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Republic of the PhilippinesDEPARTMENT OF JUSTICE

NATIONAL PROSECUTION SERVICEOFFICE OF THE REGIONAL PROSECUTOR

Region IV, San Pablo City

VICTORIANO E. ATIENZA, Complainant,

NPS NO. IV-07-INV-15F-00156 -versus- For Violation of RA 3019 & Grave Threats

LEE S. MANALAYSAY,Respondent.

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COUNTER AFFIDAVIT

I, LEE MANALAYSAY, Filipino, of legal age with postal address at of Block 6, Sta. Maria Village,Calapan City, Oriental Mindoro and currently employed as Harbor Operation Officer A of the Philippine Ports Authority currently stationed at the Port of Bulalacao, Oriental Mindoro, after having been duly sworn to in accordance with law, do hereby depose and state that:

1. That I am the respondent in the above-captioned case;

2. That I have received an Order 03 August 2015 from this Honorable Office on 21 August 2015 (although our office informed me that the same was received by them on 20 August 2015);

3. That the Order states among others that I have 10 days to submit my counter – affidavit 10 days from receipt of said Order. Hence, I still have until today, 01 September 2015 to submit the same counting from the date of receipt of our office. (the 30th of August 2015 being a Saturday and 31 August 2015, a Monday, is a non-working holiday);

4. That I am vehemently denying the charges levelled against me by the Complainant;

COUNTER AFFIDAVIT Atienza vs. Manalaysay

NPS NO. IV-07-INV-15F-00156Violation of RA 3019 & Grave Threats

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5. The truth of the matter being the following;

5.1. On the date mentioned in the Complaint, 08 March 2015, at around 2:45 PM, I was at the back of our office at the Port of Puerto Galera, located in Brgy. Balatero, Puerto Galera with one of my officemates, Melynda San Jose Tadeno1 and our guard, Mr. Mervin Flambirhen at the back of our office dumping gravel because the said area tends to be muddy specially when it rains;

5.2. Mr. Mervin Flambirhen2 saw a vehicle entering the premises of the port and he approached it. Thereafter, he called me because he said that the occupant of the vehicle has an official transaction with our office. In fact, Mr. Flambirhen was in civilian uniform and unarmed at that time because he was assisting us in the dumping of the gravel;

5.3. I immediately went to the location of the said car inside the port parking area and inquired on the driver of the car on the purpose of their visit. He said that an owner of a RORO (Roll On/Roll Off) vessel is inside the car. When the driver alighted from the car, I asked him what is the name of the vessel’s RORO company but he did not reply.

5.4. At that moment, another man went out of the car from the passenger side and said “Actuarial” if my memory serves me right then he uttered the term “Bakit, bawal ba bumyahe dito?” The man who came out of the car turns out to be the Complainant in this case;

5.5. I answered his query because I treated what he uttered as one by saying that so long as the papers and permits are in order, then they can start their operations;

5.6. To my surprise, the Complainant stated that the tone of my voice was high and that my attitude towards him was boastful;

1 Annex 1 – SS of Melinda San Jose Tadeno2 Annex 2 – SS of Mervin Flambirhen



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5.7. I am maintaining that I never raise my voice or being boastful in my conversation with the Complainant. However, being a public servant for a long time, we were thought to be tolerant and understanding to our clients that is why I apologized to the Complainant immediately if indeed he perceived that I raised my voice several times;

5.8. But like a shark that smelled blood in the water, the Complainant pounced at me by continuously uttering offensive languages in intimidating manner with occasional finger pointing against me while I kept my composure. The Complainant even went as far as saying the following, to wit;

5.8.1. “Ewan ko ba kung bakit napunta sa PPA ito, malaki na gastos ko dito.”

5.8.2. “Ano gusto mo, bumunot ka kung may baril ka o kaya suntukan na lang tayo.”

5.8.3. “Kaya pala walang bumabyahe dito dahil mo, irereklamo kita kay Tulfo, ipapadyaryo kita.”

5.9. In the melee of offensive and threatening tirade of the Complainant, I just told him that we are not here for any quarrel but just to serve. Up to the last possible moment, I tried to register my apology if indeed he thought I acted inappropriately but the same fell on deaf ears;

5.10. As if a final salvo into a vicious unprovoked aggression by a ruthless tyrant, I overheard him as if talking to someone in his cellular phone asking for my removal from my post. At around 3:12 PM Complainant and his son/companion left;

6. That, after the incident, I immediately wrote an Incident Report3 about the matter;

3 Annex 3 – Incident Report



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7. That the next day, 09 March 2015, I reported4 the matter to the office of the Punong Barangay of Balatero, Puerto Galera;

8. That the other allegations as to my integrity as a government employee are nothing but a concoction of the vile and twisted imagination of the Complainant. My track record as a government employee will prove the same. First, I was never charged of any wrong doing as an employee of the Philippine Ports Authority5 and Second, my performance evaluations6 will prove that I am competent and doing my duty at par with what is required of me;

9. That as can be gleaned from the Resolution7 of the Office of the Provincial Prosecutor of Oriental Mindoro dated 14 July 2015, the Complainant himself showed flashes of his personality when he has the audacity to question the wisdom of the Honorable Provincial Prosecutor of Oriental Mindoro in the cases he has filed before. Instead of filing a motion for reconsideration to the Order of the Honorable Provincial Prosecutor or file an Appeal before the Department of Justice, the Complainant, at the very office of the Honorable Provincial Prosecutor, questioned her capacity. This led to the inhibition of the Office of the Provincial Prosecutor of Oriental Mindoro in this complaint;

10. In fine, it can be gleaned from the said resolution that;

10.1. Complainant has a “confrontational attitude” and may have a habit of filing complaints;

10.2. Complainant maybe prone in insisting on his views, even on matters of law, although he is a non-lawyer; and

4 Annex 4 – Barangay Blotter from the Office of the Punong Barangay – Balatero, Puerto Galera, Oriental Mindoro5 Annex 5 – Certification from the Philippine Ports Authority6 Annex 6 – Performance Evaluation of the Respondent7 Annex 7 – OPP Oriental Mindoro Resolution dated 14 July 2015 in relation to this case



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10.3. Complainant may have a problem in dealing with authorities; even if those public servants are doing their duties by the letter.

11. That it will be contrary to human experience and nature that I will be the one who will be confrontational in a place where the Complainant’s family is wielding so much influence. It was like signing a death warrant of sort if indeed I would have the guts to face off with the Complainant in his own turf with such cavalier approach;

12. That another craven fact that needs amplification is the lack of proof from the Complainant that he lodged a complaint or had the same be recorded by the authorities although he allegedly informed the Municipal Police Station of Puerto Galera of the incident. Complainant could have attached the same to his complaint if indeed he made a report;

13. That no witness, not even his companion/son executed an affidavit to support his baseless claim and accounts for the Complainant. This is a manifestation that his complaint has no leg to stand on the first place;

14. That in the complaint, I was accused of violation of Paragraph 3 (e) of Republic Act No. 3019;

15. That according to jurisprudence8, there are two ways to violate this proviso, to wit;

i. by causing undue injury to any party, including the government; and

ii. by giving any private party any unwarranted benefits, advantage or preference.

8 Cabrera vs. Sandiganbayan, GR No. 162314 – 17, October 25, 2004



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16. The question of what is undue injury in relation to violation of Paragraph 3 (e) of Republic Act No. 3019 has been settled by the Supreme Court in the case of Llorente vs. Sandiganbayan9 when it opined that;

“…Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury, or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.” (Emphasis Ours)

17. That on the face of the complaint itself, there was no showing of undue injury that was suffered by the complainant, the government or any entity for that matter. This is true because in the first place, all of the contentions of the Complainant are lies. Logically, since they are lies, it cannot support the claim for undue injury;

18. That, the second mode of violating Paragraph 3 (e) of Republic Act No. 3019 does not exist in the complaint. As can be gleaned, there was no intimation that I am giving undue benefits or advantage to any individual. At best, the Complainant was just forwarding unsupported and self-serving claims;all are hearsays which is not worthy of anything, more so, as a source of probable cause;

9 G.R. No. 122166. March 11, 1998



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19. That in order to be convicted of a violation of Paragraph 3 (e) of Republic Act No. 3019, the following elements must concur;

i. the offender is a public officer;ii. the act was done in the discharge

of the public officer’s official, administrative or judicial functions;

iii. the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

iv. the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.10

20. That at the get go, the third and fourth elements are not even present in the said complaint;

21. That the Supreme Court was clear when it defined manifest partiality, bad faith and gross negligence in the case of Fonacier, et. al. vs. Sandiganbayan, et.al., 11

"Partiality" is synonymous with "bias" which "excites a disposition to see and report matters as they are wished for rather than as they are." "Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; it partakes of the nature of fraud."

10 Ampil vs. The Honorable Office of the Ombudsman, et.,al. G.R. No. 192685, July 31, 201311 238 SCRA 655



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"Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property."

22. That bad faith is also obviously absent for the Complainant cannot substantiate his claim. No motivation, prior incident or even the simplest of quarrels in the past between the parties was forwarded by the Complainant to show that I have a reason to treat him unfairly;

23. That in the complaint, Complainant just solely claim that I am discouraging the return of RORO operations at the Port of Puerto Galera because it is, in the words of the Complainant “typically used” for some underhand activities for the benefit of motor banca users is just a manifestation that either he does not know what he is talking about or he is being untruthful by concocting lies after lies. Not even a single piece of evidence was presented to support Complainant’s assertions nor did he even bother to explain the process on how I favor motor banca operators by blocking RORO operations. Relying on his “intuitions” over my alleged “inclinations” will not to lit the smallest of flame that would compel the State to use its resources for litigation. Thus, no substantiation of my partiality or bias were made by the Complainant;



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24. That to be candid, it is the Complainant who might have a vested interest in fabricating this complaint when he uttered the words that “Ewan ko ba kung bakit napunta sa PPA ito, malaki na gastos ko dito.”This shows that he has been uncomfortable with the fact that the agency I serve is now the one operating the port and not the local government. Thus, Complainant wanted the PPA to be out of the picture in the operations of the Port of Puerto Galera;

25. That gross negligence is most especially not present. No allegations were once again substantiated in the shot gun complaint. Only conjectures without backbone concocted to malign me seems to be writing on the wall so they say;

26. That as to his claim that I only report to duty at my station mostly weekend and that I am using the port facilities for pleasure and residence is very much out of touch with reality;

27. That the complaint itself would reveal that the allegation in the preceding paragraph is a product of hearsay. By his own words, Complainant revealed that he was just “only told” by others. Hearsay claims coupled with bugling web of lies is a potent combination that would warrant the dismissal of his Complaint;

28. That as to his allegation that Complainant was not able to meet me and he has been coming back and forth at my office is so much vague to connote into my misconduct as a government official. First, he does not even state the nature why he was not able to meet me. I might be on official travel or I was summoned by my superiors in Calapan City. There was no declaration that I refused to see him although I was at my office. Also there was no showing by evidence that he indeed came back and forth for a number times. Second, granting that our



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schedules does not meet, he could have wrote a letter addressed to me so that we can fix our schedule and thirdly, if his intention is to measure the depth of the port and other matters, we have other personnel who are able and willing to accommodate and answer their queries or give them what they need even in my absence. Another typical untruthful and baseless claim;

29. That in order to paint unfavourably, not only me but my agency, it was also intimated that on the day of the alleged incident, Complainant stated that there was as if a celebration going on at the office. This is another sinister lie. Again, no evidence that such celebration was on going at that time and should there be any, then the alleged commotion between us would have catch the attention of the ones joining the alleged celebration. We are, at that time doing our job as employees of the government, even on weekends for management of port operations is a 24/7 job;

30. That Complainant failed to destroy, in miserable fashion, the presumption that I am performing my duties in accordance to my oath as government official. In order to destroy that presumption, the complaint should have been accompanied by documents and other pieces of evidence, much more, witnesses to shatter this time honored doctrine. Instead, the Complainant only attached mostly business documents, which are not even directly related when indicting one for violation of Paragraph 3 (e) of Republic Act No. 3019;

31. That also, the Complainant alleged that I committed the crime of Grave Threats as punishable by Article 286 of the Revised Penal Code;

32. That by law and jurisprudence, there are two ways of committing Grave threats which are;



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i. By preventing another by means of violence, threats or intimidation, from doing something not prohibited by law; and

ii. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

33. That the elements of grave threats are;

i. That a person prevented another from doing something not prohibited by law, or by compelling him to do something against his will, be it right or wrong;

ii. That the prevention or compulsion be effected by violence, either material force or such display of force as would produce intimidation and control the will of the offended party;and

iii. That the person that restrained the will and liberty of another had no authority.

34. That interestingly, the Complainant cannot somehow fit his puzzle of fantastic machinations together. Probing the complaint itself would reveal that he was not able to coherently convey what exactly did I prevented or compelled them to do;

35. That the claim that one of my allegedly armed companions closed the gate as if we were trying to prevent from leaving the port is full of inconsistencies and untruthful declarations. If indeed we were armed with intent to detain, terrorize or harass the Complainant and his companion, then why would one of my allegedly armed companion would succumb to his words “Bakit nyo kami ikukulong?” and somehow reacted



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by opening the gate when Complainant uttered those words? We could have kept the gate closed, prevented them from going anywhere and pursued with the threats. Anyway, as twistedly declared by the Complainant, we have the guns and the muscles, allegedly of course. The answer is simple - no crime was committed for what Complainant claimed never happened;

36. That noteworthy is the fact that since he claimed that I have with me a gun and two armed individuals in civilian clothing and had the matter reported to the police, why did not even one element of the PNP – Puerto Galera went to our office to at least verify this claim considering that the same is very alarming to the peace of the town? Why did the Complainant never fully explained in detail how I and the alleged two men in civilian clothing with firearms intimidated him and his companion? It is no rocket science to determine through this that the Complainant made a poorly concocted lie;

37. That not only by law but when put to the crucible of common human experience, Complainant’s version of things as reflected in his complaint will definitely fail. I am from Calapan City while the Complainant is from Puerto Galera. It is common knowledge that his brother was a former mayor of that town and that his nephew is the current mayor. Who would be bold enough to challenge the Complainant into a gun fight in a town in which his family is in a position of advantage?

38. This is a clear indication that the complaint is a complete sham that is full of loopholes and constructed to put up a make believe scenario that the Complainant was the victim when all indicators and priors are stacked up to the contrary. Put it bluntly, I am the victim here;



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39. That in the end, the Complaint does not engender a well-founded belief that I committed the crimes I’m accused of. It is akin to a poorly written work of fiction that is full of inconsistencies and wayward assertions;

40. That I am humbly beseeching the kind indulgence of the Honorable Regional State Prosecutor (herein Acting Provincial Prosecutor for Oriental Mindoro) to dismiss this case outright which, to my view is an attempt to harass, malign and impugn my dignity as a person and as an honest government employee by abusing the criminal prosecution arm of the government and put into waste precious resources of the Department of Justice to pursue his vile motives;

01 September 2015, City of Calapan for San Pablo City, Laguna.

IN WITNESS WHEREOF, I have hereunto set my hand this _____________ at Calapan City, Philippines.

LEE S. MANALAYSAYRespondent/Affiant

CERTIFICATION

SUBSCRIBED AND SWORN to before me this _________, 2015 in the City Prosecution Office of Calapan City. Affiant attested to the truth of the foregoing. I further certify that I have personally examined the affiant and I am fully satisfied that he voluntarily executed the same, and fully understood the contents thereof.

ADMINISTERING OFFICER



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