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Perez vs. People, GR 164763, 12 February 2008
- Zenon Perez, the herein petitioner , was under cash examination of his account conducted by Auditor I Arlene R. Mandin, Provincial Auditor’s Office, Bohol.
- The findings of Cash examination indicated that he was short of Php 72,784 a discrepancy of the amount found in his safe which is Php21,331.79 from the supposed money in hand with total amount of Php94,16.36. Accordingly, the result of examination was contained in Cash Production Notice where he was informed and required to produce the missing funds and the cash count sheet signed and acknowledged by him indicating the correctness of the amount found in his safe and counted in his presented. Thereafter, a demand letter was issued to him requiring the production of the missing funds.
- He explained to the Auditing team that the missing funds was used to pay for the loan of his late brother and another portion was spent for the food of his family and the rest for his medicine.
- Hence, the auditor prepared a memorandum addressed to the Provincial Auditor of Bohol recommending the filing of the appropriate criminal case against him.
- Thereafter, he partly remitted the amounts 1.) Php 10k and Php15k; 2.) Php 35k; 3.) Php2k and Php 2784.00, until he fully restituted the missing total amount.
- However, he was charged before the Sandiganbayan with Malversation of public funds under Art 217 of the RPC. Thereafter, he pleaded not guilty. However, Sandiganbayan rendered finding the accused beyond reasonable doubt of the said crime.
The petitioner then appealed at the SC claiming that he was violated the right to a speedy trial and due process, as over 13 years had passed before the case had been filed against him and that the sentence imposed upon him is cruel and violates section 19 of Art III of the Constitution.
Whether or not petitioner contention in his First Answer should not have been given probative weight because it was executed without the assistance of counsel is valid
No. There is no law, jurisprudence or rule which mandates that an employee should be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not indispensable in administrative proceedings
The right to counsel, which cannot be waived unless the waiver is in writing and in the presence of counsel, is a right afforded a suspect or accused during custodial investigation. It is not an absolute right and may be invoked or rejected in a criminal proceeding and, with more reason, in an administrative inquiry.
While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of respondent’s capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel.
Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service.
There is nothing in the Constitution that says that a party in a non-litigation proceeding is entitled to be represented by counsel and that, without such representation, he shall not be bound by such proceedings. The assistance of lawyers, while desirable, is not indispensable. The legal profession was not engrafted in the due process clause such that without the participation of its members, the safeguard is deemed ignored or violated. The ordinary citizen is not that helpless that he cannot validly act at all except only with a lawyer at his side.not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily.
Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of malversation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie case of conversion.
Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to adequately explain the location of the funds or property under his custody or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused may be convicted under the said provision.