Private Sector Representative as Public Officer

Various laws provide for the appointment of a private sector representative in governmental bodies. For example, the Renewable Energy Act of 2008 creates the National Renewable Energy Board and provides for the appointment of private sector representatives to the board.

Is a private sector representative to the board a public officer?

In Carolina R. Javier vs. Sandiganbayan, et al., G.R. Nos. 147026-27, September 11, 2009, Javier was charged with malversation of public funds. Javier was the private sector representative in the National Book Development Board (NBDB), which was created by Republic Act (R.A.) No. 8047, otherwise known as the “Book Publishing Industry Development Act”. R.A. No. 8047 provided for the creation of the NBDB, which was placed under the administration and supervision of the Office of the President. The NBDB is composed of eleven (11) members who are appointed by the President, five (5) of whom come from the government, while the remaining six (6) are chosen from the nominees of organizations of private book publishers, printers, writers, book industry related activities, students and the private education sector.

The Ombudsman found probable cause to indict Javier for violation of the Anti-Graft and Corrupt Practices Act and recommended the filing of the corresponding information. In an Information dated February 18, 2000, Javier was charged with violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act before the Sandiganbayan.

The Commission on Audit also charged Javier with malversation of public funds, as defined and penalized under Article 217 of the Revised Penal Code. Thus, an Information dated February 29, 2000 was filed before the Sandiganbayan.

On October 10, 2000, Javier filed a Motion to Quash Information, averring that the Sandiganbayan has no jurisdiction to hear the case as the information did not allege that 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 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 NBDB only as a private sector representative under R.A. No. 8047, hence, she may not be charged under the Anti-Graft and Corrupt Practices Act before the Sandiganbayan or under any statute which covers public officials. Moreover, she claimed that she does not perform public functions and is without any administrative or political power to speak of – that she is serving the private book publishing industry by advancing their interest as participant in the government’s book development policy.

On January 17, 2001, the Sandiganbayan issued a Resolution denying Javier’s motion. Javier filed a petition for certiorari before the Supreme Court.

Javier hinges her petition on the ground that the Sandiganbayan has committed grave abuse of discretion amounting to lack of jurisdiction for not quashing the two informations charging her with violation of the Anti-Graft and Corrupt Practices Act and the Revised 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 being charged under two (2) informations, which is in violation of her right against double jeopardy.

The Supreme Court ruled that Javier was a public officer:

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 (11) basic purposes and objectives provided for in Section 4, R.A. No. 8047, is to obtain priority status for the book publishing industry. At the time of her appointment to the NDBD Board, she was the President of the BSAP, a book 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 book publishing industry. It is a statutory government agency created by R.A. No. 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 the said policy. To achieve this end, the Governing Board of the NBDB was created to supervise the implementation. . .

A perusal of the above powers and functions leads us to conclude that they partake of the nature of public functions. A public office is the right, authority and duty, created and 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 sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.

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 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 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 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 one body. The purpose of the law for appointing members from the private sector is to ensure that they are also properly represented in the implementation of government objectives to cultivate the book publishing industry.

Moreover, the Court is not unmindful of the definition of a public officer pursuant to the Anti-Graft Law, which provides that a public officer includes elective and appointive 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 been elected or appointed to a public office. Petitioner was appointed by the President to the Governing Board of the NDBD. Though her term is only for a year that does not 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 that members of the Governing Board shall receive per diem and such allowances as 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 appointment, and whether the compensation one receives from the government is only nominal, is immaterial because the person so elected or appointed is still considered a public officer.

On the other hand, 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 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 of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.

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, 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 R.A. No. 8047. She was supposed to represent the country in the canceled book fair in Spain.

In fine, We hold that petitioner is a public officer.

On the issue of double jeopardy, the Supreme Court ruled that there was no double jeopardy.

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. 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 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 Sandiganbayan and that herein petitioner had pleaded to only one in the criminal cases against her.

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 form and substance to sustain a conviction; (2) the same is filed before a court of 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 terminated without his express consent.[38] The third and fourth requisites are not present in the case at bar.