FIRST DIVISION
EMMANUEL T. PONTEJOS, G.R. Nos. 158613-14
Petitioner,
Present:
Panganiban, CJ,
Chairman,
- versus - Yñares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario,
JJ
OFFICE OF THE
OMBUDSMAN Promulgated:
and RESTITUTO
AQUINO,
Respondents. February 22, 2006
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PANGANIBAN, CJ:
|
T |
he Constitution and the Ombudsman Act of 1989 have endowed the
Office of the Ombudsman (OMB) with a wide latitude of investigatory and
prosecutorial powers -- virtually free from legislative, executive or judicial
intervention -- in order to insulate it from outside pressure and improper
influence. Unless tainted with grave
abuse of discretion, the judgments and orders of the OMB shall not be reversed,
modified or otherwise interfered with by this Court.
Before us
is a Petition for Certiorari[1]
under Rule 65 of the Rules of Court, assailing the
“WHEREFORE, premises
considered, the following are respectfully recommended, thus:
‘1. That an
Information for Estafa (one count) be filed against respondent EMMANUEL T.
PONTEJOS before the Regional Trial Court of Quezon
City;
‘2. That an Information for Direct Bribery
be filed against respondent Atty. EMMANUEL T. PONTEJOS before the Regional
Trial Court of Quezon City;
‘3. That an Information for Unauthorized
Practice of Profession in violation of R.A. 6713 be filed against Atty. EMMANUEL
T. PONTEJOS before the Metropolitan Trial Court of Quezon
City; and
‘4. That the complaint against
‘5. That respondent CARMENCITA ATOS Y. RUIZ
be extended immunity from criminal prosecution in accordance with Section 17 of
R.A. 6770 and be utilized as a state witness.’”[5]
The Review and Recommendation
disapproved Assistant City Prosecutor De Guzman’s recommendation to amend the
Information for estafa by including Atos as a co-accused;
while the Order denied reconsideration.
Sometime in
1998, Restituto P. Aquino
filed an Affidavit/Complaint before the Ombudsman against Emmanuel T. Pontejos (arbiter), Wilfredo I. Imperial
(regional director) and Carmencita R. Atos (legal staff), all of them officials of the Housing
and Land Use Regulatory Board (HLURB), and Roderick Ngo, a private individual.[6]
Aquino accused Pontejos and Atos of conspiring to exact money in exchange for a
favorable decision of a case against Roderick Ngo then pending in the
HLURB. He further averred that Pontejos acted as his counsel during the time when the
latter was the hearing officer of the case.[7] Moreover, Atos
allegedly received P10,000 in
check, which was part of the consideration for a favorable decision. Imperial was implicated as an alleged
accomplice.[8]
During
preliminary investigation, the following documents were adduced:
“a. Affidavit-complaint of Restituto P. Aquino, dated
“b. Affidavit of Ruth Adel in corroboration of Mr. Aquino’s affidavit;
“c. Another affidavit of Mr. Restituto P.
Aquino wherein he revealed the months and dates where
he had meetings with Atty. Pontejos and Carmen Atos at Alps Restaurant, Racks Restaurant, Little Quiapo (Q.C.) and Chowking
Restaurant;
“d. Another affidavit of Ruth Adel, wherein the affiant revealed
that Ms. Carmen Atos received P10,000.00 in
check and had it encashed;
“e. Affidavit of Rowena Alcovindas
corroborating Adel’s affidavit;
“f. A copy of the encashed check showing
Ms. Atos signature at the back of the check;
“g. Copies of several drafts of decision and petitions either
prepared in handwriting of Atty. Pontejos or in
typewritten form with corrections from Atty. Pontejos
in his handwriting;
“h. NBI Examination Report revealing that the samples and
questioned documents were authored by one person (Atty. Pontejos)
x x x.
“i. Another affidavit dated 15 February 1999, of [C]omplainant Aquino, wherein he
mentioned the places and dates of supposed meetings with Pontejos
and Atos as well as the amounts received by them in
exchange of legal services and/or favor promised.”[9]
The respondents
filed separate Counter-Affidavits to refute the charges.[10] They claimed that the meetings mentioned by Aquino did not take place. Neither did they receive any money from him.[11]
Pontejos added that there were three cases
involving Aquino.
The first one, REM-8652 was filed in 1995 against Aquino
by buyers of lots in a subdivision which he allegedly failed to develop. The second one, REM-9526 was filed by Aquino against Hammercon Inc.
(allegedly owned by Roderick Ngo) for revocation of registration and
license. The third case, REM-9817 was
filed by Aquino against Hammercon
for specific performance or rescission of contract.[12]
Pontejos decided the first and third cases against Aquino. The second
case, handled by Imperial, was also decided against Aquino. It was allegedly implausible to side with Aquino, who lost all of the cases.[13]
Imperial
denied all links to the extortion allegedly perpetrated by Pontejos
and Atos.
Moreover, he could not have shared with the alleged pay-off money given
in January 1998, because he decided the case as far back as September 1997.[14]
Atos justified receipt of the P10,000 from Aquino, claiming that it was payment for hams and cold cuts
ordered in December 1996 and January 1997 by Ruth Adel, one of the affiants.[15] In support of this defense, she submitted Joint-Affidavits
of her officemates and neighbors confirming her business activities.[16]
Subsequently,
Atos issued two Affidavits where she retracted her
original defense.[17] She encashed the
check allegedly to
accommodate Pontejos, who was her boss. She also recounted attending at least four
meetings with Pontejos, Aquino
and Adel during which Pontejos offered legal services
to Aquino and discussed Aquino’s
pending cases.[18]
Ruling of the Overall Deputy
Ombudsman
The Overall Deputy Ombudsman found
probable cause against Pontejos for the crimes of
estafa, direct bribery and illegal practice of profession in violation of RA
6713.
There was
estafa because Pontejos allegedly made false
pretenses to Aquino in order to receive P25,000.[19] He supposedly assured the cancellation of Hammercon’s license to sell and registration certificate,
notwithstanding the contrary decision issued by Imperial.[20]
Pontejos was guilty of direct bribery for
demanding and receiving P100,000 from Aquino in exchange for
a favorable decision.[21] Further, Pontejos
should be charged with unauthorized practice of law for providing legal
services to Aquino and receiving litigation expenses.[22] He purportedly prepared the pleadings that Aquino submitted; these pleadings where confirmed by the NBI
to have been authored by him.[23]
The Overall
Deputy Ombudsman ruled that Atos should be extended
immunity from criminal prosecution and discharged as state witness.[24] According to him, Atos
was merely a subordinate who could have acted only upon the prodding of Pontejos. Also, her
testimony was necessary to build a case against Pontejos.[25]
On
The
criminal cases for estafa and direct bribery against Pontejos
were filed before the Regional Trial Court of Quezon
City.[28] On
The March 14, 2003 Order denied
reconsideration. Thereafter, Pontejos filed this Petition.[32]
Petitioner raises
the following issues:
“1. Whether or not the Ombudsman erred in not
declaring that petitioner was denied due process when to this date he was never
officially furnished a copy of the Affidavit dated 18 February 1999 of Ms. Atos amounting to lack of or excess of jurisdiction;
“2. Whether or not proceedings before the
Ombudsman was tainted with ill motives amounting to lack of or excess of
jurisdiction;
“3. Whether or not the Ombudsman committed
grave abuse of discretion amounting to lack of or excess of jurisdiction when
it granted an immunity to Ms. Atos to become a state
witness on almost the same date the Affidavit was executed and submitted;
“4. Whether or not the Ombudsman erred in
singling out petitioner for criminal prosecution amounting to lack of or excess
of jurisdiction;
“5. Whether or not the Ombudsman erred in
giving weight to the Affidavit dated
The Petition is unmeritorious.
First Issue:
Probable
cause is defined as such facts and circumstances that would engender a
well-founded belief that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial.[34] Its determination during a preliminary investigation
is a function left to the government prosecutor, which in this case is the OMB.[35] As a rule, the courts do not interfere with
the OMB’s exercise of discretion in determining probable cause unless there are
compelling reasons.[36] This policy is based on constitutional, statutory and
practical considerations. The Constitution and RA 6770 (the Ombudsman Act of
1989) grants the OMB with a wide latitude of investigatory and prosecutorial
powers that is virtually free from executive, legislative or judicial
intervention, in order to insulate it from outside pressure and improper
influence.[37]
However, there are
certain instances when this Court may intervene in the prosecution of
cases. Brocka v. Enrile[38] cited some of these exceptions, as
follows: (1) when necessary to afford
adequate protection to the constitutional rights of the accused; (2) when
necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions; (3) when there is a prejudicial question which is sub judice; (4) when the
acts of the officer are without or in excess of authority; (5) where the
prosecution is under an invalid law, ordinance or regulation; (6) when double
jeopardy is clearly apparent; (7) where the court has no jurisdiction over the
offense; (8) where it is a case of persecution rather than prosecution; (9)
where the charges are manifestly false and motivated by the lust for vengeance;
and (10) when there is clearly no prima
facie case against the accused and a motion to quash on that ground has
been denied.[39]
The remedy to challenge the OMB’s orders or resolutions in criminal cases is through a petition for certiorari under Rule 65 to this Court.[40]
Grave Abuse of Discretion
A petition for certiorari is the remedy when a government officer
has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no other plain, speedy, and adequate remedy in the
ordinary course of law.[41]
Grave abuse of discretion
implies a capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction.[42] The exercise of power must have been done in
an arbitrary or despotic manner by reason of passion or personal
hostility. It must be so patent and
gross as to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[43]
Petitioner theorizes that the OMB resolved the Complaint
against him for reasons other than the merits of the case. He specifically charges HLURB Commissioner Teresita Desierto, the spouse of
Ombudsman Desierto, as the “unseen hand” behind the
filing of the criminal cases.[44] Commissioner Desierto
allegedly harbored resentment against him for signing a Manifesto[45]
issued by some lawyers in the HLURB.[46] He also recalls Commissioner
Desierto threatening him if he did not resign from
the HLURB. Thus, he concludes that the
proceedings before the OMB were tainted with ill motives.[47]
We cannot accept petitioner’s arguments. The Court observes that his arguments are
merely conjectures bereft of any proof. He
presented absolutely no evidence of any irregularity in the proceedings before
the OMB. There was no showing that
Commissioner Desierto interfered in any manner in the
proceedings before the OMB. Other than petitioner’s
bare assertions, there was also no proof that Commissioner Desierto
bore a grudge against Pontejos.
Petitioner failed to
substantiate his allegation of grave abuse of discretion. On the other hand, there was sufficient
evidence to support the finding of probable cause. Evidence presented during the preliminary
investigation engender a well-founded belief that crimes have been committed
and that Pontejos is probably guilty thereof for
which he should be held for trial. The
Court is therefore precluded from interfering in the OMB’s discretion to file
the criminal cases against petitioner. To
be sure, great respect must be accorded to the OMB’s exercise of its
constitutionally mandated functions. Unless
clearly shown to have been issued with grave abuse of discretion, these
judgments are not interfered with.
Second Issue:
The decision on whether to prosecute
and whom to indict is executive in character.[48] It is the prosecution that could essentially
determine the strength of pursuing a case against an accused. The prosecutorial powers include the discretion
of granting immunity to an accused in exchange for testimony against
another. Thus, Mapa v. Sandiganbayan[49] explained:
“The decision to grant
immunity from prosecution forms a constituent part of the prosecution process.
It is essentially a tactical decision to forego prosecution of a person for
government to achieve a higher objective. It is a deliberate renunciation of
the right of the State to prosecute all who appear to be guilty of having
committed a crime. Its justification lies in the particular need of the State
to obtain the conviction of the more guilty criminals who, otherwise, will
probably elude the long arm of the law. Whether or not the delicate power should
be exercised, who should be extended the privilege, the timing of its grant,
are questions addressed solely to the sound judgment of the prosecution. The
power to prosecute includes the right to determine who shall be prosecuted and
the corollary right to decide whom not to prosecute.”[50]
It is
constitutionally permissible for Congress to vest the prosecutor with the power
to determine who can qualify as a witness and be granted immunity from
prosecution.[51] Noteworthy, there are many laws that allow
government investigators and prosecutors to grant immunity.[52] In relation to this, the Court has previously
upheld the discretion of the Department of Justice (DOJ),[53]
Commission on Elections (Comelec),[54]
and the Presidential Commission on Good Government (PCGG)[55]
to grant immunity from prosecution on the basis of the respective laws that
vested them with such power.
The OMB was
also vested with the power to grant immunity from prosecution, thus:
“SEC. 17. x
x x.
“Under
such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of
Court, the Ombudsman may grant immunity
from criminal prosecution to any person whose testimony or whose possession and
production of documents or other evidence may be necessary to determine the
truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or
under its authority, in the performance or in the furtherance of its
constitutional functions and statutory objectives. x x x.”[56]
According
to Pontejos, the OMB’s authority to grant immunity is
subject to the “pertinent provisions of the Rules of Court.” He claims that the procedural rules allow the
discharge of an accused as state witness only upon conformity of the trial
court.[57] An information against the accused must first
be filed in court prior to the discharge.
Moreover, the prosecution could only recommend and propose, but not
grant immunity.[58]
The
pertinent provision of the Rules of Court reads:
“Sec. 17. Discharge
of accused to be state witness. –When two or more persons are jointly
charged with the commission of any offense, upon motion of the prosecution
before resting its case, the court may direct one or more of the accused to be
discharged with their consent so that they may be witnesses for the state when
after requiring the prosecution to present evidence and the sworn statement of
each proposed state witness at a hearing in support of the discharge, the court
is satisfied that:
‘(a) There
is absolute necessity for the testimony of the accused whose discharge is
requested;
‘(b) There
is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
‘(c) The
testimony of said accused can be substantially corroborated in its material
points;
‘(d) Said
accused does not appear to be the most guilty; and
‘(e) Said
accused has not at any time been convicted of any offense involving moral
turpitude.
‘Evidence adduced in support of the
discharge shall automatically form part of the trial. If the court denies the motion for discharge
of the accused as state witness, his sworn statement shall be inadmissible in
evidence.’”[59]
The Court
has already held that this provision is applicable only to cases already filed
in court.[60] The trial court is given the power to
discharge an accused as a state witness only because it has already acquired
jurisdiction over the crime and the accused.[61]
As stated
earlier, the power to choose who to discharge as state witness is an executive
function. Essentially, it is not a
judicial prerogative.[62] The fact that an individual had not been
previously charged or included in an information does not prevent the
prosecution from utilizing said person as a witness.[63]
Section 17
of the Ombudsman Act requires conformity with the Rules of Court. Accordingly, this should be read as requiring
the following circumstances prior to the discharge: (1) absolute necessity for
the testimony of the accused sought to be discharged; (2) no direct evidence
available for the proper prosecution of the offense committed except the
testimony of the said accused; (3) the testimony of the said accused can be
substantially corroborated in its material points; (4) said accused does not
appear to be most guilty; and (5) said accused has not any time been convicted
of any offense involving moral turpitude.
Indeed,
there must be a standard to follow in the exercise of the prosecutor’s
discretion. The decision to grant
immunity cannot be made capriciously.
Should there be unjust favoritism, the Court may exercise its certiorari
power.
In the
present case, certiorari is not proper. Pontejos’ allegations do not show, much less allege, grave
abuse of discretion in the granting of immunity to Atos.[64] The OMB
considered Atos’ position, record and involvement in
the case prior to the discharge.[65]
Pontejos also
claims that he was not furnished a copy of Atos’ Affidavit
that connected him to the crimes.[66] Since
he was not afforded the opportunity to challenge the assertions in said Affidavit,
his right to due process had allegedly been violated.
The alleged denial of due process is controverted by the facts.
It appears from the records that Pontejos
eventually received a copy of the aforementioned Affidavit.[67] More importantly, he had challenged the Affidavit
in his Motion for Reinvestigation[68]
and request for reconsideration of the Review and Recommendation of the Overall
Deputy Ombudsman.[69] Pontejos’
contention must necessarily fail because --
as shown -- he had the opportunity to be heard and in fact, availed of
it.
As a final note, Pontejos
has made it appear that the criminal cases filed against him were based on ill
motives. His arguments challenge the evidence
gathered. It is readily apparent that
these arguments should be raised as defenses during the trial, not in the
present Petition.
WHEREFORE,
the Petition is DENIED. Costs against
petitioner.
SO ORDERED.
ARTEMIO V. PANGANIBAN
Chief
Justice
Chairman,
First Division
W E C O N C U R:
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
ROMEO J. CALLEJO, SR. MINITA V.
CHICO-NAZARIO
Associate
Justice Associate Justice
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution, I certify that the conclusions
in the above Decision were reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.
ARTEMIO V.
PANGANIBAN
Chief
Justice
[1] Rollo, pp. 3-29.
[2]
[3]
[4]
[5]
[6]
Assailed Joint Resolution dated
[7] Ibid.
[8] Ibid.
[9] Assailed Joint Resolution, pp. 3-4; rollo, pp. 35-36.
[10]
[11]
[12] Ibid. See also Petitioner’s Memorandum, p. 3; rollo, p. 174.
[13] Assailed Joint Resolution, p. 4; rollo, p. 36.
[14]
[15] Ibid.
[16] Ibid.
[17]
[18] Ibid.
[19]
[20] Ibid.
[21]
[22]
[23] Ibid.
[24]
[25]
[26] Resolution No. 99-001; rollo, p. 94.
[27] Ibid.
[28] Docketed as Criminal Case Nos. Q-99-83123-24 and raffled to Branch 224.
[29] Rollo, pp. 51-56.
[30]
Order dated
[31] Assailed Review and Recommendation, p. 4; rollo, p. 61.
[32]
The case was deemed submitted for
resolution on
The Memorandum of the
Ombudsman, signed by Assistant Solicitor General Karl B. Miranda and Solicitor
Ma. Ana C. Rivera, was received by this Court on
[33] Petitioner’s Memorandum, p. 10; rollo, p. 181; original in upper case.
[34]
§1 of Rule 112 of the Rules of Court,
which defines the purpose of a preliminary investigation. Villanueva
v. Ople, GR No. 165125,
[35] Paredes v. Sandiganbayan, 252 SCRA 641,
January 31, 1996.
[36] Peralta v. Desierto, GR No. 153152,
October 19, 2005.
[37]
Perez v. Office of the Ombudsman, 429 SCRA 357, 363,
[38]
192 SCRA 183,
[39]
[40] Villanueva v. Ople, supra; Kuizon v. Desierto 354 SCRA 158, March 9,
2001. See also
[41] §1 of Rule 65 of the Rules of Court.
[42]
Soria v. Desierto, GR Nos. 153524-25,
[43] Ibid.
[44] Petitioner’s Memorandum, pp. 12, 15-19 & 25; rollo, pp. 183, 186-190 & 196.
[45] The Manifesto reads:
“On
“The Honorable Commissioner may not
have foreseen the possible repercus[s]ions of her
words. She may not have known that the
accusations made by her tend to bring not only the legal staff into disrepute
but the whole Board.
“The statements of the Honorable
Commissioner tend to destroy public confidence in the Board. Hence, they degrade not only the lawyers,
legal assistants and para-legal assistants but all
employees of the Board.
“The Honorable Commissioner may not
have realized it, but once public confidence in the Board is destroyed, the
Board loses its usefulness.
“It is regrettable that such
irresponsible act was committed by a high ranking official of the Board, a
person who should be the first to protect the Board and its dignity.
“We have been subjected to snide
remarks and slanderous statements before, but we took them in stride, because
they are unsubstantiated and utterly false.
However, when the same unproven accusations are made by a responsible
superior, who is also a lawyer, we believe that we have to react. We have suffered in silence for too long.
“It appears that our continued
silence is being interpreted as an admission of guilt. To correct such misinterpretation, we now
speak out and ask that instead of humiliating all lawyers in public, cases
against erring officials and employees be instituted before the proper forum.
“We fervently hope that there will be no repetition of the sorry incident. We hope that the architects, the engineers, the planners and the rest of the technical staff will not suffer the same fate. We pray that the rest of the employees won’t have to endure the same indignity.” (Rollo, p. 32)
[46]
Petitioner’s Memorandum, p. 1;
rollo, p. 172.
[47]
[48]
Guingona v. Court of Appeals, 354 Phil. 415,
[49]
231 SCRA 783, 785,
[50]
[51]
See Webb v. De Leon, 317 Phil. 758, 800,
[52] Some of the laws can be found in Section 8 of Republic Act 9287 or the “Act Increasing the Penalties for Illegal Numbers Games Amending Certain Provisions of Presidential Decree No. 1602, and for Other Purposes,” approved April 2, 2004; Section 33 of Republic Act 9165 or the “Comprehensive Dangerous Drugs Act of 2002,” approved June 7, 2002; Section 12 of Republic Act 6981 or the “Witness Protection, Security and Benefit Act,” approved April 24, 1991; Section 26 of Republic Act 6646 or the “Electoral Reforms Law of 1987,” approved January 5, 1988; Section 5 of Executive Order No. 14 (which empowered the PCGG to file and prosecute cases investigated by it), dated May 7, 1986; and Sections 3 and 4 of Presidential Decree 1732 or “Providing Immunity from Criminal Prosecution to Government Witnesses and for Other Purposes,” approved October 8, 1980.
[53]
People v. Peralta, 435 Phil. 743, 765,
[54]
Comelec v. Español, 417 SCRA 554,
[55] See Mapa v. Sandiganbayan, supra at note 49.
[56]
Republic Act 6770 or the
Ombudsman Act, approved on
[57] Petitioner’s Memorandum, p. 20; rollo, p. 191.
[58] Ibid.
[59] §17 of Rule 119 of the Rules of Court.
[60]
Guingona v. Court of Appeals, supra at note 48. See also People
v. Peralta, supra at note 53.
[61] Webb v. De Leon, supra at note 51.
[62] People v. Peralta, supra; Guingona v. Court of Appeals, supra; Webb v. De Leon, supra.
[63]
People v. Binsol, 100 Phil. 713, 726,
[64] See Petitioner’s Memorandum, pp. 21-22; rollo, pp. 192-193.
[65] See Assailed Joint Resolution, pp. 14-15; rollo, pp. 47-48; Resolution No. 99-001, supra at note 26.
[66] Petitioner’s Memorandum, p. 12; rollo, p. 183.
[67] The affidavit was attached as Annex “J” of the Petition; rollo, pp. 85-86.
[68]
Motion for Reinvestigation dated
[69] Letter addressed to Overall Deputy Ombudsman Margarito O. Gervacio Jr.; rollo, pp. 66-68.