No conspiracy

One of the corrupt practices of government officials punishable under the Anti-Graft Law (R.A. 3019) is entering into a contract grossly disadvantageous to the government (Section 3 g). Can a Mayor be convicted of this act based on conspiracy with his staff? This is one of the questions raised in this case of Marquez, then Mayor of Paranaque City who was charged together with City Treasurer De Leon, Accountant Tanael, Budget Officer Babida, OIC General Services Caunan, Office Head Romea and the private individual Razo who supplied the items purchased.

The charges contained in five separate Information, stemmed from the purchase in 1996-1998 of 142,612 walis tingting with handles, from Razo’s company at a price of P25 or P15 per piece when the standard price of the same was only P11 per piece based on COA’s special audit team report, thereby resulting in an overprice of P1,302,378. The audit team’s conclusion on the standard price of the walis tingting was pegged on the basis of the following documentary and object evidence gathered in 1999: (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 from DBM procurement service; (5) documents relative to walis tingting purchases in Las Pinas City but none from Paranaque City.

The Sandiganbayan (SB) convicted Marquez, De Leon, Tanael and Caunan relying on the COA’s finding of overpricing as contained in the special audit team report concluding that a conspiracy existed among them. On motion for reconsideration, the SB acquitted Tanael while De Leon was dropped due to his death. But the SB still convicted Marquez and Caunan.

Both questioned this ruling. They contended that the Special Audit team report was hearsay and that the overpricing had not been established by proof beyond reasonable doubt. Moreover, Marquez also said that the SB was wrong in concluding that he conspired with the other accused. He said that as head of office he relied in good faith on his subordinates and this could not be considered conspiracy which is the product of intentionality. Were they correct?

Yes. While it is true that not all the contents of the Special Audit Team report are hearsay and that the Head of the Team could very well testify thereon since conclusions, however reached therein were made by her and her team, these conclusions were based on incompetent evidence. Most obvious would be the market price of the walis tingting in Las Pinas City which was used as proof of overpricing in Parañaque City. In fact even the walis tingting purchased by the accused and shown to the team was different from the walis tingting actually used by the street sweepers at the time of the ocular inspection conducted by the team. To substantiate the allegation of overpricing, the evidence presented by the prosecution at the barest minimum should have been identical to the walis tingting purchased in 1996-1998 or at 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.

Furthermore it would be setting a bad precedent if a head of office plagued by all too common problems — dishonest or negligent subordinates, overwork, multiple assignments or positions or plain incompetence — is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail painstakingly; trace every step from inception and investigate every person involved in transaction before affixing his signatures as the final approving authority. Conspiracy is not the product of negligence but of intentionality on the part of the cohorts. So Marquez and Caunan should also be acquitted (Caunan vs. People etc; Marquez vs. Sandiganbayan, G.R.181999 & 182001-04; 82020-24 September 2, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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