jr. are hereby ordered jointly and
solidarily
to reimburse the Light Railway Transit Authority for the prejudice that
they have caused to said Light Railway Transit Authority through the
lease
contracts which they executed.
(a) Under Criminal
Case No. 17450, the sum of Thirty Two Million One Hundred Seventy Two
Thousand
Pesos (P32,172,000.00);
(b) Under Criminal
Case No. 17453, the sum of Ninety Two Million Two Hundred Sixty Eight
Thousand
Eight Hundred Forty Pesos (P92,268,840.00)."
Aggrieved, petitioners
separately elevated their case to this Court for a review on the
following
grounds:
"I. Respondent Court
erred
in denying petitioner's Demurrer to Evidence in Criminal Case No. 17453
on the basis of baseless assumptions and conjectures not established by
evidence. Worse, in violation of mandatory rules of evidence, the
denial
of the demurrer was made to rest on the advance, conditional testimony
of defense witness Ramon Cuervo which had not yet been offered in
evidence.
II. Respondent Court
erred in concluding that the two lease contracts in question were
manifestly
and grossly disadvantageous to the government despite unrebutted
evidence
that their terms and conditions were fair and reasonable and did not
prejudice
the Government.
III. Respondent Court
erred when it assumed without evidentiary basis that LRTA had put up or
would put up buildings on the leased land.
IV. Respondent Court
erred in holding that the lease contracts were also grossly
disadvantageous
to the Government because "non-payment of rentalswas not
actionable
unless the rentals were in arrears for one year", citing the
stipulation:
"Should there be a delay in any payment of the rental consideration
equivalent
to one year, the lessor shall have the right to take possession of the
premises, the property and improvements thereon, the ownership of all
improvements
thereby accruing to the lessor." (Stip. II, par. 4).
V. Assuming without
admitting that LRTA would receive less than fair rental under the
disputed
lease contracts, respondent Court erred when it considered injury to
LRTA
as necessarily an injury to the Government, notwithstanding that such
supposed
injury to LRTA was offset by the corresponding benefit enuring to the
Philippine
General Hospital (a government hospital funded by government funds),
which
is inconsistent with the theory that the disputed lease contracts were
disadvantageous to "the Government." Under Sec. 3(g) of R.A. No. 3019
which
seeks to protect public interest in general by condemning contracts
disadvantageous
to the Government, the term "government" is used in its widest sense so
as to include "the national government, the government-owned and
government-controlled
corporations, and all other instrumentalities or agencies of the
Republic
of the Philippines and their branches." [Sec. 2(a)].
VI. While respondent
Court was duty-bound to be just and impartial, it failed to give
petitioner
a fair trial, who was thereby denied due process of law. Respondent
Court
was plainly biased against, if not downright hostile to, petitioner; it
unfairly allied itself with the prosecution, which made it prosecutor
and
judge at the same time.
VII. Aside from the
foregoing, the appealed decision is flawed by fatal infirmities which
have
effectively denied petitioner due process of law."
G.R. No. 126995
"A. The questioned
Decision is a nullity because Section 3 (g) of the Anti-Graft and
Corrupt
Practices Act (RA 3019, as amended) is unconstitutional for being, on
its
face, void for vagueness.
B. The questioned
Decision
is a nullity because Section 3 (g) of the Anti-Graft and Corrupt
Practices
Act (RA 3019, as amended) is unconstitutional for being a "rider."
C. The questioned
Decision
is a nullity because the Informations in SB Criminal Cases Nos. 17450
and
17453 did not state all the essential facts constituting the offense
but
instead stated conclusions of law, thereby denying the Petitioner her
constitutional
right to be informed of "the nature and the cause of the accusation"
against
her (Sec. 14 (2), Bill of Rights).
D. The questioned
Decision
is a nullity because the Information in said SB Criminal Cases Nos.
17450
and 17453 charged only two of the total number of members in the Board
of Directors of the LRTA and the Board of Directors of the PGH
Foundation,
who had participated in the collective acts, thereby singling
Petitioner
and her companion for discriminatory prosecution, in violation of her
right
to Equal Protection of the Laws, which violation existed from the
filing
of the information and cannot be cured by post hoc proceedings.
E. The questioned
Decision
is a nullity, because of the participation therein of Mr. Justice
Garchitorena,
whose long-standing bias and hostility towards President Marcos and
Petitioner
Imelda R. Marcos prevented him from having the requisite "cold
neutrality
of an impartial judge," in violation of her right as an accused person
to procedural due process of law.
F. The questioned
Decision
is a nullity because Petitioner was denied of her constitutional right
to counsel.
1. Facts of record
showing that Petitioner was deprived of and denied her right to
counsel.
2. Under the
circumstances
of record, the absence of counsel resulting from imposition of
suspension
from the practice of law upon her retained counsel, constituted
deprivation
of or denial of the right to counsel.
3. Facts of record
showing legal representation of Petitioner Imelda Marcos was not
adequate.
G. The questioned
Decision
is premature and had disregarded the constitutional right of the
Petitioner
to present evidence in her behalf. Her right to testify in her own
behalf
is a guaranteed right, the exercise of which is her personal choice
alone,
and which counsel had no authority to waive in her behalf. Besides,
counsel
being suspended, he could not have made a waiver. This constitutional
right
"to be heard by himself and counsel" she is invoking now, as part of
her
right to due process (Sec. 14 [1] and [2], Bill of Rights).
H. The questioned
Decision
is a nullity for it was rendered in derogation of Petitioners
subsisting
right to be heard and to submit evidence in her defense, The finding of
waiver is a prejudicial error. The evidence thereof on the record is
tenuous.
A waiver by an accused person of the right to be heard in her defense,
including her right to testify in her own behalf must be indubitable,
and
is valid only if personally exercised through her own manifestation in
open court.
I. The questioned
Decision
is a nullity because the crime charged was not proven beyond a
reasonable
doubt, and the presumption of innocence was not overcome, which is
required
by due process.
1. There was no
disadvantage
to the Government.
i. PGH Foundation
is
part of the "Government".
ii. There was no
disadvantage
to the "Government" because the PGH, which is part of the Government
benefited.
iii. Facts of
record,
especially the questioned leases, show no disadvantage.
iv. Conviction
was
based on pure speculation.
v. Respondent
Sandiganbayan
(First Division) erred in holding the leases disadvantageous as to
rental
in absence of evidence existing at the time that higher rentals should
have been paid.
vi. Respondent
Sandiganbayan
erred in holding that rentals for sub-leases were evidence of
disadvantage
when such sub-leases were made later and negotiated by a charitable
foundation
deserving of support through higher rentals.
2. Assuming
arguendo alleged
disadvantage, the same was not manifest nor gross.
3. Petitioner
Marcos
did not enter into the questioned lease contracts on behalf of the
Government.
4. The charge of
conspiracy
was not proved hence no basis for liability.
5. Conviction was
based
on weakness of defense evidence and not (on) strength of prosecution's
evidence.
J. The questioned
Decision
and Resolution are null and void because the Respondent Sandiganbayan
(First
Division) acted without jurisdiction in issuing the questioned Decision
and Resolution since the records clearly show that the Court with
jurisdiction
over these cases is the Special Division of Five Justices created by
Admin.
Order 288-93 pursuant to Sec. 5 of PD 1606 as amended and not
Respondent
Sandiganbayan (First Division)."
The Court resolved to consolidate
the two cases inasmuch as they raise similar issues and seek the same
reliefs.
The questions may be stated, thus:cralaw:red
(1) Was respondent
court correct in denying the demurrer to evidence of petitioner Dans in
Criminal Case No. 17453?
After the prosecution had
rested its case, Dans filed a Motion to Dismiss (Demurrer to Evidence)
dated December 7, 1992, based on Section 15, Rule 119 of the Rules of
Court.[11]
He argued that the prosecution failed to establish the fact that the
lease
agreement covering the Sta. Cruz lot (Exhibit "C") was manifestly and
grossly
disadvantageous to the government.[12]
On February 10, 1993,
the Court a quo denied the said motion in this wise:
"Since per testimony
of witness Ramon Cuervo, Jr. (tsn, pp. 20 to 26, August 13, 1992) that
considering the nature of the terminal at the Sta. Cruz Station, which
would be (the) subject of the lease contract between the Light Rail
Transit
Authority and the PGH Foundation, Inc. (Exhibit "C"), the rental of the
premises in question could go up to P400,000.00 per month if the LRTA
would
put up the building as against the stipulated rental of P92,437.00
actually
entered into between the parties, there would appear cause to believe
that
the lease contract in question was grossly disadvantageous for (sic)
the
government.
For this reason, the
Demurrer to Evidence of accused Jose P. Dans, Jr., dated December 7,
1992,
is DENIED for lack of merit."
Dans questioned the denial
on the ground that the demurrer should have been resolved solely on the
basis of the prosecution's evidence; and even assuming that it could be
resolved using the evidence for the defense, the latter must have been
previously formally offered.[13]
These arguments are
specious and must, therefore, be rejected.
Although a demurrer
to evidence must be resolved based on the evidence of the prosecution,
there is nothing in the rules which would bar the court from taking
cognizance
of any matter taken up during the trial or which has become part of the
records of the case, especially in this instance where the disputed
evidence
was taken in advance at the request of the defendant himselfAdditionally,
it is erroneous to suppose that Cuervo's testimony was not formally
offered
at the time because "(t)estimonial evidence is formally offered by the
calling of the witness to the stand."[14]
Thus, we find merit in the manner by which the trial court justified
the
denial of Dans' demurrer to evidence,[15]
viz.:
"First, the advance
testimony of Mr. Cuervo taken at the instance of Engr. Dans on August
12
and 13, 1992, was already part of the record(s) in these cases when the
Demurrer to Evidence was filed by Engr. Dans on December 7, 1992. The
testimony
was introduced into the record in exactly the same manner as any other
testimony would be presented in evidence during trial. Being
already
part of the record in these cases, the advance testimony of Mr. Cuervo
could be taken judicial notice of.
xxx
'(J)udicial notice
takes the place of proof and is of equal force. As a means of
establishing
facts it is therefore superior to evidence. In its appropriate field it
displaces evidence since, as it stands for proof, it fulfills the
objects
which the evidence is designed to fulfill and makes evidence
unnecessary.[16]
Consequently, 'the party desiring to establish a fact is relieved, when
judicial notice is taken of the fact, from introducing evidence to
prove
it.'[17]
"Second, having been
given
in the course of the proceedings in these cases, the testimony of Mr.
Cuervo
constitutes judicial admission of Engr. Dans who made it part of the
record
of these cases.
xxx
"As in judicial
notice
of a fact, 'admissions made in the course of the judicial proceedings
are
substitutes for, and dispense with, the actual proof of facts.'[18]
The party benefited by the admission is relieved of the duty of
presenting
evidence of the admitted fact and '(t)he court, for the proper decision
of the case, may and should consider, without the introduction of
evidence,
the fact admitted by the parties.'[19]
"Third, since the
advance
testimony of Mr. Cuervo was given in open court and duly recorded, the
Court could not just ignore the solemn declarations therein on the
technicality
that the testimony had not been formally offered in evidence."
In any event, even if the
testimony of Cuervo were to be excluded, there was enough evidence
proffered
by the prosecution, particularly Exhibits "B" (the lease agreement in
favor
of the PGHFI) and "D" (the sublease agreement in favor of TNCC) which
would
have more than justified the denial of the demurrer. In other words,
notwithstanding
Cuervo's testimony, these exhibits constitute solid documentary proof
of
petitioners liability under Section 3(g) of RA. No. 3019, as amended,
as
will be shown later in our discussion of Issue No. 5, "Was the evidence
properly appreciated by respondent court?"
2)
Were the informations
filed in Criminal Case Nos. 17450 and 17453 sufficient in form?
There appears to be
no doubt that the questioned informations are reasonably adequate as to
apprise Marcos on the nature and cause of the accusations against her.
In the case of Luciano v. Estrella,[20]
the Court had occasion to enumerate the elements of the Crime under
Section
3(g), R.A. No. 3019, namely, (1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the
government;
and (3) that such contract or transaction is grossly and manifestly
disadvantageous
to the government. The allegations in the two informations are hereby
reproduced
for quick reference:
"That on or about
June
8 [18], 1984, and for sometime prior or subsequent thereto, in Makati,
Metro Manila, Philippines, and within the jurisdiction of this
Honorable
Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public
officers,
being then the Chairman and Vice-Chairman, respectively, of the Light
Rail
Transit Authority (LRTA), a government corporate entity created under
Executive
Order No. 603 of the former President Ferdinand E. Marcos, while in the
performance of their official functions, taking advantage of their
positions
and committing the crime in relation to their offices, did then and
there
wilfully, unlawfully and criminally conspiring with one another, enter
on behalf of the aforesaid government corporation into a Lease
Agreement
covering LRTA property located in Pasay City [Sta. Cruz, Manila], with
the Philippine General Hospital Foundation, Inc. (PGHFI), a private
enterprise,
under terms and conditions manifestly and grossly disadvantageous to
the
government."[21]
(Emphasis supplied)
As can be readily observed,
the informations meet the minimum requirements for them to be upheld in
court.
It is also alleged
that "for a criminal complaint or information to sufficiently inform
the
accused of the nature and cause of the accusation against him, all the
essential facts constituting the offense must be stated therein, and
not
mere conclusions of law."[22]
Assuming that the
matters
which Marcos wanted to see alleged in the informations are not
evidentiary
in character, and that they are really vague and ambiguous, other
courses
of action could have been taken, such as filing a motion for a bill of
particulars. This is what the Court precisely suggested in People v.
Arlegui,[23]
viz.:
"A bill of
particulars
while provided for under Section 6 of Rule 116 is not a popular
procedure
among lawyers for the accused in criminal cases. For one thing, it may
invite an amended information which is not only clearer but may also be
stronger and more incriminating. However, it would have clarified and
corrected
at an early stage the kind of doubt which the accused in this
particular
case alleged to have entertained. Section 6 of Rule 116 provides:
SEC. 6. Bill of
Particulars. — Defendant may, at any time on or before
arraignment,
move for or demand a more definite statement or a bill of particulars
of
any matter which is not averred with sufficient definiteness or
particularity
to enable him properly to plead or prepare for trial. The motion shall
point out the defects complained of and the details desired.[24]
"The more appropriate
procedure under the circumstances would have been an order from the
court
directing the Fiscal to amend the information because the defect, if
there
ever was one, was curable by the simplest of amendments or
clarifications."
(Empahsis supplied)
In fact, the records reveal
that Marcos did file such a motion.[25]
After the prosecution had filed its answer thereto, she was given an
opportunity
to file a reply, but she did not, thereby indicating that she was
satisfied
with what was already stated in the answer.
3) Is Section 3(g),
R.A. No. 3019, as amended, constitutional?
The validity of this
provision is being assailed by petitioner Marcos on grounds of
vagueness
and superfluity. She claims that the phrase "manifestly and grossly
disadvantageous
to the government" is vague for it does not set a definite standard by
which the court will be guided, thus, leaving it open to human
subjectivity.
There is, however,
nothing "vague" about the statute. The assailed provision answers the
basic
query "What is the violation?" Anything beyond this, the "how's" and
the
"why's," are evidentiary matters which the law itself cannot possibly
disclose
in view of the uniqueness of every case. The "disadvantage" in this
instance
is something that still has to be addressed by the State's evidence as
the trial progresses. It may be said that the law is intended to be
flexible
in order to allow the judge a certain latitude in determining if the
disadvantage
to the government occasioned by the act of a public officer in entering
into a particular contract is, indeed, gross and manifest.
The personal
circumstances
of an accused are, in this regard, also immaterial, because of the
nature
of the statute. As the Court declared in Luciano:[26]
"In other words, the
act treated thereunder partakes of the nature of a malum prohibitum; it
is the commission of that act as defined by the law, not the character
or effect thereof, that determines whether or not the provision has
been
violated. And this construction would be in consonance with the
announced
purpose for which Republic Act (No.) 3019 was enacted, which is the
repression
of certain acts of public officers and private persons constituting
graft
or corrupt practices or which may lead thereto. Note that the law does
not merely contemplate repression of acts that are unlawful or corrupt
per se, but even of those that may lead to or result in graft and
corruption.
Thus, to require for conviction under the Anti-Graft and Corrupt
Practices
Act that the validity of the contract or transaction be first proved
would
be to enervate, if not defeat, the intention of the Act."
We, therefore, affirm the
constitutionality of Section 3(g) of R.A No. 3019, as amended.
4) Was petitioner
Marcos
deprived of her constitutional right to be heard by herself or counsel?
Marcos claims that
she was not adequately represented by counsel at the trial due to the
suspension
from the practice of law of her counsel of record, Atty. Antonio
Coronel.
It appears from the records, however, that during the absence of Atty.
Coronel and sometime thereafter, she was still represented by other
lawyers,
including Renato Dilag, Luis Sillano, Perfecto V. Fernandez, Jose and
Cristobal
Fernandez, Vicente D. Millora, Juan T. David, Balbino Diego, and the
law
firm of Manuel M. Lazaro and Associates. The representation of Atty.
Millora
and the Fernandezes subsisted even in this Court, where they were later
substituted by Atty. Estelito Mendoza. In any event, at the time Atty.
Coronel and his replacements withdrew their respective appearances, all
evidence had already been presented. It is just that Marcos opted not
to
present any evidence for her defense, relying, perhaps, on what she
perceived
to be glaringly weak prosecution evidence. Or it is not impossible or
far-fetched
that her refusal may have been due to her indifference to or open
defiance
of the justice system.
5) Was the evidence
property appreciated by respondent court?
In proclaiming his
innocence, Dans relied only on his and Cuervo's testimony. Marcos, on
the
other hand, presented no evidence at all, claiming that she had been
prejudged
by respondent court. The prosecution submitted documentary evidence and
nothing else. The question that must first be answered, therefore, is:
Was the State's evidence sufficient to prove beyond a shadow of a doubt
that the accused, petitioners herein, committed the crimes for which
they
were held accountable?
Petitioners were
charged
with and found guilty of violating Section 3(g) of R.A. No. 3019, as
amended.
It states thus:
"SEC. 3. Corrupt
practices of public officers. — In addition to acts or omissions
of
public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby
declared
to be unlawful:
xxx
(g) Entering, on
behalf
of the Government, into any contract or transaction manifestly and
grossly
disadvantageous to the same, whether or not the public officer profited
or will profit thereby."
It is clear that for liability
to attach under the aforequoted provision, the public officer concerned
must have entered into a contract which is manifestly and grossly
disadvantageous"
to the Government. The court a quo phrased the focal issue in these
petitions
in this wise: "(A)re exhibits 'A,' 'B' and 'C', the Lease Agreements
executed
by the LRTA with the PGH Foundation over the LRT property at the
stations
in Pasay City and Sta. Cruz (Manila) 'manifestly and grossly
disadvantageous
to the government'?"
A perusal of the
prosecution's
documentary evidence would readily reveal, even from a layman's
perspective,
that the Government was seriously prejudiced in the transactions under
review.
We concur with the
observation of the court a quo that, by itself, Exhibit "A," the
"mother
contract" which initially granted the PGHFI a virtual exclusive license
or franchise over the subject properties, "would neither be prejudicial
(n)or beneficial to anybody," because it did not refer to any specific
property or consideration. Hence, petitioners were correctly acquitted
in Criminal Case No. 17449, which was based on this agreement.
With regard to Criminal
Cases Nos. 17450 and 17453, the Court is likewise constrained to agree
with the trial court that the Government suffered a manifest and gross
disadvantage with the execution of the two lease agreements, Exhibits
"B"
and "C." The facts in this regard are undisputed.
The monthly rental
price agreed upon between the LRTA and the PGHFI for the lease of the
Pasay
lot was P102,760.00, and for the Sta. Cruz lot, it was P92,437.20.
Barely
ten days later, the very same properties were subleased by PGHFI to
private
entities for P734,000.00 (for the Pasay lot) and P199,710.00 (for the
Sta.
Cruz lot). The difference in the lease price is too enormous to ignore,
for no market force could possibly have raised the rental cost in the
same
site by that margin in just over a week. Even by conservative
estimates,
the properties could have originally been leased out for at least
P500,000.00[27]
more. The Government was thereby deprived of at least an additional
half
a million pesos per month.
Indubitably, there
was some kind of conflict of interest in the premises. Marcos and Dans,
who were then Cabinet members, occupied the highest positions in the
Boards
of the LRTA and the PGHFI in a concurrent capacity at the time the
questioned
deals were made. They were, as it were, playing both ends; but on
paper,
one was acting for the lessor and the other for the lessee. The fact
that
petitioners were cleared of the charge that they acted improperly in
accepting
seats in the PGHFI Board of Trustees at the time when it had pending
business
transactions with the LRTA, of which they were also officers is of no
moment.
First, their acquittal in Criminal Case No. 17451 and No. 17452 was
simply
due to the insufficiency of the informations. Second, the accusation in
said informations have no bearing whatsoever on the subject matter of
the
other cases filed against them as signatories to the assailed lease
agreements.
Even Justice Garchitorena had occasion to advert to this conflict of
interest
in his resolution of November 13, 1996.[28]
The focus now shifts
to the testimony of defense witness Ramon Cuervo. An examination of the
pleadings filed in these petitions, including all their attachments,
would
demonstrate the confusion sown by Cuervo's expert opinion. Petitioners
insist that Cuervo confirmed their allegation that the lease price
stated
in the questioned agreements was a fair valuation based on the
comparative
rental costs in the immediate vicinity of the subject properties. This
inference was drawn from Cuervo's calculation of the fair monthly
rental
value of the Pasay lot at P73,400.00[29]
and the Sta. Cruz lot at P80,825.64,[30]
using standard appraisal techniques in the industry.
The court, on the other
hand, interpreted his testimony differently and arrived at a much
higher
valuation, that is, P210,000.00 a month for the Pasay lot and
P400,000.00
monthly for the Sta. Cruz lot.
In view of this
conflict
in opinion, with petitioners and respondent court holding steadfast to
their respective interpretations of Cuervo's testimony, this Court has
no alternative but to fall back on the documentary evidence.
Dans, in his motion
to dismiss dated December 7, 1992, actually made an implied recognition
that the prosecution was able to establish the manifest and gross
disadvantage
to the government brought about by the lease agreement over the Pasay
lot
(Exhibit "B"), when he raised no objection to the presentation by the
prosecution
of the sublease agreement between the PGHFI and TNCC over the same
property
(Exhibit "D"). Just as he read the lease and sublease agreements over
the
Sta. Cruz lot (Exhibits "C" and "E") together in order to demonstrate
to
the Court that the prosecution's evidence in Criminal Case No. 17453
was
weak, Exhibit "B" must also be appreciated in connection with Exhibit
"D"
so that the "gross and manifest" disadvantage to the government in
Criminal
Case No. 17450 can be established.
It must be noted that
Dans objected vigorously to Exhibit "E" on the ground that it was a
mere
photocopy of the original. Despite diligent efforts to locate an
original
duplicate or an authentic copy, the prosecution could not produce one,
so that as to Dans, said exhibit was not admitted. The same cannot be
said
of Marcos who never challenged the authenticity of Exhibit "E,"
although
she contested the validity of her signature thereon as representative
of
the PGHFI, the lessor.
For a better
appreciation
of the evidence at hand, the lease agreements (Exhibits "B" and "C")
must
be read simultaneously with the sublease agreements (Exhibits "D" and
"E").
While Dans signed the lease agreements in behalf of the LRTA, he
apparently
had no hand in the ensuing sublease of the properties, as indicated by
the absence of his signature from the two subsequent agreements.
Marcos,
on the other hand, represented the PGHFI twice, first in the lease
contract
and later in the sublease agreements. Within the very brief period of
time
that separated the lease and the sublease of the LRTA's prime lots,
Marcos
inevitably generated a situation where the LRTA, a government
corporation,[31]
lost out to the PGHFI, a private enterprise[32]
headed by Marcos herself.
But, considering that
there is an allegation of conspiracy in the informations, the
sufficiency
of which we have earlier upheld, should the liability of Dans be the
same
as that of Marcos?
The Court a quo
entertained no doubt that the prosecution's evidence amply established
a conspiracy between Dans and Marcos, thus:
"(T)he avowed purpose
of both accused in entering into the Lease Agreements was not to earn
additional
income for the use of the LRTA in its operations, but to give financial
assistance to the PGHF in the pursuit of its charitable objectives.
xxx
"This expressly
admitted
purpose explains why the rentals stipulated in the Lease Agreements
were
so low that when compared with the rentals provided in the Sub-Lease
Agreements,
the latter deceivingly appear, to borrow the words of Mr. Cuervo, to be
"extra-ordinarily high." To have fixed much higher rentals would have
been
to reduce the income which both the accused would like the PGHF to earn
from the lease contracts. And the rentals in the Lease Agreements all
the
more became very low in light of the fact that the Agreement for the
development
of the areas adjacent to the LRT stations was without any valuable
consideration."[33]
In these cases, Engr. Dans
and Mrs. Marcos had a common objective, namely, to lease in favor of
the
PGHF the Pasay City and Sta. Cruz properties under such terms and
conditions
so favorable to the PGHF as to result in manifest and gross
disadvantage
to the LRTA. This common purpose they pursued together and in concert
with
each other, being in the position to do so because they were both
ranking
officials of the LRTA and the PGHF.
Thus, on September
8, 1982, avowedly desirous to extend financial support to the PGHF (not
to the PGH), Engr. Dans, representing the LRTA, and Mrs. Marcos, as
chairman
of the PGHF, executed an agreement wherein without any valuable
consideration,
the latter was granted (exclusive) authority to develop areas adjacent
to the LRT stations and to operate commercial concessions therein.
In furtherance of their
common design and pursuant to their intention to financially benefit
the
PGHF, Engr. Dans and Mrs. Marcos, acting in their said representative
capacities,
entered into a Lease Agreement on June 8, 1984, over the Pasay City
area
for P102,760.00 a month and another Lease Agreement ten days later over
the Sta. Cruz Area for P92,437.20 per month. As already demonstrated,
the
monthly rentals and other stipulations in both contracts placed the
LRTA
in a manifestly and grossly disadvantageous position.
Engr. Dans and Mrs.
Marcos were, therefore, both co-conspirators for having acted in
conspiracy
with each other and co-principals by direct participation for having
taken
direct part in the execution of the acts charged. Engr. Dans could not
have committed the offenses without Mrs. Marcos and vice-versa."[34]
While these
observations
cannot be said to be flawed, they were made only after the trial, in
fact,
after the assailed decision was promulgated, and these conclusions are
the court's alone. The prosecution never attempted to establish a
connection
between the two defendants in committing the acts for which they were
charged.
It is a fundamental rule, however, that a charge of conspiracy must be
proven just like any other criminal accusation, that is, "independently
and beyond reasonable doubt."[35]
In this regard, therefore, this Court's opinion that the alleged
conspiracy
between the petitioners was not sufficiently established by the State's
evidence.
6) Were the members
of the Sandiganbayan's First Division biased against petitioners?
Consequently,
is the assailed decision dated September 24, 1993, valid?
Petitioners consider
erroneous the active participation of the members of the
Sandiganbayan's
First Division during the hearing of Cuervo's testimony. The records
reveal
that, indeed, the court a quo may have participated more actively than
usual in the examination of Cuervo in order to elicit from him the
information
that would nail down the prosecution's basic theory, thus rendering
unassailable
the conclusions which are now being impugned by petitioners who argue
that
the extensive questioning of Cuervo[36]
made the Sandiganbayan, particularly Justice Garchitorena, not only a
judge,
but a prosecutor as well.
To be sure, instead
of being satisfied with Cuervo's testimonial affirmation of what it had
all along considered to be the fair rental value of the properties, the
court a quo relied on his responses to numerous postulated queries
thereby
concluding there was a "gross disparity" in the lease price, as agreed
upon by the parties, and the projected rental price, as estimated by
Cuervo.
Indeed, if the trial court's conclusions were to be followed, the Pasay
lot should fetch a monthly rental of P210,000.00 and the Sta. Cruz lot,
P400,000.00. These figures are extrapolated from the potential rental
price
of the lots, considering its location.
Petitioners point out
that the limitations on the right of judges to ask questions during the
trial were not observed by the Sandiganbayan. They accuse Justice
Garchitorena
of acting more of a prosecutor than the impartial judge he is supposed
to be, particularly during the examination of Cuervo. Lest we be
distracted
by this allegation of bias on the part of respondent court, it must be
remembered that petitioners were never prejudiced by such questioning,[37]
which is about the only thing that would make a string of queries by a
judge objectionable. As the following discussion will reveal, the trial
court's interpretation of Cuervo's testimony is immaterial because of
the
sufficiency of the documentary evidence of the prosecution to prove the
charges against herein petitioners.
In view of the
circumstances
obtaining here, we find that the trial court's active role in this
regard
was necessary to clarify the mostly technical aspect of Cuervo's
testimony.
Respondent court defended its action by declaring that:
"It was precisely for
the reason that Mr. Cuervo was merely asked by Engr. Dans' lawyer as to
the fair and reasonable rentals of the leased premises as without
improvements,
without the LRT stations being adjacent thereto, and not parts of
commercial
centers, that the Court, through Presiding Justice Garchitorena, was
constrained
to propound questions on the fair and reasonable rentals of the leased
areas by considering them as not ordinary parcels of land."[38]
The Court notes that while
petitioners have been making such an outcry since the promulgation of
the
questioned judgment regarding the line of questioning followed by
respondent
court, none of them ever objected to such queries during the trial.
Neither
did they attempt to salvage the situation by asking questions on
re-direct
examination if they harbored the impression that the court's
cross-examination
seriously prejudiced their case. This observation was likewise made by
the Court a quo, to wit:
"It is now too late
in the day to object to the alleged leading, misleading, and badgering
questions of the Presiding Justice Garchitorena and to ask (the court)
to expunge the answers thereto from the record. Needless to say, Engr.
Dans (and Marcos, for that matter) should have done so when the
supposed
objectionable nature of the questions and/or answers were propounded or
given. (Section 36, Rule 132, 1985 Rules on Evidence). As it happened,
he (and she) did not even raise his (and her) objections at the close
of
the testimony of Mr. Cuervo. He (and she) did not also ask re-direct
questions
to correct whatever mistakes or misimpressions allegedly crept into Mr.
Cuervo's testimony. Instead, he formally offered the entire testimony
without
making any exceptions or reservations."[39]
We should stress that in
affirming the conviction of petitioner Marcos, this Court relies mainly
on the prosecution's documentary evidence showing the chasmic disparity
between the P102,760.00 monthly rental stipulated in Exhibit "B" and
the
P734,000.00 monthly rental provided in Exhibit "D." The testimony of
Cuervo
is, at best, opinion only, but the amounts mentioned in the said two
exhibits
are facts which cannot be altered by opinion, however "expert."
Regardless
of Cuervo's expert opinion on the probable rental rate of the Pasay
lot,
the stubborn fact and cold reality is that the PGHFI was able to lease
it out for an amount that was seven times more than what it stipulated
to pay the government. The sublease (Exhibit "D") is the best monument
to the "gross and manifest disadvantage" suffered by the government due
to the willful actions of Marcos. Hence, even if the questions of
Justice
Garchitorena and the answers thereto of Cuervo were totally ignored by
this Court, the prosecution's evidence would still firmly stand, and
would
definitely be more than sufficient to warrant a conviction beyond
reasonable
doubt.
Going further,
petitioners
insist that some impropriety attended the promulgation of the
challenged
decision. This allegation stems from the dissolution of the Special
Division
earlier created by Justice Garchitorena because of the lack of
unanimity
among the members of the First Division.
It appears from the
records that Justice Narciso T. Atienza initially wanted to acquit the
defendants in Criminal Case Nos. 17449, 17451 and 17452, while Justices
Garchitorena and Balajadia wanted to convict them in Criminal Case Nos.
17450, 17451, 17452 and 17453. There was, therefore, no unanimous vote
in Criminal Case Nos. 17451 and 17452. Thereupon, a Special Division
was
constituted, with the addition of Justices Augusto M. Amores and
Cipriano
A. del Rosario. Over an informal luncheon among the members of the
newly-created
Special Division,[40]
however, where the merits of the cases were incidentally discussed, an
understanding was reached whereby the two newly-appointed members
agreed
with Justice Atienza that the defendants should be cleared of the
charges
in Criminal Case Nos. 17451 and 17452. The stance of those present was
that if the actual voting were to take place, the majority would acquit
the defendants in Criminal Case Nos. 17451 and 17452. Consequently,
Justices
Garchitorena and Balajadia decided to change their opinions in said two
cases, thus giving the First Division a unanimous vote in all the
cases.
There seemed to be no further need for the Special Division; hence, it
was dissolved. The result is the assailed decision promulgated, as
scheduled,
on September 24, 1993.
Petitioners point out
that once the Special Division was created, the First Division was
thereby
divested of jurisdiction to decide the case. They also maintain that
the
informal discussion of the merits of the cases inside a restaurant was
unofficial business and, therefore, should have no binding effect.
While it is true that
under Section 5 of Presidential Decree No. 1606, as amended, when a
unanimous
vote is not reached by a division, two other justices shall be
designated
by the Presiding Justice to sit in a special division, and their
majority
vote shall be required to reach a valid verdict, this provision does
not
totally rule out a situation where all members of the 3-justice
division
eventually come to a common agreement to reach a unanimous decision,
thus,
making another division's participation in these cases redundant. This
is exactly what transpired in this case. The change of heart of
Justices
Garchitorena and Balajadia, though reached unofficially, may be
perceived
as a supervening event which rendered the Special Division's functions
superfluous. In any case, the fact that Justice Atienza signed his
concurrence
cured the defect, if any, in the questioned judgment; again, an
illustration
of the "curative" effect of one's signature. Petitioners are of the
impression
that this chain of events was meant to 'railroad' their conviction,
thus
making the magistrates concerned vulnerable to criticism. While the
Court
is averse to encouraging this kind of behavior in judges, it is of the
view, however, that the assailed decision is in harmony with the basic
right of an accused to a speedy disposition of his case. This, to our
mind,
is more important than any consideration of technical impropriety in
resolving
a case.
Summing up, was the
guilt of petitioners proved beyond a reasonable doubt by the
prosecution?
We distinguish.
In Criminal Case No.
17453, we do not concur with the conclusions reached by the Court a
quo. The culpability of petitioners in this case stems from their
entering
into the lease agreement (Exhibit "C") over the Sta. Cruz lot under
terms
and conditions manifestly and grossly disadvantageous to the
government,
which, in this instance, is the LRTA. To prove this assertion, the
prosecution
presented in evidence the sublease agreement (Exhibit "E") over the
same
property showing the disparity in the rental price. While the
authenticity
of Exhibit "D," which was used to prove the manifest and gross
disadvantage
to the government occasioned by Exhibit "B," was admitted by the court
and by the parties themselves, the validity of Exhibit "E" cannot, even
up to this point, be determined with certainty because it is a mere
uncertified
photocopy of the original. Thus, the "gross and manifest" disadvantage
to the government, which Exhibit "E" was supposed to engender, remains
an allegation which cannot be proved by other direct evidence. The fact
that only Dans objected to its admissibility does not mean that it is
valid
as to Marcos. As a result, both petitioners should be, as they are
hereby,
acquitted in Criminal Case No. 17453 on ground of reasonable doubt.
In Criminal Case No.
17450, We must further qualify our judgment.
As regards petitioner
Dans, the Court is of the opinion that the prosecution failed to prove
his guilt in committing the offenses charged beyond a reasonable doubt.
We believe that his liability, if any, could only stem from a knowledge
of the terms of the sublease agreements, Exhibits "D" and "E," which
formed
the core of the Court's appraisal of the manifest and gross
disadvantage
to the government. Exhibit "E," as already discussed, was correctly
disregarded
by the court a quo for being unauthenticated. Even though he was a
Board
Director of the PGHFI, Dans denied any knowledge of the execution of
Exhibits
"D" and "E," and his denial was never disproved by the prosecution. In
fact, his signature does not appear in either sublease agreements.
Neither
was the alleged conspiracy between him and Marcos established by the
prosecution.
It is this Court's
opinion, however, that the guilt of petitioner Marcos was proved by the
State beyond reasonable doubt. She was charged with violation of
Section
3(g) of R.A. No. 3019, as amended, for executing a lease agreement
(Exhibit
"B") in behalf of the PGHFI, a private enterprise of which she was the
Chairman, over a lot located in Pasay City owned by the LRTA, a
government
corporation of which she was undeniably also the Chairman. The
consideration
therefor was shown to be unfair and unreasonable upon comparison with
the
rental price stipulated in the sublease agreement (Exhibit "D") which
she
subsequently signed for the PGHFI in favor of TNCC. That she should be
held responsible is shown by the presence of her signature in Exhibits
"A" to "E," where she acts in different capacities. She cannot, under
these
circumstances, claim ignorance of the great disparity between the
rental
price stipulated in the lease and the sublease agreements.
Consequently,
in Criminal Case No. 17450, the conviction of petitioner Marcos should
be, as it is hereby, upheld.
Finally, the Court
observes that the Sandiganbayan awarded damages to the People in the
amount
of P32,172,000.00 in Criminal Case No. 17450 and P92,268,840.00 in
Criminal
Case No. 17453. This must be accordingly corrected.
Considering that
petitioners
were acquitted in Criminal Case No. 17453 due to lack of evidence, the
Court deems them likewise free from any civil liability since the fact
from which such liability might arise no longer exists.[41]
On the other hand,
in Criminal Case No. 17450, the Court observes that an error has been
committed
in the computation of the damages to be awarded to the People. The
trial
court based its figures on the amount it perceived to be the fair
rental
value of the Pasay lot, as estimated by Cuervo, less the rental price
stated
in Exhibit "B." Thus, it deducted P102,760.00 (the stipulated monthly
rental
for the Pasay lot) from P210,000.00 (Cuervo's estimate, as interpreted
by the court a quo) to arrive at a difference of P107,240.00, which was
multiplied by 12 months to reach an "annual loss" of P1,286,880.00.[42]
This amount was then multiplied by the life span of the lease contract,
which is 25 years, to come up with the final award of P32,172,000.00.[43]
Since the estimates
of Cuervo were found to be mere "estimates," it is difficult to imagine
why the trial court used them as basis for its calculation of damages.
As we have already demonstrated, the gross and manifest disadvantage to
the government in Criminal Case No. 17450 was determined by comparing
Exhibits
"B" and "D." The conviction of Marcos was predicated on the nexus
between
these two documents, as well as on her obvious conflict of interest in
entering into them. By the same token, her civil liability must also be
made to depend on these two pieces of evidence. The correct figures
should
be those stated in Exhibits "B" and "D", to wit: P734,000.00 (the
stipulated
monthly sublease rental for the Pasay lot) less P102,760.00 (the agreed
monthly lease price for said property) times 12 months times 25 years.
Thus, P734,000.00–P102,760.00 = P631,240.00 x 12 months = P7,574,880.00
x 25 years = P189,372,000.00.
WHEREFORE, judgment
is hereby rendered:
(1) AFFIRMING the
conviction
of petitioner Imelda R. Marcos in Criminal Case No. 17450, with the
modification
that said petitioner is hereby ordered to pay the Light Rail Transit
Authority
(LRTA) the amount of ONE HUNDRED EIGHTY-NINE MILLION, THREE HUNDRED
SEVENTY-TWO
THOUSAND PESOS (P189,372,000.00), as and by way of reimbursement for
the
prejudice caused thereto resulting from the execution of the lease
contract
dated June 8, 1984; and
(2) REVERSING the
conviction
of petitioner Imelda R. Marcos in Criminal Case No. 17453 and of
petitioner
Jose P. Dans, Jr. in Criminal Case No. 17450 and No. 17453, on ground
of
reasonable doubt.
Costs against
petitioners.
SO ORDERED.
Narvasa,
C.J
.
and Panganiban,
J
, concur.
Separate
Opinions
FRANCISCO, J., concurring
and dissenting:
I join the ponencia
in the acquittal of petitioner Jose P. Dans, Jr. but find myself unable
to agree with the conviction of petitioner Imelda R. Marcos, in the
light
of the peculiar circumstances attendant herein.
This controversy raises
seven issues:
1) the
constitutionality
of Sec. 3(g) of Anti-Graft and Corrupt Practices Act;
2) the sufficiency
of the criminal informations;
3) whether petitioner
Marcos was properly represented by counsel during the trial;
4) the validity of
the decision rendered by the First Division of Sandiganbayan;
5) the denial of
petitioner
Dans' demurrer;
6)
appreciation/weight
of the evidence; and
7) the alleged lack
of fair trial.
I concede the correctness
of the ponencia's findings as to the: (a) constitutionality of Sec.
3(g)
of Anti-Graft and Corrupt Practices Act, (b) sufficiency of the
informations,
and (c) proper representation of petitioner Marcos by counsel. However,
with respect to the constitutionality issue, I hasten to add that
contrary
to petitioner Marcos' claim, Sec. 3(g) is not a rider and therefore is
not violative of the "one-title-one-subject" provision of the
Constitution.
There is nothing in the subject of Section 3(g), which reads:
"(g). Entering, on
behalf of the Government, into any contract or transaction manifestly
and
grossly disadvantageous to the same, whether or not the public officer
profited or will profit thereby."
That is not germane to
the title of R.A. 3019 which is "Anti-Graft and Corrupt Practices Act".
This law covers wrongdoings committed by public officers. Section 3(g)
does not deal with "negligence/mistake" as erroneously argued by
petitioner
Marcos. Rather, it deals with a public officer's act of entering into a
"dishonest transaction in relation to official acts" per petitioner
Marcos'
own definition of "corruption."[1]
Even assuming arguendo, that the act punished under Section
3(g)
may be considered as negligent by nature, yet the opening statement of
Section 3 clearly defined and classified it as one "constituting a
corrupt
practice."[2]
It is within the province of the legislative body to define and
describe
what acts are criminal and to prescribe the penalty therefor. In any
case,
petitioner Marcos failed to show a clear case of unconstitutionality of
Section 3(g) and thus was not able to rebut, even by a mere scintilla
of
evidence or argument, the presumption of constitutionality of the
assailed
provision.
I, however, strongly
disagree with the ponencia's stand on the following points:
1. Re: Demurrer
The Sandiganbayan
Resolution
dated February 10, 1993 denying petitioner Dans' demurrer to evidence,
reads:
"Since per testimony
of witness Ramon Cuervo, Jr. (tsn., pp. 20 to 26, August 13, 1992) that
considering the nature of the terminal at the Sta. Cruz Station, which
would be subject of the lease contract between the Light Rail Transit
Authority
and the PGH Foundation Inc. (Exhibit C), the rental of the premises in
question could go up to P400,000.00 per month if the LRTA would put up
the building as against the stipulated rental of P92,437.00 actually
entered
into between the parties, there would appear cause to believe that the
lease contract in question was grossly disadvantageous for the
government.
"For this reason, the
Demurrer to Evidence of accused Jose P. Dans, Jr., dated December 7,
1992
is DENIED for lack of merit.
It was highly improper
for the Sandiganbayan to have ruled on the demurrer on the basis of the
advanced testimony of defense witness Cuervo. A demurrer tests the
sufficiency
or insufficiency solely of the prosecution evidence and the trial
court's
resolution in connection therewith should be strictly limited to that.
This is unmistakably deducible from Section 15, Rule 119 of the Revised
Rules of Criminal Procedure, which states that a demurrer is filed and
resolved when it is only the prosecution that has rested its case.
Thus:
"Section 15. Demurrer
to evidence. — After the prosecution has rested its case, the court
may dismiss the case on the ground of insufficiency of evidence; (1) on
its own initiative after giving the prosecution an opportunity to be
heard;
or (2) on motion of the accused filed with prior leave of court.
"If the court denies
the motion for dismissal, the accused may adduce evidence in his
defense.
When the accused files such motion to dismiss without express leave of
court, he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution."
That witness Cuervo's testimony
was taken in advance which the Sandiganbayan took judicial notice of,
is
no justification at all for the premature consideration of said defense
evidence. For otherwise, it is tantamount to an adjudication on the
merits
even before the defense takes its turn to present all evidence it deems
necessary to its cause.
2. The jurisdictional
fiasco between the First and Special Division.
There is merit in
petitioner
Marcos' contention that it should not be the First Division (with 3
members
namely, Justices Garchitorena, Balajadia and Atienza) but the Special
Division
(with 5 members namely, Justices Garchitorena, Balajadia, Atienza, Del
Rosario and Amores) that has jurisdiction to render a "decision" on the
case. The legal requirement of the unanimity in the votes of three
members
of the (First) Division was not obtained due to the dissent of Justice
Atienza. As culled from the "Response" of Justice Garchitorena[3]
to petitioner Marcos' motion for his inhibition, in the initial voting,
Justices Garchitorena and Balajadia voted to convict petitioner Marcos
in Criminal Cases 17450, 17451 and 17449 and to acquit her in Criminal
Case 17453, whereas Justice Atienza voted to convict her in Criminal
Cases
17450 and 17453 and acquit her in Criminal Cases 17449 and 17451. Thus,
on September 15, 1993, Justice Garchitorena issued Administrative Order
288-93 forming a Special Division and designated Justices Amores and
Del
Rosario to "sit and participate in the rendition of a decision in
Criminal
Cases 17449 — 17453 People of the Philippines v. Imelda Marcos and Jose
Dans."[4]
On September 21, 1993, Justices Garchitorena, Balajadia and Del
Rosario,
in the presence of another Sandiganbayan Justice[5]
not a member of either the First or Special Division, discussed their
respective
positions while having lunch in a Quezon City restaurant. Justice Del
Rosario
had similar conclusions with that of Justice Atienza. That same day
(September
21), Justice Amores sent a written request that he be given 15 days
before
submitting his "manifestation" which request was considered by Justice
Garchitorena as "pointless because of the agreement of Justice
Balajadia
and the undersigned with the conclusion reached by Justice Atienza."[6]
Upon arriving at the Sandiganbayan office on the same day of September
21, 1993 Justice Garchitorena issued Administrative Order 293-93[7]
dissolving the Special Division "after deliberation and discussion
among
the members of the First Division," thus, not only pre-empting whatever
opinion Justice Amores might render in his manifestation but likewise
rendering
nugatory the formation of the special division. A decision was earlier
scheduled for promulgation on September 24, 1993 which turned out to be
the now-assailed decision of the Sandiganbayan First Division.
From the foregoing,
it is very disturbing why it was the First Division which rendered a
"decision"
notwithstanding the fact that the Special Division had already been
created
precisely because the First Division could no longer render any
"decision"
for lack of unanimity among its members, as required by Section 5 of
the
Sandiganbayan law (P.D. 1606 as amended), which reads:
"Section 5. Proceedings,
how conducted; votes required. — The unanimous votes of the three
justices
in a division shall be necessary for the pronouncement of a judgment.
In
the event that the three justices do not reached a unanimous vote, the
Presiding Justice shall designate two other justices from among the
members
of the Court to sit temporarily with them, forming a division of five
justices,
and the concurrence of a majority of such division shall be necessary
for
rendering a judgment." (Emphasis supplied).
Verily, by virtue of the
creation of the Special Division, it is axiomatic that the First
Division
is divested of jurisdiction to pass judgment over the case in favor of
the Special Division. And there is nothing in the law or rules that
allows
the original division to "re-render" a decision once a Special Division
is already in place. Moreover, it was too speculative for Justice
Garchitorena
to consider as pointless Justice Amores' manifestation. Who knows,
Justice
Amores' opinion could have swayed the other Justices, and thus a
different
outcome may have possibly resulted.
Another point. The
Sandiganbayan law provides that:
"The Sandiganbayan
shall have its principal office in the Metro Manila area and shall hold
sessions thereat for the trial and determination of all cases filed
with
it irrespective of the place where they may have arisen."[8]
And its Rules of Procedure
particularly clarifies that:
"sessions of the
Sandiganbayan,
whether en banc or division, shall be held in its principal
office
in the Metropolitan Manila area where it shall try and determine all
cases
filed with it."[9]
(Emphasis supplied.)
The Quezon City restaurant
where the Justices (Garchitorena, Balajadia and Del Rosario) took lunch
and where they, as per Justice Garchitorena's account, "discussed their
positions in these cases"[10]
is not the principal office or an extension of the Sandiganbayan.
Neither
was there any prior valid authorization to hold sessions therein.
Clearly
then, whatever discussion and agreement was made among the
above-mentioned
Justices present in that restaurant cannot be considered as "official
business"
and therefore, has no binding effect.
Moreover, the presence
of a non-member of the First Division in the deliberation of the cases
likewise taints the decision with irregularity. Needless to state, the
actual decision-making process is supposed to be conducted only by the
designated members of the First Division in strict confidentiality. The
"non-member" justice's presence in said deliberation is tantamount to a
public disclosure of court proceedings that require utmost secrecy.
This,
and the jurisdictional fiasco between the First and Special Divisions
as
previously discussed, rendered the assailed decision, sad to say, void.
3. Appreciation/Weight
of Evidence.
The centerpiece
evidence
for petitioners is the testimony of Mr. Cuervo who, in the light of his
unquestioned credentials as a reputable veteran real estate broker and
appraisal,[11]
qualified as an expert witness. He gave a brief description of what a
real
estate broker and an appraiser do. A broker earns his living through
services
by offering for sale properties that had been entrusted to him, or to
lease
or administer them, or even for mortgage purposes. An appraiser,
witness
Cuervo continues, gives a knowledgeable opinion on what would be a fair
market value for a specific property whether it be for sale, lease,
mortgage
or exchange. He also gives an opinion on what should be a fair rental
for
the property, or what should be the selling price of a property if the
owner wishes to sell or exchange it with another property.[12]
Now to the heart of
Cuervo's testimony, hereby reduced to its simplest presentation. In
determining
fair rental value of properties, first to be determined is the fair
market
value (FMV) of the property. FMV of properties already for sale in the
market is based on the market data approach which considers how much
properties
in that particular area were sold, how much properties were being
offered
for sale in said area and also inputs from fellow appraisers and
brokers.[13]
The size, shape, frontage and configuration of the property are also
very
relevant in determining FMV.[14]
Fair rental is then computed on 6% to 8% of the FMV of the property,
this
being the most reasonable and commonly used value for long-term leases
of land in areas where the value of the land appreciates more rapidly.[15]
Thus, for the 7,340
sq. m. Pasay property, which is bare, Cuervo determined its FMV at
P1,000.00
to P1,500.00 per square meter.[16]
This valuation considered offers for sale, actual sales and appraisal
jobs
by witness Cuervo's own real estate firm of comparable lots in the same
vicinity which, as testified to by witness Cuervo and summarized by the
Sandiganbayan, are:
"Offers for sale in
the 'Bulletin Today'
"On January 20, 1984:cralaw:red
629 sq. m.
located
along Taft Avenue Pasay City, offered for sale by Polo Manrique Realty
with an asking price of P2,500 per square meter.
On October 16, 1983:cralaw:red
RGV Realty offered
for sale 1,000 sq. m. with improvement thereon along Taft Avenue, Pasay
City, at P1.7 million or an average per square meter of P1,688.
On September 4, 1984:cralaw:red
R.F. Pula, another
broker, offered for sale 300 sq. m. of lot located on F.B. Harrison
near
Libertad St., Pasay City, for P1,500 per square meter.
The firm of the witness
itself had also made the following appraisal jobs:cralaw:red
On June 7, 1984:cralaw:red
Property along EDSA
and Vizcarra St. close to Taft Avenue with an area of 823 sq. m. at
P2,500
per square meter.
On June 6, 1984:cralaw:red
25 contiguous lots
along Taft Avenue, Maria Lim and Donada Streets near De la Salle
College
with a total area of 12,000 sq. m. at P1,129 per square meter, with the
area along Taft Avenue corresponding to 2,156 square meters at P1,700
per
square meter.
On June 1, 1984:cralaw:red
6 contiguous lots along
Taft Avenue, Buendia and Donada Sts. with an area of 3,772 sq. m. at a
total value of P7,964,900 or an average of P2,111.58 per square meter."[17]
FMV of the entire land,
computed on P1,500.00/sq. m., is therefore, P11,010,000.00. Multiplied
by the higher value of 8%, P880,800.00 then will be the fair rental
value
of the Pasay property per annum,[18]
or P73,400.00 a month.
For the 1,141.2 sq.
m. Sta. Cruz property, Cuervo assigned P10,000.00 to P15,000.00 as FMV
per square meter, also by means of "comparables" of offers for sale,
appraisals
made and information from fellow realtors/appraisers, such as:cralaw:red
"On May 28, 1983:cralaw:red
604 sq. m. lot located
along Escolta offered by Uni-Invest Management Corporation at P6,000
per
square meter;
On June 13, 1982:cralaw:red
323 sq. m. lot along
Carriedo Street near Plaza Miranda offered for sale by Realtor R.F.
Pula
at P18,575.00 per square meter;
On April 5, 1982:cralaw:red
439 sq. m. lot along
Echague St. in Quipo offered for sale by Honoria Development at P12,000
per square meter.
His company, the Cuervo
Appraisers Company, appraised two (2) properties in that year, viz:cralaw:red
On August 1, 1984:cralaw:red
for purposes of
selling,
the Odeon Theater at Rizal Avenue cor. Recto Avenue with an area of
1,580
sq. m. appraised at P14,500 per square meter (excluding the movie
house);
and
On March 19, 1984:cralaw:red
The Philippine
Commercial
International (sic) Bank's site at Plaza Sta. Cruz, more or less
diagonally
across Dasmariñas, with an area of 679 sq. m. was appraised at
P8,500
per square meter."[19]
Fair rental value for
this property was pegged at P969,907.68 per annum, or P80,825.64 a
month.[20]
This assumed that the FMV per sq. m. is P10,623.76 at the same value of
8%.
The defense's position,
in sum, is that the two (2) lease agreements could not have been
grossly
disadvantageous to the government since the stipulated rentals for the
Pasay and Sta. Cruz properties (P102,760.00/month and P92,437.20/month,
respectively) in fact exceed the uncontradicted fair rental values
assigned
by expert witness Cuervo for both properties (P73,400.00/month and
P80,825.64/month,
respectively). The lease agreements, obviously, generated very fair
rentals
for the government.
But the Sandiganbayan,
in convicting petitioners, found a much higher valuation. It said:
"So we summarize.
Considering the real
estate values given by appraiser Cuervo,
(1) compared with the
fair rental value of P80,825.65 under normal circumstances for ordinary
properties there, the rental value the Sta. Cruz area of the LRTA
property
(Exhibit "E") would go up by 5 times or up to P400,000 'if they would
use
that space available for shops' (p. 23, TSN, August 13, 1992); and
(2) the estimate given
by witness Cuervo for the Pasay City Station would still be twice as
much
as the stipulated rental in the lease agreement. 'It would be that way,
your Honor, if they would put up the shops.'(p. 25, id.)
In sum, according to
witness Ramon F. Cuervo, Jr., whom accused Dans qualified as a real
estate
broker and appraiser:
(a) the LRTA property
in Pasay City was leased to the PGH Foundation at ½ of what the
property should have been leased out for; and
(b) the Sta. Cruz
property
was leased to the PGH Foundation for ¼ of what that property
should
have been leased out for.
Obviously
there is gross
disparity here."[21]
The problem with the
Sandiganbayan's findings is that it completely ignored the unchallenged
testimony of witness Cuervo and instead supplanted the same with
valuations
based on unfounded assumptions and/or hypothetical situations. For the
Pasay property, for instance, the Sandiganbayan — particularly Justice
Garchitorena, proceeded from his insistent assumed premise that the
property
was with "substantial amount of improvement." We quote the pertinent
sequence
of questioning from the transcript of stenographic notes, viz:
"ATTY. BELO
Q What percent
therefore
of the fair market value constitute the rental of this property we are
talking about?
A P880,800 per
annum,
which would be a fair rental.
Q On the other
hand,
the rental stipulated in this contract is what?
A P1,233,120.00,
sir.
Q So the rental
stipulated
in the contract exceeds what you call fair rental for this property?
A Yes, sir.
PJ GARCHITORENA
Q That is on the
presumption
that there are no buildings on the land you are renting?
WITNESS
A Yes, your Honor.
Q However, here we
are talking of property with substantial amount of improvement?
A I am computing it
based on bare land, your Honor."[22]
(Emphasis supplied.)
xxx
"PJ GARCHITORENA
Now, the Court will
ask questions.
Q Mr. Cuervo, when
you were talking about real estate both in Pasay and in Sta. Cruz, you
were talking about buildings and properties that are either empty or of
buildings in the same vein of no useful construction or else of
ordinary
construction.
WITNESS
A In this
particular
property, the one in Sta. Cruz, the building was demolished.
PJ GARCHITORENA
Q We are talking of
Pasay.
WITNESS
A The one in Pasay,
I was told some improvements there were not yet existing at that time.
Q Obviously from
your
information the construction were of no significant value?
A Right.
Q We, of course
know
what these properties are. These were the terminals, the important
stations
of the Light Railway Transport System, and if we did not know then, we
know now that these constructions were of heavy designs and because of
the nature of the activity there it will be a higher pedestrian traffic
area which for retail purposes would be, presumably, a very important
valuable
piece of property, do you agree with that?
A Yes, for retail
specially.
Q In that light,
are
you still prepared to tell us that insofar as Pasay is concerned, your
appraisal in 1984 would still be rated at the same level that you were
rating similar property which were listed among realtors in 1984?
A The value that I
gave between P1,000 to P1,500?
Q Yes.
A That is because
those
improvements were not yet there. I am giving the value of the land as
fair
(sic, should be bare) not as already a station.
Q So that while, as
a general statement, you would say for ordinary realtor in the Pasay
area,
your listing on Exhibit 4 would be valid. In fact, everybody in this
courtroom
knows that the property we are discussing here was not an ordinary
piece
of land?
A Was never an
ordinary
piece of property before it was built
Q Insofar as the
subject
matter now is concerned which is an LRT terminal?
A Yes, sir.
Q Will you now be
in
a position to make a statement as to what a fair market value of the
property
would be, if not for acquisition, what would be the value which would
give
you a fair rental?
A If that land
would
fair now?
Q Considering what
it is being used for.
A The only thing
that
could be of value is the potential of what rental it could get by
retailing
but not as station.
Q So, as a retail
outlet,
or whatever, supposing you are going to lease it so that you could turn
around and use it for advertising space, use it for particular stalls,
stores, may be jeepney or tricycle terminal or whatever because it is
an
exchange, would you be in a position to do appraisals for rental value?
A Yes, your Honor.
Q Supposing the LRT
at that time had engaged you and say, "Mr. Cuervo, we want to make
money
additionally out of this area, can you consult with us"?
A We would go on
hypothetical.
If there were no stores there at this point and time, then we will
consider
the rental rates of commercial properties of the immediate area, and
with
the market there we will also go to hypothetical approach to this area.
Considering that it is a catchment area where thousands of people would
be passing by in front of.
PJ GARCHITORENA
Q Have you thought
of what values you would put there?
A No I did not get
to that point.
Q Would you be in a
position, no you would not. But, obviously, it would be much more than
the values you gavr (sic) us on the basis of your listings?
A The value that I
gave you in 1983?
Q We are talking of
1984. We are talking about whether Mr. Dans was remiss in that property
in 1984. What would be the multiples that you would use if you were the
consultant of the LRTA?
A I would go to the
prevailing rental rates of CANTIMAR (sic) and all the other stores, and
the Baclaran activity, and then.
Q Can you given
(sic)
us the multiples that you would use if this is the latest rental ub
(sic)
the area, would it be more, the same or less?
A Definitely more
comparing
it to Cantimar (sic) and the Baclaran area would probably be 2 to 3
times
more.
Q Alright, let's
take
it at 3. So, your testimony yesterday was what? Do you recall? Your
estimate
yesterday without inputing the LRT, was what again?
A P63,039.00
PJ GARCHITORENA
Q That was your
assumed
fair market value for what period?
A Then we have
P425,885.
Q Would be for what
period, monthly period?
A That is the
valuation.
Q No, Mr. Cuervo,
we
are taking this out in testimony and we want to be able to read well.
What
was your estimates for the fair rental value per square meter of Pasay,
the one that you gave us yesterday.
You gave us a
figure
yesterday. You were telling us that your land value is ranged from
P1,000
to P1,500 in that area. Under this circumstances, what would be your
fair
rental at that time?
You can use your
calculator.
A Taking a high
figure
of P1,500 times .08 would be P120.00 per square meter, your Honor.
Q Rental?
A Yes, your Honor.
Q So, for the
entire
property of 7,340 square meters
A P10.00 per square
meter.
Q P10.00 per square
meter would be fair rental?
A Fair rental at
that
time.
Q With an area of
7,340,
you were saying that 73,400 would be of the ordinary property then?
A Yes, your Honor.
Q Now, if we talk
of
a multiple of 3, then we are talking of P210,000 more or less?
PJ GARCHITORENA
Q Per month, what
was
the rental agreement under Exhibit 3-C?
ATTY. BELO
It was P102,760
monthly.
PJ GARCHITORENA
Q So, if we are
going
to look at your figures, your estimated rental of P210,000 per month
would
be twice as much as the rental fixed in the Lease Contract of the LRTA
with the PGH Foundation?
A Yes, your Honor."[23]
(Emphasis supplied)
From the assumption/hypothesis
that the Pasay property was with "substantial amount of improvement"
("LRT
station" of "heavy design" which makes it a "higher pedestrian traffic
area"), the Sandiganbayan was able to extract from witness Cuervo a
valuation
"2 to 3 times more" of Cuervo's original input of P73,400.00/month. The
court then multiplied P73,400.00 by the higher multiple of 3, yielding
the figure "P210,000.00 more or less" which led it to conclude that the
P102,760.00/month lease of the Pasay property is only "1/2 of what the
property should have been leased out for." Certainly, witness Cuervo
had
no choice but to give answers to the series of hypothetical questions
hurled
by the Sandiganbayan. It is evident, however, that witness Cuervo was
keen
enough to protect his original figures from being lost in the court's
sea
of assumptions as he vigilantly pointed out, at certain points, that:
(1) his computation
is based on bare land,[24]
and not as station because the improvements mentioned by the
Sandiganbayan
(LRT terminals, constructions of heavy designs) were not yet there;[25]
(2) that some
improvements
on the property were of no significant value;[26]
and
(3) he and the
Sandiganbayan
were "going on hypothetical".[27]
Similar state of affairs
was present in connection with the Sta. Cruz property. Here, the
Sandiganbayan
arrived at P400,000.00/month rental for the property, or about 5 times
witness Cuervo's valuation of P80,654.64/month, on the same assumed
premise
that the property was with "substantial amount of improvement." We go
again
to the transcript of stenographic notes:
"Q Now with regard
to the Sta. Cruz terminal, again the figures you gave us in Exhibit 7
which
is the lower half of your listings were again on the basis of the
property
as based on the environment there, all the way to Escolta and going all
the way to North to Recto, and the fair lease rental that you gave us,
at that time, would have been what?
A We came out with
P969,970 against the P1,109,246 which was the contract.
Q So the contract
was.
A Was a little bit
high.
Q So the contract
was
reading at P1.1 million?
A That is right,
your
Honor?
Q That was the
lease
rental of LRTA in favor of PGH Foundation. But we are talking about a
general
situation. Now, we have this particular station which was not only
terminal
but a crossroad really because you had people from all sides of Quiapo,
Sta. Cruz, Rizal Avenue which will board presumably all the way to
Baclaran
and all the way to Caloocan, So, you have a bigger mixture of people
coming
in. What would be your multiple here?
WITNESS
A I would go as
high
as 5, your Honor.
Q Now, you
estimated
the proper rental value per month for the property to be what?
A (Witness making
his
computation). P80,825.64, your Honor.
Q For the total
area
monthly?
A The total area
divided
by P70.82 per square meter, your Honor. P70.82 per square meter
was
the multiple for the 1,141 square meters.
Q That was your
professional
opinion?
A Yes, your Honor.
Q One more time.
Your
estimated professional opinion at that time, the rental value would be.
A I came out with
the
figure P969,970.49 for the year.
Q Is this per
square
meter or for the entire property?
A For the entire
property
divided by 12, we come out with P80,825.64.
Q So, this would be
our fair rental on the optimum condition?
A Yes, sir.
Q Now, our Lease
Contract
there, Exhibit 6, tells us.
ATTY. BELO
Under the Lease
Contract
is P92,437.20 a month.
PJ GARCHITORENA
Q If you say that
the
fair rental value was P80,000 but because of the construction of the
particular
nature of the condition of the Sta. Cruz Station or the Carriedo
Station,
you would use a factor of 5, a multiple of 5, then you would be talking
something like P400,000 per month rental. So on that basis, the rental
of the LRT authority in favor of the PGH was almost ¼ as much as
you think the rental should have been?
ATTY. BELO
Objection, your
Honor,
that is not the conclusion. You see this Honorable Court is inputing
the
value as station now but the witness is testifying on the fair market
value
at that time.
PJ GARCHITORENA
Correct, but we
also
ask him to input now the character of the railway station. That is why
he said the railway station would make it much valuable 5 times more.
WITNESS
A Yes, if they
would
use that space available for shops.
PJ GARCHITORENA
Yes, of course. We
are talking here of all other things being equal except the fact that
we
have a railroad station, a cross terminal,
So, here we are
saying
that P400,000 a month would be a good rental?
A Will they be
putting
up the building?
PJ GARCHITORENA
It does not matter.
See, if the LRT put up the building it will ask for a fair return of
the
property. Whoever put up the building will charge for the rent.
WITNESS
A If the tenant
will
put up the building his capital outlay on his own will be beside the
rent.
While if the LRT will put up the building, then the rent.
PJ GARCHITORENA
That is correct, we
are talking here about cost of money. There is a beautiful phrase for
that
in finance, how you project the value of the money, etc.
So, these are our
figures
now, P400,000 more or less is a good asking price or fair rental price
insofar as the LRT authority were concerned. Nonetheless, we are told
that
the monthly rental for the Sub-Lease in the Sta. Cruz property is how
much
per much, (sic) for the entire property?
A The Lease
Contract
is P255,797.50 a month.
Q For the entire
property?
A For the entire
property.
Q So, based on your
estimates it will still be ½ as much as you would charge if you
were the LRT on the basis of the input? So, even if sub-leased to
Trans-National
Construction Corporation was still 50 per cent cheaper than what you
would
have charge if you were going to advice the LRT as to what the rental
would
be.
A It would be that
way, your Honor, if they would put up the shop. This is just a land.
PJ GARCHITORENA
Q Except that we
know
now that what was being leased was not land but the facilities which
would
be available in the LRT terminal.
WITNESS
A The building was
built by the lessee."[28]
Note that counsel for petitioner
Dans, Atty. Belo, apparently disturbed by the trend of the
Sandiganbayan's
questioning, could no longer help but raise the objection that the
court
is "inputing the value as station now but the witness is testifying on
the fair market value at that time." Atty. Belo's objection is
well-taken
inasmuch as witness Cuervo's uncontradicted valuation of P80,825.64 as
fair rental on the "optimum condition"[29]
is premised on the fact that the Sta. Cruz property is bare, "just a
land"[30]— the Isetann building which
used
to stand thereon having been demolished prior to the execution of the
lease
agreement.[31]
This is supported by the Sta. Cruz property lease agreement itself
which,
in its first "WHEREAS" clause, described the Sta. Cruz property to be
"located
at the former site of the Isetann Building at the President Hotel
Building
in the District of Santa Cruz, City of Manila."[32]
The Sandiganbayan,
in the course of the examination, would also appear to make issue of
the
fact that the PGHFI-TNCC sublease agreement over the Pasay property for
P734,000/month[33]
was very much higher than the P102,760.00/month rental under the
LRTA-PGHFI
lease contractor even witness Cuervo's valuation of P73,400.00/month,
which
witness Cuervo admitted to be "extraordinary high" -the reason/s for
which
is beyond his knowledge.
"Q. As a professional
because you are presented here as an expert, do you know of any reason
why the consideration in the Sub-Lease Agreement was very much higher
than
the consideration in the Lease Contract after only 19 days?
A. I am sorry I
cannot
give you an answer to that. All I know is that the rental of the
sub-lease
is extra-ordinary high. There must be some other reasons other than my
knowledge."[34]
This, however, is useless
against petitioner Dans since his signature, it must be stressed, does
not appear on the sublease agreement, the only signatory therein in
behalf
of the PGHFI is, to repeat, petitioner Marcos as Chairman of the Board.
Furthermore, petitioner Dans testified that he did not participate in
the
negotiation for the PGHFI-TNCC sublease contract.[35]
It was only a few months after the execution of the sublease agreement
that petitioner Dans learned about it.[36]
In fact, petitioner Dans, as PGHFI board member, was able to attend
only
one board meeting — the very first which was the organizational meeting
but the PGHFI-TNCC sublease contract was not discussed therein.[37]
The Sandiganbayan also
sniped at the following stipulation found in both lease contracts:
"Should there be a
delay in any payment of the rental consideration equivalent to one
year,
the LESSOR shall have the right to take possession of the premises, the
property and improvements thereon, the ownership of all improvements
thereby
accruing to the LESSOR."[38]
and then proceeded to say
that:
"As if this
disadvantage
were not enough, in both acts, non-payment of rentals by the PGH
Foundation
was not actionable unless the rentals were in arrears for one year
(par.
II, 4, Exhibits "B" and "C"). The LRTA could be, therefore, deprived of
the enjoyment of the rentals from its two valuable pieces of real
estate
or of the interest income therefrom for almost one year without any
recourse
for the LRTA. And if the LRTA needed any money which it could have
otherwise
gotten from the rentals of the properties, it would have to borrow
money
from other sources and pay interest for eleven (11) months because the
PGH Foundation had to be in arrears for twelve (12) months before the
LRTA
could take any action.
"This was not only
being over generous; it was gross abandonment of any effort to get
decent
terms for the LRTA."[39]
This is a very narrow interpretation
of said stipulation. I subscribe to petitioner Dans' view that the
stipulation
gives the LRTA as lessor the "additional right" to recover possession
of
the two (2) leased properties and to acquire ownership of all
improvements
introduced thereon if and when PGHFI incurs arrears equivalent to one
year
rental. It certainly does not bar the LRTA from availing of other legal
remedies not expressly contained in the contract, for the principle is
well settled that an existing law enters into and forms part of a valid
contract without need for the parties expressly making reference to it.[40]
The bottomline of it
all is that the evidence, as I see it, tilts heavily in favor of
petitioners.
Conviction must rest, as well-settled jurisprudence tells us, not on
the
weakness of the defense but on the strength of the prosecution.[41]
"When the prosecution fails to discharge its burden, an accused need
not
even offer evidence in his behalf."[42]
The weakness of the State's case is made glaringly evident not only
because
the documentary evidence it presented do not, by themselves, prove the
crime/s charged against petitioners, but by its dismal failure to
debunk
witness Cuervo's expert testimony in open court. And the Sandiganbayan
cannot save the day for the prosecution by considering as evidence
testimony
made in response to its hypothetical questions that find no basis at
all
on the records. The guiding rule is that hypothetical questions must
include
only facts that are supported by evidence and should embody
substantially
all facts relating to the particular matter upon which an expert
opinion
is sought to be elicited, but they need not include all facts pertinent
to the ultimate issue.[43]
The chief test, therefore, of the competency of a hypothetical question
is whether it is a full and fair recital of all the essential evidence
disclosed by the record on the particular issue which is involved. But
where (as in this case) the question assumes facts in direct conflict
with
the undisputed evidence, or omits material facts upon which a
determination
of the problem depends, the hypothetical questions become misleading
and
it is then likely to lead the witness to a false conclusion.[44]
Thus, the testimony given by witness Cuervo is, to my mind, the most
telling
evidence in this case, for testimony to the value of real estate by
experts
whose opinions are derived from an intimate knowledge of the property
in
question and of the sales made in the immediate vicinity carries great
weight[45]
- if not the greatest weight when, as in this case, it is
uncontradicted.
4. The undue
interference
of the Sandiganbayan Justices in the presentation of the case.
The transcript of
stenographic
notes supports petitioner Dans' charge of "unfair alliance" of the
Sandiganbayan
with the prosecution during the trial — particularly in the examination
of the witnesses.
For starters, the court
questions were so numerous which, as per petitioner Dans' count,
totalled
179 compared to prosecutor Querubin's questions which numbered merely
73.[46]
More noteworthy, however, is that the court propounded leading,
misleading
and baseless hypothetical questions all rolled into one. And what
appears
to be the central assumption of the court is the following:
"xxx
"Q So the rental
stipulated
in the contract exceeds what you call fair rental for this property?
A Yes, sir.
PJ GARCHITORENA
Q That is on the
presumption
that there are no buildings on the land you are renting?
WITNESS
A Yes, your Honor.
Q However, here we
are talking of property with substantial amount of improvement?
A I am computing it
based on bare land, your Honor."[47]
(Emphasis ours.)
xxx
"PJ GARCHITORENA
Now, the Court will
ask questions.
Q Mr. Cuervo, when
you were talking about real estate both in Pasay and in Sta. Cruz, you
were talking about buildings and properties that are either empty or of
buildings in the same vein of no useful construction or else of
ordinary
construction.
WITNESS
A In this particular
property, the one in Sta. Cruz, the building was demolished.
PJ GARCHITORENA
Q We are talking of
Pasay.
WITNESS
A The one in Pasay,
I was told some improvements there were not yet existing at that time.
Q Obviously from your
information the construction were of no significant value?
A Right.
Q We, of course, know
what these properties are. These were the terminals, the important
stations
of the Light Railway Transport System, and if we did not know then, we
know now that these constructions were of heavy designs and because of
the nature of the activity there it will be a higher pedestrian traffic
area which for retail purposes would be, presumably, a very important
valuable
piece of property, do you agree with that?
A Yes, for retail
specially.
Q In that light, are
you still prepared to tell us that insofar as Pasay is concerned, your
appraisal in 1984 would still be rated at the same level that you were
rating similar property which were listed among realtors in 1984?
A The value that I
gave between P1,000 to P1,500?
Q Yes.
A That is because
those
improvements were not yet there. I am giving the value of the land as
fair
not as already a station.
Q So that while, as
a general statement, you would say for ordinary realtor in the Pasay
area,
your listing on Exhibit 4 would be valid. In fact everybody in this
courtroom
knows that the property we are discussing here was not an ordinary
piece
of land?
A Was never an
ordinary
piece of property before it was built.
Q Insofar as the
subject
matter now is concerned which is an LRT terminal?
A Yes, sir."[48]
(Emphasis ours)
Aware that witness Cuervo's
assessments of FMV of the property pertains to bare land, respondent
court
(PJ Garchitorena), during the examination of the witness, cunningly
entices
and misleads the latter that the subject of conversation is a piece of
land with substantial improvements. A priori convinced that the rentals
were disadvantageous to the government, the court was not only
assuming,
but likewise insisting upon Cuervo that the valuation he gives pertains
to land with improvements contrary to what the witness had testified
that
what he is giving value is a bare land.
From this "mother"
assumption flowed the continuous string of follow-up assumptions of the
court scattered all over the transcript of stenographic notes. Thus:
(For the Pasay
Property)
Q Will you now be in
a position to make a statement as to what a fair market value of the
property
would be, if not for acquisition, what would be the value which would
give
you a fair rental?
A If that land would
fair now?
Q Considering what
it is being used for.
A The only thing that
could be of value is the potential of what rental it could get by
retailing
but not as station.
Q So, as a retail
outlet,
or whatever, supposing you are going to lease it so that you could turn
around and use it for advertising space, use it for particular stalls,
stores, may be jeepney or tricycle terminal or whatever because it is
an
exchange, would you be in a position to do appraisals for rental value?
A Yes, your Honor.
Q Supposing the LRT
at that time had engaged you and say, "Mr. Cuervo, we want to make
money
additionally out of this area, can you consult with us"?
A We would go on
hypothetical.
If there were no stores there at this point and time, then we will
consider
the rental rates of commercial properties of the immediate area, and
with
the market there we will also go to hypothetical approach to this area.
Considering that it is a catchment area where thousands of people would
be passing by in front of.
PJ GARCHITORENA
Q Have you thought
of what values you would put there?
A No I did not get
to that point.
Q Would you be in a
position, no you would not. But, obviously, it would be much more than
the values you gavr (sic) us on the basis of your listings?
A The value that I
gave you in 1983?
Q We are talking of
1984. We are talking about whether Mr. Dans was remiss in that property
in 1984. What would be the multiples that you would us if you were the
consultant of the LRTA?
A I would go to the
prevailing rental rates of CANTIMAR (sic) and all the other stores, and
the Baclaran activity, and then.
Q Can you given us
the multiples that you would use if this is the latest rental ub (sic)
the area, would it be more, the same or less?
A Definitely more
comparing
it to Cantimar (sic) and the Baclaran area would probably be 2 to 3
times
more.
Q. Alright, let's
take
it at 3. So, your testimony yesterday was what? Do you recall? Your
estimate
yesterday without inputing the LRT, was what again?
A P63,039.00.
PJ GARCHITORENA
Q That was your
assumed
fair market value for what period?
A Then we have
P425,885.
Q Would be for what
period, monthly period?
A That is the
valuation.
Q No, Mr. Cuervo, we
are taking this out in testimony and we want to be able to read well.
What
was your estimates for the fair rental value per square meter of Pasay,
the one that you gave us yesterday.
You gave us a figure
yesterday. You were telling us that your land value is ranged from
P1,000
to P1,500 in that area. Under this circumstances, what would be your
fair
rental at that time?
You can use your
calculator.
A Taking a high
figure
of P1,500 times .08 would be P120.00 per square meter, your Honor.
Q Rental?
A Yes, your Honor.
Q So, for the entire
property of 7,340 square meters.
A P10.00 per square
meter.
Q P10.00 per square
meter would be fair rental?
A Fair rental at that
time.
Q With an area or
7,340,
you were saying that 73,400 would be of the ordinary property then?
A Yes, your Honor.
Q Now if we talk of
a multiple of 3, then we are talking of P210,000 more or less?
PJ GARCHITORENA
Q Per month, what was
the rental agreement under Exhibit 3-C?
ATTY. BELO
It was P102,760
monthly.
PJ GARCHITORENA
Q So, if we are going
to look at your figures, your estimated rental of P210,000 per month
would
be twice as much as the rental fixed in the Lease Contract of the LRTA
with the PGH Foundation?
A Yes, your Honor."[49]
(For the Sta. Cruz
Property)
"Q. Now with regard
to the Sta. Cruz terminal, again the figures you gave us in Exhibit 7
which
is the lower half of your listings were again on the basis of the
property
as based on the environment there, all the way to Escolta and going all
the way to North to Recto, and the fair lease rental that you gave us,
at that time, would have been what?
A We came out with
P969,970 against the P1,109,246 which was the contract.
Q So the contract was.
A Was a little bit
high.
Q So the contract was
reading at P1.1 million?
A That is right, your
Honor?
Q That was the lease
rental of LRTA in favor of PGH Foundation. But we are talking about a
general
situation. Now, we have this particular station which was not only
terminal
but a crossroad really because you had people from all sides of Quiapo,
Sta. Cruz, Rizal Avenue which will board presumably all the way to
Baclaran
and all the way to Caloocan. So, you have a bigger mixture of people
coming
in. What would be your multiple here?
WITNESS
A I would go as high
as 5, your Honor.
Q Now, you estimated
the proper rental value per month for the property to be what?
A (Witness making his
computation). P80,825.64, your Honor.
Q For the total area
monthly?
A The total area
divided
by P70.82 per square meter, your Honor. P70.82 per square meter was the
multiple for the 1,141 square meters.
Q That was your
professional
opinion?
A Yes, your Honor.
Q One more time. Your
estimated professional opinion at that time, the rental value would be.
A I came out with the
figure P969,970.49 for the year.
Q Is this per square
meter or for the entire property?
A For the entire
property
divided by 12, we come out with P80,825.64.
Q So, this would be
our fair rental on the optimum condition?
A Yes, sir.
Q Now, our Lease
Contract
there, Exhibit 6, tells us.
ATTY. BELO
Under the Lease
Contract
is P92,437.20 a month.
PJ GARCHITORENA
Q If you say that the
fair rental value was P80,000 but because of the construction of the
particular
nature of the condition of the Sta. Cruz Station or the Carriedo
Station,
you would use a factor of 5, a multiple of 5, then you would be talking
something like P400,000 per month rental. So on that basis, the rental
of the LRT authority in favor of the PGH was almost ¼ as much as
you think the rental should have been?
ATTY. BELO
Objection, your
Honor,
that is not the conclusion. You see this Honorable Court is inputing
the
value as station now but the witness is testifying on the fair market
value
at that time.
PJ GARCHITORENA
Correct, but we also
ask him to input now the character of the railway station. That is why
he said the railway station would make it much valuable 5 times more.
WITNESS
A Yes, if they would
use that space available for shops.
PJ GARCHITORENA
Yes, of course. We
are talking here of all other things being equal except the fact that
we
have a railroad station, a cross terminal.
So, here we are
saying
that P400,000 a month would be a good rental?
A Will they be
putting
up the building?
PJ GARCHITORENA
It does not matter.
See, if the LRT put up the building it will ask for a fair return of
the
property. Whoever put up the building will change for the rent.
WITNESS
A If the tenant will
put up the building his capital outlay on his own will be beside the
rent.
While if the LRT will put up the building, then the rent.
PJ GARCHITORENA
That is correct, we
are talking here about cost of money. There is a beautiful phrase for
that
in finance, how you project the value of the money- etc.
So, these are our
figures
now, P400,000 more or less is a good asking price or fair rental price
insofar as the LRT authority were concerned. Nonetheless, we are told
that
the monthly rental for the Sub-Lease in the Sta. Cruz property is how
much
per much, for the entire property?
A The Lease Contract
is P255,797.50 a month.
Q For the entire
property?
A For the entire
property.
Q So, based on your
estimates it will still be ½ as much as you would charge if you
were the LRT on the basis of the input? So, even if sub-leased to
Trans-National
Construction Corporation was still 50 per cent cheaper than what you
would
have charge if you were going to advice the LRT as to what the rental
would
be.
A It would be that
way, your Honor, if they would put up the shop. This is just a land.
PJ GARCHITORENA
Q Except that we know
now that what was being leased was not land but the facilities which
would
be available in the LRT terminal.
WITNESS
A The building was
built by the lessee."[50]
The Court's questions were
far from being clarificatory. They were, in the main, queries that have
no basis on the records. It has been said that purely abstract
questions,
assuming facts or theories for which there is no foundation in the
evidence,
are not admissible as a matter of right, although such questions may be
permitted on cross-examination for the purpose of testing the knowledge
of the witness as to the subject on which he has testified.[51]
But cross-examination is the exclusive function of the advocate. Thus,
any trend of court questioning which shows even a slight semblance of
cross-examination
is already offensive to fundamental requirements of due process, for
this
Court in "People v. Opida"[52]
has admonished that: "the judge must not only be impartial but must
also
appear to be impartial, to give added assurance to the parties that his
decision will be just. The parties are entitled to no less than this,
as
a minimum guaranty of due process." In "Tabuena vs. Sandiganbayan",[53]
this Court en banc highlighted the following observation and
limitations
of a judge's/justice's participation in the conduct of the trial. Thus:
"It is indeed an
impressive
proportion (referring to the volume of questions of the trial judge),
but
no such mathematical computation is of itself determinative. However,
taking
all this in conjunction with the long and vigorous examination of the
defendant
himself by the judge, we fear that in its zeal for arriving at the
facts
the court here conveyed to the jury too strong an impression of the
court's
belief in the defendant's probable guilt to permit the jury freely to
perform
its own function of independent determination of the facts.
xxx
"This Court has
acknowledged
the right of a trial judge to question witnesses with a view to
satisfying
his mind upon any material point which presents itself during the trial
of a case over which he presides. But not only should his examination
be
limited to asking "clarificatory" questions, the right should be
sparingly
and judiciously used; for the rule is that the court should stay out of
it as much as possible, neither interfering nor intervening in the
conduct
of the trial.
xxx
"A trial judge should
not participate in the examination of witnesses as to create the
impression
that he is allied with the prosecution.
"We doubt not that
the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties
of a prosecuting attorney. However anxious a judge may be for the
enforcement
of the law, he should always remember that he is as much judge in
behalf
of the defendant accused of crime, and whose liberty is in jeopardy, as
he is judge in behalf of the state, for the purpose of safeguarding the
interests of society.
"Ordinarily it is not
good practice for the presiding judge himself to examine witnesses at
length.
The circumstances may be such in a given case as to justify the court
in
so doing. This court, however, has more than once said that the
examination
of witnesses is the more appropriate function of counsel, and the
instances
are rare and the conditions exceptional which will justify the
presiding
judge in conducting an extensive examination. It is always embarrassing
for counsel to object to what he may deem improper questions by the
court.
Then, in conducting a lengthy examination, it would be almost
impossible
for the judge to preserve a judicial attitude. While he is not a mere
figurehead
or umpire in a trial, and it is his duty to see that justice is done,
he
will usually not find it necessary to conduct such examinations. The
extent
to which this shall be done must largely be a matter of discretion, to
be determined by the circumstances of each particular case, but in so
doing
he must not forget the function of the judge and assume that of an
advocate.
"While it is true
that
the manner in which a witness shall be examined is largely in the
discretion
of the trial judge, it must be understood that we have not adopted in
this
country the practice of making the presiding judge the chief
inquisitor.
It is better to observe our time-honored custom of orderly judicial
procedure,
even at the expense of occasional delays. The judge is an
important
figure in the trial of a cause, and while he has the right, and it is
often
his duty, to question witnesses to the end that justice shall prevail,
we can conceive of no other reason, for him to take the trial of the
cause
out of the hands of counsel.
"The examination of
witnesses is the more appropriate function of counsel, and it is
believed
the instances are rare and the conditions exceptional in a high degree
which will justify the presiding judge in entering upon and conducting
an extended examination of a witness, and that the exercise of a sound
discretion will seldom deem such action necessary or advisable.
"He [the judge] may
properly intervene in a trial of a case to promote expedition, and
prevent
unnecessary waste of time, or to clear up some obscurity, but he should
bear in mind that his undue interference, impatience, or participation
in the examination of witnesses, or a severe attitude on his part
toward
witnesses, especially those who are excited or terrified by the unusual
circumstances of a trial, may tend to prevent the proper presentation
of
the cause, or the ascertainment of the truth in respect thereto.
"The impartiality of
the judge — his avoidance of the appearance of becoming the advocate of
either one side or the other of the pending controversy is a
fundamental
and essential rule of special importance in criminal cases.
"Our courts, while
never unmindful of their primary duty to administer justice, without
fear
or favor, and to dispose of these cases speedily and in as inexpensive
a manner as is possible for the court and the parties, should refrain
from
showing any semblance of one-sided or more or less partial attitude in
order not to create any false impression in the minds of the litigants.
For obvious reasons, it is the bounden duty of all to strive for the
preservation
of the people's faith in our courts.
"Time and again this
Court has declared that due process requires no less than the cold
neutrality
of an impartial judge. Bolstering this requirement, we have added that
the judge must not only be impartial but must also appear to be
impartial,
to give added assurance to the parties that his decision will be just.
The panics are entitled to no less than this, as a minimum guaranty of
due process."
Let it thus be stressed
anew at this juncture that convictions are based on the actual
commission
of crimes, to be ascertained with the pure objectivity of the true
judge
who must uphold the law for all without favor or malice and always with
justice.[54]
Finally, it is
incorrect
for the Sandiganbayan, per its Resolution of November 13, 1996 denying
petitioner Dans' motion for reconsideration, to say, in response to
petitioner's
objection anent Presiding Justice Garchitorena's questions during the
trial,
that:
"It is now too late
in the day to object to the alleged leading, misleading, and badgering
questions of the Presiding Justice Garchitorena and to ask to expunge
the
answers thereto from the record. Needless to say, Engr. Dans should
have
done so when the supposed objectionable nature of the questions and/or
answers were propounded or given. As it happened, he did not even raise
his objections at the close of the testimony of Mr. Cuervo. He did not
also ask re-direct questions to correct whatever mistakes or
misimpressions
allegedly crept into Mr. Cuervo's testimony. Instead, he formally
offered
the entire testimony without making any exceptions or reservations."[55]
In "Tabuena", this Court
took cognizance of the Sandiganbayan's active participation in the
examination
of witnesses even when petitioners did not raise this issue at all
either
in the trial court or in their appeal before us, justifying the same
under
the doctrine that "an appeal throws the whole case open to review, and
it becomes the duty of the appellate court to correct such errors as
may
be found in the judgment appealed from whether they are made the
subject
of assignments of error or not."[56]
What more when, as in this case, this objection has been raised while
the
case is still within the power of review of the trial court.
Thus, purely from the
legal standpoint, with the evident weakness of the prosecution's case
and
the procedural aberrations that marred the trial, it is simply unsound
and impossible to treat differently each petitioners who found
themselves
in one and the same situation. Indeed, our regained democracy,
creditably,
is successfully bailing us out from the ruins of the authoritarian
regime,
and it expects that government efforts in going after the plunderers of
that dark past remain unrelenting and decisive. But let us not, in our
anxiety to carry out this duty, for a moment forget that our criminal
justice
system is not a popularity contest where freedom and punishment are
determined
merely by the fame or infamy of the litigants. "The scales of justice",
it has been aptly said,[57]
"must hang equal and, in fact, should even be tipped in favor of the
accused
because of the constitutional presumption of innocence. Needless to
stress,
this right is available to every accused, whatever his present
circumstance
and no matter how dark and repellent his past." Culpability for crimes
must always take its bearing from evidence and universal precepts of
due
process - lest we sacrifice in mocking shame once again the very
liberties
we are defending.
I, therefore, vote
also for the acquittal of petitioner Imelda R. Marcos in Criminal Case
No. 17450.
Melo, J.,
concur.
__________________________________
Endnotes:
[1]
Exhibit "A."
[2]
Exhibits "B" and "C."
[3]
Exhibit "D."
[4]
The prosecution failed to submit an authenticated copy of the sublease
agreement (see Fn 5).
[5]
Exhibit "E."
[6]
Petitioner Marcos' "Reply to Comment," p. 81, Rollo in G.R. No. 126995,
p. 586; Original records, p. 153.
[7]
January 26, February 16, and April 2, 1993.
[8]
Penned by Presiding Justice Francis E. Garchitorena, with Balajadia and
Atienza, JJ., concurring.
[9]
Dated November 8, 1996, and penned by Jose S. Balajadia, J., with
Garchitorena
and Chico-Nazario, JJ., concurring. Annex "B," Rollo in G.R. No.
127073,
p. 173.
[10]
Undated and penned by Garchitorena J, with Balajadia and
Chico-Nazario, JJ., concurring. Annex "B," Rollo in G.R. No. 126995, p. 250.
[11]
"SEC. 15. Demurrer to evidence. - After the prosecution has
rested
its case, the court may dismiss the case on the ground of insufficiency
of evidence: (1) on its own initiative after giving the prosecution an
opportunity to be heard; or (2) on motion of the accused filed with
prior
leave of court.
If
the court denies the motion for dismissal, the accused may adduce
evidence
in his defense. When the accused files such motion to dismiss without
express
leave of court, he waives the right to present evidence and submits the
case for judgment on the basis of the evidence for the prosecution."
[12]
It must be noted that respondent court did not admit in evidence as
against
Dans the sublease agreement between the PGHFI and Joy Mart (Exhibit
"E")
and the addendum thereto (Exhibit "E-2"), on which the prosecution
relied
to prove that Exhibit "C" was manifestly and grossly disadvantageous to
the LRTA.
[13]
Section 34, Rule 132 of the Rules of Court states that, "The court
shall
consider no evidence which has not been formally offered. The purpose
for
which the evidence is offered must be specified."
[14]
II Regalado, 1989, p. 437.
[15]
Rollo in G.R. No. 127073, pp. 142-146.
[16]
Citing 5 Moran, 1963 ed., p. 32.
[17]
Citing Underhill's Criminal Evidence, 5th ed., Vol. 1, pp. 91-97.
[18]
Citing 29 Am. Jur. 2d p. 669.
[19]
Citing Asia Banking Corporation v. Walter E. Olson & Co., 48 Phil.
529; Philippine Bank of Communications v. Court of Appeals, 195 SCRA
567
(1991).
[20]
34 SCRA 769 (1970).
[21]
The allegations in Criminal Case No. 17450 are identical with those in
Criminal Case No. 17453, except as otherwise indicated in brackets.
[22]
Rollo in G.R. No. 126995, p. 43.
[23]
128 SCRA 556 (1984).
[24]
Under the 1985 Rules on Criminal Procedure, this provision has been
amended
to read as follows:
"SEC.
10. Bill of particulars. — Accused may, at or before arraignment, move
for a bill of particulars to enable him properly to plead or prepare
for
trial. The motion shall specify the alleged defects and the details
desired."
[25]
Records, Vol. I, pp. 25-27.
[26]
Supra.
[27]
Simple mathematics would yield a difference of P631,240.00 for the
Pasay
lot and P107,272.80 for the Sta. Cruz lot, or a sum of P738,512.80.
[28]
Rollo in G.R. No. 126995, p. 213.
[29]
TSN, August 13, 1992, p. 27.
[30]
Ibid., p. 23.
[31]
Under Section 2(a) of R.A. No. 3019, as amended, the term "'Government'
includes the national government, the local governments, the
government-owned
and controlled corporations, and all other instrumentalities or
agencies
of the Republic of the Philippines, and their branches."
[32]
While the PGHFI is a private foundation which happens to count with
some
government officials on its Board of Trustees, the PGH is undoubtedly a
State-run hospital.
[33]
Rollo in G.R. No. 127073, pp. 151-152.
[34]
Ibid., pp. 30-31.
[35]
People v. Cuizon, 256 SCRA 325 (1996).
[36]
TSN, August 13, 1992, pp. 17-26.
[37]
75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Kelly (CA3 NJ) 329 F2d
314;
Woodring v. U.S. (CA8 Mo) 311 F2d 417, cert den 373 US 913,10 L Ed 2d
414,
83 S Ct 1304.
[38]
Rollo in G.R. No. 127073, p. 154.
[39]
Ibid., p. 163.
[40]
With Justice Regino C. Hermosisima, Jr., a non-member of either the
First
or the Special Division, in attendance.
[41]
Section 2(b) of Rule 111 states that: "Extinction of the penal action
does
not carry with it extinction of the civil, unless the extinction
proceeds
from a declaration in a final judgment that the fact from which the
civil
might arise did not exist."
[42]
Rollo in G.R. No. 126995, pp. 195-196.
[43]
Ibid., p.
247.
FRANCISCO, J., concurring
and dissenting:
[1]
Records, Vol. VI, p. 189.
[2]
Section 3, P.D. 1606 as amended provides: "Corrupt Practices of public
officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt
practices
of any public officer and are hereby declared to be unlawful:
xxx
(g).
Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby."
[3]
Justice Garchitorena's Response dated November 8, 1996 states in part:
"That
morning of September 21, 1993, several members of this Court (i.e.
Justice
Regino Hermosisima, Jr., Justice del Rosario, Justice Balajadia and the
undersigned) had appeared before a committee hearing of the Committee
of
Justice of the House of Representatives at the Asian Institute of
Tourism
in Quezon City. They had a late lunch together at a restaurant in
Quezon
City after the committee hearing and it was there that Justice del
Rosario
and Balajadia as well as the undersigned discussed their positions in
these
cases. That was the time when the undersigned and Justice Balajadia
agree
with Justice del Rosario's position."
"There
and then, the undersigned as Chairman of the Division asked Justice del
Rosario if he would mind if, by reason of our going along with his view
resulting therefore in concurrence with Justice Atienza's opinion, the
Special Division were to be dissolved because of the lack of need
therefor,
i.e., there had resulted a unanimity among the regular members of the
First
Division Justice del Rosario said he did not mind at all so that as
soon
as the Justices arrived at the Sandiganbayan, the undersigned sent word
for Justice Amores to join Justice Balajadia and the undersigned to
discuss
the agreement with Justice del Rosario. The undersigned then issued
A.O.
No. 293-93 dissolving the Special Division.
"It
was on that same day, even before the undersigned had come back from
lunch
with the other Justices, that Justice Amores had submitted his
"Manifestation"
to the undersigned in a sealed envelope asking for a fifteen-day
extension.
The request for extension had, however, become pointless because of the
agreement of Justice Balajadia and the undersigned with the conclusion
of Justice Atienza.
"Justice
Amores did not at any time thereafter indicate in any way his
opposition
to the dissolution of the Special Division.
"C.
At all events, whatever positions Justice Amores had taken would not
alter
the final decision.
"To
recapitulate:
Justice
Balajadia and the undersigned had originally voted
•
to convict accused Imelda Marcos in Criminal Cases No. 17450, No. 17451
and No. 17453;
•
to convict accused Jose P. Dans in Criminal Cases No. 17450, No. 17452
and No. 17453.
•
to acquit both accused in Criminal Case No. 17449.
Justice
Narciso Atienza had voted
•
to convict accused Marcos and Dans in Criminal Cases No. 17450 and No.
17453;
•
to acquit accused Marcos in Criminal Case No. 17451;
•
to acquit accused Dans in Criminal Case No. 17452; and
•
to acquit both accused Dans and Marcos in Criminal Case No. 17449.
"Justice
del Rosario's conclusions were similar to those of Justice Atienza.
"If
Justice Amores were to have disagreed with the conclusions reached by
Justices
del Rosario and Atienza (which were subsequently adopted by Justices
Balajadia
and the undersigned), he would have been outvoted by the other four
Justices.
On the other hand, if Justice Amores had concurred with the position
taken
by the four other Justices of the Special Division, it would not have
altered
the decision as promulgated. Such concurrence would only bring about
unanimity
in the decision — which would be a very odd situation since a Special
Division
is constituted precisely because of the existence of a divided court.
If
the Special Division had remained, the vote of Justice Amores either
way
would not have resulted in any change in the result of the decision as
promulgated.
"A
debate can be held about the correctness of the dissolution of the
Special
Division when the regular members of the First Division had come to an
agreement. Regardless of the correctness or incorrectness thereof;
however,
it would not prove bias or prejudice. In fact, if the Special Division
had not been dissolved, the only effect of the extension sought by
Justice
Amores would have been to defer — and delay — the promulgation for over
fifteen (15) days. This would have been of no consequence to accused
Marcos
(nor to accused Dans) since, as above shown, the opinion still to be
rendered
by Justice Amores would no longer alter the results. (Certainly,
accused
Marcos does not claim that a deferment of, or a delay in, the
promulgation
of the decision would benefit either herself or accused Dans, and if
she
did say that, one would wonder what or how the delay would have
benefited
her specially after the Supreme Court had refused to act in G.R. Nos.
111784-87
which had precisely sought that deferment.)
"In
closing on this point, it might be useful to note that none of the
administrative
orders which created and dissolved the Special Division, nor even the
separate
opinions rendered by Justice Atienza and Justice del Rosario, were kept
hidden; on the contrary, all were made part of the record — and open to
inspection by all — as accused have plainly seen. More than that: when
Justice Balajadia and the undersigned had agreed during lunch on
September
21, 1993 with Justice del Rosario's presentation, the agreement was
explicit
that the written opinions submitted by Justice del Rosario and Justice
Atienza, together with the Administrative Orders constituting and later
dissolving the Special Division, would form part of the record because
they were official acts actually performed by different members of tile
Court in connection with the cases. Likewise, the Administrative Order
itself dissolving the Special Division explicitly stated the reason
therefor:
that Justice Jose S. Balajadia and the undersigned had agreed will the
conclusion of Justice Atienza. There were no secrets there.
"Accused
Marcos makes an issue of the fact that some copies of the decision made
available to media after the promulgation still bore the names of
Justices
Amores and del Rosario in the first page thereof. This was because when
drafts of the decision were prepared for circulation to Justices Amores
and del Rosario, their names were added to the draft in the office of
the
undersigned. When extra copies were reproduced for media, a clerical
error
resulted in someone reproducing the first page which had the five names
including those of Justice Amores and del Rosario rather than the first
page which had contained only names of the three (3) members of the
regular
division.
"Since
the Administrative Orders creating and dissolving the Special Division
were all on record, there can be no great discovery there except only
the
discovery of clerical oversight.
"In
sum, no irregularity can be attributed to the dissolution of the
Special
Division resulting from Justice Jose S. Balajadia's and of the
undersigned's
agreeing with the opinion of Justice del Rosario and, consequently,
concurring
with the conclusion of Justice Atienza. Certainly, no prejudice was
brought
about to either accused Marcos or to accused Dans. Certainly, no bias.
(Rollo in G.R. 126995, pp. 383-387; Reply of Marcos, p. 88).
[4]
Rollo in G.R. No. 126995, pp. 592.
[5]
Justice Regino C. Hermosisima, Jr., now retired Supreme Court Justice.
[6]
Response of Justice Garchitorena; Rollo in G.R. 126995, pp. 384).
[7]
Rollo in G.R. No. 126995, pp. 594-595.
[8]
Section 2, P.D. 1606 as amended.
[9]
Section 4, Rule VI, Sandiganbayan Rules of Procedure.
[10]
See Response earlier referred to.
[11]
Witness had his masteral degrees in Business Economics in 1951 at the
Letran
College, and in Business Economics for Research and Communications in
1985.
In 1949, he joined the F. Calero & Company. In 1952, he took his
broker's
license and in 1957, his appraiser's license. In 1961, he opened his
own
real estate brokerage as an individual, then established Perpetual
Investment,
Inc. in 1963. He thereafter established the realty brokerage firm R.F.
Cuervo, Inc., and was Vice-President for 14 years of Appraisers Phil.
which
was later known as Asian Appraisers CoHe formed the appraiser's firm
Cuervo Appraisers, Inc. accredited by the Securities and Exchange
Commission,
Land Bank of the Philippines, Development Bank of the Phils. And the
Philippine
National Bank. He has attended various seminars and workshops in real
estate
held locally, in Mexico, Copenhagen, Vancouver and Madrid. (TSN, August
12, 1992, pp. 5-13).
[12]
TSN, August 12, 1992, pp. 6-7.
[13]
TSN, August 12, 1992, p. 22.
[14]
TSN, August 12, 1992, p. 21.
[15]
TSN, August 12, 1992, p. 25.
[16]
TSN, August 12, 1992, pp. 21, 24.
[17]
TSN, August 12, 1992, pp. 23-24. Summary thereof made by the
Sandiganbayan
appears on pp. 26-27 of its Decision.
[18]
TSN, August 12, 1992, p. 27.
[19]
TSN, August 12, 1992, pp. 34-35, as summarized by the Sandiganbayan on
pp. 28-29 of its Decision.
[20]
TSN, August 13, 1992, p. 23.
[21]
Sandiganbayan Decision, p. 48.
[22]
TSN, August 12, 1992, pp. 27-28.
[23]
TSN, August 13, 1992, pp. 17-22.
[24]
TSN, August 12, 1992, p. 28.
[25]
TSN, August 13, 1992, p. 18.
[26]
TSN, August 13, 1992, p. 18.
[27]
TSN, August 13, 1992, p. 19.
[28]
TSN, August 13, 1992, pp. 22-26.
[29]
TSN, August 13, 1992, p. 23.
[30]
TSN, August 23, 1992, p. 25.
[31]
TSN, August 13, 1992, p. 17.
[32]
Sta. Cruz Lease Agreement, Exhibit C.
[33]
Annex E.
[34]
TSN, August 13, 1992, p. 10.
[35]
TSN, November 27, 1992, p. 14.
[36]
TSN, November 27, 1992, p. 14.
[37]
TSN, November 27, 1992, p. 14.
[38]
Stipulation 4, paragraph II "Rights and Obligations of the Lessee" of
Pasay
property lease agreement, p. 7. Also appearing as stipulation 4 under
the
same paragraph in the Sta. Cruz lease agreement, pp. 6-7.
[39]
Sandiganbayan Decision, p. 54.
[40]
Philippine Airlines vs. NLRC, 259 SCRA 459; Philippine Integrated Labor
Assistance Corp. vs. NLRC, 264 SCRA 418; Boman Environmental Dev't.
Corp.
vs. Court of Appeals, 167 SCRA 540, citing Lakas ng Manggagawang
Makabayan
vs. Abiera, 36 SCRA 437.
[41]
People vs. Sotto, 312 Phil. 869; People vs. Capilitan, 182 SCRA 313;
People
vs. Fider, 223 SCRA 117; Layug vs. Sandiganbayan, 315 Phil. 93.
[42]
People vs. Castro, et al., G.R. No. 122671, November 18, 1997.
[43]
22 Am. Jur. 662 cited in V.J. Francisco, Rules of Court, Vol. II, Part
I (Evidence) 1997 Ed., p. 651.
[44]
Bickford v. Lawson, 81 P. 2d. 216, 22, 27 Cal. App. 2d. 416, cited in
V.J.
Francisco, Rules of Court, Vol. II, Part I (Evidence) 1997 Ed., p. 654.
[45]
Moore on Facts (1908), Vol. II, citing Browning v. Stiles, (N.J. 1906)
65 Atl. Rep. 457.
[46]
Amended Petition of Darts, p. 75.
[47]
TSN, August 12, 1992, pp. 27-28.
[48]
TSN, August 13, 1992, pp. 17-19.
[49]
Previously cited.
[50]
Previously cited.
[51]
2 Wharton's Criminal Evidence, (11th ed.), 1779-1780, cited in V.J.
Francisco,
Rules of Court, Vol. II, Part I (Evidence) 1997 Ed., p. 654.
[52]
142 SCRA 295, 298.
[53]
G.R. Nos. 103501-03 and 103507, En Banc Decision dated February 17,
1997.
[54]
People v. Opida, supra, p. 304.
[55]
Resolution of November 13, 1996, p. 24.
[56]
Tabuena v. Sandiganbayan, supra. p. 27.
[57]
People v. Opida, supra, p. 303. |