520 Phil. 346
CARPIO MORALES, J.:
SEC. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:The charges arose from private respondents public officials' entering, pursuant to Municipal Ordinance No. 497, into a Memorandum of Agreement [4] (MOA) dated December 5, 1994 with APRI represented by respondent Garcia for the construction of the Calamba Shopping Center under the "Build-Operate-Transfer" scheme in Republic Act 6957, [5] as amended by R.A. 7718.
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
x x x x
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.
x x x x
(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage or of a mere representative or dummy of one who is not so qualified or entitled.
On February 6, 1996, private respondents filed a Petition for Reinvestigation [9] and a Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrant of Arrest [10] due to the pendency of two civil actions for the nullification of the MOA, Civil Case No. 2180-95-C, "Merlinda Paner, for herself and for the vendors of the Calamba Public Market v. Mayor Severino Lajara & Australian Professional Realty, Inc.,"[11] and Civil Case No. 2186-95-C, "Calamba Vendors Credit Cooperative and its Members v. The Municipality of Calamba, Laguna, Mayor Sereriano Lajara and Australian Professional Realty, Inc.," [12] at Branch 92 of the Regional Trial Court of Calamba City (the trial court), they alleging that the said civil cases raised prejudicial questions which must first be resolved as they are determinative of their innocence or guilt.CRIMINAL CASE NO. 23153
The undersigned Special Prosecution Officer, Office of the Special Prosecutor, hereby accuses Severino Lajara, Dennis Lanzanas, Apolonio Elasigue, Senador Alcalde, Emilio C. Rodriguez, Efren M. Garcia, Frisco L. Ona, Renato A. Bunyi, Diosdado J. Lajara, Crispin M. Contreras, Jorge M. Javier and Jesus V. Garcia for violation of Section 3 (j) of Republic Act 3019, as amended, committed as follows:
That on December 5, 1994, or sometime prior or subsequent thereto, in Calamba, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Severino Lajara, as Municipal Mayor of Calamba Laguna, and while in the performance of his official function, conniving and confederating with the other public officers namely: Dennis Lanzanas, the Vice-Mayor, Apolinio Elasigue, Frisco Ona, Senador C. Alcalde, Renato A. Bunyi, Emilio C. Rodriguez, Diosdado J. Lajara, Efren Garcia, Jorge Javier and Crispin Contreras, all Members of the Sangguniang Bayan of Calamba, Laguna, together with the private respondent, Jesus V. Garcia, President of the Australian Professional Realty, Inc., did then and there willfully, unlawfully and criminally grant to Austalian Professional Realty, Inc., the privilege of constructing the shopping center located at Calamba, Laguna despite knowledge that the said construction firm is not qualified not being accredited by the Philippine Contractor's Accreditation Board (PCAB) as Class AAA contractor because it has only a paid-up capital of ONE HUNDRED TWENTY FIVE THOUSAND PESOS (P125,000.00), Philippine Currency, when the subject project would cost from P200 Million to P300 Million, to the prejudice of the government.
Contrary to law. [6] (Underscoring supplied)CRIMINAL CASE NO. 23154
The undersigned Special Prosecution Officer, Office of the Special Prosecutor, hereby accuses Severino Lajara, Dennis Lanzanas, Apolonio Elasigue, Senador Alcalde, Emilio C. Rodriguez, Efren M. Garcia, Frisco L. Ona, Renato A. Bunyi, Diosdado J. Lajara, Crispin M. Contreras, Jorge M. Javier and Jesus V. Garcia for violation of Section 3 (g) of Republic Act 3019, as amended, committed as follows:
That on December 5, 1994, or sometime prior or subsequent thereto, in Calamba, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Severino Lajara, as Municipal Mayor of Calamba Laguna, and while in the performance of his official function, conniving and confederating with the other public officers namely: Dennis Lanzanas, the Vice-Mayor, Apolinio Elasigue, Frisco Ona, Senador C. Alcalde, Diosdado J. Lajara, Efren Garcia, Jorge Javier and Crispin Contreras, all Members of the Sangguniang Bayan of Calamba, Laguna, together with the private respondent, Jesus V. Garcia, president of the Australian Professional Realty, Inc., did then and there willfully, unlawfully and criminally enter into a Memorandum of Agreement for and in behalf of the Municipality of Calamba, Laguna with contractor Australian Professional Realty, Inc. represented by its President, private respondent Jesus V. Garcia, regarding the construction of a shopping center in Calamba, Laguna, the terms and conditions being manifestly and grossly disadvantageous to the Municipality of Calamba such that the actual operation and management of the said shopping center and the income derived therefrom for a period of twenty five (25) years will be directly under the control and supervision of the Australian Professional Realty, Inc., thus causing undue injury to the Government.
CONTRARY TO LAW. [7] (Underscoring supplied)CRIMINAL CASE NO. 23155
The undersigned Special Prosecution Officer, Office of the Special Prosecutor, hereby accuses Severino Lajara, Dennis Lanzanas, Apolonio Elasigue, Senador Alcalde, Emilio C. Rodriguez, Efren M. Garcia, Frisco L. Ona, Renato A. Bunyi, Diosdado J. Lajara, Crispin M. Contreras, Jorge M. Javier and Jesus V. Garcia for violation of Section 3 (e) of Republic Act 3019, as amended, committed as follows:
That on December 5, 1994, or sometime prior or subsequent thereto, in Calamba, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Severino Lajara, as Municipal Mayor of Calamba Laguna, and while in the performance of his official function, conniving and confederating with the other public officers namely: Dennis Lanzanas, the Vice-Mayor, Apolinio Elasigue, Frisco Ona, Senador C. Alcalde, Renato A. Bunyi, Emilio C. Rodriguez, Diosdado J. Lajara, Efren Garcia, Jorge Javier and Crispin Contreras, Members of the Sangguniang Bayan of Calamba, Laguna, together with the private respondent, Jesus V. Garcia, president of the Australian Professional Realty, Inc., and acting with evident bad faith did then and there willfully, unlawfully and criminally enter into a Memorandum of Agreement on behalf of the Municipality of Calamba, Laguna with contractor Australian Professional Realty, Inc. represented by its President, private respondent Jesus V. Garcia, for the construction of the shopping center in Calamba, Laguna, under the Build Operate and Transfer (BOT) scheme, despite knowledge that the Municipal Ordinance No. 497 which gave authority to respondent Mayor to enter into the Memorandum of Agreement was still under study by the Sangguniang Panlalawigan of Laguna; that Australian Realty, Inc. is not an accredited contractor; and that no pre-qualification, bidding and awarding of the project was conducted, thus, causing undue injury to the complainants and to the Government.
CONTRARY TO LAW. [8] (Underscoring supplied)
This Court notes that instead of assailing the Sandiganbayan resolutions by petition for review on certiorari under Rule 45 of the Rules of Civil Procedure, petitioner availed of the present petition for certiorari under Rule 65.A.
. . . IN HOLDING THAT THE DECISION OF THE REGIONAL TRIAL COURT OF CALAMBA, LAGUNA, BRANCH 92, FINDING THE VALIDITY OF THE QUESTIONED MEMORANDUM OF AGREEMENT HAS RENDERED CRIMINAL CASE NOS. 23153-23155 DEVOID OF ANY PROBABLE CAUSE.B.
. . . IN NOT RESOLVING THE ISSUES PUT FORTH BY PETITIONER AGAINST THE MOTION TO QUASH FILED BY PRIVATE RESPONDENTS THAT THERE IS [sic] NO IDENTITIES OF PARTIES BETWEEN CIVIL CASE NO. 2180-95-C AND CRIMINAL CASE NOS. 23153-23155, A CONDITION NEGATING THE EXISTENCE OF PREJUDICIAL QUESTION. [32]
are logical antecedents of the following issues raised in the criminal cases, the resolution of which logical antecedents belongs to the trial court in the civil case: (1) whether private respondents granted in favor of APRI the privilege of constructing the Calamba Shopping Center despite knowledge that APRI was not qualified — not having been accredited by the PBAC as Class AAA contractor because its paid up capital only amounts to P125,000 [Information in Criminal Case No. 23153]; (2) whether the terms and conditions of the MOA entered into by private respondents for and in behalf of the municipality were manifestly and grossly disadvantageous to the municipality [Information in Criminal Case No. 23154]; and (3) whether private respondents through evident bad faith caused undue injury to the complainants and to the government for entering into a MOA, knowing that (a) Municipal Ordinance No. 497 which gave authority to the Mayor to enter into said agreement was still under study by the Sangguniang Panlalawigan of Laguna, (b) APRI was not an accredited contractor, and (c) no pre-qualification, bidding and awarding of the project was conducted.
- Whether or not SB Resolution No. 497 of the Municipality of Calamba is valid in that it was ratified or not ratified by the Sangguniang Panlalawigan;
- Whether or not the questioned MOA is valid when APRI is not accredited with the Philippine Contractors Accredita[tion] Board (PCAB) and has an authorized capital stock of only 2 Million Pesos and a paid up capital stock of only P125,000.00;
- Whether or not the questioned MOA is valid without public bidding of the project;
- Whether or not the execution of the questioned MOA complies with the mandatory requirement of the Buil[d] [sic] Operate and Transfer (BOT) RA 6957 as amended by RA 7718 and its implementing rules and regulations (IRR);
- Whether or not the questioned MOA is grossly disadvantageous to the Municipality of Calamba.,[36]
. . . The fact that APRI is not accredited with the P[hilippine C[ontractors] A[djudication] B[oard] or has only a capital stock of only 2 Million Pesos and a paid-up capital of only P125,000.00 will not by itself nullify the MOA. A contractor may or may not be the project proponent (Sec. 2 (e) RA 7718). A project proponent is the private sector entity which shall have contractual responsibility for the project which shall have an adequate financial base to implement said project consisting of equity and firm commitments from reputable financial institutions to provide sufficient credit lines to cover the total estimate cost of the project (Sec. 2(k) RA 7718). APRI is a BOT project proponent and not a contractor to undertake actual construction for the project and thus, APRI need not register with and be accredited by the PCAB (p. 9, TSN of November 11, 1999). . . .The qualification of APRI to enter into the MOA with the municipality having been duly established, private respondents could no longer be held accountable under Section 3 (j) which punishes the act of public officers of knowingly granting a license, permit, privilege or advantage to a person not qualified or legally entitled thereto.
x x x x
The Court is convinced by the defendant's evidence that APRI has sufficient financial base or capability to implement the project with a[n] estimated project cost of 150 Million Pesos (Exh. "16-A"). The initial authorized capital stock of APRI of 2 Million Pesos is supplemented by Brilliant Star Capital Lending in the amount of 150 Million Pesos (p. 10 TSN September 5, 1999 and Exh. "11"). On top of this, the initial authorized capital stock of 2 Million Pesos is in the process of being increased (pages 3 to 6 TSN of November 11, 1999).
x x x x
. . . The requirement of public bidding, as well as the process and procedures thereof, mandated by the BOT law do not apply to unsolicited proposals for projects.
Projects to be implemented under unsolicited proposals need not comply with the requirements, process and procedures of public bidding. Sec. 4 of amendatory RA 7718 provides as follows to wit:"Unsolicited Proposals — Unsolicited proposals for projects may be accepted by any government agency or local government unit on a negotiated bases: Provided, that, all the following conditions are met: (1) such project involve[s] a new concept or technology and/or not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication, or three (3) consecutive weeks, in a newspaper of general circulation, comparative or competitive proposals is [sic] received for a period of sixty (60) working days: Provided, further, that in the event another proponent submits a lower price proposal, the original proponent shall have the right to match that price within thirty (30) working days' (Reiterated in Rule 10, Section 10.2 and Rule 11, Section 11.1 of the IRR).x x x x
. . . Atty. Marciano likewise testified that the proposal for the construction of the Calamba Shopping Center is under the Unsolicited Proposal and that there is no need for bidding based on the letter dated August 17, 1995 to APRI by NEDA Regional Director Mr. Catalino Boquiren to the effect that the Calamba Shopping Center is not covered by ICC/NEDA review and approval (p. 9, TSN of September 2, 1999). NEDA Regional Director Mr. Catalino Boquiren was presented by the plaintiffs as their witness and he identified his August 17, 1995 letter to APRI marked as Exhs. "10" and "10-A" (pages 7 to 8, TSN of March 20, 1997). . . . [39] (Underscoring supplied)
. . . The Calamba Shopping Center Project, as an Unsolicited Proposal, does not require government guarantee, subsidy or equity. Indeed the very provisions of the questioned MOA in its whereas show in unmistakable terms that no cost or expenses [sic] [o]n the part of the Municipality of Calamba shall be required in the construction of the project in this wise: WHEREAS, the first party (The Municipality of Calamba) desires to have a shopping center for the residents of Calamba, Laguna and the nearby towns and cities that would serve as one of the major trading point[s] in the Province of Laguna; WHEREAS, the second party (APRI) is willing and able to help the FIRST PARTY in achieving its aforementioned objectives by constructing and operating a shopping center with modern and sleek design without cost or expense on the part of the first party pursuant to Buil[d]-Operate-Transfer Scheme' under RA 6957, as amended by RA 7718; WHEREAS, the first party sees the benefits and economic advantages of such project of the second party...."For the charge of Section 3 (e) to prosper, the following elements must be present: (1) the accused is a public officer or private person charged in conspiracy with the former; (2) the public officer commits the prohibited acts during the performance of his official duties or his relation to his public positions; (3) he causes undue injury to any party, whether the Government or a private party; (4) such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence.
This very clear and unmistakable terms of the questioned MOA belie the claim of the plaintiffs that said MOA is grossly disadvantageous to the municipality. On the contrary, the Court sees the construction of the Calamba Shipping Center under the MOA [as] a rare happening with tremendous benefits to the citizenry not only of Calamba but also of the neighboring towns of the province, and this without any cost or expense on the coffers of the municipality. The Court takes judicial notice of the fact that at present, the Calamba Shopping Center, which is just about a stone-throw away from this Court, has been already in operation, albeit still incomplete, with buildings and infrastructures in modern design constructed without cost to the municipality to be enjoyed by the constituents now and in the years to come.
As matters stand now, the Municipality of Calamba is the beneficiary of all the improvements constructed by APRI on its former market site. The parties may differ as to how to recompense APRI for such improvements and what will guide them in view of the re[s]cission of the BOT Contract. Certainly, the parties did not sustain damage by such re[s]cission and they cannot be heard to complain about it.To the mind of the Court, the BOT Contract did not work any damage to the municipality, much more placed the municipality in any kind of disadvantageous position. It did not either place the APRI in any disadvantageous situation, now that the contract [wa]s rescinded by the municipal council. [40] (Underscoring supplied)
. . . Plaintiffs contends (sic) that said SB No. 497 is not valid for the reason that the Sangguniang Panlalawigan of Laguna disapproved or did not ratify the same. Plaintiffs offered Exh. "C" which defendants likewise marked and offered as Exh. "3" to prove that the Sangguniang Panlalawigan approved Resolution No. 497. The very Exh. "C" and Exh. "3" recites [sic] the fact of the approval by the Sangguniang Panlalawigan in this wise —Contrary to the contention of petitioner, a prejudicial question is different from the concept of res judicata. That there is no identity of parties between the civil case and the criminal cases does not abate the application of a prejudicial question."January 13, 1995The approval by the Sangguniang Panlalawigan of Resolution No. 497 is not shrouded by any doubt. The fact [that] the resolution was later referred to the Committee on Laws and Rules (Exh. "C-1") was only made by the Provincial Board in order to appease the public vendors association of Calamba after the provincial board received a letter-request stating that Resolution No. 497 was implemented without public hearing.CERTIFICATION
This is to certify that Resolution No. 497 S. 1994 of the Sangguniang Bayan of Calamba, Laguna was received by this Office on November 07, 1994, and calendared in the agenda of December 14, 1994 and was approved by the Sangguniang Panlalawigan on the same day.
It is further certified that the approval of said Resolution was with[he]ld by [the] Sangguniang Panlalawigan in its session on January 11, 1995, and was referred to the Committee on Laws and Rules for further study, in view of a letter-request filed by the Public Market Vendors Association of Calamba."
Moreover, SB Resolution No. 497 having been received by the Sangguniang Panlalawigan on November 7, 1994, then on December 8, 1994 or after thirty (30) days from November 7, 1994, without the Sanggunian Panlalawigan's action declaring SB Resolution No. 497 invalid, then said SB Resolution No. 497 shall be presumed consistent with law and therefore valid. (Sec. 56 (a) Local Government Code). Thus, it can be said that SB Resolution No. 497 was approved twice, first by the positive action of approval on December 14, 1994 and second, by inaction on December 8, 1994 upon the lapse of thirty (30) days from receipt on November 7, 1994. The reliance by plaintiffs on Exh. "C-1" (the second par. of Exh. "C") stating that on [sic] January 11, 1995 session of the Sangguniang Panlalawigan the approval of the Resolution No. 497 was with[h]eld and referred to the Committee on Rules for study is of no moment nor of any significance because as stated hereinbefore, there was a positive approval on December 14, 1994 and approval by inaction on December 8, 1994.
Moreover, the establishment, construction and maintenance of municipal markets are undoubtedly pure proprietary function of the municipality (Mendoza vs. De Leon[,] 33 Phil[.] 508) with[in] the power of any municipality under the provision of Sec. 22 of the Local Government Code, thus:"(d) Local government units shall enjoy full autonomy in the exercise of their proprietary functions in the management if their economic enterprises . . ."It is the opinion of this Court that the Sangguniang Panlalawigan may not restrict or frustrate the exercise of the proprietary function of the municipality because the power to review of the Sangguniang Panlalawigan is limited only to a finding that an ordinance or resolution is beyond the power conferred upon the Sangguniang Panlungsod or Pangbayan (Sec. 56 (c) Local Government Code). [41]
The . . . letter of NEDA Regional Director Boquiren should dispel any doubt that the proposed shopping center is under the unsolicited proposal and is in conformity with the IRR of the BOT law. At the very least, said letter the good faith (sic) on the part of APRI and of the municipality in entering into an agreement (the MOA) for the Calamba Shopping Center under the unsolicited proposal scheme. This witness Boquiren was presented by the plaintiffs as their witness and therefore plaintiffs are bound by his testimony. The attempt of the plaintiffs to impeach their own witness, Mr. Igancio Santos, Jr., cannot be allowed nor considered by the Court under the mandate of Rule 132, Sec. 12 of the Revised Rules of Court which proved (sic) provides that: "Party may not impeach his own witness — except to witnesses referred to in par. (d) and (e) of Sec. 10. the party producing a witness is not allowed to impeach his credibility."
It is also observed that when the MOA was entered into between the Mayor and APRI, the full implementation of the BOT Law and the Amendatory Act (RA 7718) was not clearly defined, this Court was guided by Exh. "10", the official communication of Mr. Boqueren categorically stating that the construction of the Calamba Shopping Center falls under the Unsolicited Proposal of the BOT Law quoted herein before.
In addition to the citation in the letter of Mr. Boquiren, the ICC guidelines and procedures in Annex B-2 of IRR provides that project of the private sector under relending program vis special credit facilities are excluded from the ICC review/decision (III Scope of ICC Review).
The pretension of witness Ignacio Santos, Jr., for the plaintiffs that the Calamba Shopping Center should be endorsed to Regional Development Council for approval is not in accord with the provision of the BOT Law because such [e]ndorsement to and approval by the Regional Development Council is required only on priority projects (Sec. 4[,] RA 7718, Rule 27[,] IRR). [42]
x x x x (Underscoring supplied)
A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court of tribunal. It is a question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. [43] (Emphasis and underscoring supplied)Finally, petitioner, not having assailed the Sandiganbayan Resolution [44] dated February 26, 2001 that "there exists a prejudicial question which warrants the suspension of the proceedings . . . [i]n view of the similarity or close relation of the facts and issues, the issues to be resolved herein [Criminal Case Nos. 23153-23155] may be rendered moot by a finding in the Civil cases that, under the circumstances, the award of the contract and/or execution of the Memorandum of Agreement was proper, legal, valid, and beyond question," [45] is now precluded from questioning the existence of a prejudicial question.