8 G.R. Nos.

147026-27               September 11, 2009 from the government; Under the Anti-Graft Law, the nature of one’s appointment, and
whether the compensation one receives from the government is only nominal, is
CAROLINA R. JAVIER, Petitioner, immaterial because the person so elected or appointed is still considered a public
vs. officer.—The Court is not unmindful of the definition of a public officer pursuant to the
THE FIRST DIVISION OF THE SANDIGANBAYAN and the PEOPLE OF THE Anti-Graft Law, which provides that a public officer includes elective and appointive
PHILIPPINES, Respondents. officials and employees, permanent or temporary, whether in the classified or
unclassified or exempt service receiving compensation, even nominal, from the
government. Thus, pursuant to the Anti-Graft Law, one is a public officer if one has
Public Officers; National Book Development Board (NBDB); Book Publishing Industry been elected or appointed to a public office. Petitioner was appointed by the
Development Act (Republic Act No. 8047); Words and Phrases; A public office is the President to the Governing Board of the NDBD. Though her term is only for a year
right, authority and duty, created and conferred by law, by which, for a given period, that does not make her private person exercising a public function. The fact that she
either fixed by law or enduring at the pleasure of the creating power, an individual is is not receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047
invested with some portion of the sovereign functions of the government, to be provides that members of the Governing Board shall receive per diem and such
exercised by him for the benefit of the public.—The NBDB is the government agency allowances as may be authorized for every meeting actually attended and subject to
mandated to develop and support the Philippine book publishing industry. It is a pertinent laws, rules and regulations. Also, under the Anti-Graft Law, the nature of
statutory government agency created by R.A. No. 8047, which was enacted into law one’s appointment, and whether the compensation one receives from the government
to ensure the full development of the book publishing industry as well as for the is only nominal, is immaterial because the person so elected or appointed is still
creation of organization structures to implement the said policy. To achieve this end, considered a public officer.
the Governing Board of the NBDB was created to supervise the implementation. The
Governing Board was vested with powers and functions, to wit: x x x A perusal of the
above powers and functions leads us to conclude that they partake of the nature of Same; Same; Same; Same; Same; The Revised Penal Code defines a public officer
public functions. A public office is the right, authority and duty, created and conferred as any person who, by direct provision of the law, popular election, popular election
by law, by which, for a given period, either fixed by law or enduring at the pleasure of or appointment by competent authority, shall take part in the performance of public
the creating power, an individual is invested with some portion of the sovereign functions in the Government of the Philippine Islands, or shall perform in said
functions of the government, to be exercised by him for the benefit of the public. The Government or in any of its branches public duties as an employee, agent, or
individual so invested is a public officer. subordinate official, of any rank or classes, shall be deemed to be a public officer.—
The Revised Penal Code defines a public officer as any person who, by direct
provision of the law, popular election, popular election or appointment by competent
Same; Same; Same; The fact that the accused was appointed as member of the authority, shall take part in the performance of public functions in the Government of
National Book Development Board (NBDB) from the public sector and not from the the Philippine Islands, or shall perform in said Government or in any of its branches
other branches or agencies of the government does not take her position outside the public duties as an employee, agent, or subordinate official, of any rank or classes,
meaning of a public office; The purpose of the law for appointing members from the shall be deemed to be a public officer. Where, as in this case, petitioner performs
private sector is to ensure that they are also properly represented in the public functions in pursuance of the objectives of R.A. No. 8047, verily, she is a public
implementation of government objectives to cultivate the book publishing industry.— officer who takes part in the performance of public functions in the government
Notwithstanding that petitioner came from the private sector to sit as a member of the whether as an employee, agent, subordinate official, of any rank or classes. In fact,
NBDB, the law invested her with some portion of the sovereign functions of the during her tenure, petitioner took part in the drafting and promulgation of several rules
government, so that the purpose of the government is achieved. In this case, the and regulations implementing R.A. No. 8047. She was supposed to represent the
government aimed to enhance the book publishing industry as it has a significant role country in the canceled book fair in Spain.
in the national development. Hence, the fact that she was appointed from the public
sector and not from the other branches or agencies of the government does not take
her position outside the meaning of a public office. She was appointed to the FACTS:
Governing Board in order to see to it that the purposes for which the law was enacted
are achieved. The Governing Board acts collectively and carries out its mandate as On June 7, 1995, Republic Act (R.A.) No. 8047, or otherwise known as the "Book
one body. The purpose of the law for appointing members from the private sector is to Publishing Industry Development Act", was enacted into law. Foremost in its policy is
ensure that they are also properly represented in the implementation of government the State's goal in promoting the continuing development of the book publishing
objectives to cultivate the book publishing industry. industry, through the active participation of the private sector, to ensure an adequate
supply of affordable, quality-produced books for the domestic and export market.
Same; Same; Same; Anti-Graft and Corrupt Practices Act (Republic Act No. 3019);
Words and Phrases; The Court is not unmindful of the definition of a public officer To achieve this purpose, the law provided for the creation of the National Book
pursuant to the Anti-Graft Law, which provides that a public officer includes elective Development Board (NBDB or the Governing Board, for brevity), which shall be under
and appointive officials and employees, permanent or temporary, whether in the the administration and supervision of the Office of the President. The Governing
classified or unclassified or exempt service receiving compensation, even nominal, Board shall be composed of eleven (11) members who shall be appointed by the
President of the Philippines, five (5) of whom shall come from the government, while indict petitioner for the crime charged and recommended the filing of the
the remaining six (6) shall be chosen from the nominees of organizations of private corresponding information against her.
book publishers, printers, writers, book industry related activities, students and the
private education sector. Thus, an Information was filed before the Sandiganbayan, which was docketed as
Criminal Case No. 25898, and raffled to the Third Division.
On February 26, 1996, petitioner Carolina Javier was appointed to the Governing
Board as a private sector representative for a term of one (1) year. During that time, During her arraignment in Criminal Case No. 25867, petitioner pleaded not guilty.
she was also the President of the Book Suppliers Association of the Philippines Thereafter, petitioner delivered to the First Division the money subject of the criminal
(BSAP). She was on a hold-over capacity in the following year. On September 14, cases, which amount was deposited in a special trust account during the pendency of
1998, she was again appointed to the same position and for the same period of one the criminal cases.
(1) year. Part of her functions as a member of the Governing Board is to attend book
fairs to establish linkages with international book publishing bodies. On September
29, 1997, she was issued by the Office of the President a travel authority to attend the Meanwhile, the Third Division set a clarificatory hearing in Criminal Case No. 25898
Madrid International Book Fair in Spain on October 8-12, 1997. Based on her itinerary on May 16, 2000 in order to determine jurisdictional issues. On June 3, 2000,
of travel, she was paid ₱139,199.00 as her travelling expenses. petitioner filed with the same Division a Motion for Consolidation of Criminal Case No.
25898 with Criminal Case No. 25867, pending before the First Division. On July 6,
2000, the People filed an Urgent Ex-Parte Motion to Admit Amended Information in
Unfortunately, petitioner was not able to attend the scheduled international book Criminal Case No. 25898, which was granted. Accordingly, the Amended Information
fair. dated June 28, 2000 reads as follows:

On February 16, 1998, Resident Auditor Rosario T. Martin advised petitioner to That on or about and during the period from October 8, 1997 to February 16,
immediately return/refund her cash advance considering that her trip was 1999, or for sometime prior or subsequent thereto, in Quezon City,
canceled. Petitioner, however, failed to do so. On July 6, 1998, she was issued a Philippines, and within the jurisdiction of this Honorable Court, the above-
Summary of Disallowances from which the balance for settlement amounted to named accused, a high ranking officer, being a member of the Governing
₱220,349.00. Despite said notice, no action was forthcoming from the petitioner. Board of the National Book Development Board equated to Board Member II
with a salary grade 28 and as such, is accountable for the public funds she
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive Director of the received as case advance in connection with her trip to Spain from October
NBDB, filed with the Ombudsman a complaint for malversation of public funds and 8-12, 1997, per LBP Check No. 10188 in the amount of ₱139,199.00, which
properties against petitioner. She averred that despite the cancellation of the foreign trip did not materialize, did then and there willfully, unlawfully and feloniously
trip, petitioner failed to liquidate or return to the NBDB her cash advance within sixty take, malverse, misappropriate, embezzle and convert to her own personal
(60) days from date of arrival, or in this case from the date of cancellation of the trip, use and benefit the aforementioned amount of ₱139,199.00, Philippine
in accordance with government accounting and auditing rules and regulations. Dr. currency, to the damage and prejudice of the government in the aforesaid
Apolonio further charged petitioner with violation of Republic Act (R.A.) No. 6713 for amount.
failure to file her Statement of Assets and Liabilities.
CONTRARY TO LAW.
The Ombudsman found probable cause to indict petitioner for violation of Section 3(e)
of R.A. No. 3019, as amended, and recommended the filing of the corresponding The Third Division ordered the consolidation of Criminal Case No. 25898 with
information. It, however, dismissed for insufficiency of evidence, the charge for Criminal Case No. 25867. 
violation of R.A. No. 6713.
Petitioner filed a Motion to Quash Information, averring that the Sandiganbayan has
In an Information dated February 18, 2000, petitioner was charged with violation of no jurisdiction to hear Criminal Case No. 25867 as the information did not allege that
Section 3(e) of R.A. No. 3019 before the Sandiganbayan. she is a public official who is classified as Grade "27" or higher. Neither did the
information charge her as a co-principal, accomplice or accessory to a public officer
The case was docketed as Criminal Case No. 25867 and raffled to the First Division. committing an offense under the Sandiganbayan's jurisdiction. She also averred that
she is not a public officer or employee and that she belongs to the Governing Board
Meanwhile, the Commission on Audit charged petitioner with Malversation of Public only as a private sector representative under R.A. No. 8047, hence, she may not be
Funds, as defined and penalized under Article 217 of the RPC, for not liquidating the charged under R.A. No. 3019 before the Sandiganbayan or under any statute which
cash advance granted to her in connection with her supposed trip to Spain. During covers public officials. Moreover, she claimed that she does not perform public
the conduct of the preliminary investigation, petitioner was required to submit her functions and is without any administrative or political power to speak of – that she is
counter-affidavit but she failed to do so. The Ombudsman found probable cause to
serving the private book publishing industry by advancing their interest as participant , seized or deposited by public authority, even if such property belongs to a
in the government's book development policy. private individual.

The First Division denied the motion to quash with the following disquisition: Likewise, the Motion to Quash the Information in Criminal Case No. 25898 on the
ground of litis pendencia is denied since in this instance, these two Informations
The fact that the accused does not receive any compensation in terms of speak of offenses under different statutes, i.e., R.A. No. 3019 and the Revised Penal
salaries and allowances, if that indeed be the case, is not the sole Code, neither of which precludes prosecution of the other.
qualification for being in the government service or a public official. The
National Book Development Board is a statutory government agency and the Petitioner hinges the present petition on the ground that the Sandiganbayan has
persons who participated therein even if they are from the private sector, are committed grave abuse of discretion amounting to lack of jurisdiction for not quashing
public officers to the extent that they are performing their duty therein as the two informations charging her with violation of the Anti-Graft Law and the Revised
such. Penal Code on malversation of public funds. She advanced the following arguments
in support of her petition, to wit: first, she is not a public officer, and second, she was
Insofar as the accusation is concerned herein, it would appear that monies being charged under two (2) informations, which is in violation of her right against
were advanced to the accused in her capacity as Director of the National double jeopardy.
Book Development Board for purposes of official travel. While indeed under
ordinary circumstances a member of the board remains a private individual, A motion to quash an Information is the mode by which an accused assails the
still when that individual is performing her functions as a member of the validity of a criminal complaint or Information filed against him for insufficiency on its
board or when that person receives benefits or when the person is supposed face in point of law, or for defects which are apparent in the face of the Information.
to travel abroad and is given government money to effect that travel, to that
extent the private sector representative is a public official performing public GR: Well-established is the rule that when a motion to quash in a criminal case is
functions; if only for that reason, and not even considering situation of her denied, the remedy is not a petition for certiorari, but for petitioners to go to trial,
being in possession of public funds even as a private individual for which without prejudice to reiterating the special defenses invoked in their motion to quash.
she would also covered by provisions of the Revised Penal Code, she is Remedial measures as regards interlocutory orders, such as a motion to quash, are
properly charged before this Court. frowned upon and often dismissed. The evident reason for this rule is to avoid
multiplicity of appeals in a single action.
SANDIGANBAYAN: The accused is under the jurisdiction of this Court because Sec.
4 (g) of P.D. 1606 as amended so provides, thus: Exceptions: one of which is when the court, in denying the motion to dismiss or
motion to quash, acts without or in excess of jurisdiction or with grave abuse of
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original discretion, then certiorari or prohibition lies. The reason is that it would be unfair to
jurisdiction in all cases involving: require the defendant or accused to undergo the ordeal and expense of a trial if the
court has no jurisdiction over the subject matter or offense, or is not the court of
xxxx proper venue, or if the denial of the motion to dismiss or motion to quash is made with
grave abuse of discretion or a whimsical and capricious exercise of judgment. In such
cases, the ordinary remedy of appeal cannot be plain and adequate.
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations; ISSUES & RULING:

The offense is office-related because the money for her travel abroad was given to 1. Whether or not petitioner is a public officer.
her because of her Directorship in the National Book Development Board.
YES.
Furthermore, there are also allegations to hold the accused liable under Article 222 of
the Revised Penal Code which reads: To substantiate her claim, petitioner maintained that she is not a public officer and
only a private sector representative, stressing that her only function among the eleven
Art. 222. Officers included in the preceding provisions. – The provisions of (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is
this chapter shall apply to private individuals who, in any capacity whatever, to obtain priority status for the book publishing industry. At the time of her
have charge of any insular, provincial or municipal funds, revenues, or appointment to the NDBD Board, she was the President of the BSAP, a book
property and to any administrator or depository of funds or property attached publishers association. As such, she could not be held liable for the crimes imputed
against her, and in turn, she is outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support the Philippine or unclassified or exempt service receiving compensation, even nominal, from the
book publishing industry. It is a statutory government agency created by R.A. No. government.
8047, which was enacted into law to ensure the full development of the book
publishing industry as well as for the creation of organization structures to implement Thus, pursuant to the Anti-Graft Law, one is a public officer if one has been elected or
the said policy. To achieve this end, the Governing Board of the NBDB was created to appointed to a public office. Petitioner was appointed by the President to the
supervise the implementation. The Governing Board was vested with powers and Governing Board of the NDBD. Though her term is only for a year that does not
functions, to wit: make her private person exercising a public function. The fact that she is not
receiving a monthly salary is also of no moment. Section 7, R.A. No. 8047 provides
a) assume responsibility for carrying out and implementing the policies, purposes and that members of the Governing Board shall receive per diem and such allowances as
objectives provided for in this Act; may be authorized for every meeting actually attended and subject to pertinent laws,
rules and regulations. Also, under the Anti-Graft Law, the nature of one's
b) formulate plans and programs as well as operational policies and guidelines for appointment, and whether the compensation one receives from the government is
undertaking activities relative to promoting book development, production and only nominal, is immaterial because the person so elected or appointed is still
distribution as well as an incentive scheme for individual authors and writers; considered a public officer.

c) formulate policies, guidelines and mechanisms to ensure that editors, compilers and On the other hand, the Revised Penal Code defines a public officer as any person
especially authors are paid justly and promptly royalties due them for reproduction of
who, by direct provision of the law, popular election, popular election or appointment
their works in any form and number and for whatever purpose;
by competent authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, or shall perform in said Government or in any
d) conduct or contract research on the book publishing industry including monitoring, of its branches public duties as an employee, agent, or subordinate official, of any
compiling and providing data and information of book production; rank or classes, shall be deemed to be a public officer.

e) provide a forum for interaction among private publishers, and, for the purpose,
establish and maintain liaison will all the segments of the book publishing industry;
Where, as in this case, petitioner performs public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a public officer who takes part in the
performance of public functions in the government whether as an employee, agent,
etc…. subordinate official, of any rank or classes. In fact, during her tenure, petitioner took
part in the drafting and promulgation of several rules and regulations implementing
A perusal of its powers and functions leads us to conclude that they partake of the R.A. No. 8047. She was supposed to represent the country in the canceled book fair
nature of public functions. A public office is the right, authority and duty, created and in Spain.
conferred by law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion of the In fine, We hold that petitioner is a public officer.
sovereign functions of the government, to be exercised by him for the benefit
of the public. The individual so invested is a public officer.
2. Whether, as a public officer, petitioner is within the jurisdiction of the
Sandiganbayan.
Notwithstanding that petitioner came from the private sector to sit as a member of the
NBDB, the law invested her with some portion of the sovereign functions of the
government, so that the purpose of the government is achieved. In this case, the Presently, the Sandiganbayan has jurisdiction over the following:
government aimed to enhance the book publishing industry as it has a significant role
in the national development. Hence, the fact that she was appointed from the public Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction
sector and not from the other branches or agencies of the government does not take in all cases involving:
her position outside the meaning of a public office. She was appointed to the
Governing Board in order to see to it that the purposes for which the law was enacted A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft
are achieved. The Governing Board acts collectively and carries out its mandate as and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII,
one body. The purpose of the law for appointing members from the private sector is to Book II of the Revised Penal Code, where one or more of the accused are officials
ensure that they are also properly represented in the implementation of government occupying the following positions in the government, whether in a permanent, acting
objectives to cultivate the book publishing industry. or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and
Moreover, the Court is not unmindful of the definition of a public officer pursuant to
higher, otherwise classified as Grade "27" and higher, of the Compensation and
the Anti-Graft Law, which provides that a public officer includes elective and Position Classification Act of 989 (Republic Act No. 6758), specifically including:
appointive officials and employees, permanent or temporary, whether in the classified
 xxxx she had filed a motion to quash the latter information. Double jeopardy could not,
therefore, attach considering that the two cases remain pending before the
(2) Members of Congress and officials thereof classified as Grade "Grade '27'" and up Sandiganbayan and that herein petitioner had pleaded to only one in the criminal
under the Compensation and Position Classification Act of 1989; cases against her.

(3) Members of the judiciary without prejudice to the provisions of the Constitution; It is well settled that for a claim of double jeopardy to prosper, the following requisites
must concur: (1) there is a complaint or information or other formal charge sufficient in
(4) Chairmen and members of Constitutional Commission, without prejudice to the form and substance to sustain a conviction; (2) the same is filed before a court of
provisions of the Constitution; and competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4)
the accused is convicted or acquitted or the case is otherwise dismissed or
(5) All other national and local officials classified as Grade "Grade '27'" and higher terminated without his express consent.38 The third and fourth requisites are not
under the Compensation and Position Classification Act of 1989. present in the case at bar.

xxxx In view of the foregoing, We hold that the present petition does not fall under the
exceptions wherein the remedy of certiorari may be resorted to after the denial of
Notably, the Director of Organization, Position Classification and Compensation one's motion to quash the information. And even assuming that petitioner may avail of
Bureau, of the Department of Budget and management provided the following such remedy, We still hold that the Sandiganbayan did not commit grave abuse of
information regarding the compensation and position classification and/or rank discretion amounting to lack of or in excess of jurisdiction.
equivalence of the member of the Governing Board of the NBDB, thus:
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and Order of
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD the Sandiganbayan are AFFIRMED. Costs against petitioner.
is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-
officio), and nine (9) Members, four (4) of whom are ex-officio and the SO ORDERED.
remaining five (5) members represent the private sector. The said five
members of the Board do not receive any salary and as such their position
are not classified and are not assigned any salary grade.

For purposes however of determining the rank equivalence of said positions,

Thus, based on the Amended Information in Criminal Case No. 25898, petitioner
belongs to the employees classified as SG-28, included in the phrase "all other
national and local officials classified as ‘Grade 27' and higher under the
Compensation and Position Classification Act of 1989."

Anent the issue of double jeopardy, We cannot likewise give in to the contentions
advanced by petitioner. She argued that her right against double jeopardy was
violated when the Sandiganbayan denied her motion to quash the two informations
filed against her.

We believe otherwise. Records show that the Informations in Criminal Case Nos.
25867 and 25898 refer to offenses penalized by different statues, R.A. No. 3019 and
RPC, respectively. It is elementary that for double jeopardy to attach, the case
against the accused must have been dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon valid information sufficient
in form and substance and the accused pleaded to the charge. 37 In the instant case,
petitioner pleaded not guilty to the Information for violation of the Anti-Graft Law. She
was not yet arraigned in the criminal case for malversation of public funds because