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DISSENTING OPINION
PARDO, J.:
I am constrained to dissent.
Let me review the facts.
On May 26, 1987, the Philippine National Bank (PNB) filed a complaint with the Tanodbayan against the following: Ferdinand E. Marcos, Rodolfo M. Cuenca and Joaquin T. Venus, Jr.1 Petitioner was not one of the respondents therein.2cräläwvirtualibräry
On September 1, 1987, Special Prosecutor Juan T. Templo-Nuevo issued a subpoena to petitioner upon the ground that on the basis of the evidence on record, Petitioner, along with others, is involved in the case.3 The subpoena, however, was not served upon petitioner since he was no longer connected with PNB, Escolta, Manila, the address indicated in the subpoena.
On June 8, 1988, Ombudsman Justice Conrado M. Vasquez (ret.) issued Administrative Order No. 1 addressed to the Office of the Special Prosecutor and Deputized Tanodbayan Prosecutors authorizing them to continue the preliminary investigation of cases pending as of April 27, 1988, until the same are terminated.4cräläwvirtualibräry
On February 6, 1992, almost five (5) years after the complaint had been filed, Special Prosecution Officer (SPO) III Teresita V. Diaz-Baldos, issued an order directing petitioner to submit his counter-affidavit, holding that there is probable cause to implead him in the case.5cräläwvirtualibräry
On March 9, 1992, petitioner submitted his counter-affidavit to the Office of the Special Prosecutor.6cräläwvirtualibräry
On July 9, 1992, SPO III Teresita V. Diaz-Baldos issued a resolution recommending that petitioner be prosecuted for violation of Section 3(e) in relation to Section 4(a), of Republic Act (R.A.) No. 3019.7cräläwvirtualibräry
Without giving petitioner a chance to seek a reconsideration/review of the resolution, on July 30, 1992, Prosecutor Baldos filed directly with the Sandiganbayan an information charging petitioner Panfilo O. Domingo and Rodolfo M. Cuenca, with violation of Section 3(e) in relation to Section 4(a) of Republic Act No. 3019, as amended, dropping two (2) of the original respondents, namely, Ferdinand E. Marcos and Joaquin T. Venus, Jr.8cräläwvirtualibräry
On August 11, 1992, petitioner filed with the Sandiganbayan a petition for reinvestigation.9cräläwvirtualibräry
On October 28, 1992, the Sandiganbayan partially granted the petition for reinvestigation in the sense that it directed the prosecution to consider the petition for reinvestigation as a motion for reconsideration of the July 9, 1992 resolution.10cräläwvirtualibräry
On January 14, 1993, the Special Prosecutor denied petitioners motion for reconsideration.11cräläwvirtualibräry
On February 19, 1993, petitioner filed with the Sandiganbayan a motion to quash the information against him upon the grounds that (1) the criminal action or liability has been extinguished by prescription, and (2) the facts charged do not constitute an offense.12cräläwvirtualibräry
On March 10, 1993, respondent People of the Philippines filed with the Sandiganbayan an opposition with motion to admit.13cräläwvirtualibräry
On March 15, 1993, the Sandiganbayan promulgated its resolution denying the motion to quash ruling that if the facts alleged were true, the offense had been committed.14cräläwvirtualibräry
Hence, this petition.15cräläwvirtualibräry
Petitioner submits that the facts charged in the information do not constitute an offense. I agree.
Parenthetically, the prosecution itself dismissed or dropped the case against former president Ferdinand E. Marcos and Joaquin T. Venus, without stating the reason why. And more, the prosecution did not include in the information the members of the board of directors of the Philippine National Bank who approved the application for letter of credit.
The charge is for violation of Section 3(e) of Republic Act No. 3019, as amended. The elements of this offense are as follows:
"(1).......The accused is a public officer or a private person charged in conspiracy with the former;
"(2).......The said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions;
"(3).......That he or she causes undue injury to any party, whether the government or a private party;
"(4).......Such undue injury is caused by giving unwarranted benefits, advantage or preference to such parties; and
"(5).......That the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.16cräläwvirtualibräry
In a later case, the Court clarified that the third element of causing undue injury could only mean actual injury or damage.17cräläwvirtualibräry
The "Information" against petitioner reads as follows:
"x x x.....................x x x
"Accused Rodolfo M. Cuenca, capitalizing and exploiting his close personal association with the then President Ferdinand E. Marcos to obtain favorable loan accommodations for CDCP, requested the latters assistance and intervention in securing the approval by the Philippine National Bank Board of Directors of the application of the CDCP for a U. S. $40 Million Letter of Credit and in foregoing the collateral requirements of CDCP, as a result of which accused Panfilo O. Domingo, acceding to the pressure exerted by President Marcos in relation to accused Cuencas requests, facilitated and made possible the passage by the PNB Board of Directors of Board Resolution No. 144 whereby the U.S. $40 Million Standby Letter of Credit applied for by CDCP to secure the principal and interest on its loan with the Republic National Bank of Dallas was approved, notwithstanding a collateral deficiency by CDCP on its previous accounts with PNB, and again subsequently recommended to the PNB Board of Directors the approval of Board Resolution No. 180 amending Board Resolution No. 144 in order to allow CDCP to use its loan proceeds secured by the aforementioned Letter of Credit for its other international projects and thereafter allowed CDCP to forego its collateral requirements, which act of the accused inflicted undue injury and prejudice to PNB which was unjustly forced to assume CDCPs obligation to the Republic National Bank of Dallas after the latter had defaulted in the payment thereof, amounting to U.S. $29 Million, and which likewise granted unwarranted benefits to CDCP in the same amount. x x x18cräläwvirtualibräry
"x x x.......x x x.......x x x"
In my view, the information fails to allege specifically the third element of the offense charged of causing undue injury or damage to the government by acts of manifest partiality, evident bad faith or gross inexcusable negligence causing actual injury or damage.19 As bank president, it was actually petitioners duty to make a recommendation on the bank clients application for letter of credit as a business decision. The information does not allege that petitioners act of "facilitating" or "making possible" or "recommending" the PNB boards approval of CBCPs application for a US$40 million letter of credit was done through manifest partiality, evident bad faith or gross inexcusable negligence and caused actual damage to the bank or the government, and in what amount. On the contrary, "good faith is always presumed" to use the words of the ponente in a precedent case.20 Quashal is proper where the facts stated in the information are incomplete and do not convey the elements of the crime.21 Consequently, the facts charged against petitioner do not constitute the offense of violation of Section 3 (e), Republic Act No. 3019, as amended.22cräläwvirtualibräry
IN VIEW WHEREOF, I vote to grant the petition and to quash the information in Criminal Case No. 17847 of the Sandiganbayan.
Endnotes:
1 Docketed as TBP Case No. 87-02391. Respondents were former president Ferdinand E. Marcos, Construction and Development Company of the Philippines (CDCP) president and Marcos crony Rodolfo M. Cuenca, and former presidential assistant Joaquin T. Venus, Jr.
2 Petition, Annex "B", Rollo, pp. 35-43.
3 Petition, Annex "D", Rollo, p. 70.
4 Petition, Annex "E", Rollo, pp. 71-72.
5 Petition, Annex "F", Rollo, p. 73.
6 Petition, Annex "G", Rollo, pp. 74-90.
7 Petition, Annex "H", Rollo, pp. 107-113.
8 Petition, Annex "I", Rollo, pp. 114-116.
9 Petition, Annex "J", Rollo, pp. 117-125.
10 Petition, Annex "M", Rollo, pp. 141-143.
11 Petition, Annex "N", Rollo, pp. 145-146.
12 Petition, Annex "O", Rollo, pp. 147-153.
13 Petition, Annex "P", Rollo, pp. 154-157.
14 Petition, Annex "A", Rollo, pp. 32-34.
15 Petition filed on April 1, 1993, Rollo, pp. 2-30.
16 Pecho vs. Sandiganbayan, 238 SCRA 116, 128 (1994); Llorente, Jr. vs. Sandiganbayan, 287 SCRA 382, 398 (1998); Ingco vs. Sandiganbayan, 272 SCRA 563, 574 (1997)
17 People vs. Sandiganbayan, G. R. No. 125534, October 13, 1999; Pecho vs. Sandiganbayan, supra.
18 Petition, Annex "I", Rollo, pp. 114-115.
19 Pecho vs. Sandiganbayan, supra; Llorente, Jr. vs. Sandiganbayan, supra, on pp. 398-399.
20 Venus vs. Desierto, 298 SCRA 196, 217 (1998)
21 People vs. Purisima, 86 SCRA 542 (1978); People vs. Asuncion, 161 SCRA 490 (1988)
22 Llorente, Jr. vs. Sandiganbayan, supra; Pecho vs. Sandiganbayan, supra, on p. 131; Venus vs. Desierto, supra, citing Fernando vs. Sandiganbayan, 212 SCRA 680, 687-688 (1992); Enrile vs. Salazar, 186 SCRA 217 (1990); Allado vs. Diokno, 232 SCRA 192 (1994)
