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CONCURRING AND DISSENTING OPINION

FRANCISCO, J.:

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 ponencias finding 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 the 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 officers 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 mere scintilla of evidence or argument, the presumption of constitutionality of the assailed provision.

I, however, strongly disagree with the ponencias 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 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 courts 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 Cuervos 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 a 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 on 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 Garchitorena³ to petitioner Marcos motion for his inhibition, in the initial voting, Justice 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 vs. Imelda Marcos and Jose Dans.⁴ On September 21, 1993, Justices Garchitorena, Balajadia and del Rosario, in the presence of another Sandiganbayan Justice⁵ 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 Belajadia 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 293-93⁷ 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 twoother justices from among the members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of 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, x x x.⁸cräläwvirtualibräry

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 x x x.⁹ (Emphasis supplied)

The Quezon City restaurant where the Justices (Garchitorena, Balajadia and Del Rosario) took lunch and where they, as per Justice Garchitorenas account, discussed their positions in these cases¹⁰ is not the principal office or an extension of the Sndiganbayan. Neither was there any prior valid authorization to hold sessions therein. Clearly then, whatever discussion and agreement was made among the above-mentioned Justice present in that restaurant cannot be considered as official business and therefore, has no binding effect.

Moreover, the presence of the 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 justices 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. Appereciation/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 appraiser,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.¹²cräläwvirtualibräry

Now to the heart of Cuervos 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 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 land appreciates more rapidly.¹⁵cräläwvirtualibräry

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 evaluation considered offers for sale, actual sales and appraisal jobs by witness Cuervos own real estate firm of comparable lots in the same vicinity which, as testified to witness Cuervo and summarized by the Sandiganbayan, are:

Offers for sale in the Bulletin Today

On January 20, 1984

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

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

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:

On June 7, 1984

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

25 contiguous lots along Taft Avenue, Maria Lim and Donada Streets near Dela Salle College with a total area of 12,000 sq. m. at P1,120 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

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 meter¹⁷cräläwvirtualibräry

FMV of the entire land, computed on P1,500.00/sq. m., is therefore, P11,010,00.00. 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:

On May 28, 1983

604 sq. m. lot located along Escolta offered by Uni-Invest Management Corporation at P6,000 per square meter;

On June 13, 1982

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

439 sq. m. lot along Echague St. in Quiapo offered for sale by Honoria Development at P12,000 per square meter.

His company, the Cuervo Appraiser Company, appraised two (2) properties in that year, viz:

On August 1, 1984

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

The Philippine Commercial International (sic) Banks site at Plaza Sta. Cruz, more less diagonally across Dasmarias, with an area of 679 sq. m. was appraised at P8, 500 per square meter.¹⁹cräläwvirtualibräry

Fair rental value of this property was pegged at P969,907.68 per annum , or P80,825.64 a month.²⁰ This is assumed that the FMV per sq. M. is P10,623.76 at the same value of 8%.

The defenses 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/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 of 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 is in Pasay City was leased to the PGH Foundation at of what the property should have been leased out for; and

(b) the Sta. Cruz property was leased to the PGH Foundation for of what that property should have been leased out for,

Obviously there is a gross disparity here.²¹cräläwvirtualibräry

The problem with the Sandiganbayans 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 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 (Underscoring supplied)

x x x

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 building 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, you are 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 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 the 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 the 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, 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 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 to Cantimar (sic) and the Baclaran area would probably be 2 to 3 times more.

Q Alright, lets 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 talking 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 a 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 is the rental agreement under Exhibit 3-c?

ATTY. BELLO

It was worth 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 (Underscoring 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 Cuervos 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 courts sea of assumptions, as he vigilantly pointed out, at a 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,²⁵cräläwvirtualibräry

(2) that some improvements on the property were of no significant value,²⁶ and

(3) he and the Sandiganbayan were going on hypothetical.²⁷cräläwvirtualibräry

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 Cuervos 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 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 Thats 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, tell 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 taking something like P400,000 per month rental. So on that basis, the rental of the LRT authority in favor of the PGH was almost 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 testifying on the fair market value at the 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 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 there are our figures now. P400,000 more or less us a good asking price or fair rental price insofar s 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 month, (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 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 percent 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.²⁸cräläwvirtualibräry

Note that counsel for petitioners Dans, Atty. Belo, apparently disturbed by the trend of the Sandiganbayans questioning, could no longer help but raise the objection that the court is inputting the value as station now but the witness is testifying on the fair market value at that time. Atty. Belos objection is well-taken inasmuch as witness Cuervos uncontradicted valuation of P80,825.64 as fair rental on the optimum condition²⁹ is premised on the fact that the Sta. Cruz property is bare, x x x just a land³⁰ 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, describe 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, x x x.³²cräläwvirtualibräry

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 P734,00/month³³ was very much higher than the P102,760.00/month rental under the LRTA-PGHFI lease contract or even witness Cuervos 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 that 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.³⁴cräläwvirtualibräry

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 contract³⁵ 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.³⁷chanroblesvirtuallawlibrary

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.³⁸cräläwvirtualibräry

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 resources and pay interest for eleven (11) months because the PGH Foundation had to be in arrears for twelve (120 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.³⁹cräläwvirtualibräry

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.⁴⁰cräläwvirtualibräry

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 States 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 Cuervos expert testimony in open court. And the Sandiganbayan cannot save the day for the prosecution by considering as evidence testimony made in response to 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 partial 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 property in question and of the sales made in the immediate vicinity carries great weight⁴⁵ 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 Querubins 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:

x x x

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, we are talking of property with substantial amount of improvement?

A I am computing it based on bare land, your honor.⁴⁷cräläwvirtualibräry

(Underscoring ours.)

x x x

PJ GARCHITORENA

Now, the court will ask questions.

Q Mr. Cuervo, when your talking about real estate both in Pasay and 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.

7Q 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 especially.

Q Inn 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 (Underscoring ours)

Aware that witness Cuervos 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 witnesses 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 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 appraisal 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 give 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, lets 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 evaluation.

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 twice as much as the rental fixed in the Lease Contract of the LRTA with the PGH Foundation?

A Yes, your honor.⁴⁹cräläwvirtualibräry

(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 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 to 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 personal opinion?

A Yes, your Honor.

Q One more time. Your estimated professional opinion at that time, the rented 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, tell us.

ATTY. BELO

Under the Lease Contract is P92,437.20 a month.

PJ GARCHITORENA

Q If you say 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 the basis, the rental of the LRT authority in favor of the PGH was almost 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 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 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.⁵⁰cräläwvirtualibräry

The court 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 slight semblance of cross-examination is already offensive to fundamental requirements of due process, for this Court in People v. Opida⁵² had admonished that: x x x 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 judges/justices 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, x x x, we fear that in its zeal for arriving at the facts the court here conveyed to the jury to strong an impression of the courts belief in the defendants probable guilt to permit the jury freely to perform it own function of independent determination of the facts.

x x x

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.

x x x

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 the crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interest 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 doingThis 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 is 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 peoples 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 parties 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.⁵⁴cräläwvirtualibräry

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 objection anent Presiding Justice Garchitorenas question during the trial, that:

x x x. 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. Cuervos testimony. Instead, he formally offered the entire testimony without making any exceptions or reservations.⁵⁵cräläwvirtualibräry

In Tabuena, this Court took cognizance of the Sandiganbayans 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 prosecutions 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 the 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.

Endnotes:

---

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 hereby declared to be unlawful:

xxx xxx 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 Garchitorenas 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 Rosarios 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 Atienzas 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 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 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 he Special Division.

C. At all events, whatever position 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;

          to acquit both accused Dans and Marcos in Criminal Case No. 17449.

Justice del Rosarios conclusion were similar to those of Justice Atienza.

If Justice Amores were to have disagreed with the conclusion reached by Justice 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 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 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, not 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 hae plainly seen. More than that: when Justice Balajadia and the undersigned had agreed during lunch on September 21, 1993 with Justice del Rosarios presentation, the agreement was explicit that he 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 the 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 with the conclusion of Justice Atienza. There was no secret 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 producing 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 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. Balajadias and of the undersigneds 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.