CAGUIOA, J:
That during the period from September 2006 to April 2007 in Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused high ranking public officer being then the Chairman of the [COMELEC], and as such is prohibited by Section 2 of Article IX of the 1987 Constitution, which reads:"Sec. 2 Article IX. No member of a Constitutional Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries."
and in spite of the afore-quoted provisions, accused[,] while occupying the position of Chairman of the COMELEC, wielding his powers and influence as such, did then and there, willfully, unlawfully and criminally directly or indirectly have financial or pecuniary interest in the business transaction between the Government of the Republic of the Philippines and the [ZTE], a Chinese Corporation doing business in People's Republic of China (PROC) for the implementation of the Philippine's National Broadband Network (NBN), which requires the consideration, review and approval of the National Economic Planning and Development Authority (NEDA) of which [Sec. Neri] then the Director General and as such, by then and there interceding and brokering for and in behalf of ZTE for a fee or "commission" as shown by his acts of attending conferences, lunch meetings and golf games with said ZTE officials, including a meeting with ZTE officials and socializing with them in China and in one such meeting, asking from ZTE officials in the presence of Jose De Venecia III the balance of his commission for the NBN project, even offering bribes to [Sec. Neri], also a public officer, in the amount of TWO HUNDRED MILLION PESOS (Php200,000,000.00) to insure his favorable action for its approval and to Jose De Venecia III, President and General Manager of [AHI] in the amount of TEN MILLION U.S. Dollars ($10,000,000.00) for the latter to back off from his proposal, the company he represents being also another proponent to implement said NBN Project of the Government and arranging meetings between ZTE officials and [Sec. Mendoza], Secretary of the [DOTC].
CONTRARY TO LAW.[13] (Emphasis, underscoring and italics omitted)
1 | Lunch at Wack Wack Golf and Country Club (Wack Wack GCC) September 2006 | Rodolfo Noel I. Lozada (Lozada) attended this lunch on the invitation of Sec. Neri. Also present were Abalos, Ruben Reyes (Reyes), Leo San Miguel (San Miguel), and two ZTE executives, Yu Yong and Fan Yang. Sec. Neri advised the ZTE executives to coordinate all matters regarding the approval of the project with Lozada. | Testified to by Lozada |
2 | Meeting in Wack Wack September 2006 | Attended by Abalos, Reyes, San Miguel, Fan Yang, and George Zhu[15] | Testified to by Dante R. Madriaga (Madriaga), who led a team of Chinese and Filipinos in designing the NBN Project for ZTE. He admitted on cross-examination that he was not privy to this meeting. |
3 | Meeting at Sec. Neri's office in NEDA Sometime within December 2006 to January 2007 | According to Sec. Neri, this was his first time to meet Abalos. The latter invited him to play golf in Wack Wack GCC, where Abalos was Chairman/President. | Testified to by Sec. Neri |
4 | Meeting in Wack Wack December 2006 | Attended by Abalos, Joey De Venecia, and Former First Gentleman Jose Miguel Arroyo (FGMA) | Testified to by Madriaga. He admitted on cross-examination that he was not privy to this meeting. |
5 | Meeting in Wack Wack | Abalos purportedly told Lozada that once the NBN-ZTE deal was signed, Abalos would give Sec. Neri P200,000,000.00 the following day, unlike others "na naghihintay pa ng loan proceeds bago magbigay."[16] | Testified to by Lozada |
6 | Golf with Sec. Neri | Abalos, while in the golf cart with Sec. Neri, told the latter that "Sec., may 200 ka dyan" without further context. | Testified to by Sec. Neri |
7 | Golf at the Chenzhen Golf Course in Hongkong November 2006 | Present were former Speaker of the House of Representatives Jose C. De Venecia, Jr. (Former Speaker JDV, Jr.), former President Gloria Macapagal-Arroyo and her husband FGMA, Abalos, and some Chinese individuals. Afterwards, they had lunch at the ZTE headquarters. There was also a member of a government bank of China, who talked about financing projects in various parts of the world. | Testified to by Former Speaker JDV, Jr. |
8 | Breakfast at Former Speaker JDV, Jr.'s residence December 5, 2006 | This was attended by Abalos, Reyes, Mr. Jimmy Paz (Paz) (Abalos' Chief of Staff), San Miguel (technical consultant hired by the group with regard to a proposal made for the NBN Project) and Mr. Torch dela Torre (dela Torre) (comptroller or head of the I.T. of the Philippine National Police). During this meeting, Abalos purportedly proposed that, in relation to AHI's NBN project proposal, they augment AHI's network in areas of 4th, 5th and 6th municipalities. | Testified to by Jose Perez De Venecia III (JDV III), majority shareholder of AHI |
9 | Meeting in Ayala Alabang Sometime in 2006 | Former DOTC Secretary Margarito B. Teves (Sec. Teves) met Abalos, who told Sec. Teves that he knew some Chinese businessmen who wanted to discuss certain "agri-related" projects in Mindanao. This was some time after the meeting at Former Speaker JDV, Jr.'s residence. | Testified to by Sec. Teves |
10 | Breakfast in Wack Wack | In this meeting, the same people as those during breakfast at Former Speaker JDV, Jr.'s residence attended, except for Former Speaker JDV, Jr. himself. They discussed the potential collaboration to augment the AHI proposal. Abalos invited JDV III into his private office where Abalos mentioned that he intended to enter into the telecommunications industry together with ZTE. Abalos purportedly asked JDV III to withdraw AHI's NBN proposal in exchange for $10 Million. JDV III refused to withdraw his proposal and instead, as counter-offer, invited Abalos to become a member of the board of AHI. | Testified to by JDV III |
11 | Meeting in Kempinski Hotel in Zhinchin, China Sometime in December 2006 | Abalos invited JDV III to a meeting with ZTE officials, who purportedly showed JDV III a "bill of materials and proposal from ZTE." JDV III told Abalos that the stated cost in the bill of materials was inflated. Another meeting at 4:30 p.m. on the same day was attended by ZTE Vice President Yu Yong and account officer Fan Yang; and the "Filipino group" (Abalos, Reyes, San Miguel, Paz, and dela Torre), where Abalos introduced JDV III as his partner in the project. Abalos purportedly said during the meeting that "we" are expecting monies or commissions for this project and that the president, speaker, and the political party were waiting for these funds. JDV III interpreted this as commission from ZTE for consummation of the project. Yu Yong responded that "normally the commission is given upon financial closing of the project," and Fan Yang said "x x x what about the moneys that we have already advanced, Mr. Chairman?" | Testified to by JDV III, as to the particulars. Lozada also testified that he was aware such a meeting occurred, but that he was not present thereat. |
12 | Meeting at the COMELEC office Sometime in January 2007 | Abalos asked JDV III to meet him in his COMELEC officc. During the meeting, Abalos introduced JDV III as his partner to CICT Assistant Secretary Formoso and asked the Assistant Secretary to "x x x pakituloy nyo na yung dapat ituloy na proyekto." | Testified to by JDV III |
13 | Meeting at Diamond Hotel Sometime in mid-January 2007 or in February 2007 | In attendance were JDV III, Abalos, ZTE officials including Yu Yong and Fan Yang. The group discussed that the agreement between AHI and ZTE could be signed in front of Premier Wen Jiabao of China who was visiting the Philippines. An agreement "in principle" was arrived at, whereby ZTE would provide transmission equipment for the project, with JDV III's caveat that these be reasonably priced and of quality. | Testified to by JDV III |
14 | Meeting in Wack Wack | Abalos introduced JDV III to DOTC Assistant Secretary Elmer Soneja. | Testified to by JDV III |
15 | Lunch at a Chinese restaurant in Makati Shangri-La Sometime in January 2007 | Sec. Neri was invited by the Chinese Embassy to this lunch. ZTE officials, Lozada, and Abalos were also present. | Testified to by Sec. Neri and Lozada |
16 | Dinner at Makati Shangri-La | In attendance were JDV III, Abalos, Lozada and FGMA. | Testified to by JDV III |
17 | Meeting at Wack Wack GCC | In relation to a furious call from Abalos received by JDV III. Abalos was supposedly mad because JDV III did not withdraw AHI's proposal filed with the DOTC, nor did he commit to signing an agreement with ZTE. | Testified to by JDV III |
18 | Meeting in Wack Wack conference room Sometime in March 2007 | Reconciliation meeting initiated by then DOTC Sec. Mendoza. Also in attendance were FGMA, Abalos, JDV III, and the members of the "Filipino Group." | Testified to by JDV III |
x x x Jurisprudence instructs that where a petition for certiorari under Rule 65 of the Rules of Court alleges grave abuse of discretion, the petitioner should establish that the respondent court or tribunal acted in a capricious, whimsical, arbitrary or despotic manner in the exercise of its jurisdiction as to be equivalent to lack of jurisdiction. That an abuse in itself to be "grave" must be amply demonstrated since the jurisdiction of the court, no less, will be affected. Grave abuse of discretion has a well-defined meaning:An act of a court or tribunal can only be considered as with grave abuse of discretion when such act is done in a "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be so patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility." Furthermore, the use of a petition for certiorari is restricted only to "truly extraordinary cases wherein the act of the lower court or quasi-judicial body is wholly void." From the foregoing definition, it is clear that the special civil action of certiorari under Rule 65 can only strike an act down for having been done with grave abuse of discretion if the petitioner could manifestly show that such act was patent and gross. x x x[27] (Citations omitted and emphasis supplied)
Corollary thereto, the alleged misapplication of facts and evidence, and whatever flawed conclusions of the Sandiganbayan, is an error in judgment, not of jurisdiction, and therefore not within the province of a special civil action for certiorari. Erroneous conclusions based on evidence do not, by the mere fact that errors were committed, rise to the level of grave abuse of discretion. For as long as a court acts within its jurisdiction, any supposed error committed in the exercise thereof will amount to nothing more than an error of judgment reviewable and may be corrected by a timely appeal. The rationale of this rule is that, when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. Otherwise, every mistake made by a court will deprive it of its jurisdiction and every erroneous judgment will be a void judgment.[30] (Citations omitted and emphasis supplied)
Section 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.
x x x The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into "the humanity of the laws and in a jealous watchfulness over the rights of the citizen, when brought in unequal contest with the State x x x[.]" Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty."
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose," a desire to know the exact extent of one's liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jury's leniency, will not be found guilty in a subsequent proceeding.[39] (Citations omitted and emphasis supplied)
x x x grave abuse of discretion that is strictly limited whenever there is a violation of the prosecution's right to due process such as when it is denied the opportunity to present evidence or where the trial is sham or when there is a mistrial, rendering the judgment of acquittal void.
An example of an exception to the finality-of-acquittal rule is the case of Galman v. Sandiganbayan where the Court remanded the case to the trial court because the previous trial conducted was a mockery. The unique facts surrounding the Galman case constitute the very narrow exception to the application of the right against double jeopardy. Hence, in order for the CA to take cognizance of the certiorari petition, AAA and the prosecution must have clearly demonstrated that the RTC blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.[40] (Citations omitted and emphasis in the original)