SECOND DIVISION
[G.R. No. 136082. May 12, 2000]
FRANKLIN P.
BAUTISTA, petitioner, vs. SANDIGANBAYAN (Third Division), OFFICE
OF THE OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.
D E C I S I O N
BELLOSILLO, J.: lex
This petition seeks to set aside the 13
March 1998 Resolution of the Sandiganbayan[1] denying petitioner's Motion to Quash Crim. Case No. 24276 and its 9 October 1998
Resolution denying reconsideration. The petition also prays for the issuance of
a writ of preliminary injunction and/or temporary restraining order to restrain
and enjoin public respondents from proceeding in any manner with Crim. Case No.
24276 during the pendency of the petition. Jksm
An anonymous, unverified and unsigned
letter-complaint dated 20 November 1996 allegedly prepared by the Contractors
Association of Davao del Sur and the Good Government Employees[2] of Davao del Sur initiated this case. It was filed
with the Office of the Ombudsman for Mindanao charging petitioner Franklin P.
Bautista, incumbent mayor of the Municipality of Malita, Davao del Sur, for
violation of Sec. 3, par. (e), of RA 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act.[3] The letter-complaint alleged, among others, that
petitioner caused the hiring of one hundred and ninety-two (192) casual
employees in the municipal government for political considerations and that the
payment of their honoraria and salaries was charged to the peace and order fund
despite meager savings of the municipality.[4]
Acting on the letter-complaint, Graft
Investigation Officer II (GIO II) Corazon A. Arancon issued on 16 January 1997
an Order directing respondent Franklin P. Bautista, petitioner herein, to
submit his counter-affidavit.[5] In his counter-affidavit of 26 February 1997
petitioner, answering the charges against him, claimed that the complaint,
which was unsigned, was fictitious and fabricated as shown by the affidavits of
Enrique Ponce De Leon, President of the Contractor's Association of Davao del
Sur;[6] Rogelio E. Llanos, Governor for Davao del Sur;[7] Eduardo M. Masiwel Vice Mayor of Malita, Davao del
Sur;[8] Engineer Antonio P. Cayoca, Department of Public
Works and Highways, 2nd District, Davao del Sur;[9] Juanito A. Itorralba, Assistant Provincial Treasurer
of Davao del Sur;[10] Juan L. de Guzman and Felipe D. Macalinao,[11] both teachers, therein attached, which disclaimed
any knowledge of the institution of the complaint nor cause of its filing. He
further argued that the hiring of the one hundred ninety-two (192) casuals and
the payment of their honoraria and wages did not justify the filing of any
charge against him.
After due consideration, GIO II Arancon in
his Resolution dated 27 May 1997 found a prima facie case for violation
of Sec. 3, par. (e), of RA 3019, as amended, against petitioner and forwarded
the resolution to the Ombudsman for approval. Chief
On 3 October 1997 the Ombudsman approved the
resolution. Thereafter, an Information for violation of Sec. 3, par. (e), of RA
3019, as amended, was filed against petitioner before the Sandiganbayan,
docketed as Crim. Case No. 24276,[12] which read -
That sometime in
1995 or sometime prior thereto, in the Municipality of Malita, Davao del Sur,
and within the jurisdiction of this Honorable Court, the above-named accused, a
high ranking public officer, being the Mayor, Municipality of Malita, Davao del
Sur, while in the performance of his official functions, taking advantage of
his position and committing the offense in relation to his office, with
manifest partiality, did then and there willfully, unlawfully and criminally
caused the hiring of some one hundred ninety-two (192) casual employees in
flagrant disregard of Secs. 288 and 289 of the Government Accounting and
Auditing Manual (GAAM), the honoraria and salaries of whom were charged to the
peace and order fund and to the project component and other services activity
fund, respectively and which represented 72.5% of the total personnel services
expenditures, thereby giving unwarranted benefits, advantage and preference to
the said casuals, causing undue injury to the Municipality of Malita.
On 13 November 1997 petitioner filed a
Motion to Quash the Information anchored on the ground that the acts charged
therein did not constitute the offense indicated in Sec. 3, par. (e), of RA
3019, as amended, and that more than one (1) offense was charged in the
Information. After the filing of the opposition, the Sandiganbayan denied on 13
March 1998 the Motion to Quash stating that all essential elements of
the crime charged were sufficiently alleged in the Information which charged
only one offense. On 13 April 1998 petitioner filed a motion for
reconsideration but on 9 October 1998 his motion was denied.
Petitioner assails in this petition the
denial of his Motion to Quash despite failure of the Ombudsman to properly
establish a cause of action. He asserts that there was no legal basis for the
Ombudsman to conduct a preliminary investigation in Case No. CPL-MIN-96-180,
much less file the Information in Crim. Case No. 24276, as the Ombudsman failed
to direct the complainants to reduce their evidence into affidavits before
requiring him to submit his counter-affidavit. Petitioner invokes Sec. 4, Rule
II, of the Rules of Procedure of the Ombudsman which requires that for
purposes of conducting a preliminary investigation the complainant must submit
his affidavit and those of his witnesses before respondent can be required to
submit his counter-affidavit and other supporting documents.[13] Conformably with such rule, the Ombudsman should have
first required the Contractor's Association of Davao del Sur and the Good
Government Employees of Davao del Sur to submit their respective affidavits
before requiring him as respondent to submit his counter-affidavit, especially
since the letter-complaint was unsigned and unverified; hence, there was no
valid cause of action against petitioner. Esmsc
Petitioner cites Olivas v. Office of the
Ombudsman[14] where the Court declared that in preliminary
investigation of cases it is incumbent upon the complainants to submit their
evidence in affidavit form and it is only after such submission that respondent
may be required to explain and submit his counter-affidavit, also under oath.
This issue has long been laid to rest in Olivas
where the Court explained that while reports and even raw information obtained
from anonymous letters may justify the initiation of an investigation, this
stage of the preliminary investigation can be held only after sufficient
evidence, derived from submitted affidavits from the complainants and his
witnesses, shall have been duly gathered and evaluated, and only thereafter can
the respondent be required to submit his affidavits and other documents to
explain, also under oath.[15] It is from such affidavits and counter-affidavits
that the Ombudsman can determine whether there is a probable cause for bringing
the case to court.
However, despite its wisdom, we must rule
that the principle enunciated in Olivas has no bearing in the instant
petition. What was assailed therein was the order of the Ombudsman compelling
petitioner Olivas to file his counter-affidavit in answer to the charges
against him, he having refused to do so since the order was not accompanied by
a single affidavit from the complainants as mandated by law; while in the
instant case, petitioner Bautista had already filed his counter-affidavit
before the Ombudsman and only questioned the latter’s failure to require the
complainants to submit affidavits prior to the submission of his own
counter-affidavit after the preliminary investigation had ended and an
Information already filed before the Sandiganbayan. The issue therefore of
requiring the complainants to submit their affidavits before respondent can be
obliged to submit his counter-affidavit is moot and academic in light of
Bautista’s submission of his counter-affidavit despite absence of the
complainants’ affidavits.
Criminal Case No. 24276 before the
Sandiganbayan stemmed from the letter allegedly sent by the Contractors’
Association of Davao del Sur and the Good Government Employees of Davao del Sur
addressed to the Office of the Ombudsman for Mindanao. It may be true that GIO
II Arancon in his Order of 16 January 1997 directed herein petitioner to submit
his counter-affidavit thereto without requiring the complainants to submit
theirs which were significantly necessary because of the unverified, unsigned
and anonymous nature of their letter. However, despite the Ombudsman's
noncompliance with the affidavit requirement, petitioner filed his counter-affidavit
on 26 February 1997 and answered the charges against him. Hence, having
submitted himself to the jurisdiction of the Ombudsman and having allowed the
proceedings to go on until the preliminary investigation was terminated and the
Information filed at the Sandiganbayan, petitioner is deemed to have waived
whatever right he may otherwise have to assail the manner in which the
preliminary investigation was conducted. Consequently, petitioner is likewise
estopped from questioning the validity of the Information filed before the
Sandiganbayan.
Esmmis
Petitioner likewise avers that the
Sandiganbayan gravely abused its discretion in denying his Motion to Quash
the Information as there were at least two (2) offenses charged - the giving of
unwarranted benefits, advantage and preference to the casual employees in
question, and causing undue injury to the Municipality of Malita.
Petitioner invokes Santiago v. Garchitorena[16] where it was held that there were two (2) ways of
violating Sec. 3, par. (e), of RA 3019, namely, (a) by causing undue injury to
any party, including the Government, and (b) by giving any private party any
unwarranted benefit, advantage or preference, and as such, he argues that each
constitutes two (2) distinct offenses that should be charged in separate
informations.
Indeed, Sec. 3, par. (e), RA 3019, as
amended, provides as one of its elements that the public officer should have
acted by causing any undue injury to any party, including the government, or
by giving any private party unwarranted benefits, advantage or preference
in the discharge of his functions.[17] The use of the disjunctive term "or"
connotes that either act qualifies as a violation of Sec. 3, par. (e), or as
aptly held in Santiago, as two (2) different modes of committing the
offense. This does not however indicate that each mode constitutes a distinct
offense, but rather, that an accused may be charged under either mode or
under both.
In Santiago petitioner therein
assailed the failure of respondent to include the phrase "causing of undue
injury to any party, including the Government" in the amended informations
filed against her. Refuting the claim, the Court cited the minute resolution in
Uy v. Sandiganbayan[18] and
clarified that the "act of giving any private party any unwarranted
benefit, advantage or preference" is not an indispensable element of the
offense of "causing any undue injury to any party," although there
maybe instances where both elements concur. Thus,
in Pareño v. Sandiganbayan[19] the information charged the public officers with
"willfully and unlawfully causing undue injury to the Government and giving
unwarranted benefits to Tanduay Distillery, Inc." by failing to verify and
act on the validity and/or veracity of the claim for tax credit filed by the
corporation before the BIR. Es-mso
In Pilapil v. Sandiganbayan[20] petitioner
Pilapil was only charged with having "willfully caused undue injury to the
Municipality of Tigaon, Camarines Sur, when he failed to deliver the ambulance
received by him on behalf of the municipality in a Deed of Donation executed
by the Philippine Charity Sweepstakes Office in its favor, to the prejudice and
damage of the municipal government."
Likewise, in Diaz v. Sandiganbayan[21] the PCGG
Commissioners as public officers were charged only with having given Enrique
Razon, Jr., a stockholder or officer of the sequestered corporation Metro Port,
unwarranted benefits and/or advantage by the approval of his loan application
for P5,000,000.00 belonging to the same sequestered corporation.
By analogy, Gallego v. Sandiganbayan[22] finds application in the instant case. There,
petitioners claimed that the Information charged the accused with three (3)
distinct offenses, to wit: (a) the giving of "unwarranted" benefits
through manifest partiality; (b) the giving of "unwarranted" benefits
through evident bad faith; and, (c) the giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their
official and/or administrative functions; and thus moved for the quashal of the
Information. The Sandiganbayan denied the motion to quash and held that the
phrases "manifest partiality," "evident bad faith" and
"gross inexcusable negligence" merely described the different modes
by which the offense penalized in Sec. 3, par. (e), of RA 3019, as amended,
could be committed, and the use of all these phrases in the same Information
did not mean that the indictment charged three (3) distinct offenses.
In the instant case, the Information against
petitioner read in part -
x x x unlawfully and
criminally caused the hiring of some one hundred ninety-two (192) casual
employees in flagrant disregard of Secs. 288 and 289 of the Government
Accounting and Auditing Manual (GAAM), the honoraria and salaries of whom were
charged to the peace and order fund and to the project component and other
services activity fund, respectively, and which represented 72.5%, of the total
personnel services expenditures, thereby giving unwarranted benefits,
advantage and preference to the said casuals, causing undue injury to the
Municipality of Malita. Ms-esm
The use of the phrase "causing undue
injury" therein can either be interpreted as another mode of violating the
statute, in addition to the giving of unwarranted benefits, advantage and
preference to the casuals, or as a consequence of the act of giving
unwarranted benefits, advantage and preference. Specifically, for hiring some
one hundred and ninety-two (192) casuals and the charging of their honoraria
and salaries to the peace and order fund, petitioner gave them unwarranted
benefits, advantage and preference and caused undue injury to the
Municipality of Malita; or thereby caused undue injury to the
Municipality of Malita. In either case, the Information will not suffer any
defect, as it is clear that petitioner is charged with violation of Sec. 3,
par. (e), of RA 3019, as amended, with either mode of commission obtaining or
with both manners of violation concurring.
Finally, petitioner finds exception in the
term "private party" as used in Sec. 3, par. (e), of RA 3019, as
amended, and argues that the casuals alleged to have been appointed by him and
thus recipients of unwarranted benefits could not qualify as private parties
since they are in actuality public officers within the contemplation of Sec. 2,
par. (b), of RA 3019, as amended. Citing Philnabank Employees Association v.
Auditor General,[23] petitioner points out that "the
employees of a government corporation, regardless of the latter's functions,
are government employees and, therefore, they are not 'private party or
entity;"' and as such, one of the elements constituting the offense under
Sec. 3, par. (e), of RA 3019, as amended, is missing thus warranting the
dismissal of the Information. E-xsm
The term "private party" or
"private person" may be used to refer to persons other than those
holding public office.[24] However, petitioner is charged with causing the
hiring of some one hundred ninety-two (192) casual employees, and the
consequent awarding of their honoraria and salaries taken from the peace
and order fund of the municipality. The reckoning period is before the casual
employees' incumbency when they were still private individuals, and hence,
their current positions do not affect the sufficiency of the Information.
WHEREFORE, the petition is DISMISSED. The Resolution of the
Sandiganbayan of 13 March 1998 denying petitioner Franklin P. Bautista's Motion
to Quash in Crim. Case No. 24276 and its Resolution of 9 October 1998
denying reconsideration are AFFIRMED. Consequently, public respondents
Sandiganbayan (Third Division) and the Office of the Ombudsman are directed to
proceed with the hearing and trial of Crim. Case No. 24276 against petitioner
until terminated.
SO ORDERED. Ky-le
Mendoza, Quisumbing, and Buena, JJ., concur.
De Leon, Jr., J., on leave.
[1] Resolution of the Sandiganbayan, Third Division, with Justice Cipriano A. Del Rosario as Chairman and Justice German G. Lee, Jr. and Justice Teresita Leonardo De Castro as Members.
[2] The Good Government Employees were listed in the letter as follows: Provincial Treasurer’s Office Field Personnel, Provincial Accountant’s Office (Field Personnel), Provincial Auditor’s Field Personnel, DPWH Second Engineering District of Davao del Sur, Malita Treasurer/Accounting Personnel, and the Sangguniang Bayan of Malita.
[3] Rollo, p. 25.
[4] The unsigned letter accused petitioner Franklin P. Bautista of the following offenses: (a) per audit report prepared by Auditor Rodolfo de Vera, signed and approved by Provincial Auditor Mariano Kintanar, the honorarium paid to 192 casual employees which amounted to P5,438,735.80 could have been avoided had the agency properly planned, regulated and controlled its personnel requirement; and, (b) illegal disbursements and fictitious and overpriced payment of supplies and secondhand spare parts.
[5] Docketed as Case No. CPL-MIN-96-180 in the Office of the Ombudsman, Mindanao, and Case No. OMB-3-96-2900 in the Office of Ombudsman, Manila.
[6] Rollo, p. 33.
[7] Id., p. 34.
[8] Id., p. 35.
[9] Id., p. 36.
[10] Id.. p. 37.
[11] Id., p. 38.
[12] GIO II Corazon A. Arancon prepared and signed the Information against petitioner Bautista as early as 26 May 1997 or even before the issuance of the resolution.
[13] Sec. 4. Procedure – The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Sec. 3, Rule 112 of the Rules of Court, subject to the following provisions: (a) if the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints; (b) After such affidavits have been secured. The investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, direct the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
[14] G.R. No. 102420, 20 December 1994, 239 SCRA 283.
[15] Ibid.
[16] G.R. No. 109266, 2 December 1993.
[17] The elements of Sec. 3 (e) of R.A. 3019 are as follows: (a) the offender is a public officer; (b) the act was done in the discharge of the public officer’s official, administrative or judicial functions; (c) the act was done through manifest partiality, evident bad faith or gross inexcusable negligence; and, (d) the public officer caused any undue injury to any party, including the Government, or gave any private party any unwarranted benefits, advantage or preference.
[18] G.R. No. 100334, 5 December 1991.
[19] G.R. Nos. 107119-20 and 108037-38, 17 April 1996, 256 SCRA 242.
[20] G.R. No. 101978, 7 April 1993, 221 SCRA 349.
[21] G.R. Nos. 101202 and 102554, 8 March 1993, 219 SCRA 675.
[22] G.R. No. 57841, 30 July 1982, 115 SCRA 793.
[23] G.R. No. 30137, 25 June 1973, 51 SCRA 315.
[24] Black’s Law Dictionary, p. 1196.