ANTONIO P. CALINGIN,
Petitioner, -
versus - ANIANO A. DESIERTO as Ombudsman, and The
SANDIGANBAYAN, Second Division, Respondents. |
G.R. Nos. 145743-89 Present: PUNO, c.j., Chairperson, Sandoval-Gutierrez, AZCUNA,
and GARCIA, JJ. Promulgated: August
10, 2007 |
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D E C I S I O N
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SANDOVAL-GUTIERREZ, J.: |
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For our resolution is the instant Petition
for Certiorari[1]
seeking to set aside the Resolution dated July 20, 2000 approved by then
Ombudsman Aniano A. Desierto, recommending the prosecution of Antonio P. Calingin and his co-accused for violation of Republic Act (R.A.)
No. 3019 and Article 220 of the Revised Penal Code, docketed as Criminal Case
Nos. 25549-25595.
The facts of the case as gleaned from
the record are:
Antonio P. Calingin,
petitioner, is a former mayor of Claveria, Misamis
Oriental. During his incumbency, the
municipality undertook a low-cost housing project known as the Bahay Ticala Housing Project (housing
project). It developed 18.7 hectares of
land for the purpose of constructing 1,342 housing units financed by a bond
flotation adopted by the municipality and guaranteed by the Home Insurance and
Guaranty Corporation. Bond proceeds of P20
million were earmarked to complete the first 85 housing units.
On
In a Joint Venture Agreement dated P20 million to finance
the project. Blue Marlin, in turn, agreed to complete at least 85 housing units
at the project site according to the approved plans and specifications.
On February 6, 1995, the same Sangguniang
Bayan of Claveria
passed SB Resolution No. 72 authorizing petitioner to represent the
municipality in the implementation of the bond flotation in the total amount of
P25 million, of which P20 million was set aside for the housing
project.
On
Sometime in May 1995, the P4.5
million as partial payment for the construction of Block Nos. 1 and 2 of the housing
project.
For calendar year 1995, the PNB paid
Blue Marlin P9.8 million, P300,000.00 of
which was returned to the bank to satisfy the sinking fund requirement.
In February 1996, the P5,870,873.42 were constructed.
After one month from the takeover, the
municipality ceased its construction work.
On
Subsequently, the Commission on Audit
(COA) of Region X, Cagayan de Oro City conducted a special audit of the housing
project for calendar years 1995 and 1996. The findings of the COA Special Audit
Team are reproduced below:
I
Evaluation
conducted on the Bahay Ticala
Housing Project revealed the project’s over-all accomplishments were worth P4,472,728.70
as against the total amount utilized for the purpose of P10,370,873.42,
resulting in a loss of P5,898,144.72.
II
The Municipal Mayor approved the payment of P386,484.00 for rental of grader/heavy equipment to PSB Enterprises, Inc, whose Manager is Mr. Rocky Calingin, the Municipal Mayor’s son, contrary to the provisions of Section 3 of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act and Article 403 of the Implementing Rules and Regulations (IRR) of R.A. 7160. Likewise, its lease of equipment from the said company had no legal basis because no contract of lease was executed for the purpose and no authority was secured from the Sangguniang Bayan in violation of Sections 444 Item I (VI) of R.A. 7160. Further, rental services from the said company were secured without the benefit of public bidding in violation of Section 536 of the Government Accounting and Auditing Manual Volume 1 (GAAM).
In addition,
we noted the following checks were endorsed by Mayor Antonio P. Calingin:
|
Payee |
Check No. |
Date |
Amount |
Remarks |
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Xarre & Co. |
487635 |
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Endorsed by Mayor Antonio P. Calingin
for deposit under Account No. 810487-9 |
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PBS Enterprises |
487632 |
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89,775.00 |
-do- |
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PBS Enterprises |
487633 |
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43,725.00 |
-do- |
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Ristian Hardware |
487634 |
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450,321.63 |
-do- |
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PSB Enterprises |
487704 |
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85,000.00 |
Endorsed & encashed by Mayor Calingin |
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DVF Construction |
552905 |
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750,000.00 |
-do- |
It may be worth remembering that some checks which were payable to Mayor Calingin were endorsed by him for deposit to account no. 810487-9.
III
The amount of P2,750,000.00
out of P9.8 million proceeds from bonds flotation was used for purposes
other than for which such bonds were floated resulting in illegal use of public
funds.
IV
Disbursements
of P9.5 million were made without accounting processing and signature of
the Municipal Accountant in violation of Section 344 of R.A. 7160. Likewise,
these disbursements were not supported with the required documents, in
violation of Section 4 (6) of P.D. 1445.
V
The check of P4.5
million payable to Blue Marlin Integrated Development Corp./Kim
Tulio bears only the signature of Municipal Mayor
Antonio P. Calingin, as authorized by the Sangguniang
Bayan members, in violation of Section 345 of RA 7160
and Section 43 of COA Circular No. 92-382.
VI
Payments
amounting to P1,995,000.00 were made to Mayor
Antonio P. Calingin instead of the creditors or their
authorized representatives, in violation of Section 93 of P.D. 1445.
VII
A total of P2,553,763.47 in the General Fund was used to pay expenditures
of the Bahay Ticala Housing
Project despite the absence of an appropriation for the purpose, contrary to
Section 4 (1) of P.D. 1445 and Section 336 of R.A. 7160.
VIII
Copies of
contracts and purchase orders entered into by the Municipality with several
contractors/suppliers for the Bahay Ticala Housing Project totaling P6,748,357.00 were
not furnished the Office of the Provincial Auditor for review, in violation of
the provisions of COA Circular Nos. 76-34, 82-195, and 96-010.
The members of the COA Special Audit
Team executed a Joint Affidavit embodying the above findings for the purpose of
filing criminal
charges against petitioner and other public officials. The COA Special Audit Team then submitted its Audit
Report and Joint Affidavit to the Office of the Deputy Ombudsman for
In a Resolution dated December 2,
1998, Graft Investigation Officer Jocelyn R. Araune
of the Office of the Deputy Ombudsman for Mindanao recommended the filing of
sixteen (16) counts for violation of Section 3(e) of R.A. No. 3019, seven (7)
counts for violation of Section 3 (h) of R.A. No. 3019, and twenty-four (24)
counts for violation of Article 220 of the Revised Penal Code against
petitioner and several other public officials.
Upon review, however, Special
Prosecution Officer Alberto B. Sipaco, Jr., Office of
the Ombudsman for
On
On
In a Resolution dated
Upon instruction of respondent
Ombudsman, the Ruiz Resolution was sent to the Office of Legal Affairs, Office
of the Ombudsman for review.
In a Memorandum dated
The only issue before us is whether respondent
Ombudsman acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in disapproving the recommendation of the Office of the Special
Prosecutor to dismiss all the charges against herein petitioner and his
co-accused.
Petitioner contends that the Office of
Legal Affairs which recommended his prosecution has no authority to review the
findings and recommendation of the Office of the Special Prosecutor since the
latter is not subject to the control and supervision of the Ombudsman. Thus, respondent Ombudsman, in disapproving
the recommendation of the Special Prosecutor, committed grave abuse of discretion
tantamount to lack or excess of jurisdiction.
Petitioner’s contention lacks merit.
The Office of the Ombudsman and the Office
of the Special Prosecutor are creatures of the 1987 Constitution. Sections 5, 7 and 13 of Article XI provide:
SEC. 5. There is hereby created the
independent Office of the Ombudsman, composed of the Ombudsman to be known as
Tanodbayan, one General Deputy, and at least one Deputy each for
x x x
SEC. 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.
SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
In Zaldivar
v. Sandiganbayan,[3]
this Court ruled that under the Constitution, the Special Prosecutor
is a mere subordinate of the Ombudsman and can investigate and prosecute cases
only upon the latter’s authority or orders.
R.A. No. 6770, also known as the
Ombudsman Act of 1989, provides that the Special Prosecutor has the power and
authority, under the supervision and control of the Ombudsman, to
conduct preliminary investigation and prosecute criminal cases before the
Sandiganbayan and perform such other duties assigned to him by the Ombudsman.
Verily, the Office of the Special
Prosecutor is but a mere subordinate of the Ombudsman and is subject to his
supervision and control. In Perez v.
Sandiganbayan,[4] this
Court held that control means “the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that
of the latter.” Clearly, in disapproving
the recommendation of the Office of the Special Prosecutor to dismiss all the
charges against petitioner and his co-accused, respondent Ombudsman did not act
with grave abuse of discretion.
WHEREFORE, we DISMISS the
petition. Costs
against petitioner.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice Chairperson |
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RENATO C. CORONA Associate Justice |
ADOLFO S. AZCUNA Associate Justice |
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CANCIO C. GARCIA Associate Justice |
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REYNATO S. PUNO
Chief Justice
[1] Filed pursuant to Rule 65 of the 1997 Rules of Civil Procedure, as amended.
[2] SEC. 299. Bonds and Other Long Term Securities. – Subject to the rules and regulations of the Central Bank and the Securities and Exchange Commission, provinces, cities and municipalities are hereby authorized to issue bonds, debentures, securities, collaterals, notes and other obligations to finance self-liquidating, income-producing development or livelihood projects pursuant to the priorities established in the approved local development plan or the public investment program. The Sanggunian concerned shall, through an ordinance approved by a majority of all its members, declare and state the terms and conditions of the bonds and the purpose for which the proposed indebtedness is to be incurred.
[3] G.R. Nos. 79690-707 & 80578,
[4] G.R. No. 166062,