Leg Forms Sample Petition for Certiorari

REPUBLIC OF THE PHILIPPINES SUPREME COURT MANILA XXX, Petitioner,

S.C. G.R. No. __________________ For Certiorari under Rule 65 (case number in OCP)

- versus XXX Respondents. x-------------------------------------------------x

PETITION FOR CERTIORARI Petitioner XXX (“Petitioner”), by counsel, respectfully states:

I.

NATURE OF THE PETITION

1.1 This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to annul and set aside the following Resolutions rendered in connection with (CASE NUMBER IN OCP), entitled, “XXX vs. XXX.”, for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction:

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a.

Resolution dated 11 January 2011 (“First Assailed Resolution”)1 rendered by XXXXX, giving due course to Private Respondent XXX (“Private Respondent”) Affidavit Complaint dated 26 February 2007 (“Affidavit Complaint”),2 and recommending the filing of Informations against Petitioner, among others, for the following offenses: (i) Violation of Section 3(e) of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act (“RA 3019”); and (ii) Malversation of Public Funds under Article 217 of the Revised Penal Code (“RPC”); and

b.

Resolution dated 17 February 2012 (“Second Assailed Resolution”)3 issued by Public Respondent Hon. Xxxxx Carpio-Morales (“Public Respondent”), approving the recommendation of Assistant Special Prosecutor III/ Acting Director, Prosecution Bureau X, Omar L.

A certified true copy of the Resolution dated 11 January 2011 (“First Assailed Resolution”) is attached hereto as Annex “A” and made an integral part hereof. A copy of Respondent XXX (“Respondent XXX”) Affidavit Complaint dated 26 February 2007 (“Affidavit Complaint”) is attached hereto as Annex “B” and made an integral part hereof. A certified true copy of the Resolution dated 17 February 2012 (“Second Assailed Resolution”) is attached hereto as Annex “C” and made an integral part hereof.

Sagadal (“Prosecutor Sagadal”), to: (a) disapprove Assistant Special Prosecutor II Mary Ann T. Xxxxx’s (“Prosecutor Xxxxx”) recommendation to grant Petitioner’s Motion for Reconsideration (to Xxxxx Resolution dated January 11, 2011) dated 4 May 2011 (“Motion for Reconsideration”),4 as contained in her Memorandum dated 9 December 2011,5 and thus set aside the First Assailed Resolution for lack of probable cause to hold Petitioner, among others, liable for violation of Section 3(e) of RA 3019 and Malversation of Public Funds; and consequently (b) deny Petitioner’s Motion for Reconsideration. 1.2 The First Assailed Resolution and the Second Assailed Resolution are jointly referred to herein as “Assailed Resolutions.” 1.3 In issuing the Assailed Resolutions, Public Respondent gravely abused its discretion in (insert act done in grave abuse of discretion), which disregarded the overwhelming evidence on record that there is no probable cause to charge Petitioner with Violation of Section 3(e) of RA No. 3019 and Malversation of Public Funds. On the contrary, the evidence on record, supported by settled jurisprudence and applicable laws, indubitably establish that Petitioner clearly and absolutely committed no illegal or unlawful act(s). 1.4 Petitioner does not have any plain, speedy and adequate remedy in the ordinary course of law, except for this Petition.

II. STATEMENT OF MATERIAL DATES AND TIMELINESS OF PETITION II.1 On 2 May 2011, Petitioner came to know of the existence of the First Assailed Resolution,6 recommending the filing of Informations against her for violation of Section 3(e) of RA 3019 and Malversation of Public Funds under Article 217 of the RPC. II.2 Petitioner then timely filed a Motion for Reconsideration 7 of the First Assailed Resolution with the Office of the Xxxxx on 5 May 2011, in accordance with Administrative Order No. 7, which states the Rules of Procedure of the Office of the Xxxxx.8 II.3 On 30 March 2012, Petitioner received the Second Assailed Resolution, 9 denying Petitioner’s Motion for Reconsideration. Under Section 4, Rule 65 of the Rules of Court, and pursuant to the ruling of this Honorable Court in Fabian vs. Desierto,10 Petitioner has sixty (60) days from receipt of the Second Assailed Resolution, or until 29 May 2012, within which to file a Petition for Certiorari under Rule 65 of the Rules of Court. Thus, this Petition is timely filed. 4

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A copy of the Motion for Reconsideration (to Xxxxx Resolution dated January 11, 2011) dated 4 May 2011 (“Motion for Reconsideration”) is attached hereto as Annex “_” and made an integral part hereof. A copy of the Memorandum dated 9 December 2011 is attached hereto as Annex “_” and made an integral part hereof. First Assailed Resolution, Annex “_” hereof. Motion for Reconsideration, Annex “_” hereof. Section 7 of Administrative Order No. 7, as amended by Administrative Order No. 15. Second Assailed Resolution, Annex “_” hereof. G.R. No. 129742, 16 September 1998, _ SCRA _, _.

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III.

PARTIES

III.1 Petitioner xxxx is a Filipino, of legal age, with address at xxxx. Petitioner may be served with pleadings, motions, notices, Resolutions, Orders and other papers of this Honorable Court through her counsel, xxxxxx. III.2 Public Respondent, the xxx, in her capacity as the xxxx, who issued the Assailed Resolutions, may be served with pleadings, motions, notices, Resolutions, Orders and other papers of this Honorable Court at the xxxx. III.3 Private Respondent, xxxx, is a Filipino, of legal age, and is the prime mover for all the above trumped-up charges against Petitioner. He may be served with pleadings, motions, notices, Resolutions, Orders and other papers of this Honorable Court at his residence with address at xxxx.

IV.

STATEMENT OF THE FACTS

V.

STATEMENT OF THE CASE

(Insert Facts)

(Instert statement of the case, or the portion of the facts which pertains to the adultery, i.e., from filing of the complaint/performance of acts which serve as basis of the complaint. Thus, you are given freedom to add facts in part IV not included in the resolution. Be creative. )

VI.

GROUNDS IN SUPPORT OF THE PETITION I

PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE AGAINST PETITIONER FOR VIOLATION OF SECTION 3 (E) OF REPUBLIC ACT NO. 3019 (“RA 3019”). THE ELEMENT OF UNDUE INJURY TO THE GOVERNMENT OR UNWARRANTED BENEFITS TO ANY PARTY IS CLEARLY ABSENT. A.

PUBLIC BIDDING WAS NOT REQUIRED UNDER THE CIRCUMSTANCES BECAUSE NO GOVERNMENT PROCUREMENT IS INVOLVED, AND ABSENCE OF THE SAME DID NOT RESULT IN UNDUE INJURY TO THE PROVINCIAL GOVERNMENT. NEITHER DID THE LACK OF COMPETITIVE BIDDING CREATE UNWARRANTED BENEFITS IN FAVOR OF XXXXX SINCE THE NGO MERELY ACTED AS CONDUIT OF THE FUNDS.

B.

THE MOA CONTAINED SUFFICIENT SAFEGUARDS TO PREVENT THE ACCRUAL OF UNWARRANTED BENEFITS TO XXXXX AND TO PROTECT THE 3

PROVINCIAL GOVERNMENT FROM BEING INJURED OR DISADVANTAGED. C.

AT ALL TIMES, PETITIONER ACTED WITHIN THE BOUNDS OF HER AUTHORITY AND IN GOOD FAITH. II

PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE FOR MALVERSATION OF PUBLIC FUNDS. NOT ALL THE ELEMENTS OF SAID CRIME ARE PRESENT.

VII. DISCUSSION I PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE AGAINST PETITIONER FOR VIOLATION OF SECTION 3 (E) OF REPUBLIC ACT NO. 3019 (“RA 3019”). THE ELEMENT OF UNDUE INJURY TO THE GOVERNMENT OR UNWARRANTED BENEFITS TO ANY PARTY IS CLEARLY ABSENT.

VII.1 The elements of the crime punishable under Section 3(e) of RA 3019 are as follows: (a) the accused must be a public officer discharging administrative, judicial or official functions; (b) he must have acted with manifest partiality, evident bad faith or inexcusable negligence; and (c) his action caused undue injury to any party, including the government, or gave any private party an unwarranted benefit, advantage or preference in the discharge of his functions. 11 Here, there is no direct evidence that Petitioner caused undue injury to the Provincial Government of Xxxxx or gave unwarranted benefit, advantage, or preference to XXXXX or any other party, through manifest partiality, evident bad faith or inexcusable negligence. VII.2 In a long line of cases, probable cause has been defined in more or less a similar fashion, thus: “Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief. The requirement is less than certainty or proof, but more than suspicion or possibility.”12 11

Catindig v. People, G.R. No. 183141, 18 September 2009, __ SCRA __. See also Baybay Water District v. Commission on Audit, G.R. Nos. 147248-49, 23 January 2002, 425 Phil. 326.

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VII.3 Clearly, the existence of probable cause cannot be made to depend on flimsy or unsubstantiated claims, since the purpose of determining probable cause through a preliminary investigation is not only to prosecute offenders but also to secure the innocent against hasty, malicious and oppressive prosecution.13 Because the determination of probable cause is part and parcel of the constitutional rights to due process and to be presumed innocent, the institution of a criminal complaint must be done by the public prosecutor after he has been sufficiently apprised by the complainant of his evidence that supports his accusations.14 As this Honorable Court aptly states: “Indeed, probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt, but it certainly demands more than bare suspicion and can never be left to presupposition, conjecture, or even convincing logic.”15

VII.4 In the present case, in view of the dearth of evidence on record, the Public Respondent could not, and should not, have found probable cause to indict Petitioner. VII.5 It bears noting at the outset that, from the inception of the investigations against Petitioner, there was considerable doubt as to certain material facts and key elements of the offenses charged. In a Memorandum dated 19 April 2011 16, Prosecutor Xxxxx recommended the conduct of further investigation on these issues, to wit: a. Whether the full amount of P25 million was utilized by the XXXXX; b. Whether the 25 million was eventually returned to the Provincial Government; c. Whether the Provincial government provided funds for the operation requirement of the program; d. Whether a COA Report exists relative to the implementation of the Rice Program; and e. Whether the XXXXX is registered with the SEC. VII.6 In spite of the uncertainty as regards the foregoing items, the OSP was nevertheless directed to file the Informations with the Court. Clearly, the Public Respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction when she approved and adopted such course of action A.

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PUBLIC BIDDING WAS NOT REQUIRED UNDER THE CIRCUMSTANCES BECAUSE NO GOVERNMENT PROCUREMENT IS INVOLVED, AND ABSENCE OF THE SAME DID NOT RESULT IN UNDUE INJURY TO THE PROVINCIAL Kho, et al. v. Hon. Lanzanas, et al., G.R. No. 150877, 4 May 2006, 489 SCRA 444, emphasis and underscoring supplied. See also Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349; Domalanta, et al., v. Comelec, et al., G.R. No. 125586, 29 June 2000, 334 SCRA 555. Collantes v. Marcelo, G.R. Nos. 167006-07, August 14, 2007, 530 SCRA 142; cited in Soriano v. Marcelo, et al., G.R. No. 163017, 18 June 2008, 555 SCRA 85. Kilosbayan, Inc., et al. v. Comelec, et al., G.R. No. 128054, 16 October 1997, 345 SCRA 1141; citations omitted. Id, at 1174; emphasis and underscoring supplied. Cited in Memorandum dated 9 December 2011, Annex “__” hereof, pp. 3-4.

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GOVERNMENT. NEITHER DID THE LACK OF COMPETITIVE BIDDING CREATE UNWARRANTED BENEFITS IN FAVOR OF XXXXX SINCE THE NGO MERELY ACTED AS CONDUIT OF THE FUNDS.

VII.7 What is punishable under Section 3 (e) of RA 3019 is the act of causing any undue injury to any party, or the giving to any private party unwarranted benefits, advantage or preference in the discharge of the public officer's functions.17 VII.8 In this case, Public Respondent’s erroneous finding of probable cause against Petitioner for violation of Section 3(e) of RA 3019 hinges on the absence of public bidding (or any other acceptable mode of procurement under the law) prior to the award of the contract, the MOA, in favor of XXXXX, contrary to the requirements of RA 9184.18 The theory of the Assailed Resolutions is that such absence of bidding “[deprived] other prospective consultants equal opportunity of transacting official business with the government”, and the same is allegedly tantamount to giving unwarranted benefits, advantage or preference to a private entity.19 VII.9 Jurisprudence defines and describes the second mode, i.e., giving unwarranted benefits, advantage or preference to a private person, of committing the crime defined in Section 3(e) of RA 3019 in this wise: “The word ‘unwarranted’ means lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. ‘Advantage’ means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. ‘Preference’ signifies priority or higher evaluation or desirability; choice or estimation above another. “In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions.”20 VII.10 Petitioner’s act of entering into the MOA did not result in any permanent transfer of funds from the public coffers to the pockets of XXXXX, since the latter did not receive any amount from the provincial government as compensation for the services it rendered. In support of this statement, a clarification as regards the nature of the MOA and the rights and obligations of the parties thereto is in order. First, the NGO or foundation with whom the provincial government is contracting is only supposed to maintain the funds for the provincial rice program and facilitate the transfer of these to qualified farmer beneficiaries in Xxxxx. Second, in performing such undertaking, the NGO or foundation does not expect to get paid because such undertaking is on a voluntary basis. This can be gleaned from the Eighth Whereas clause of the MOA which provides:

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Vergara v. Xxxxx, et al., G.R. No. 174567, 12 March 2009, 580 SCRA 693. First Assailed Resolution, Annex “__” hereof, pp. 8-11. See also Second Assailed Resolution, par. 5. First Assailed Resolution, Annex “__” hereof, p. 11 Sison v. People, G.R. Nos. 170339, 170398-403, 9 March 2010, __ SCRA __.

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“Whereas, the FOUNDATION [XXXXX], a non-governmental organization focusing on providing basic social services to the people of Xxxxx has signified its intention to manage, administer, and implement the Provincial Rice Program;” VII.11 In this regard, the First Assailed Resolution itself acknowledges that the MOA contained no stipulations as to the amount of the contract 21 --- strengthening Petitioner’s position that the MOA does not contemplate a conveyance of benefit, pecuniary or otherwise, to XXXXX. VII.12 Clearly, the Public Respondent gravely abused her discretion in disregarding the above facts and finding that unwarranted benefits accrued to XXXXX. The truth of the matter is that XXXXX did not even receive any benefit, much less an unwarranted one. Accordingly, there is no basis on record for the Public Respondent to conclude that Petitioner accorded unwarranted benefits, advantage or preference to XXXXX. VII.13 Petitioner cannot likewise be charged with having acted with manifest partiality simply because no competitive public bidding was conducted before she entered into the MOA with XXXXX. This Honorable Court explained that acting with manifest partiality is one of the three modes of committing the offense defined by Section 3(e), and defined the term “manifest partiality”, thus: “’Partiality’ is synonymous with ‘bias’ which ‘excites a disposition to see and report matters as they are wished for rather than as they are.’ ... Proof of the existence of any of these modes in connection with the prohibited acts under Section 3(e) should suffice to warrant conviction.”22 “There is manifest partiality when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.”23 VII.14 Here, contrary to well-settled rules, the Public Respondent did not specify and allege the facts from which it based the conclusion that Petitioner acted with manifest partiality in favor of XXXXX. In Dela Chica v. Sandiganbayan24, it was explained that the mode by which the offense was committed, e.g., “with manifest partiality”, must be alleged with particularity, thus: “It is not enough to allege that the acts were willfully, unlawfully or criminally caused without stating that the same was done in a manner by which the accused could be held liable for the specific offense charged. This Court has ruled that in order that one may be held criminally liable under Section 3(e) of R.A. 3019, the act of the accused which caused undue injury must have been done with evident bad faith or with gross inexcusable negligence. This draws more significance considering that good faith and regularity are always presumed in the performance of official duties by public officers. Therefore, manifest partiality, 21 22

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First Assailed Resolution, Annex “__” hereof, p. 10. Fonacier, et al. v. Sandiganbayan, G.R. Nos. L-50691, 5 December 1994, 238 SCRA 655, __; citations omitted. M.A. Jimenez Enterprises, Inc. v. The Honorable Xxxxx, et al., G.R. No. 155307, 6 June 2011, __ SCRA __; citing Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009, 580 SCRA 279, 290. G.R. No. 144823, 8 December 2003, __ SCRA __; __.

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evident bad faith or gross inexcusable negligence must be alleged with particularity in the information sufficiently to inform the accused of the charge against him and to enable the court properly to render a decision.”25

VII.15 Neither the Informations nor the Assailed Resolutions conform with this standard. These only made vague references to Petitioner’s supposed manifest partiality, evident bad faith and gross inexcusable negligence arising from the absence of a public bidding prior to the award of the MOA. However, that the MOA was not subjected to competitive public bidding is not fatal to Petitioner’s cause. Inasmuch as no government procurement is involved in this case, competitive public bidding is not required. The relationship formed between the Provincial Government and XXXXX pursuant to the MOA does not even expose the Provincial Government to any financial liability. If at all, the financial risk to the government is with respect to the possibility of the farmer beneficiaries defaulting on the loans extended to them by the province through XXXXX. VII.16 At any rate, the mere absence of public bidding, assuming arguendo that one is required in the present case, should not automatically translate to a finding of injury, damage or disadvantage to the government that would warrant the finding of probable cause to indict a public official for violation of Section 3(e) of RA 3019. Indeed, this Honorable Court ruled in Nava v. Palattao26 that: “Lack of public bidding alone does not result in a manifest and gross disadvantage. Indeed, the absence of a public bidding may mean that the government was not able to secure the lowest bargain in its favor and may open the door to graft and corruption. Nevertheless, the law requires that the disadvantage must be manifest and gross. Penal laws are strictly construed against the government. “If the accused is to be sent to jail, it must be because there is solid evidence to pin that person down, not because of the omission of a procedural matter alone.”27

VII.17 On this note, it is important to remember the rationale behind the legal requirement of conducting public biddings. In Power Sector Assets and Liabilities Management Corporation (PSALM) v. Pozzolanic Philippines, Inc., this Honorable Court explained: “Aside from protecting public interest by giving the public the best possible advantages through open competition, ‘[a]nother self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts.’”28 25 26

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Emphasis and underscoring supplied. G.R. No. 160211, 28 August 2006, __ SCRA __. See also Marquez v. Sandiganbayan, G.R. Nos. 182020-24 and Caunan v. People, G.R. Nos. 181999 & 182001-04, 2 September 2009, __ SCRA __. Emphases and underscoring supplied. Citing Danville Maritime, Inc. v. Commission on Audit, G.R. No. 85285, 28 July 1989, 175 SCRA 701, 711; citing FERNANDEZ, B.C, TREATISE ON GOVERNMENT CONTRACTS UNDER PHILIPPINE LAW, pp. 63 and 64, and COBACHA AND LUCENARIO, LAW ON PUBLIC

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VII.18 Here, the above rationale was not circumvented, and the public interest was upheld rather than damaged, because the Provincial Government was able to efficiently implement its rice program cum credit facility by tapping the expertise and services of the private sector at no cost. It bears noting that the province actually has limited resources, and assistance such as the one extended by XXXXX is crucial. Petitioner is cognizant of this29, and she should not be faulted for acting with the welfare of her constituents, especially of Xxxxx’s farmers, in mind. VII.19 The Assailed Resolutions are not in accordance with the law on public bidding as well as the evidence on record, which clearly show that the MOA need not be the subject of a public bidding, inasmuch as it is neither a contract for management or consulting services, nor one for infrastructure projects, the truth being that XXXXX merely volunteered to share its technical, financial and managerial expertise to properly monitor the supervised credit facility of the hybrid rice program. VII.20 In Pecho v. Sandiganbayan,30 the Supreme Court clarified that “causing undue injury to any party, including the government, could only mean actual injury or damage which must be established by evidence”.31 The mere commission of a wrong or a violation of a right does not automatically give rise to a finding that undue injury resulted therefrom, hence, the allegation of undue injury must be “specified, quantified and proven to the point of moral certainty”.32 VII.21 In this regard, by not dismissing the cases, and instead affirming the findings of the Office of the Special Prosecutor, the Public Respondent acted without basis in fact or law, and thereby unduly harassed Petitioner. By disapproving the Memorandum dated December 9, 2011, which recommended the dismissal of the charges for Malversation and Violation of Section 3(e) of RA 3019 for lack of probable cause, the Public Respondent shifted the burden of proving her innocence on Petitioner. This is evident in the Second Assailed Resolution, thus: “2. The amount released to XXXXX has not been fully accounted for according to COA. Furthermore, there is no showing that the farmers benefited from the agreement.” VII.22 It is well to remember the fundamental rule that he who alleges must bear the burden of proof --- Ei incumbit probatio qui dicit, non qui negat, i.e., “He who asserts, not he who denies, must prove.”33 This finds greater application in the case at bar, given that the Public Prosecutor’s baseless finding of probable cause wrongfully places 29

BIDDING AND GOVERNMENT CONTRACTS, 1961 Ed., pp. 6 and 8-9. The Seventh Whereas clause of the MOU provides:

“Whereas, the PROVINCE, considering its other development priorities, is constrained by personnel and other limitations to efficiently manage, administer, and implement the Provincial Rice Program, especially the Supervised Credit Facility;” 30 G.R. No. 111399, 14 November 1994, 238 SCRA 116. See also Santos v. People, G.R. No. 161877, 23 March 2006, 485 SCRA 185; Uriarte v. People, G.R. No. 169251, 20 December 2006, 511 SCRA 471. 31 Pecho v. Sandiganbayan, G.R. No. 111399, 14 November 1994, 238 SCRA 116, 133. 32 Llorente, Jr. v. Sandiganbayan, G.R. No. 122166, 11 March 1998, 350 Phil. 820. 33 People v. Petralba, G.R. No. 137512, 27 September 2004, 439 SCRA 158, 170; Aricheta v. People, G.R. No. 172500, 21 September 2007, 533 SCRA 695; People v. Ventura, G.R. No. 184957, 27 October 2009, 604 SCRA 543.

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the burden of proving her innocence on Petitioner, contrary to the constitutional presumption of innocence.34 VII.23 The Public Respondent also gravely abused her discretion when she adopted the recommendations that purport to find probable cause but were not supported by law and the evidence on record. It is worth noting that upon review of the recommendation to file charges against Petitioner and her co-accused, Prosecutor Xxxxx categorically stated in her Memorandum that there is no basis for the finding that the MOA did not go through public bidding, to wit: “Further, the investigating prosecutor’s finding that the contract awarded to the XXXXX did not go through the process of public bidding has no basis. First, there was no allegation in the affidavit/complaint that private complainant was suing the accused by reason of lack of bidding. Second, there was neither a COA finding as to that effect. The investigating prosecutor cannot add evidence by mere suspicion or speculation on the basis that there were no bidding documents at hand.”35 VII.24 In effect, therefore, the Public Respondent expanded the accusations against Petitioner and added grounds not contained in the complaint filed by Private Respondent. This is patent grave abuse of discretion on the part of the Public Respondent, who should be admonished therefor and whose findings should be set aside. As this Honorable Court held in Tejano v. Xxxxx, et al.36: “ xxx Petitioner attributes partiality on the part of Xxxxx Desierto for having participated in the reinvestigation of the instant case despite the fact that he earlier participated in the initial preliminary investigation of the same when he was a Special Prosecutor by concurring in the recommendation for the filing of the information before the Sandiganbayan. “We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews a case on appeal should not be the same person whose decision is under review. In Zambales Chromite Mining Company v. Court of Appeals, the decision of the Secretary of Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal of the Secretary's own previous decision, which he handed down while he was yet the incumbent Director of Mines. We have equally declared void a decision rendered by the Second Division of the National Labor Relations Commission, because one of its members, Commissioner Raul Aquino, participated in the review of the case which he had earlier decided on as a former labor arbiter. Likewise, this Court struck down a decision of Presidential Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission, in which he, then concurrently its Chairman, had earlier concurred. “Having participated in the initial preliminary investigation of the instant case and having recommended the filing of an appropriate information, it behooved Xxxxx Desierto to recuse himself from participating in the review of the same during the reinvestigation. 34 35 36

CONST., Art. III, Sec. 14(2). Memorandum dated 9 December 2011, Annex “__” hereof, pp.13-14. G.R. No. 159190, June 30, 2005, 462 SCRA 560, at 568-570.

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“In earlier recommending the filing of information, then Special Prosecutor Desierto was already convinced, from that moment, that probable cause exists to indict the accused. It becomes a farfetched possibility that in a subsequent review of the same, Xxxxx Desierto would make a turnabout and take a position contradictory to his earlier finding. “Due process dictates that one called upon to resolve a dispute may not review his decision on appeal. We take our bearings from Zambales Chromite Mining Co. v. Court of Appeals which succinctly explained that: In order that the review of the decision of a subordinate officer might not turn out to be farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case. “Cojuangco, Jr. v. Presidential Commission on Good Government concedes the applicability of the prohibition on the reviewing officer to handle a case he earlier decided, thus: Where the circumstances do not inspire confidence in the objectivity and impartiality of the judge, such judge should inhibit voluntarily or if he refuses, he should be prohibited from handling the case. A judge must not only be impartial but must also appear impartial as an assurance to the parties that his decision will be just. His actuation must inspire that belief. This is an instance when appearance is as important as reality. The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. This is the reason why under Section 1679 of the former Revised Administrative Code, the Secretary of Justice, who has supervision over the prosecution arm of the government, is given ample power to designate another prosecutor to handle the investigation and prosecution of a case when the prosecutor handling the same is otherwise disqualified by personal interest, or is unable or fails to perform his duty. (Underlining supplied)” VII.25 The same unanimity between the role of “prosecutor” and “judge” prohibited in the foregoing cases glaringly subsists with respect to the Public Prosecutor in the instant cases against Petitioner. Hence, the Assailed Resolutions must be nullified and set aside. B.

THE MOA CONTAINED SUFFICIENT SAFEGUARDS TO PREVENT THE ACCRUAL OF UNWARRANTED BENEFITS TO XXXXX AND TO PROTECT THE PROVINCIAL GOVERNMENT 11

FROM BEING INJURED DISADVANTAGED.

OR

VII.26 Among the obligations of XXXXX under the MOA is the implementation of a “system for the proper receipt, custody, release and disbursement of [XXXXX’s] funds, inventory and other assets.” 37 More importantly, XXXXX is charged with the establishment and maintenance of “an efficient internal auditing system to ensure that assets are protected, accounting records are reliable and accurate, managerial policies are adhered to, and operational efficiency is maintained.” 38 XXXXX is also tasked, among others, to “[i]ssue an Official Receipt to the PROVINCE for the funds provided by the PROVINCE to the FOUNDATION” 39; “[i]mplement a system for the proper receipt, custody, release and disbursements of the FOUNDATION’s funds, inventory and other assets”40; and “[p]rovide the PROVINCE with a report on the Disbursement of Funds, the Financial Condition and Operations, and the overall performance of the Provincial Rice Program”41. VII.27 Moreover, it is still within the control and discretion of the Provincial Government how the funds will be handled by XXXXX, since one of the undertakings of the province under the MOA is to “[f]ormulate the general policies for the Provincial Rice Program, including policies on identification of beneficiaries, loan policies, personnel policies and others.”42 VII.28 To reiterate, one of the modes of committing a violation of Section 3(e) is acting with gross inexcusable negligence, which is described by this Honorable Court in this wise: “Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of prudence. Rather, it refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.”43 “’Gross negligence’ has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.’”44

37 38 39 40 41 42 43

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MOA, Art. 3(6). MOA, Art. 3(8); emphasis and underscoring supplied. MOA, Art. 3(1). MOA, Art. 3(6). MOA, Art. 3(11). MOA, Art. 2(3). M.A. Jimenez Enterprises v. The Honorable Xxxxx, et al., G.R. No. 155307, 6 June 2011, __ SCRA __. Fonacier, et al. v. Sandiganbayan, G.R. Nos. L-50691, 5 December 1994, 238 SCRA 655, __; citations omitted.

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VII.29 The above cited provisions in the contract indicate that Petitioner, acting on behalf of the Provincial Government, was diligent and did take pains in ensuring that the MOA will serve its intended noble purpose, i.e., to benefit the rice farmers in Xxxxx, without putting the Provincial Government in jeopardy. VII.30 Yet, despite the evident existence of provisions for the proper implementation and audit of the public funds involved in the MOA, as provided by the SP and the applicable laws and rules thereon, the Public Respondent arbitrarily ruled that no such provisions existed. In making such ruling, the Public Respondent whimsically ignored the findings and recommendation of the reviewing prosecutor that the elements of a violation of Section 3(e) of RA 3019 do not exist, hence, the cases against Petitioner should be set aside for lack of probable cause to hold her liable. It should be recalled that grave abuse of discretion obtains when the Xxxxx “does not take essential facts into consideration in the determination of probable cause,”45 as the Public Respondent did in the case at bar. C.

AT ALL TIMES, PETITIONER ACTED WITHIN THE BOUNDS OF HER AUTHORITY AND IN GOOD FAITH.

VII.31 In finding probable cause against Petitioner, the Public Respondent failed to appreciate the totality of circumstances and the unmistakable facts on record that the award of the MOA without a prior public bidding is borne out of Petitioner’s honest belief that she had the authorization and support of the SP, and that she was pursuing a program that will “uplift the quality of life of [Xxxxx’s] rice farmers through a Provincial Rice Program, which is intended to increase the farmers’ earning potentials”46. VII.32 Simply stated, the Public Respondent gravely abused her discretion by disregarding the obvious good faith of Petitioner. It is well to remember that a finding of probable cause for a violation of Section 3(e) of RA 3019 requires that the alleged bad faith of the accused be evident, meaning, bad faith per se is not enough.47 As discussed by this Honorable Court in Collantes v. Marcelo48: “Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which springs from the fountain of good conscience. Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. ‘Bad faith’ does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes.”49 45

46 47

48 49

Sistoza v. Desierto, G.R. No. 144784, 3 September 2002, __ SCRA __, __; citing Baylon v. Office of the Xxxxx and the Sandiganbayan, G.R. No. 142738, 14 December 2001, __ SCRA __. MOA, Third Whereas clause. See Baylon v. Office of the Xxxxx and Sandiganbayan, G.R. No. 142738, 14 December 2001, _ SCRA _, __. G.R. Nos. 167006-07, 14 August 2007, __ SCRA __. Ibid., at __; citations omitted. Emphasis and underscoring supplied.

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VII.33

The case of Sistoza v. Desierto50 further stated:

“Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest, respectively, while the negligent deed should both be gross and inexcusable. It is further required that any or all of these modalities ought to result in undue injury to a specified party.”51

VII.34 It is undisputed that Petitioner was acting within her powers as Governor to contract with third parties, including NGOs like XXXXX, 52 pursuant to Section 465(b)(vi) of the LGC. The SP actually authorized Petitioner through its Resolution No. 011-0653, to negotiate and enter into the MOA, which shall be subject to the “review and ratification” of the SP. Significantly, the MOA was ratified and approved by the SP through Resolution No. 03.54 VII.35 The ruling in Vergara v. Xxxxx55 is instructive. In said case, the City Council of Calamba issued a resolution authorizing the Mayor to negotiate with landowners within the vicinity of certain barangays for a new city hall site. Pursuant to such resolution, the Mayor entered into several agreements, i.e., Memorandum of Agreement, Deed of Sale, Deed of Mortgage, and Deed of Assignment. Said agreements were submitted to the City Council but were not ratified. This Honorable Court, in affirming the findings of the Xxxxx that there was no probable cause to charge the accused therein for violation of Section 3(e) of RA 3019, held that even the lack of ratification by the City Council does not render the contracts invalid, or result in criminal liability on the part of the local chief executive.56 VII.36 In this case, that the SP saw it fit to authorize Petitioner to enter into the MOA signifies that the terms of the contract were amenable to the body, and the legislative council members had no objections to Petitioner’s exercise of her power as governor to represent the province in all its business transactions. VII.37 In view of the foregoing, Petitioner’s good faith cannot be doubted. She had reasonable ground to believe that entering into the MOA will cause no undue injury to the Provincial Government, and instead, it will be beneficial to her constituents, who are comprised mostly of rice farmers. Petitioner could not also have thought that XXXXX could derive unwarranted benefits from the MOA, since there were ample measures set in place to ensure that the public funds earmarked for the Provincial Rice Program will accrue to the benefit of the public. II PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF 50

51 52 53 54 55 56

G.R. No. 144784, 3 September 2002, __ SCRA __, __. See also Giduquio v. People, G.R. No. 165927, 24 April 2009, __ SCRA __. Emphasis and underscoring supplied. See Rep. Act No. 7160, Secs. 34-35. Resolution No. 061, Annex “__” hereof. Resolution No. 3, Annex “__” hereof. G.R. No. 174567, 12 March 2009, 580 SCRA 693. Ibid., at __.

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JURISDICTION IN ISSUING THE ASSAILED RESOLUTIONS FINDING PROBABLE CAUSE FOR MALVERSATION OF PUBLIC FUNDS. NOT ALL THE ELEMENTS OF SAID CRIME ARE PRESENT. D.

PETITIONER XXXXX HAD NO CUSTODY OF THE SUBJECT PUBLIC FUNDS AND SHE IS NOT THE ACCOUNTABLE OFFICER FOR THE SAME.

VII.38 In Torres v. People57, this Honorable Court explained the coverage of Article 217 of the RPC, thus: “An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee.”58

VII.39 Thus, to be liable for Malversation of Public funds under Article 217 of the RPC, this Honorable Court ruled in Tanggote v. Sandiganbayan,59 that it is essential that there is proof that the accountable officer has received public funds but that when demand therefor is made, he is unable to satisfactorily account for the same. VII.40 In this case, while Petitioner is admittedly a public officer, as the Governor of the provincial government of Xxxxx, she is not the public officer having custody or control of the subject public funds, and it is not among her duties or functions as local chief executive to account for the same. Since Petitioner is not an accountable public officer, she did not, as she could not have committed the crime of Malversation of Public Funds. VII.41 It is settle that for one to be charged with Malversation of Public Funds under Article 217 of the RPC, all the constitutive elements thereof must be present. VII.42 It is beyond dispute that the second and the third elements enumerated above are not present. Clearly not even a mere prima facie case fo Malversation of Public Funds was present against Petitioner. The Public Respondent should have outrightly dismissed the same against Petitioner. VII.43 In Villanueva et al. v. Ople,60 this Honorable Court upheld the Public Respondent’s immediate dismissal of a complaint for its failure to establish mere prima facie evidence on its face: 57 58

59 60

G.R. No. 175074, 31 August 2011. Torres v. People, G.R. No. 175074, 31 August 2011, citing Alejo v. People, G.R. No. 173360, March 28, 2008, 550 SCRA 326, 340. G.R. No. _, _, 236 SCRA 273; emphasis supplied. G.R. No. 165125, November 18, 2005, 475 SCRA 539, at 554-557; emphasis and underscoring supplied.

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“Function of the Government Prosecutor The determination of probable cause during a preliminary investigation is a function of the government prosecutor, who in this case is the xxxxx. As a rule, the Court does not interfere in the xxxxx's exercise of discretion in determining probable cause, unless there are compelling reasons. xxx xxx xxx Nonetheless, the Court may exercise its certiorari power when the government prosecutor unreasonably refuses to file an information even if clearly warranted by the evidence. This certiorari power was recognized in Socrates v. Sandiganbayan, which enumerated the remedies of the offended party or complainant, as follows: (1) to file an action for mandamus in case of grave abuse of discretion; (2) to lodge a new complaint against the offenders before the xxxxx and request the conduct of a new examination as required by law; (3) to institute administrative charges against the erring prosecutor, a criminal complaint under Article 208 of the Revised Penal Code, or a civil action for damages under Article 27 of the Civil Code; (4) to secure the appointment of another prosecutor; or (5) to institute another criminal action if no double jeopardy is involved. No Prima Facie Evidence Under the present factual milieu, petitioners clearly failed to establish the following elements of a violation of Section 3(e) of the AntiGraft and Corrupt Practices Act: xxx xxx xxx A preliminary investigation constitutes a realistic judicial appraisal of the merits of a case. The complainant must adduce sufficient proof of guilt as basis for a criminal charge in court. As discussed earlier, the present petitioners did not submit any proof in support of their accusations against respondents. Hence, the Court is bound to respect the deputy xxxxx's professional judgment in finding the case dismissible, absent a showing of grave abuse of discretion. Government resources and the time and effort of public officials would be needlessly wasted if the courts allow unmeritorious cases to be filed and given due course. It would be better to dismiss a case, like the present one in which the circumstances blatantly show that the act complained of does not constitute the offense charged.”

VII.44 Applying the foregoing jurisprudential guideline of this Honorable Court, it behooves the Public Respondent at the outset to simply dismiss the complaint against petitioner for failure to present even mere prima facie evidence. Instead, the Public Respondent disregarded the law and settled jurisprudence and arbitrarily issued the Assailed Resolutions, to prosecute Petitioner with such baseless charge. This Honorable

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Court certainly cannot countenance such illegal conduct especially from a high constitutional office as the Public Respondent. VII.45 Thus, Public Respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing and approving/affirming the Assailed Resolutions. The fact that the absence of the foregoing elements should have established the absence of any probable cause to hold Petitioner liable for Malversation of Public Funds, and thus warranting no less than an outright dismissal of the charge against Petitioner, is proof in itself that Public Respondent acted in a whimsical and arbitrary manner, contrary to law and settled jurisprudence, in finding instead, that there is probable cause to charge Petitioner with said offense. E.

THERE IS NO SHOWING THAT PETITIONER DERIVED ANY BENEFIT FROM THE LOAN PROCEEDS FOR THE PROVINCIAL RICE PROGRAM.

VII.46 In the Assailed Resolutions, Public Respondent avers that there is “no showing that the farmers benefited from the [MOA]” 61 and that the “[Accused] were not able to show through documentary evidence, or at least, a program report that the money…reached…the supposed beneficiaries of the provincial rice program”62 Such arbitrary sweeping conclusion is erroneous and baseless as it disregards the overwhelming evidence on record which prove that the public funds, indeed, did not only reach but were likewise utilized by the Xxxxx farmers. VII.47 First, as admitted by Public Respondent in the First Assailed Resolution, there is nothing in the MOA “as to the amount of the contract.” 63 The absence of a contract price in the MOA is proof in itself that no money, whether by agreement or otherwise, was ever passed on by Petitioner for the benefit of XXXXX. Rather, what is clear is that XXXXX, by virtue of the MOA, volunteered to assist in the implementation of the same by the provincial government. Thus, Petitioner did not grant any amount of money, in favor of XXXXX. Notably, no evidence was even presented and considered in order to establish a well-engendered belief that such anomalous transaction even took place. Public Respondent based instead its findings on mere speculation and surmises, such as the alleged fact that Accused Xxxxx held conflict in interest positions, i.e., the position of provincial legal officer and director of XXXXX, at the time that the MOA was entered into, thus raising the suspicion as to the legality of the MOA, 64 where in fact, easily verifiable records would show that at that time, Accused Xxxxx was no longer a director of XXXXX." In other words, Accused Xxxxx was not, as he could have not been in a “conflict of interest position” inasmuch as he did not hold said positions simultaneously. VII.48 Second, the overwhelming evidence on record establish that the funds went to the intended beneficiaries. The loan applications, Kasunduan and the quantity of farm inputs65 clearly show that the public funds were not only given to the Xxxxx farmers by way of loan but that they utilized the same to increase their yield and income. Simply stated, XXXXX merely shared its technical, financial, and managerial expertise to properly monitor the Supervised Credit Facility of the program by acting as the “conduit” 61 62 63 64 65

Second Assailed Resolution, Annex “_” hereof. First Assailed Resolution, pp. 14-15, Annex “_” hereof. First Assailed Resolution, p. 10. First Assailed Resolution, p. 11. Annex “_” hereof.

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from the provincial government to the farmer beneficiaries. It is thus beyond dispute that the Priority Hybrid Price Program was successful and that the public funds did not redound to the benefit of XXXXX or Petitioner. VII.49 Third, as recognized by Prosecutor Xxxxx in her recommendation, the COA’s finding as to the existing loan receivables is proof in itself that the amount had been released or loaned to the intended beneficiaries, the Xxxxx farmers, and that it was not used for the personal benefit of Petitioner or XXXXX.66 VII.50 Fourth, Prosecutor Xxxxx recommended that there be further investigation conducted because of the need to resolve the following issues: (a) Whether the full amount of PhP25 Million was utilized by XXXXX; (b) whether the P25 Million was eventually returned to the provincial government; (c) whether the provincial government provided funds for the operation requirement of the program; (d) whether a COA report exists relative to the implementation of the Priority Hybrid Rice Program; (e) whether XXXXX is registered with the SEC.67 VII.51 Such recommendation clearly shows that there is no probable cause to indict Petitioner for any charge, as the basis for the charge against her, i.e., that the PhP25 Million was appropriated for private purposes, is based merely on speculation and unsupported by evidence inasmuch as there was a need to further investigate to determine the existence of the factual basis for the charge against Petitioner. VII.52 Fifth, that the public funds were not used by anyone for private purposes is supported by the finding of the reviewing Prosecutor, to wit: “If indeed the loans did not reach the intended beneficiaries and considering the enormity of the amount involved, logically, the persons who will most likely initiate the complaint in this case would be the Xxxxx farmers themselves. Instead, the private-complainant here is Xxxxx P. Xxxxx, an ordinary taxpayer and a resident of Xxxxx, who makes no valid claims over the loanable amount nor allegation that he has been prejudiced in any way by the manner the XXXXX managed the public funds.”68 VII.53 In fact, the record indubitably establishes that the charges against Petitioner were politically motivated, inasmuch as it was Congressman Faustino G. Dy, Petitioner’s political opponent, who sent a letter to the COA questioning the validity and legality thereof.69 Likewise, Private Respondent is also a known political opponent of Petitioner. The foregoing, as well as the fact that the charges against Petitioner coincided with the campaign period at that time, clearly show that the same was done merely to besmirch the integrity of Petitioner so as to affect the results of the ensuing elections at that time against Petitioner and in favor of her political opponents. VII.54 From the foregoing, it is beyond dispute that the fourth element of Malversation is not present. There is nothing in the Complaint Affidavit or in the record that establishes the allegation that Petitioner appropriated for her own personal use and benefit the proceeds of the loan, which was obtained by the provincial government for purposes of the Priority Hybrid Rice Program. VII.55 To reiterate, there is no showing that Petitioner and/or XXXXX gained anything from the execution of the MOA and the temporary transfer of the loan proceeds. And it is not incumbent upon either of them to prove that they did not appropriate, take, 66 67 68 69

Memorandum dated 9 December 2011, p. 11, Annex “_” hereof. Memorandum dated 9 December 2011, pp. 3-4. Id. Memorandum dated 9 December 2011, p. 6.

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or misappropriate the public funds, whether intentionally or through negligence. Such burden rests on the Private Respondent and the prosecution. Having failed to carry this burden, no probable cause can be deemed to exist to indict Petitioner for Malversation of Public Funds. VII.56 Notwithstanding the foregoing, Public Respondent, through the Assailed Resolution, still ruled that there was probable cause to charge Petitioner with Malversation of Public Funds. Clearly, Public Respondent acted with grave abuse of discretion, amounting to lack or excess of jurisdiction in disregarding the overwhelming evidence on record showing the validity and legality of the MOA and its implementation, in that public funds went to and were utilized by the intended beneficiaries, the Xxxxx farmers, and in ruling that there was probable cause to hold Petitioner for trial, notwithstanding the absence of evidence to support such finding. F.

THERE IS NO SHOWING THAT PETITIONER NEGLIGENTLY CAUSED OR CONSENTED TO ANY APPROPRIATION, TAKING, OR MISAPPROPRIATION OF PUBLIC FUNDS.

VII.57 The evidence likewise fails to establish that there was negligence on the part of Petitioner in the performance of her functions as Governor that enabled XXXXX to appropriate, take, or misappropriate the loan proceeds for the private purposes of the NGO. VII.58 In Leano v. Hon. Domingo70, the Court laid down the standard --- akin to that for tort cases --- for determining the existence of negligence in a case for Malversation of Public Funds through abandonment or negligence. Thus: “Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman Law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.”71

VII.59 Public Respondent, however, acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing/approving the Assailed Resolutions finding probable cause against Petitioner inasmuch as it places the burden of proving their innocence on Petitioner and her co-accused, contrary to the constitutional presumption of innocence.72 The following erroneous statement is worth highlighting, to wit: 70 71 72

G.R. No. 84378, 4 July 1991, 198 SCRA 800. Id., citing Layugan v. Intermediate Appellate Court, 167 SCRA 363, 372-373 (1988). Constitution, Art. III, Sec. 14(2).

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“By deliberately giving preference to XXXXX in defiance to the rules on government procurement, adding to it the fact that the respondents were not able to show through documentary evidence, or at least, a program report, that the money given to XXXXX actually reached through a credit facility the supposed beneficiaries of the provincial rice program, the act of Governor Xxxxx...is as good as permitting, through abandonment or negligence, [XXXXX] to take such public funds.”73 VII.60 Nowhere in the MOA does it show that Petitioner gave her consent to XXXXX’s appropriation, taking, or misappropriation of the loan proceeds --- as in fact none of these occurred here. Instead, the agreement merely involved constituting XXXXX as a channel through which the public funds will reach the farmer beneficiaries. VII.61 Rather, what is clearly established on record is that the MOA contained the necessary provisions to ensure that the funds released to the NGO are properly accounted for. VII.62 First, under the MOA, XXXXX, had the obligation, among others, to ensure that official receipts were issued to the provincial government for the funds to be loaned out to the Xxxxx farmers,74 implement “a system for the proper receipt, custody, release and disbursement” of “funds, inventory and other assets.” 75 XXXXX was likewise charged with the maintenance of “an efficient internal auditing system to ensure that assets are protected, accounting records are reliable and accurate, managerial policies are adhered to, and operational efficiency is maintained” 76 as well as the implementation of the “Accounting and Management Information System to record and monitor transactions.”77 VII.63 Clearly, contrary to the finding under the First Assailed Resolution, the foregoing show that there is no basis to hold that there are “no stipulations under the [MOA]…as to the terms of reference with respect to the scope of services.” 78 Rather, what is evident from the record is that there are sufficient guidelines with respect to the implementation of the Priority Hybrid Rice Program. VII.64 Second, on 31 January 2006, the SP oduring its regular session, resolved, through its Resolution No. 09, as the to authorize the execution of the MOA. In doing so, the SP likewise resolved that releases and disbursements pursuant to the MOA would also be strictly subject to the usual accounting and auditing rules pursuant to the COA Rules and Regulations and other applicable laws on the matter. 79 In other words, the applicable laws are deemed written in the MOA. Even without such pronouncement of the SP and the safeguards as contained in the MOA, the applicable laws are deemed written into the MOA, and its application cannot be disavowed by the parties, much less the Public Respondent.80 VII.65 To reiterate, there is no showing that Petitioner and/or XXXXX gained anything from the execution of the MOA and the temporary transfer of the loan proceeds. 73 74 75 76 77 78 79

80

Resolution dated 11 January 2011. MOA, p. 2, Art. 3 (1). MOA, p. 2, Art. 3 (6). MOA, p. 3, Art. 3 (8). MOA, p. 3, Art. 3 (7). First Assailed Resolution, p. 10. See Resolution No. 11-09, attached as Annex “B” of Petitioner’s Counter-Affidavit filed with the Office of the Xxxxx on 17 May 2007. See Tongko v. Manufacturers Life Insurance Co. (Phils.), Inc., et al., G.R. No. 167622, 29 June 2010, 622 SCRA 58.

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And it is not incumbent upon either of them to prove that they did not appropriate, take, or misappropriate the public funds, whether intentionally or through negligence. Such burden rests on the Public and Private Respondents. VII.66 Instead of carrying out such burden, Public and Private Respondents, instead, shifted the burden to the Petitioner. The Public and Private Respondent should not be allowed to shift the burden of establishing the presence of the elements and/or probable cause against the Petitioner. The Public and Private Respondents have only offered speculation, not proof, as to the existence of the alleged probable cause against Petitioner. It is a basic rule in evidence that the burden of proof is on the part of the party who makes the allegations — ei incumbit probatio, qui dicit, non qui negat.81 If the Public and Private Respondents claim that Petitioner committed unlawful acts, then it must prove its claim by competent evidence, relying on the strength of its own evidence and not upon the weakness of that of the accused. 82 Having failed to carry this burden, no probable cause can be deemed to exist to indict Petitioner for Malversation of Public Funds. VII.67 Thus, Public Respondent clearly acted in a whimsical and capricious manner in shifting the burden of proving the commission of the offense or the probable cause thereof, on Petitioner. VII.68 In light of the foregoing discussion on the actions without or in excess of authority of the Public Respondent, it is clear that the Public Respondent acted, and continues to act, with grave abuse of discretion in refusing to: (a) dismiss outright the Complaint Affidavit which is insufficient to commence the conduct of criminal or administrative proceedings; (b) consider the overwhelming evidence on record that establish that there is no probable cause to charge Petitioner with any offense as the evidence on record, instead, indubitably show that Petitioner did not commit any illegal or unlawful acts(s) and Petitioner acted at all times in good faith, with the authority and approval of the SP, and within the bounds of her authority; (c) immediately dismiss or disapprove the recommendation of filing charges against the for palpable want of merit or insufficiency in substance. VII.69 The Public Respondent has the public duty to determine the sufficiency of the complaint, and this is done by evaluating the recitals and annexes/evidence thereon. This is to establish probable cause -- to engender a well-founded belief that respondent committed a crime and that he is probably guilty thereof. In this case, no way can Public Respondent find the Affidavit Complaint sufficient and find probable cause on the basis of overwhelming evidence which show that Petitioner did not commit any illegal/unlawful act(s). Thus, had Public Respondent considered the evidence on record, ffidavit Complaint as well as the Assailed Resolutions will have no leg to stand on and the charges against Petitioner would have been dismissed for being bereft of legal and factual merit. It is clear that Public Respondent has chosen not to perform its positive duty required by law, and hence, committed grave abuse of discretion. VII.70 More importantly, the Public Respondent has the positive duty to exercise its vast powers of prosecution judiciously, and make certain that it insulates the State from frivolous prosecutions, and spare petitioner from the needless expense, rigors, anxiety, public humiliation, political harassment, and persecution of the baseless and unsubstantial Affidavit Complaint and Assailed Resolutions As this Honorable Court en banc reminded the Public Respondent in Estrada v. Desierto:83

81

82 83

Rufina Patis Factory, et al. v. Alusitain, G.R. No. 146202, 14 July 2004, 434 SCRA 418, 428; emphasis supplied. Ibid. G.R. Nos. 146710-15 and 146738, March 2, 2001, 353 SCRA 452, at 530; emphasis and underscoring supplied.

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“It is the sacred duty of the respondent Xxxxx to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms." To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority."

VII.71 Indeed “[t]here is no question on the need to ferret out and expel public officers whose acts make bureaucracy synonymous with graft in the public eye, and to eliminate systems of government acquisition procedures which covertly ease corrupt practices. But the remedy is not to indict and jail every person who happens to have signed a piece of document or had a hand in implementing routine government procurement, nor does the solution fester in the indiscriminate use of the conspiracy theory which may sweep into jail even the most innocent ones. To say the least, this response is excessive and would simply engender catastrophic consequences…”84 VII.72 The Public Respondent’s deliberate refusal to dismiss the frivolous charges against petitioner, which is clearly politically motivated and bereft of factual and legal merit, is certainly the very same “circus” this Honorable Court en banc warned against in Estrada v. Desierto. VII.73 For these reasons, Petitioner implores the supreme authority of this Honorable Court to abate the Public Respondent’s illegal and reprehensible acts through the extraordinary remedy of certiorari.

PRAYER WHEREFORE, Petitioner XXXXX respectfully prays that this Honorable Court give due course to this Petition for Certiorari and render judgment as follows: (1) (2)

ISSUE a Writ of Certiorari ANNULLING, REVERSING and SETTING ASIDE the Resolutions dated 11 January 2011 and 17 February 2012 issued by the Xxxxx, and in lieu thereof, ISSUE an ORDER DIMSISSING the all the charges against the Petitioner.

Petitioner prays for such other or further relief as may be deemed just and equitable under the premises. Taguig City for Manila, 25 May 2012. LAWYER

Verification and Certification of Non-Forum Shopping Follows Copy furnished: 84

Sistoza v. Desierto, G.R. No. 144784, 3 September 2002, __ SCRA __, __.

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XXXX XXXX XXXX EXPLANATION FOR SERVICE BY REGISTERED MAIL In compliance with Rule 13, Section 11 of the Rules of Court, undersigned counsel, respectfully manifests that the foregoing PETITION FOR CERTIORARI is being served by registered mail on the parties, because of time and distance constraints and the temporary unavailability of office messengers which render personal service impracticable. LAWYER

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