G.R. Nos. 103501-03 February 17, 1997 LUIS A. TABUENA, petitioner, vs.

HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 103507 February 17, 1997 ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in cash what the MIAA o wes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs . Fe RoaGimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 reiterating in black and white such verbal instruction, to wit: You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the s um of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs account In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P5 5 Million of MIAA funds by means of three (3) withdrawals. The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, out of the ordinary and not based on the normal procedure. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuenas superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an order issued by a superior for some lawful purpose. 16 The subordinate -superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. It must be stressed that the MARCOS Memorandum directed Tabuena to pay immediately the Philippine National Construction Corp oration, thru this office the sum of FIFTY FIVE MILLION. . ., and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it l ater turned out that PNCC never received the money. Good faith in the payment of public funds relieves a public officer from the crime of malversation.