THIRD DIVISION
|
PHILIPPINE AGILA SATELLITE, INC. represented by MICHAEL C. U.
DE GUZMAN, Petitioner, - versus - SEC. JOSEFINA Respondents. |
G.R. No. 134887 Present: QUISUMBING, J., Chairperson, CARPIO,
CARPIO MORALES, TINGA, and VELASCO, JR., JJ.
Promulgated: |
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D
E C I S I O N
CARPIO MORALES, J.:
On
Pursuant
to Article IV of the MOU, the consortium of private telecommunications carriers
formed a corporation and adopted the corporate name Philippine Agila Satellite,
Inc. (PASI), herein petitioner.
By
letter[2]
dated June 28, 1996, PASI president Rodrigo A. Silverio (Silverio) requested the
then DOTC Secretary Amado S. Lagdameo, Jr. for official government confirmation
of the assignment of Philippine orbital slots 161ºE and 153ºE to PASI for its
AGILA satellites.
In
response to Silverio’s letter, Secretary Lagdameo, by letter[3]
dated
PASI
thereupon undertook preparations for the launching, operation and management of
its satellites by, among other things, obtaining loans, increasing its capital,
conducting negotiations with its business partners, and making an initial
payment of US$ 3.5 million to Aerospatiale, a French satellite manufacturer.
Michael
de Guzman (de Guzman), PASI President and Chief Executive Officer (CEO), later
informed Jesli Lapuz (Lapuz), President and CEO of the Landbank of the
Philippines, by letter[4] of
December 3, 1996, of the government’s assignment to PASI of orbital slots 161ºE
and 153ºE and requested the bank’s confirmation of its participation in a club
loan in the amount of US$ 11 million, the proceeds of which would be applied to
PASI’s interim satellite.
It
appears that Lapuz sent a copy of De Guzman’s letter to then DOTC Undersecretary
Josefina T. Lichauco, (Lichauco) who, by letter[5] of
1. Kindly be informed that there is simply no
basis for Michael de Guzman to allege that the DOTC has assigned two (2) slots
to PASI. He conveniently neglected to attach as another annex, in addition
to Sec. Lagdameo’s letter of 3 July 1996 (Annex “A”) the letter of 28 June
(Annex “B”) in response to which the July 3rd letter had been sent
to PASI. Annex “B” precisely provides that one slot (153º E, to which the
interim satellite was supposed to migrate) was to be used for the migration of
the Russian satellite in time for the APEC Leaders’
Since this timely migration did not happen in
time for the APEC Leaders Meeting on 24 November, this 153ºE Longitude slot
can no longer be assigned to PASI.
The other slot 161ºE Longitude is the one
that can be made available for PASI’s eventual launch, in 1998 most likely, in
exchange for one free satellite transponder unit utilization, for all requirements
of Government. These have yet to be embodied in a contract between PASI and the
DOTC.
2. I understand from my meeting with DHI/PASI
this morning, and from the de Guzman letter you sent to me, that the latter are
still interested in pursuing their “interim satellite project” and are applying
for a loan with your bank. Of course they can always pursue this as a business
venture of DHI/PASI which is their own corporate business decision. The DOTC
supports this venture but they will be getting only one orbital slot for
both the Interim Satellite Project and for the Launch Project. I understand
from today’s meeting with them that this is technically feasible.
3. As
regards the use of the name “Agila”, Mr. de Guzman’s allegation that
DHI/PASI has registered “Agila” as a “corporate alias/trademark” is FALSE.
There is no such thing as registration of a “corporate alias”. Nor for that
matter can the trade name of a satellite be registered for just any satellite,
where it was the President who chose the name for the first Philippine
satellite in orbit. No one else coined that name but he. He has therefore given
the name ”Agila I” to the Mabuhay satellite now in orbit at 144ºE, being the
first Philippine satellite in orbit. He made this announcement in the presence
of all the APEC Heads of State just before the presentation to him of the
Manila Action Plan for APEC.
(Underscoring supplied)
Lichauco
subsequently issued, in December 1997, a Notice of Offer[6] for
several orbital slots including 153ºE.
PASI, claiming
that the offer was without its knowledge and that it subsequently came to learn
that another company whose identity had not been disclosed had submitted a bid
and won the award for orbital slot 153ºE, filed on January 23, 1998 a complaint[7] before
the Regional Trial Court (RTC) of Mandaluyong City against Lichauco and the “Unknown
Awardee,” for injunction to enjoin the award of orbital slot 153ºE, declare its
nullity, and for damages.
PASI also filed
on
(e) Causing
any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This provision shall apply
to officers and employees of officers or government corporations charged with
the grant of licenses or permits or other concessions.
The complaint was
docketed as OMB Case No. 0-98-0416. The
Evaluation and Preliminary Investigation Bureau (EPIB) of the Office of the
Ombudsman, by Evaluation Report[8]
dated April 15, 1998, found the existence of a prejudicial question after considering
that “the case filed with the RTC involves facts intimately related to those upon
which the criminal prosecution would be based and that the guilt or the
innocence of the accused would necessarily be determined in the resolution of
the issues raised in the civil case.” It
thus concluded that the filing of the complaint before the Ombudsman “is
premature since the issues involved herein are now subject of litigation in the
case filed with the RTC,” and accordingly recommended its dismissal. Then Ombudsman Aniano A. Desierto approved on
PASI moved to reconsider[9]
the dismissal of the complaint, but was denied by Order[10]
dated
In the meantime, a motion to dismiss the civil case against
respondent was denied by the trial court.
On elevation of the order of denial to the Court of Appeals, said court,
by Decision dated
PASI is now before this Court via petition for review on
certiorari, arguing that the Ombudsman erred in dismissing the complaint.
In issue are 1) whether there exists a prejudicial question
and, if in the affirmative, 2) whether the dismissal of the complaint on that
account is in order.
Section
7, Rule 111 of the Rules on Criminal Procedure provides:
Section
7. Elements of prejudicial question. – The elements of a prejudicial
question are: (a) the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
The
rationale for the principle of prejudicial question is that although it does
not conclusively resolve the guilt or innocence of the accused, it tests the
sufficiency of the allegations in the complaint or information in order to
sustain the further prosecution of the criminal case.[12] Hence, the need for its prior resolution
before further proceedings in the criminal action may be had.
PASI concedes
that the issues in the civil case are similar or intimately related to the
issue raised in the criminal case. It contends,
however, that the resolution of the issues in the civil case is not determinative
of the guilt or innocence of Lichauco, it arguing that even if she is adjudged
liable for damages, it does not necessarily follow that she would be convicted
of the crime charged.
To determine the existence of a prejudicial question in the
case before the Ombudsman, it is necessary to examine the elements of Section
3(e) of R.A. 3019 for which Lichauco was charged and the causes of action in
the civil case.
Section 3(e) of R.A. 3019 which was earlier quoted has the
following elements:
1. The accused is a public officer discharging
administrative or official functions or private persons charged in conspiracy
with them;
2. The public officer committed the prohibited
act during the performance of his official duty or in relation to his public
position;
3. The public officer acted with manifest
partiality, evident bad faith or gross, inexcusable negligence; and
4. His action caused undue injury to the
Government or any private party, or gave any party any unwarranted benefit,
advantage or preference to such parties.[13]
The civil
case against Lichauco on the other hand involves three causes of action. The first, for injunction, seeks to enjoin the
award of orbital slot 153ºE, the DOTC having previously assigned the same to
PASI; the second, for declaration of nullity of award, seeks to nullify the award given to the undisclosed bidder for being
beyond Lichauco’s authority; and the third, for damages arising from Lichauco’s questioned
acts.
If the award
to the undisclosed bidder of orbital slot 153ºE is, in the civil case, declared
valid for being within Lichauco’s scope of authority to thus free her from
liability for damages, there would be no prohibited act to speak of nor
would there be basis for undue injury claimed to have been suffered by
petitioner. The finding by the Ombudsman of the existence of a prejudicial
question is thus well-taken.
Respecting
the propriety of the dismissal by the Ombudsman of the complaint due to
the pendency of a prejudicial question, PASI argues that since the Rules of
Procedure of the Office of the Ombudsman is silent on the matter, the Rules of
Court, specifically Section 6, Rule 111 of the Rules of Court, which now reads:
SECTION
6. Suspension by reason of prejudicial question. – A petition for
suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the prosecutor or the
court conducting the preliminary investigation. When the criminal action has
been filed in court for trial, the petition to suspend shall be filed in the
same criminal action at any time before the prosecution rests. (Underscoring supplied),
applies in a suppletory
character.
The
Ombudsman, on the other hand, argues that the above-quoted provision of the
Rules of Court applies to cases which are at the preliminary or trial stage and
not to those, like the case subject of the present petition, at the evaluation
stage.
The
Ombudsman goes on to proffer that at the evaluation stage, the investigating
officer may recommend any of several causes of action including dismissal of
the complaint for want of palpable merit or subjecting the complaint to
preliminary investigation, and the evaluation of the complaint involves the
discretion of the investigating officer which this Court cannot interfere with.
While the
evaluation of a complaint involves the discretion of the investigating officer,
its exercise should not be abused[14] or
wanting in legal basis.
Rule
II, Section 2 of the Rules of Procedure of the Office of the Ombudsman reads:
SECTION
2. Evaluation. – Upon evaluating the complaint, the investigating
officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or
agency which has jurisdiction over the case;
d) forwarded to the appropriate office or
official for fact-finding investigation;
e) referred for administrative adjudication; or
f)
subjected
to a preliminary investigation.
(Underscoring supplied)
From
the above-quoted provision, a complaint at the evaluation stage may be
dismissed outright only for want of palpable merit. Want of palpable merit obviously means that
there is no basis for the charge or charges.
If the complaint has prima facie merit, however, the
investigating officer shall recommend the adoption of any of the actions
enumerated above from (b) to (f).[15]
When,
in the course of the actions taken by those to whom the complaint is endorsed
or forwarded, a prejudicial question is found to be pending, Section 6, Rule
111 of the Rules of Court should be applied in a suppletory character.[16] As
laid down in Yap v. Paras,[17] said
rule directs that the proceedings may only be suspended, not dismissed,
and that it may be made only upon petition, and not at the
instance of the judge alone or as in this case, the investigating officer.
To
give imprimatur to the Ombudsman’s dismissal of petitioner’s criminal
complaint due to prejudicial question would not only run counter to the
provision of Section 6 of Rule 111 of the Rules of Court. It would sanction the extinguishment of criminal
liability, if there be any, through prescription under Article 89 vis a vis Articles
90 and 91 of the Revised Penal Code which respectively read:
ART.
89. How criminal liability is
totally extinguished. — Criminal liability is totally extinguished:
1. By the death of the convict, as to the
personal penalties; and as to pecuniary penalties, liability therefore is
extinguished only when the death of the offender occurs before final judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the
penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as
provided in Article 344 of this Code.
(Underscoring supplied)
ART. 90.
Prescription of crimes. — Crimes punishable by death, reclusion
perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive
penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty
shall prescribe in ten years; with the exception of those punishable by arresto
mayor, which shall prescribe in five years.
The crime of libel or other similar offenses
shall prescribe in one year.
The offenses of oral defamation and slander
by deed shall prescribe in six months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound
one, the highest penalty shall be made the basis of the application of the
rules contained in the first, second, and third paragraphs of this article. x x
x
ART. 91.
Computation of prescription of offenses. — The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or information, and shall commence
to run again when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
x
x x x (Emphasis and underscoring
supplied)
WHEREFORE,
the Order dated July 17, 1998 of respondent Ombudsman dismissing OMB Case No.
0-98-0416 against respondent then Secretary Josefina Trinidad Lichauco is SET
ASIDE.
The Ombudsman
is ORDERED to REINSTATE to its docket for further proceedings, in
line with the foregoing ratiocination, OMB Case No. 0-98-0416.
SO ORDERED
CONCHITA CARPIO
MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairman
ANTONIO T. CARPIO
DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest
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.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Article VIII, Section 13 of the Constitution, and the Division Chairperson’s
Attestation, it is hereby certified 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.
ARTEMIO V. PANGANIBAN
Chief Justice
[1] Ombudsman records, pp. 9-15.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11] Philippine Agila
Satellite Inc. and Michael C. V. de Guzman v. Josefina Trinidad-Lichauco,
G.R. No. 142362,
[12] Marbella-Bobis v. Bobis, 391 Phil. 648, 653 (2000).
[13] Quibal v. Sandiganbayan, 314 Phil. 66, 75-76 (1995).
[14] Acop v.
Office of the Ombudsman, G.R. No. 120422,
[15] Duterte v. Sandiganbayan, 352 Phil. 557, 575 (1998).
[16]
Rule V,
Section 3 of the Ombudsman Rules reads that in all matters not provided, the
Rules of Court shall apply in suppletory character, or by analogy whenever
practicable and convenient.
[17] G.R. No. 101236,