Saturday, July 14, 2018

Confirmatory test in drug cases - Nothing in RA 9165 exclusively limit confirmatory tests to urine samples only. The law does not expressly and clearly prohibit confirmatory tests for the sachet and the shabu seized. This is a novel issue that the Philippine Judiciary must clarify and resolve.

The sachet and shabu searched and seized were likewise not subjected to mandatory confirmatory test.

Finally, the urine samples and the shabu itself admittedly did not undergo CONFIRMATORY TESTS. In fact, the trial court had acquitted the three accused in Crim. Case No. xxx [Sec. 15 (use of shabu), RA 9165] for lack of a confirmatory test by PCI xxx on the urine samples of the three accused.

The sachet and the shabu did not undergo confirmatory test via a scientific Gas Chromatography Mass Spectrometry [GCMS] chemical test. The theory that only urine sample must undergo initial screening and confirmatory tests is wrong, unfair and unjust.

The reading of the appellant xxx is that RA 9165 does not expressly prohibit the mandatory confirmatory tests of the sachets and shabu searched and seized. The law does not expressly limit the confirmatory test to the urine samples retrieved from the urinary system of the accused.

In the instant case, no confirmatory test was done on the sachet and the shabu [0.035 gram] using the mandatory GCMS instrument.

Section 15 of RA 9165 provides that “a person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. Xxx.”

[The trial court had previously acquitted the three accused in Crim. Case No. xxx (Sec. 15, for alleged use of shabu, RA 9165) precisely because no confirmatory tests were conducted].

Sec. 38 of RA 9165 provides that “a positive screening laboratory test must be confirmed for it to be valid in a court of law.” The same section commands the use of “gas chromatograph/mass spectrometry equipment [GCMS] or some such modern and accepted method” for confirmatory tests.

Note that Sec. 3 [Definitions], Article I, of RA 9165 speaks only of “screening test”, which it defines as a “rapid test performed to establish potential/presumptive positive result”. The section does not speak of “confirmatory tests” expressly.

Nothing in RA 9165 exclusively limit confirmatory tests to urine samples only. The law does not expressly and clearly prohibit confirmatory tests for the sachet and the shabu seized.

This is a novel issue that the Philippine Judiciary must clarify and resolve.

Presumption of innocence; Section 14, Art. III of the 1987 Constitution provides that “in all criminal prosecutions, the accused shall be PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED.”

The trial court erred in finding that the appellant was guilty “beyond reasonable doubt” of the crimes charged.

The appellant was not the owner and possessor of the nontransparent/opaque tubular container which contained the alleged prohibited drug and paraphernalia. His testimony thereon was clear, sincere, positive and forthright. He was corroborated on that point by a credible witness, xxx, whose testimony was admitted by the prosecutor and who was not subjected to cross examination by the prosecutor. The corroborating testimony of xxx in favor of the appellant xxx stands uncontested and uncontroverted by the prosecution. There was no credible factual and legal basis “beyond reasonable doubt” to convict the appellant for alleged violation of Sec. 11 [possession of shabu] of RA 9165 in Crim. Case No. xxx [appealed case].

Besides, the appellant was not performing a criminal activity at the time of his warrantless arrest. He and his companions were merely drinking softdrinks. The illegally confiscated items, which were the “fruits of the poisonous tree”, should have been rejected by the trial court for being inadmissible, unconstitutional, illegal and prejudicial to the constitutional and human rights of the appellant [a] to substantive due process of law, [b] to equal protection of the law, [c] to presumption of innocence, and [d] to privacy and to his right against unreasonable search and seizure.

Article III [Bill of Rights] of the 1987 Constitution enshrines the basic constitutional principle of the PRESUMPTION OF INNOCENCE. The prosecution has the heavy burden of proof to overcome such constitutionally cherished doctrine.

Section 14, Art. III of the 1987 Constitution provides that “in all criminal prosecutions, the accused shall be PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVED.”

The case of EDMUND SYDECO y SIONZON vs. PEOPLE OF THE PHILIPPINES, G.R. No. 202692, November 12, 2014 is instructive. It held that “conviction must come only after it survives the test of reason” and that “every circumstance favoring one’s innocence be duly considered”. It further held that “in case of doubt as to the MORAL CERTAINTY OF CULPABILITY, the balance tips in favor of innocence” and that “the burden of proving the guilt of an accused lies on the prosecution which must rely on the strength of its evidence and NOT ON THE WEAKNESS OF THE DEFENSE”. It furthermore held that “the blind reliance and simplistic invocation by the trial court and the CA on the presumption of regularity in the conduct of police duty is clearly misplaced”. It emphasized that “the presumption of regularity [in the conduct of police duty] is merely just that, a presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth” and that “this presumption [of regularity in the conduct of police duty] alone CANNOT PREPONDERATE OVER THE PRESUMPTION OF INNOCENCE that prevails if not overcome by proof that obliterates all doubts as to the offender’s culpability”.

Under the EQUIPOISE RULE, when the inculpatory and the exculpatory evidence are equal, the constitutional presumption of innocence tilts the balance in favor of the accused.

In the case of FRANCISCO M. LECAROZ and LENLIE LECAROZ, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, G.R. No. 130872, March 25, 1999, it was held that “the principle of equipoise demands that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction”.

Chain of custody of evidence in drug cases; Sec. 21, RA 9165 - “Law enforcers should not trifle with the legal requirement to ensure integrity in the chain of custody of seized dangerous drugs and drug paraphernalia. This is especially true when only a miniscule amount of dangerous drugs is alleged to have been taken from the accused.”

The trial court erred in holding that the provisions on “chain of custody of evidence” stated in Sec. 21 of RA 9165 were complied with by the concerned seizing, arresting and crime laboratory police officers involved in the three [3] criminal cases.

The handling of the chain of custody of evidence in the instant cases by the xxx police officers [seizing, arresting and crime laboratory officers] was improper, tainted, dubious, defective and prejudicial to the constitutional rights of the appellant xxx. PO1 xxx [seizing officer] acted as one-man seizing officer-cum-evidence custodian. He brought home the seized evidence, kept them at his house, did not endorse them to the evidence custodian of the police station, put them in the common cabinet being used by him and his wife, and exposed the evidence to questionable human interventions. Further, the chain of custody of evidence form was signed only by PO1 xxx and PO2  xxx . The chain of custody of evidence from PO2 xxx to PCI xxx [forensic chemist] was not documented. The evidence custodian of the PNP regional crime laboratory in xxx likewise did not sign the chain of custody of evidence form.

In the case of PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO HOLGADO Y DELA CRUZ AND ANTONIO MISAREZ Y ZARAGA, Accused-Appellants, G.R. No. 207992, August 11, 2014, the Supreme Court held that:

“Law enforcers should not trifle with the legal requirement to ensure integrity in the chain of custody of seized dangerous drugs and drug paraphernalia. This is especially true when only a miniscule amount of dangerous drugs is alleged to have been taken from the accused.”

The Supreme Court held therein that: “Compliance with the chain of custody requirement provided by Section 21 [of RA 9165, as amended by RA 10640][1], therefore, ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia in four (4) respects: first, the nature of the substances or items seized; second, the quantity (e.g., weight) of the substances or items seized; third, the relation of the substances or items seized to the incident allegedly causing their seizure; and fourth, the relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them. Compliance with this requirement forecloses opportunities for planting, contaminating, or tampering of evidence in any manner.”

In the aforecited jurisprudence, the Supreme Court noted that “apart from the officers’ glaring non-compliance with Section 21, two (2) circumstances are worth underscoring in this case. First, the shabu supposedly seized amounted to five (5) centigrams (0.05 gram). This quantity is so miniscule it amounts to only about 2.5% of the weight of a five-centavo coin (1.9 grams) or a one-centavo coin (2.0 grams). Second, Holgado and Misarez were acquitted by the Regional Trial Court of all other charges (i.e., for possession of dangerous drugs and for possession of drug paraphernalia).”

Similarly, in the instant appeal, the appellant xxx was convicted for a miniscule quantity of 0.035 gram.

The Supreme Court stated in the aforecited case that “while the miniscule amount of narcotics seized is by itself not a ground for acquittal, this circumstance underscores the need for more exacting compliance with Section 21”. It added that “the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives.”

Moreover, the Supreme Court stated that “the Regional Trial Court’s observations which led to accused-appellants’ acquittal for violations of Sections 11 and 12 of Republic Act No. 9165 should have warned the Regional Trial Court and the Court of Appeals that something was amiss.”

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[1] Section 21 of RA 9165, as amended by RA 10640, is reproduced below:

“SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

1. The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

3. A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said examination and certification[.].”

Arrest and search; waiver. - “A waiver of an illegal arrest, however, is not a waiver of an illegal search. ⁠ Records have established that both the arrest and the search were made without a warrant. While the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search.”

The trial court erred in holding that the seized items were admissible in evidence. It erred in not upholding the doctrine of the “fruit of the poisonous tree”. The two [2] foregoing errors are discussed jointly below, they being interrelated.

Evidence that is acquired illegally by police officers [in violation of the constitutional, human and statutory rights of an accused] are inadmissible in evidence.

Sec. 2, Art. III, Bill of Rights, 1987 Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects against UNREASONABLE SEARCHES AND SEIZURES OF WHATEVER NATURE AND FOR ANY PURPOSE shall be inviolable, and no search warrant or warrant of arrest shall issue except upon PROBABLE CAUSE to be determined personally by the JUDGE after examination under oath or affirmation of the COMPLAINANT AND THE WITNESSES he may produce, and PARTICULARLY DESCRIBING the place to be searched and the persons or things to be seized”.

Section 3 of Article III of the 1987 Constitution provides that “any evidence obtained in violation of this or the preceding section shall be INADMISSIBLE FOR ANY PURPOSE IN ANY PROCEEEDING.”

In the case of DANILO VILLANUEVA Y ALCARAZ VS. PEOPLE OF THE PHILIPPINES, G.R. No. 199042, November 17, 2014, the Supreme Court held that although the appellant was estopped from questioning the legality of his arrest because he failed to file a motion to quash the Information, nonetheless, a waiver of an illegal arrest is not a waiver of an illegal search, thus:

“A waiver of an illegal arrest, however, is not a waiver of an illegal search. ⁠ Records have established that both the arrest and the search were made without a warrant. While the accused has already waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right to contest the legality of the search.”

The Supreme Court enumerated in the aforecited case the recognized instances where warrantless searches and seizures may be done by law enforcers:

(1) search of a moving vehicle;

(2) seizure in plain view;

(3) customs search;

(4) waiver or consented search;

(5) stop-and-frisk situation;

(6) search incidental to a lawful arrest and

(7) exigent and emergency circumstance. ⁠

Note that in the case of the herein appellant xxx, the contents of the tubular plastic container were NOT IN PLAIN VIEW because the container was nontransparent or opaque. The contents thereof could not be seen without first forcibly seizing and searching the container. That was exactly what happened in the instant case. The xxx policemen approached the appellant Deseo and his companions while they were drinking softdrinks in front of a store. The seizing officer xxx demanded that the appellant Deseo give to him the tubular container. The appellant xxx refused. Psywar threat and force were applied by the police. They forcibly pulled from the appellant xxx the tubular container that he was allegedly holding. They opened it. Then, they arrested him and his two companions. There was no probable cause to search and to arrest. A tip from an asset is not “personal knowledge”. Neither is it “probable cause.”

In the aforecited jurisprudence, the Supreme Court held:

“The search made was not among the enumerated instances. Certainly, it was not of a moving vehicle, a customs search, or a search incidental to a lawful arrest. There could not have been a seizure in plain view as the seized item was allegedly found inside the left pocket of accused-appellant’s pants. Neither was it a stop-and-frisk situation. While this type may seemingly fall under the consented search exception, we reiterate that “[c]onsent to a search is not to be lightly inferred but shown by clear and convincing evidence. ⁠

Consent must also be voluntary to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion. In this case, petitioner was merely “ordered” to take out the contents of his pocket.”

The Supreme Court held in the aforecited jurisprudence that the evidence obtained was not admissible. It was a case of a seizure of a “fruit of a poisonous tree.” It was inadmissible in evidence, citing Sec. 3 [2], Art. III, Bill of Rights, of the 1987 Constitution.

“Having been obtained through an unlawful search, the seized item is thus inadmissible in evidence against accused-appellant. Obviously, this is an instance of seizure of the “fruit of the poisonous tree.” Hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution: “Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.” ⁠ Without the seized item, therefore, the conviction of accused-appellant cannot be sustained. This being the case, we see no more reason to discuss the alleged lapses of the officers in the handling of the confiscated drug.”

Arrest without warrant; when lawful; Sec. 5, Rule 113, Rules of Criminal Procedure.

The trial court erred in holding that the “warrantless arrest” and the “warrantless search” of the appellant was lawful and that the policemen had sufficient “probable cause” to apply Rule 113 [lawful warrantless arrest] of the Rules of Criminal Procedure.

The appellant and his companions were not performing a criminal activity at the time of their warrantless arrest. They were merely drinking softdrinks in front of a store [which was not a crime]. The police arrested them purely based on an unauthenticated and unverified tip from an unnamed and unidentified asset. A tip is not personal knowledge. It does not constitute sufficient probable cause. Otherwise, our democratic republic would retrogress into a totalitarian police state.

Sec. 5, Rule 113 of the 2000 Rules of Criminal Procedure provides for the limited instances when warrantless arrests may be made by police officers or citizens:

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.”

None of the foregoing limited instances of lawful warrantless arrest and search were present when the appellant Deseo was arrested by the Aparri policemen.

In the case of ERNESTO J. SAN AGUSTIN, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent, G.R. No. 158211, August 31, 2004, the Supreme Court held that the petitioner therein was unlawfully arrested without a warrant of arrest against him for kidnapping/serious illegal detention because his warrantless arrest or the detention did not fall within the provision of Section 5, Rule 113. In that case the petitioner only went to the Office of the NBI to answer the subpoena. The “arresting” officers were not present within the meaning of Section 5(a) of Rule 113 at the time when the supposed crime was allegedly committed. None of the “arresting” officers had any “personal knowledge” of facts indicating that petitioner was the person who kidnapped/detained the victim. More importantly, the Supreme Court held in the aforecited case that “the information upon which the ‘arresting’ officers acted upon had been derived from the statements made by the alleged eyewitnesses to the incident which information did not, however, constitute personal knowledge”.


Possession of less than five grams of shabu; penalty; Sec. 11, RA 9165


Section 11 of RA 9165, possession of shabu:

“Sec. 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:

(1) xxx;

(2) xxx;

(3) xxx;

(4) xxx;

(5) 50 grams or more of methamphetamine hydrochloride or "shabu";

(6) xxx;

(7) xxx;

(8) xxx;

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams;

(2) xxx;

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams of xxx xxx methamphetamine hydrochloride or "shabu", or other dangerous drugs xxx xxx.”

The equipoise rule states that where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfil the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional, presumption of innocence tilts the scales in favor of the accused. ⁠

The equipoise rule provides that when the prosecution evidence is capable of both inculpatory and exculpatory interpretation, the constitutional presumption of innocence tilts the balance in favor of the acquittal of the accused.

PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FABIAN URZAIS Y LANURIAS, ALEX BAUTISTA, AND RICKY BAUTISTA ACCUSED, G.R. No. 207662, April 13, 2016.

“x x x.

The equipoise rule states that where the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfil the test of moral certainty and is not sufficient to support a conviction. The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional, presumption of innocence tilts the scales in favor of the accused. ⁠

The basis of the acquittal is reasonable doubt, which simply means that the evidence of the prosecution was not sufficient to sustain the guilt of accused-appellant beyond the point of moral certainty. Proof beyond reasonable doubt, however, is a burden particular to the prosecution and does not apply to exculpatory facts as may be raised by the defense; the accused is not required to establish matters in mitigation or defense beyond a reasonable doubt, nor is he required to establish the truth of such matters by a preponderance of the evidence, or even to a reasonable probability. ⁠

It is the primordial duty of the prosecution to present its side with clarity and persuasion, so that conviction becomes the only logical and inevitable conclusion. What is required of it is to justify the conviction of the accused with moral certainty. Upon the prosecution’s failure to meet this test, acquittal becomes the constitutional duty of the Court, lest its mind be tortured with the thought that it has imprisoned an innocent man for the rest of his life. ⁠ The constitutional right to be presumed innocent until proven guilty can be overthrown only by proof beyond reasonable doubt. ⁠

In the final analysis, the circumstances narrated by the prosecution engender doubt rather than moral certainty on the guilt of accused-appellant.

X x x.”

The prosecution must overthrow the presumption of innocence with proof beyond reasonable doubt.

"(A)ccusation is not according to the fundamental law, synonymous with guilt; the prosecution must overthrow the presumption of innocence with proof beyond reasonable doubt. To meet this standard, there is a need for the careful scrutiny of the testimony for the state, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial thereof under such an exacting test should sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason, the strongest suspicion must not be permitted to sway judgment."[People vs. Dramayo, 42 SCRA 60]

Where there is reasonable doubt, the accused must be acquitted

In criminal cases, to justify a conviction, the culpability of an accused must be established by proof beyond a reasonable doubt. The burden of proof is on the prosecution, as the accused enjoys a constitutionally enshrined disputable presumption of innocence. The court, in ascertaining the guilt of an accused, must, after having marshaled the facts and circumstances, reach a moral certainty as to the accused’s guilt. Moral certainty is that degree of proof which produces conviction in an unprejudiced mind. Otherwise, where there is reasonable doubt, the accused must be acquitted (Caunan vs. People of the Philippines and Sandiganbayan G.R. Nos 181999, 182001-04, 02 September 2009).

Conspiracy explained.

Antonino vs. Desierto, G.R. No. 1444492,18 December 2008:
“For it is fundamental that conspiracy cannot be presumed. Conspiracy must be proved by direct evidence or by proof of the overt acts of the accused, before, during and after the commission of the crime charged indicative of a common design.”

Bahilidad vs. People of the Philippines, G.R. No. 185195, 17 March 2010:
“There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together, however, the evidence must be strong enough to show the community of criminal design. For conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the cohorts.

It is necessary that a conspirator should have performed some overt act as a direct or indirect contribution to the execution of the crime committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his co-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other co-conspirators. Hence, the mere presence of an accused at the discussion of a conspiracy, even approval of it, without any active participation in the same, is not enough for purposes of conviction.”

Bad faith; Section 3 (e), R.A. 3019.

Dr. Roger R. Posadas, et al. vs. Sandiganbayan and People of the Philippines, G.R. Nos. 168951 and 169000, 27 November 2013:

“The bad faith that Section 3(e) of Republic Act No. 3019 requires, said this Court, does not simply connote bad judgment or negligence. It imputes a dishonest purpose, some moral obliquity, and a conscious doing of a wrong. Indeed, it partakes of the nature of fraud.”

Section 3 (e) of Republic Act No. 3019, “Anti-Graft and Corrupt Practices Act

Bustillo, et al. vs. People of the Philippines, G.R. No. 160718, 12 May 2010

In order to be liable for violation of Section 3 (e) of Republic Act No. 3019, or otherwise known as the “Anti-Graft and Corrupt Practices Act, the following elements must concur:

“(1) that the accused are public officers or private persons charged in conspiracy with them;

“(2) that said public officers commit the prohibited acts during the performance of their official duties in relation to their public positions;

“(3) that they caused undue injury to any party whether the Government or a private party;

“(4) that such injury is caused by giving unwarranted benefits, advantage, or preference to such parties; and

“(5) that the public officers have acted with manifest partiality, evident bad faith, or gross inexcusable negligence.

Philippine Government Electronic Procurement System (PhilGEPS).


Section 8.5. of the 2016 Implementing Rules and Regulations of Republic Act No. 9184 provides:

"x x x.

8.5. Registration, Eligibility Requirements and Submission of Bids under the PhilGEPS

8.5.1. To ensure the widest dissemination of the Invitation to Bid/Request for Expression of Interest, manufacturers, suppliers, distributors, contractors and/or consultants shall register with the PhilGEPS. All Procuring Entities already maintaining an electronic registry upon the effectivity of this IRR shall integrate the same with that of the PhilGEPS. A manufacturer, supplier, distributor, contractor or consultant duly registered with the PhilGEPS may participate in a procurement undertaken by any Procuring Entity, provided that the said manufacturer, supplier, distributor, contractor or consultant maintains its registration current and updated in accordance with the provisions of this IRR, and its registration is proper and relevant to the particular type of procurement.

8.5.2. All bidders shall upload and maintain in PhilGEPS a current and updated file of the following Class “A” eligibility documents under Sections 23.1(a) and 24.1(a):

a) Registration Certificate;

b) Mayor’s/Business Permit or its Equivalent Document;

c) Tax Clearance;

d) Philippine Contractors Accreditation Board (PCAB) license and registration; and

e) Audited Financial Statements

xxx."

Compeent proof of overpricing, Sec. 3 [g], R.A. 3019, anti-graft and corrupt practices act


Caunan vs. People of the Philippines and Sandiganbayan G.R. Nos 181999, 182001-04, 02 September 2009:

"x x x.

We agree with petitioners that the fact of overpricing is embedded in the third criminal element of Section 3 (g) of R.A. No. 3019. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. Thus, we grant the petitions.

x x x.

In finding that the walis tingting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COA’s finding of overpricing which was, in turn, based on the special audit team’s report. The audit team’s conclusion on the standard price of a walis tingting was pegged on the basis of the following documentary and object evidence: (1) samples of walis tingting without handle actually used by the street sweepers; (2) survey forms on the walis tingting accomplished by the street sweepers; (3) invoices from six merchandising stores where the audit team purchased walis tingting; (4) price listing of the DBM Procurement Service; and (5) documents relative to the walis tingting purchases of Las Piñas City. These documents were then compared with the documents furnished by petitioners and the other accused relative to Parañaque City’s walis tingting transactions.

Notably, however, and this the petitioners have consistently pointed out, the evidence of the prosecution did not include a signed price quotation from the walis tingting suppliers of Parañaque City. In fact, even the walis tingting furnished the audit team by petitioners and the other accused was different from the walis tingting actually utilized by the Parañaque City street sweepers at the time of ocular inspection by the audit team. At the barest minimum, the evidence presented by the prosecution, in order to substantiate the allegation of overpricing, should have been identical to the walis tingting purchased in 1996-1998. Only then could it be concluded that the walis tingting purchases were disadvantageous to the government because only then could a determination have been made to show that the disadvantage was so manifest and gross as to make a public official liable under Section 3(g) of R.A. No. 3019.

x x x.

The reasoning of the Sandiganbayan is specious and off tangent. The audit team reached a conclusion of gross overpricing based on documents which, at best, would merely indicate the present market price of walis tingting of a different specification, purchased from a non-supplier of Parañaque City, and the price of walis tingting purchases in Las Piñas City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, i.e., proof beyond  reasonable doubt, in order to overcome the presumption of innocence in favor of petitioners.

As pointed out by petitioner Caunan, not all of the contents of the audit team’s report constituted hearsay. Indeed, as declared by the Sandiganbayan, Bermudez could very well testify thereon since the conclusions reached therein were made by her and her team. However, these conclusions were based on incompetent evidence. Most obvious would be the market price of walis tingting in Las Piñas City which was used as proof of overpricing in Parañaque City. The prosecution should have presented evidence of the actual price of the particular walis tingting purchased by petitioners and the other accused at the time of the audited transaction or, at the least, an approximation thereof. Failing in these, there is no basis to declare that there was a glaring overprice resulting in gross and manifest disadvantage to the government. 

x x x."

Sec. 3 [g], R.A. No.3019, anti-graft and corrupt practices act.

In order to be liable for violation of Section 3 (g) of Republic Act No. 3019, or otherwise known as the “Anti-Graft and Corrupt Practices Act, the following elements must concur:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.

(Caunan vs. People of the Philippines and Sandiganbayan G.R. Nos 181999, 182001-04, 02 September 2009)

Friday, July 13, 2018

Philippines has become "a willing victim" and "an abettor" of China, two years after Manila won its landmark case against Beijing over the South China Sea.

See - www.rappler.com

"x x x.

Del Rosario: PH 'a willing victim' 2 years after Hague ruling

'Before we can hope for help, we must first demonstrate that we are worth helping,' says former foreign secretary Albert del Rosario on the second anniversary of the Philippines' South China Sea victory

By Paterno Esmaquel II
@paterno_ii
Published 10:36 AM, July 12, 2018
Updated 12:21 AM, July 13, 2018

www.rappler.com


MANILA, Philippines – Former Philippine foreign secretary Albert del Rosario lamented that the Philippines has become "a willing victim" and "an abettor" of China, two years after Manila won its landmark case against Beijingover the South China Sea.

Del Rosario posed 3 questions, and presented answers, in a forum on Thursday, July 12, to mark the second anniversary of the Hague ruling.

In a prepared speech, Del Rosario said (points of emphasis his):

First question: What may we call one that acquiesces to the abuses against it?

Answer: A WILLING VICTIM

Second question: What may we call one that defends an aggressor at every opportunity?

Answer: AN ABETTOR

Third question: What may we call ONE THAT GAMBLES THE RIGHTFUL PATRIMONY OF ITS FUTURE GENERATIONS for unlikely gains in the present?

Answer: Sorry, I cannot help you. That is for each of you to ponder.

Del Rosario said: "We need all of our friends in the community of nations who believe in the rule of law to help us. But before we can hope for help, we must first demonstrate that we are worth helping."

China 'a bully,' 'grand larcenist'

Del Rosario blasted China as "a bully," "a grand larcenist," and "an international outlaw."

He said:

First question: What should we call one that uses muscle to deprive others of their rights?

Answer: A BULLY

Second question: What should we call one that unlawfully takes a significant property of others?

Answer: A GRAND LARCENIST

Third question: What should we call one that refuses the rule of international law?

Answer: AN INTERNATIONAL OUTLAW

While the Philippines won a decisive victory against China on July 12, 2016, President Rodrigo Duterte has refused to enforce it because the Philippines is seeking economic gains from Beijing.

Acting Chief Justice Antonio Carpio criticized the Duterte administration's "inexplicable reluctance" to enforce the Hague ruling, and the way it "incomprehensibly decided to befriend" China "at all costs."

Del Rosario said that "there is still time for our country to do what is right for our people."

Del Rosario presented a broad range of solutions – from multilateralism at the United Nations or the Association of Southeast Asian Nations, to bilateral engagements with other states, or all of the above.

He noted that "coercive diplomacy has no place in a rules-based international order."

"As Filipinos, we must voice our sentiments to our government and exercise our right to raise our indignation against China," Del Rosario said. – Rappler.com

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