SEC 3 (g)

In the case of Luciano v. Estrella,[4] the information precisely charged

accused public officials and private persons with violation of Sections 3(g)
and 4(b). Thus, Jose Gutierrez and Franco A. Gutierrez, as private persons,
were charged with violation of Section 3(g) and 4(b), to wit:
On 18 January 1969, Maximo Estrella, Teotimo Gealogo,
Justino Ventura, Pedro Ison, Ignacio Babasa, Bernardo Nonato,
Eduardo S. Francisco, Cirilo Delmo, Jose San Mateo, Lutgardo
Ambrosio, Ciriaco Alano, Gualberto San Pedro, Jose Gutierrez,
Franco A. Gutierrez were charged with violation of Section 3-G
and 4-B of Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act) in an information reading as follows:
That on or about July 26, 1967, and for
sometime prior and subsequent thereto, in the
Municipality of Makati, Province of Rizal,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
Maximo Estrella, then the Municipal Mayor of
Makati, Rizal; Teotimo Gealogo, Justino Ventura,
Pedro Ison, Ignacio Babasa, Bernardo Nonato, then
Municipal Councilors of Makati, Rizal; Eduardo S.
Francisco, then Municipal Treasurer of Makati,
Rizal; Cirilo Delmo, then Assistant Municipal
Treasurer of Makati, Rizal; Lutgardo Ambrosio, then
Chief of Traffic Control Bureau, Makati Police
Department; Ciriaco Alano, then confidential Private
Secretary to the Municipal Mayor, Gualberto San
Pedro, then Provincial Auditor of the Province of
Rizal; Jose Gutierrez and Franco A. Gutierrez,
owner and/or representatives of the JEP
Enterprises,
respectively,
conspiring
and
confederating together, did, then and there, willfully,
unlawfully and feloniously, on behalf of the
Municipal Government of Makati, Rizal, enter into a
contract or transaction with the JEP Enterprises,
represented by Jose Gutierrez and Franco A.
Gutierrez, for the delivery and installation by the JEP

Enterprises to the Municipal Government of Makati,

Rizal of fifty-nine (59) units of traffic deflectors
valued at ONE THOUSAND FOUR HUNDRED
AND TWENTY-SIX PESOS AND FIFTY
CENTAVOS (P1,426.60) each unit, that thirty-four
(34) units were delivered, installed and paid for by
the Municipality of Makati in favor of the JEP
Enterprises in the amount FORTY-EIGHT
THOUSAND EIGHT HUNDRED FORTY ONE
PESOS (P48,841.00), less ten percent (10%)
retention, which contract or transaction is manifestly
and grossly disadvantageous to the Municipal
Government of Makati, Rizal, to the damage and
prejudice of the latter.
That Jose Gutierrez and Franco [C.]
Gutierrez, being the owner, manager and/or
representatives of the JEP Enterprises, being
private persons, did knowingly induce or cause the
above-mentioned public officials and officers to
enter into the aforementioned contract or
transaction.[5] (Underscoring supplied)

By analogy, reference may be made to Articles 210 (Direct Bribery)

and 212 (Corruption of Public Officials) of the Revised Penal Code. In
Direct Bribery, the public officer agrees to perform an act either constituting
or not constituting a crime, in consideration of any offer, promise, gift or
present received by such officer. Significantly, only the public officer may
be indicted under and be held liable for Direct Bribery under Article 210,
while the person who conspired with the public officer, who made the
promise, offer, or gave the gifts or presents, may be indicted only under
Article 212 for Corruption of Public Officials, regardless of any allegation of
conspiracy.
Indeed, it is axiomatic that all conspirators are criminally liable as coprincipals. However, they may not be necessarily charged with violation of
the same offense. The public officer may be charged under one provision
while the private person is indicted under a different provision, although the
offenses originate from the same set of acts. Thus, the public officer may be

accused of Direct Bribery while the private person may be charged with
corruption of public officials.
In the same manner, a public officer may be charged with violation of
Section 3(g) of R.A. No. 3019 while the private person is charged under
Section 4(b) of the same law, based on the same set of conspiratory acts.
In the instant case, petitioner is charged with conspiring with Rivera
when he signed the ARCA which is manifestly disadvantageous to the
government. However, the information is fatally defective and infirm as far
as petitioner is concerned.
Our ruling in Sistoza v. Desierto[6] is pertinent, to wit:
It is also too sweeping to conclude the existence of
conspiracy from the endorsements made by petitioner Sistoza to
the Department of Justice of the result of the bidding. Fairly
evident is the fact that this action involved the very functions he
had to discharge in the performance of his official
duties. Furthermore, contrary to the allegation that petitioner
misrepresented key facts to the Department of Justice, it is clear
that his references to the price offered by Elias General
Merchandising and the rejection of the bid of Filcrafts Industries,
Inc., were supported by documents noted in and attached to his
endorsements. Hence, there was no way by which the approving
authority, i.e., the Department of Justice, could have been misled
by him. Clearly, to prosecute him for violation of Sec. 3, par.
(e), RA 3019, on the basis of his endorsements would be the same
as pegging his criminal liability on a mere signature appearing on
the document. In Sabiniano v. Court of Appeals we held that a
signature on a voucher, check or warrant, even if required by law
to be affixed thereon, is not enough to sustain a finding of
conspiracy among public officials and employees charged with
defraudation. We further ruled
x x x Proof, not mere conjectures or assumptions,
should be proffered to indicate that the accused had
taken part in, to use this Court's words in Arias v.
Sandiganbayan, the "planning, preparation and

perpetration of the alleged conspiracy to defraud the

government" for, otherwise, any "careless use of the
conspiracy theory (can) sweep into jail even
innocent persons who may have (only) been made
unwitting tools by the criminal minds" really
responsible for that irregularity x x x.

There is no dispute that R.A. No. 3019 was enacted in line with the
governments policy to repress certain acts of public officers as well as
private persons. What I am saying, however, is that petitioner Go may not
be validly charged under Sec. 3(g) alone because it covers only the public
officers.
I disagree with the ponencia in holding that petitioners reliance
on Marcos v. Sandiganbayan[7] was misplaced. In that case, former First
Lady Imelda R. Marcos and Jose P. Dans, Jr. were charged with violation of
Section 3(g) of R.A. No. 3019. The Information alleged:
That on or about June 8, 1984, and for sometime prior or
subsequent thereto, in Makati, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the accused
IMELDA R. MARCOS and JOSE P. DANS, JR., public officers,
being then Chairman and Vice-Chairman, respectively, of the
Light Rail Transit Authority (LRTA), a government corporate
entity created under Executive Order No. 603 of the former
President Ferdinand Marcos, while in the performance of their
official functions, taking advantage of their positions and
committing the crime in relation to their offices, did then and
there willfully, unlawfully and criminally conspiring with one
another, enter on behalf of the aforesaid government corporation
into a Lease Agreement covering LRTA property located in Pasay
City, with the Philippine General Hospital Foundation, Inc.
(PGHFI), a private enterprise, under terms and conditions
manifestly and grossly disadvantageous to the government.
(Emphasis supplied)

After trial, the Sandiganbayan convicted Marcos and Dans, Jr. of the
offense charged. On appeal, this Court in its Decision dated June 29, 1998,

affirmed the conviction of Marcos but acquitted Dans, Jr. Hence, Marcos
filed a motion for reconsideration raising the issue of whether all the
elements of Section 3(g) have been duly substantiated. In acquitting
Marcos, the Court noted that the Information specifically charged Marcos of
violation of Section 3(g) because she allegedly signed the subject Lease
Agreement as a public officer in her capacity as Vice-Chairman of the
LRTA. However, perusal of the subject Lease Agreement showed that
Marcos signed in her capacity as Chairman of Philippine General Hospital
Foundation, Inc. (PGHFI), a private charitable institution, and not as a public
officer. Thus, the first element of Section 3(g) is wanting. The Court held
that:
The pivot of inquiry here is whether all the elements of the
offense charged have been duly substantiated. As regards the first
element, did petitioner Imelda R. Marcos enter into the Lease
Agreement marked Exhibit B as a public officer? As clearly
stated on the face of the subject contract under scrutiny, petitioner
signed the same in her capacity as Chairman of PGHFI and not as
Human Settlement Minister nor as ex-officio Chairman of
LRTA. It was Jose P. Dans, Jr. who signed said Contract, as exofficio Vice-Chairman of LRTA. Although petitioner was the exofficio Chairman of LRTA, at the time, there is no evidence to
show that she was present when the Board of Directors of LRTA
authorized and approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and
circumstances, the irresistible conclusion is that petitioner did not
sign subject Lease Agreement as a public officer, within the
contemplation of RA 3019 and, therefore, the first element of the
offense charged is wanting.

No less than the Constitution ordains that the accused must be

properly and sufficiently informed of the nature of the accusation filed
against him. In the instant case, Go should be charged under Section 4(b), in
relation to Sec. 3(g) of R.A. No. 3019, as it properly pertains to private
individuals, to wit:
Section 4. x x x

(b)
It shall be unlawful for any person knowingly
to induce or cause any public official to commit any of the
offenses defined in Section 3 hereof. (Emphasis supplied)

An accuseds right to be informed of the nature and cause of the

charges against him is constitutionally enshrined, for an accused cannot be
convicted of an offense, unless it is clearly charged in the complaint or
information. To reiterate, the Information lumping the public official,
Former DOTC Secretary Vicente Rivera, and the private individual,
petitioner Go, is legally infirm as Section 3(g) can only be violated by a
public officer. Any private individual accused to have conspired with a
public officer in violating Section 3(g), must be charged under the proper
provision of the law. The acts for which private persons can be charged
together with the public officials are enumerated in the last paragraph of
Section 3 and Section 4, paragraphs (a) and (b) of R.A. No. 3019. It is
reiterated that for the Information against Go to be sufficient in form and
substance, he should be charged with specificity for violation of Section
4(b) in relation to Section 3(g).
Indeed, there is a need to ferret out and expel corrupt public
officers[8] and to punish the private individuals who abet their illegal
activities. However, the remedy is not to indict and jail every person who
happens to be a signatory in a contract [9] as in the instant case, which later on
is proved to be manifestly disadvantageous to the government.
SEC 3 (h)

In view of the definition of the offense, the charge herein would

specifically pertain to Mayor Caballero, with the two other petitioners,
Nerita Cuento and Theresa Caballero, being charged as co-conspirators of
the mayor.
That petitioner Eugenio Caballero is a public officer is undisputed.
He was, in fact, the mayor of Manukan, Zamboanga del Norte at the time the
letter-complaint was lodged by complainant Crisologo Decierdo with the
Office of the Auditor, Zamboanga del Norte. There is thus no question that
the first element is present in this case.

The second element requires the public officer to have a direct or

indirect financial or pecuniary interest in any business, contract or
transaction. The informations stated that GPs Food Catering Services and
Genty General Merchandise were registered in the name of Mayor
Caballeros wife, Theresa. The element that the mayor must have a direct
pecuniary interest in the said businesses was sufficiently alleged in the
informations because, even if these entities were registered in his wifes
name and not in his own name, still Mayor Caballero would have a direct
interest thereon because they remained married to each other and as such
their property relations can be presumed to be under the regime of conjugal
partnership of gains, in the absence of evidence to the contrary. Article 116
of the Family Code provides that all property of the marriage is presumed to
belong to the conjugal partnership unless it be proved that it pertains
exclusively to the husband or to the wife. Too, Article 106 of the same Code
declares that all the properties of the conjugal partnership of gains are owned
in common by the husband and wife. Thus, Mayor Caballero had a direct
interest in GPs Food Catering Services and Genty General Merchandise.
The third element enumerates the two modes by which a public
officer who has a direct or indirect financial or pecuniary interest in any
business, contract, or transaction may violate Section 3(h) of the Anti-Graft
Law. The first mode is when the public officer intervenes or takes part in his
official capacity in connection with his financial or pecuniary interest in any
business, contract or transaction. The second mode is when he is prohibited
from having such an interest by the Constitution or by law.
The informations alleged that Mayor Caballero willfully, unlawfully
and feloniously approved the award to GPs Food Catering Services and
Genty General Merchandise which were both registered in the name of Ma.
Theresa Caballero, the wife of Mayor Caballero. A reading of the
informations would disclose that the third element of the offense was not
sufficiently alleged. As it were, the informations failed to state the mode by
which Mayor Caballero supposedly violated Section 3(h) of the Anti-Graft
Law. While it may be deduced therefrom that Mayor Caballero was
indicted via the first mode, that is, by intervening or taking part in his
official capacity in connection with his financial or pecuniary interest in the

subject transactions, still there was no statement in the said informations that
Mayor Caballero actually intervened in awarding the contract in favor of his
wifes businesses, which is an element necessary to constitute a violation of
Section 3(h) of RA No. 3019. It is essential that the information states the
ultimate facts needed to constitute the offense charged, so that the accused
may be properly apprised of the nature and cause of the accusation against
him.[15]