G.R. No.

168539

March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HENRY T. GO, Respondent.

Ponente: Peralta, J.
Nature: Petition for review on Certiorari assailing the Resolution of
the Third Division of the Sandiganbayan (SB) which quashed the
Information filed against herein respondent for alleged violation of
Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise known
as the Anti-Graft and Corrupt Practices Act.

Doctrines:

The death of one of two or more conspirators does not prevent

the conviction of the survivor or survivors.Indeed, it is not
necessary to join all alleged co-conspirators in an indictment for
conspiracy. If two or more persons enter into a conspiracy, any
act done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are
jointly responsible therefor. This means that everything said,
written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been
said, done, or written by each of them and it makes no
difference whether the actual actor is alive or dead, sane or
insane at the time of trial. The death of one of two or more
conspirators does not prevent the conviction of the survivor or
survivors. Thus, this Court held that: x x x [a] conspiracy is in its
nature a joint offense. One person cannot conspire alone. The
crime depends upon the joint act or intent of two or more
persons. Yet, it does not follow that one person cannot be
convicted of conspiracy. So long as the acquittal or death of a

co-conspirator does not remove the bases of a charge for

conspiracy, one defendant may be found guilty of the offense.

The avowed policy of the State and the legislative intent to

repress acts of public officers and private persons alike, which
constitute graft or corrupt practices, would be frustrated if the
death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the
Anti-Graft Law.The Court agrees with petitioner that the
avowed policy of the State and the legislative intent to repress
acts of public officers and private persons alike, which
constitute graft or corrupt practices, would be frustrated if the
death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the
Anti-Graft Law.

Facts:
1. Background:
a. The Information filed against respondent is an offshoot of
this Court's Decision in Agan, Jr. v. Philippine International
Air Terminals Co., Inc. which nullified the various contracts
awarded by the Government, through the Department of
Transportation and Communications (DOTC), to Philippine Air
Terminals, Co., Inc. (PIATCO) for the construction, operation and
maintenance of the Ninoy Aquino International Airport International
Passenger Terminal III (NAIA IPT III).
b. Subsequent to the above Decision, a certain Ma. Cecilia
L. Pesayco filed a complaint with the Office of the
Ombudsman against several individuals for alleged
violation of R.A. 3019. Among those charged was herein
respondent, who was then the Chairman and President of PIATCO,
for having supposedly conspired with then DOTC Secretary Arturo
Enrile (Secretary Enrile) in entering into a contract which is grossly
and manifestly disadvantageous to the government.

2. On September 16, 2004, the Office of the Deputy Ombudsman

for Luzon found probable cause to indict, among others, herein
respondent for violation of Section 3(g) of R.A. 3019.
a. There was likewise a finding of probable cause against
Secretary Enrile, he was no longer indicted because he died
prior to the issuance of the resolution finding probable
cause.

3. Thus, in an Information dated January 13, 2005, respondent

was charged before the SB as follows:
a. On or about July 12, 1997, or sometime prior or subsequent
thereto, in Pasay City, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the late ARTURO ENRILE, then
Secretary of the Department of Transportation and Communications
(DOTC), committing the offense in relation to his office and taking
advantage of the same, in conspiracy with accused, HENRY T. GO,
Chairman and President of the Philippine International Air
Terminals, Co., Inc. (PIATCO), did then and there, willfully, unlawfully
and criminally enter into a Concession Agreement, after the
project for the construction of the Ninoy Aquino
International Airport International Passenger Terminal III
(NAIA IPT III) was awarded to Paircargo Consortium/PIATCO,
which Concession Agreement substantially amended the draft
Concession Agreement covering the construction of the NAIA IPT III
under Republic Act 6957, as amended by Republic Act 7718 (BOT
law), specifically the provision on Public Utility Revenues, as well as
the assumption by the government of the liabilities of PIATCO in the
event of the latter's default under Article IV, Section 4.04 (b) and
(c) in relation to Article 1.06 of the Concession Agreement, which
terms are more beneficial to PIATCO while manifestly and grossly
disadvantageous to the government of the Republic of the
Philippines.
b. The case was docketed as Criminal Case No. 28090.

4. SB order:
The prosecution is given a period of ten (10) days from today within
which to show cause why this case should not be dismissed
for lack of jurisdiction over the person of the accused
considering that the accused is a private person and the
public official Arturo Enrile, his alleged co-conspirator, is
already deceased, and not an accused in this case.

5. Prosecution:
a.
SB has already acquired jurisdiction over the person of
respondent by reason of his voluntary appearance, when he filed a
motion for consolidation and when he posted bail.
b. SB has exclusive jurisdiction over respondent's case, even if he
is a private person, because he was alleged to have conspired with
a public officer.

7. Respondent:
a. filed a Motion to Quash the Information filed against him on the
ground that the operative facts adduced therein do not constitute
an offense under Section 3(g) of R.A. 3019.
b. citing the show cause order of the SB, also contended that,
independently of the deceased Secretary Enrile, the public officer
with whom he was alleged to have conspired, respondent, who is
not a public officer nor was capacitated by any official authority as
a government agent, may not be prosecuted for violation of Section
3(g) of R.A. 3019.

8. The prosecution filed its Opposition.

Section 3 (g) of R.A. 3019 provides:
9. SB resolution:
a. grants respondents Motion to Quash.
b. appearing that Henry T. Go, the lone accused in this case is a
private person and his alleged co-conspirator-public official was
already deceased long before this case was filed in court, for lack of
jurisdiction over the person of the accused, the Court grants the
Motion to Quash and the Information filed in this case is hereby
ordered quashed and dismissed.

10. Hence, the instant petition

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:
xxxx
(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.

The elements of the above provision are:

(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf
of the government; and

Issue:
Whether herein respondent, a private person, may be indicted for
conspiracy in violating Section 3(g) of R.A. 3019 even if the public
officer, with whom he was alleged to have conspired, has died prior
to the filing of the Information.

(3) that such contract or transaction is grossly and

manifestly disadvantageous to the government.

At the outset, it bears to reiterate the settled rule that

private persons, when acting in conspiracy with public officers, may
be indicted and, if found guilty, held liable for the pertinent
offenses under Section 3 of R.A. 3019, in consonance with the
avowed policy of the anti-graft law to repress certain acts of public
officers and private persons alike constituting graft or corrupt
practices act or which may lead thereto. This is the controlling
doctrine as enunciated by this Court in previous cases, among
which is a case involving herein private respondent.

Held:

The Court finds the petition meritorious.

Respondent contends that by reason of the death of

Secretary Enrile, there is no public officer who was charged in the
Information and, as such, prosecution against respondent may not
prosper.

The Court is not persuaded.

It is true that by reason of Secretary Enrile's death, there is

no longer any public officer with whom respondent can be charged
for violation of R.A. 3019. It does not mean, however, that the
allegation of conspiracy between them can no longer be
proved or that their alleged conspiracy is already
expunged. The only thing extinguished by the death of
Secretary Enrile is his criminal liability. His death did not
extinguish the crime nor did it remove the basis of the
charge of conspiracy between him and private respondent.
Stated differently, the death of Secretary Enrile does not mean that
there was no public officer who allegedly violated Section 3 (g) of
R.A. 3019. In fact, the Office of the Deputy Ombudsman for Luzon
found probable cause to indict Secretary Enrile for infringement of
Sections 3 (e) and (g) of R.A. 3019. Were it not for his death, he
should have been charged.

The requirement before a private person may be indicted for

violation of Section 3(g) of R.A. 3019, among others, is that such
private person must be alleged to have acted in conspiracy with a
public officer. The law, however, does not require that such person
must, in all instances, be indicted together with the public officer. If
circumstances exist where the public officer may no longer
be charged in court, as in the present case where the public
officer has already died, the private person may be indicted
alone.

Indeed, it is not necessary to join all alleged co-conspirators

in an indictment for conspiracy. If two or more persons enter into a
conspiracy, any act done by any of them pursuant to the
agreement is, in contemplation of law, the act of each of them and
they are jointly responsible therefor. This means that everything
said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said,
done, or written by each of them and it makes no difference
whether the actual actor is alive or dead, sane or insane at the time
of trial. The death of one of two or more conspirators does
not prevent the conviction of the survivor or survivors. Thus,
this Court held that:
x x x [a] conspiracy is in its nature a joint offense. One person
cannot conspire alone. The crime depends upon the joint act or
intent of two or more persons. Yet, it does not follow that one
person cannot be convicted of conspiracy. So long as the acquittal
or death of a co-conspirator does not remove the bases of a charge
for conspiracy, one defendant may be found guilty of the offense.

(you can stop reading here on the topic of conspiracy;

below is just an extended discussion on the intricacies of
conspiracy; followed by a discussion on jurisdiction)

The Court agrees with petitioner's contention that, as

alleged in the Information filed against respondent, which is
deemed hypothetically admitted in the latter's Motion to Quash, he
(respondent) conspired with Secretary Enrile in violating Section 3
(g) of R.A. 3019 and that in conspiracy, the act of one is the act of
all. Hence, the criminal liability incurred by a co-conspirator is also
incurred by the other co-conspirators.

Moreover, the Court agrees with petitioner that the avowed

policy of the State and the legislative intent to repress "acts of
public officers and private persons alike, which constitute graft or
corrupt practices," would be frustrated if the death of a public
officer would bar the prosecution of a private person who conspired
with such public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of

People v. Peralta as to the nature of and the principles governing
conspiracy, as construed under Philippine jurisdiction, is instructive,
to wit:
x x x A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. Generally, conspiracy is not a crime except when the law
specifically provides a penalty therefor as in treason, rebellion and
sedition. The crime of conspiracy known to the common law is not
an indictable offense in the Philippines. An agreement to commit a
crime is a reprehensible act from the view-point of morality, but as
long as the conspirators do not perform overt acts in furtherance of
their malevolent design, the sovereignty of the State is not
outraged and the tranquility of the public remains undisturbed.

However, when in resolute execution of a common scheme,

a felony is committed by two or more malefactors, the existence of
a conspiracy assumes pivotal importance in the determination of
the liability of the perpetrators. In stressing the significance of
conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto
opined that

While it is true that the penalties cannot be imposed for the

mere act of conspiring to commit a crime unless the statute

specifically prescribes a penalty therefor, nevertheless the

existence of a conspiracy to commit a crime is in many cases a fact
of vital importance, when considered together with the other
evidence of record, in establishing the existence, of the
consummated crime and its commission by the conspirators.

Once an express or implied conspiracy is proved, all of the

conspirators are liable as co-principals regardless of the extent and
character of their respective active participation in the commission
of the crime or crimes perpetrated in furtherance of the conspiracy
because in contemplation of law the act of one is the act of all. The
foregoing rule is anchored on the sound principle that "when two or
more persons unite to accomplish a criminal object, whether
through the physical volition of one, or all, proceeding severally or
collectively, each individual whose evil will actively contributes to
the wrong-doing is in law responsible for the whole, the same as
though performed by himself alone." Although it is axiomatic that
no one is liable for acts other than his own, "when two or more
persons agree or conspire to commit a crime, each is responsible
for all the acts of the others, done in furtherance of the agreement
or conspiracy." The imposition of collective liability upon the
conspirators is clearly explained in one case where this Court held
that x x x it is impossible to graduate the separate liability of each
(conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the
commission of which they all acted by common agreement x x x.
The crime must therefore in view of the solidarity of the act and
intent which existed between the x x x accused, be regarded as the
act of the band or party created by them, and they are all equally
responsible x x x

Verily, the moment it is established that the malefactors

conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators attaches by
reason of the conspiracy, and the court shall not speculate nor
even investigate as to the actual degree of participation of each of

the perpetrators present at the scene of the crime. Of course, as to

any conspirator who was remote from the situs of aggression, he
could be drawn within the enveloping ambit of the conspiracy if it
be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the
conspiracy.

In fine, the convergence of the wills of the conspirators in

the scheming and execution of the crime amply justifies the
imputation to all of them the act of any one of them. It is in this
light that conspiracy is generally viewed not as a separate
indictable offense, but a rule for collectivizing criminal liability.
xxxx
x x x A time-honored rule in the corpus of our jurisprudence is that
once conspiracy is proved, all of the conspirators who acted in
furtherance of the common design are liable as co-principals. This
rule of collective criminal liability emanates from the ensnaring
nature of conspiracy. The concerted action of the conspirators in
consummating their common purpose is a patent display of their
evil partnership, and for the consequences of such criminal
enterprise they must be held solidarily liable.

This is not to say, however, that private respondent

should be found guilty of conspiring with Secretary Enrile.
It is settled that the absence or presence of conspiracy is
factual in nature and involves evidentiary matters. Hence,
the allegation of conspiracy against respondent is better
left ventilated before the trial court during trial, where
respondent can adduce evidence to prove or disprove its
presence.

(the following part is about jurisdiction naman; read until

end)

Respondent claims in his Manifestation and Motion as well

as in his Urgent Motion to Resolve that in a different case, he was
likewise indicted before the SB for conspiracy with the late
Secretary Enrile in violating the same Section 3 (g) of R.A. 3019 by
allegedly entering into another agreement (Side Agreement) which
is separate from the Concession Agreement subject of the present
case. The case was docketed as Criminal Case No. 28091. Here, the
SB, through a Resolution, granted respondent's motion to quash the
Information on the ground that the SB has no jurisdiction over the
person of respondent. The prosecution questioned the said SB
Resolution before this Court via a petition for review on certiorari.
The petition was docketed as G.R. No. 168919. In a minute
resolution dated August 31, 2005, this Court denied the petition
finding no reversible error on the part of the SB. This Resolution
became final and executory on January 11, 2006. Respondent now
argues that this Court's resolution in G.R. No. 168919 should be
applied in the instant case.

The Court does not agree. Respondent should be reminded

that prior to this Court's ruling in G.R. No. 168919, he already
posted bail for his provisional liberty. In fact, he even filed a Motion
for Consolidation in Criminal Case No. 28091. The Court agrees with
petitioner's contention that private respondent's act of posting bail
and filing his Motion for Consolidation vests the SB with jurisdiction
over his person. The rule is well settled that the act of an
accused in posting bail or in filing motions seeking
affirmative relief is tantamount to submission of his person
to the jurisdiction of the court.

Thus, it has been held that: When a defendant in a criminal

case is brought before a competent court by virtue of a warrant of

arrest or otherwise, in order to avoid the submission of his body to

the jurisdiction of the court he must raise the question of the
courts jurisdiction over his person at the very earliest opportunity.
If he gives bail, demurs to the complaint or files any dilatory plea or
pleads to the merits, he thereby gives the court jurisdiction over his
person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

In the instant case, respondent did not make any special

appearance to question the jurisdiction of the SB over his person
prior to his posting of bail and filing his Motion for Consolidation. In
fact, his Motion to Quash the Information in Criminal Case No.
28090 only came after the SB issued an Order requiring the
prosecution to show cause why the case should not be dismissed
for lack of jurisdiction over his person.

xxxx
As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:
"[L]ack of jurisdiction over the person of the defendant may be
waived either expressly or impliedly. When a defendant voluntarily
appears, he is deemed to have submitted himself to the jurisdiction
of the court. If he so wishes not to waive this defense, he must do
so seasonably by motion for the purpose of objecting to the
jurisdiction of the court; otherwise, he shall be deemed to have
submitted himself to that jurisdiction."
Moreover, "[w]here the appearance is by motion for the purpose of
objecting to the jurisdiction of the court over the person, it must be
for the sole and separate purpose of objecting to said jurisdiction. If
the appearance is for any other purpose, the defendant is deemed
to have submitted himself to the jurisdiction of the court. Such an
appearance gives the court jurisdiction over the person."
Verily, petitioners participation in the proceedings before the
Sandiganbayan was not confined to his opposition to the issuance
of a warrant of arrest but also covered other matters which called
for respondent courts exercise of its jurisdiction. Petitioner may not
be heard now to deny said courts jurisdiction over him. x x x. 28

As a recapitulation, it would not be amiss to point out that

the instant case involves a contract entered into by public officers
representing the government. More importantly, the SB is a
special criminal court which has exclusive original
jurisdiction in all cases involving violations of R.A. 3019
committed by certain public officers, as enumerated in P.D.
1606 as amended by R.A. 8249. This includes private
individuals who are charged as co-principals, accomplices
or accessories with the said public officers. In the instant
case, respondent is being charged for violation of Section 3(g) of
R.A. 3019, in conspiracy with then Secretary Enrile. Ideally, under
the law, both respondent and Secretary Enrile should have been
charged before and tried jointly by the Sandiganbayan. However,
by reason of the death of the latter, this can no longer be done.
Nonetheless, for reasons already discussed, it does not follow
that the SB is already divested of its jurisdiction over the
person of and the case involving herein respondent. To rule
otherwise would mean that the power of a court to decide a
case would no longer be based on the law defining its
jurisdiction but on other factors, such as the death of one
of the alleged offenders.

Lastly, the issues raised in the present petition involve

matters which are mere incidents in the main case and the main
case has already been pending for over nine (9) years. Thus, a
referral of the case to the Regional Trial Court would further delay
the resolution of the main case and it would, by no means, promote

respondent's right to a speedy trial and a speedy disposition of his

case.

WHEREFORE, the petition is GRANTED. The Resolution of the

Sandiganbayan dated June 2, 2005, granting respondent's Motion

to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan

is forthwith DIRECTED to proceed with deliberate dispatch in the
disposition of Criminal Case No. 28090. SO ORDERED.