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CONCURRING OPINION

BELLOSILLO, J.:

I concur. In affirming the conviction of petitioner by the Sandiganbayan, this Court in its Decision of 29 January 1998 relied "mainly on the prosecution's documentary evidence showing the chasmic disparity between the P102,760.00 monthly rental stipulated in Exh. 'B' and the P734,000.00 monthly rental provided in Exh. D.

At first blush, the presentation may appear sound; in a way, logical. But a critical and dispassionate review of the facts impels me to hold that the evidence of the prosecution miserably fails to meet the requisite quantum of proof to warrant the conviction of petitioner. It is simply too insubstantial and inadequate to establish her guilt beyond reasonable doubt.

The acquittal of petitioner may run against the current of popular temper and inclination, and particularly odious to those who may have already prejudged the case without knowing the facts. But I can only do what my conscience unerringly commands me to do. Perhaps it can be said that this is the essence of a strong and independent judicial system - that it remains immune from arbitrary and personal politics. I have pondered deeply on the issue; I have searched my mind and soul for an avenue to affirm petitioner's conviction; but I have failed to see my way to that conclusion.

The apparent disparity may really be "chasmic," but this by itself is too tenuous to prove that the Lease Contract between the LRTA and the PGHFI is "manifestly and grossly disadvantageous to the Government." For, how can a mere disparity in the amount of lease rental - chasmic or otherwise - be the sole raison d' t re for convicting an accused? Should not the disparity, or the cause of it, be at the very least sufficiently explained to uncover and be connected with the criminal mind of the accused? Should not other evidence be offered to clearly show that the accused entered into a transaction which was "manifestly and grossly disadvantageous to the Government?"

To convict under Sec. 3, par. (g), RA No. 3019, as amended, no less than proof beyond reasonable doubt is demanded for the contract or transaction entered into by the public officer on behalf of the Government to be considered "manifestly and grossly disadvantageous to the Government." In the instant case, the prosecution has utterly failed in the endeavor. Thus, the constitutional presumption of innocence of petitioner has become a matter of fact.

This Court, acquitting accused Jose P. Dans Jr. earlier, held that the prosecution failed to prove his guilt beyond reasonable doubt as his liability, if any, could only stem from a knowledge of the terms of the sublease agreement, of which he was not aware. Consequently, it is reasonably inferred from the decision acquitting Dans that as far as the Court was concerned Exh. "B" (the Lease Contract between LRTA and PGHFI) which he signed, was not per se "manifestly and grossly disadvantageous to the Government." Prescinding from this premise, it would be illogical to conclude that a subsequent agreement has transformed Exh. "B", found by this Court to be fair and regular, into a contract "manifestly and grossly disadvantageous to the Government" without changing substantially the provisions of the same agreement.

If accused Dans was acquitted because he merely signed Exh. "B", necessarily implying that it was not tainted with irregularity, how can petitioner be now convicted for merely signing Exh. "D"? Would we not be saying in effect that because of mere disparity, Exh. "D" made Exh. "B" manifestly and grossly disadvantageous to the Government? Perhaps it would have been different if at the outset Exh. "B" were considered excessively low or "manifestly and grossly disadvantageous to the Government." I pause to warn that if we are to pursue the theory that a mere "chasmic" disparity is sufficient to prove that a contract is "manifestly and grossly disadvantageous to the Government," it may not be difficult for an ill-motivated individual to incriminate a high ranking government official, or any person of consequence for that matter, by simply offering to pay and paying a much higher sublease rental.

Consequently, it is serious error to rely mainly, if not solely, on Exh. "D" stipulating a monthly rental of P734,000.00 which shows the so-called "chasmic" disparity. While the subject property was subsequently subleased for a rental seven (7) times higher, which a well-respected real estate broker and appraiser opined to be "extraordinary high," we can at best only speculate on the reason behind the "extraordinary high" sublease rental. For sure, there is no showing that the LRTA, on its own, could have commanded the same sublease rental PGHFI commanded in its sublease agreement. Could it be that the sublessee only wished to be ingratiated to the former First Lady or to the then powerful administration? Or, could it be that the sublessee really wanted the property so much, perhaps for reasons only known to him, or he saw a great potential in the property which other parties did not see nor wanted to risk on? But, the Court does not engage in speculatory exercises; it goes by the hard facts.

This Court has time and again declared that when the inculpatory facts and circumstances are capable of two or more interpretations, one of which being consistent with the innocence of the accused and the other or others consistent with his guilt, then the evidence in view of the constitutional presumption of innocence has not fulfilled the test of moral certainty and is thus insufficient to support a conviction. It need not be overstressed that, in criminal cases, every circumstance favoring the innocence of the accused must be duly taken into account, and presumptions unsupported by solid evidence do not have a place in the dispensation of justice, especially as the law requires proof beyond reasonable doubt.

The Solicitor General in his Memorandum submitted after the 10 September 1998 Oral Arguments insists that "[t]he lease agreement (Exhibit B) is grossly and manifestly disadvantageous to the government" and ventures to say that the lease was "not for the purpose of earning additional income for the LRTA operations but solely to extend financial assistance to the PGHF." Thus, it is argued that "[b]eing a transaction purely intended to benefit the PGHF, without any regard to the interest of the government, the lease agreement by itself is the most compelling evidence demonstrating the gross and manifest disadvantage to the government." Again, this is a dangerous presumption.

Is the Court now being asked to reverse itself and hold that the lease agreement between the LRTA and PGHFI (Exh. "B") is per se "manifestly and grossly disadvantageous to the Government?" Is the Court now going to recall the acquittal of accused Dans for entering into a contract which was "manifestly and grossly disadvantageous to the government?" This is absurd and no longer an issue since res judicata and double jeopardy have already set in.

While the procedure followed in the leasing and subleasing of subject property left much to be desired, more so after taking into consideration the official positions and functions of the persons involved in the transactions at the time they were entered into, there was likewise so much to be desired in the presentation of the evidence to prove the guilt of the accused. But the difference is that the accused here is not to bear the burden of proving her innocence. We may not even say that she is indeed innocent; simply stated, the prosecution has utterly failed to prove that she is guilty beyond reasonable doubt, hence, must be acquitted. For, the conviction of the accused does rest not on the weakness of the defense but on the strength of the prosecution. Unless the prosecution discharges its burden, the accused need not even offer evidence in his behalf.

It cannot be overemphasized that we can convict only when the evidence submitted shows a crime has been committed; we can convict only if we have ascertained beyond reasonable doubt that the accused is indeed guilty. Otherwise, we have no, recourse but to acquit. It is not the Court, nay, not the men who sit in judgment, that loosen the prisoner at bar, but the State, by the compelling majesty of its Constitution, that sets him free.

By this precept, I vote to grant the motion for reconsideration and to reverse petitioner's conviction.