FIRST DIVISION
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G.R. No. 135123 |
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Petitioner, |
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Present: |
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- versus - |
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PUNO, C.J., Chairperson, SANDOVAL-GUTIERREZ, AZCUNA, and GARCIA, JJ. |
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HON. OMBUDSMAN ANIANO A.
DESIERTO, HERMINIO T. DISINI, in his capacity as Vice President & General
Counsel of Herdis Group of Companies, Inc., JESUS T. DISINI, ANGELO V.
MANAHAN, DOMINICO O. BORJA, RODOLFO JACOB, and JERRY ORLINA, all members of
the Board of Directors, Herdis Group of Companies, Inc., |
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Promulgated: |
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Respondents. |
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DECISION
AZCUNA, J.:
This
is a petition for certiorari under Rule 65 of the Rules of Court to nullify the
issuances of public respondent Ombudsman in OMB Case No. 093-137[4], namely:
1. Resolution dated
2.
Order
dated
The facts[1]
as gleaned from the records are as
follows:
This case refers to the complaint of the Presidential Commission on Good Government (PCGG), represented by Domingo G. Palarca, officer in charge of the Security and Investigation Department[2] of the PCGG against Herminio T. Disini, Senior Vice President and General Counsel, Herdis Group, Inc., and the following officers of Herdis Group, Inc., namely: Jesus T. Disini; Angelo V. Manahan; Dominico O. Borja; Rodolfo Jacob; Jerry Orlina, and Alfredo Velayo, for Violation of Sec. 3(b) of Republic Act (RA) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended.
It is alleged that, on March 11,
1982, private respondent Herminio T. Disini, a personal friend and golfing
partner of the late President Ferdinand E. Marcos, gave to the former Chief
Executive shares of stock of Vulcan Industrial and Mining Corporation (VIMC)
and The Energy Corporation (TEC) worth P40,000,000 and P25,000,000,
respectively, which shares of stock were in the name of Herdis Group, Inc. (HGI
for short), a local corporation controlled by Disini. The stock certificates covering the above
mentioned shares of stocks were among the documents found in Malacańang in the
possession of the late President when he fled to
The Office of the Ombudsman, in an
order dated
a) Re: Order sent to Herminio Disini -- “The addressee is unknown at the given address.”
b) Re: Order sent to Jerry Orlina -- “The addressee is unknown at the given address.”
c) Re: Order sent to Jesus T. Disini -- “The addressee is out of the country since 1986.”
d) Re: Order sent to Dominico Borja -- “No such address or addressee.”
In compliance with the order, private respondent Velayo submitted an affidavit, alleging therein that, since the complaint and its annexes refer to a transaction involving the Vulcan Industrial and Mining Corporation, The Energy Corporation, the Herdis Group, Inc., Mr. Herminio Disini, and the late President Marcos, the same does not in any way concern him. Thus, he is in a quandary as to how to answer the same. He, however, reserves his right to submit a counter-affidavit, if required by circumstances.
On the other hand, private
respondent Rodolfo Jacob, in a letter dated August 15, 1994 of his counsel,
Atty. Mario Luza Bautista, x x x informed the Office of the Ombudsman that, on
October 22, 1990, the PCGG granted him full and irrevocable immunity from any
civil case and criminal prosecution x x x and enclosed with said letter a copy
of the immunity letter of the PCGG x x x.
As stated earlier, public respondent
dismissed the complaint and denied reconsideration of
the dismissal. Thus, the
resolution holds in its dispositive portion:
WHEREFORE, in view of the above considerations, it is respectfully
recommended that this case be DISMISSED against all respondents, for lack of
legal and factual basis to charge them of the offense charged.
SO RESOLVED.[3]
The dispositive
portion of the assailed order
likewise reads:
WHEREFORE, in
the light of the above considerations, it is respectfully recommended that
herein Motion for Reconsideration be DENIED.
SO ORDERED.[4]
Petitioner contends that:
I PUBLIC RESPONDENT OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN FINDING THAT THE ONLY EVIDENCE IN SUPPORT OF PCGG’S COMPLAINT [WAS] A LETTER OF PRIVATE RESPONDENT HERMINIO DISINI TO FORMER PRESIDENT MARCOS, AS THERE WERE OTHER EVIDENCE ON RECORD WHICH WERE TOTALLY DISREGARDED BY PUBLIC RESPONDENT OMBUDSMAN.
II PUBLIC RESPONDENT OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN DISMISSING PREMATURELY PCGG’S COMPLAINT BY ERRONEOUSLY HOLDING THAT THE LETTER OF PRIVATE RESPONDENT HERMINIO DISINI TO FORMER PRESIDENT MARCOS HAS NO EVIDENTIARY VALUE AND IS HEARSAY.
III PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS DISCRETION IN HOLDING THAT THE AFFIDAVIT OF PRIVATE RESPONDENT ANGELO MANAHAN IS HEARSAY.
IV PUBLIC RESPONDENT OMBUDSMAN ACTED WITH GRAVE ABUSE OF DISCRETION IN NOT FILING THE INFORMATION IN COURT, IN EFFECT REQUIRING NOT MERELY PRIMA FACIE EVIDENCE OR PROBABLE CAUSE BUT PROOF BEYOND REASONABLE DOUBT FOR THE FILING OF SAID INFORMATION.[5]
Stated
differently, the issue is did the Ombudsman act without or in excess of his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, in issuing the assailed resolution and order?
Petitioner
argues that public respondent found that PCGG’s complaint was supported only by a
letter dated
These
additional documents constituted probable cause for violation of Sections 3 and
4 of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act. Stated in the affidavit was a divestment plan
to turn over several shares of VIMC and TEC to the former President. Moreover, the stock certificates showed that
private respondents, in conspiracy with the former President, were the authors
of the acts subject of the complaint.
The
affidavit of private respondent Manahan relates facts that are based on personal
knowledge and perception, the affiant having held important positions in Herdis
Group, Inc. As one of the trusted men of
private respondent Herminio Disini, he knew very well the latter’s handwriting
and signature. Hence, private
respondents could not simply feign ignorance of the divestment plan, because
all of them appear to have approved it.
Private respondent Manahan himself appears to have prepared the aide
memoir, with the assistance of his subordinates, prior to its submission to
private respondent Herminio Disini.
The
petition is meritorious.
As a rule, the
filing or non-filing of the information is primarily lodged within “the
full discretion”[6]
of the Ombudsman who is a constitutional officer. Under the Constitution, the Ombudsman
“is charged with the duty to [i]nvestigate
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.”[7]
The reason for
its creation “and for the grant to it of broad investigative
authority, is to insulate said office from the long tentacles of officialdom that
are able to penetrate judges’ and fiscals’ offices, and
others involved in the prosecution of erring public officials, and through the
exertion of official pressure and influence, quash, delay, or dismiss
investigations into malfeasances and misfeasances committed by public officers.”[8] Consequently, the
Ombudsman “investigates or inquires into the facts concerning the
commission of the crime with the end in view of determining”[9]
whether the information may be prepared. If the Ombudsman finds a prima facie
case against the person, “the corresponding
information or informations can be filed with the Sandiganbayan.”[10]
In Presidential
Commission on Good Government v. Desierto, this
Court held that:
The prosecution of offenses committed by public officers is vested
primarily in the Office of the Ombudsman.
It bears emphasis that the Office has been given a wide latitude of
investigatory and prosecutory powers under the Constitution and Republic Act
No. 6770 (The Ombudsman Act of 1989). This
discretion is all but free from legislative, executive or judicial intervention
to ensure that the Office is insulated from any outside pressure and improper
influence.
Indeed, the Ombudsman is empowered to determine
whether there exist reasonable grounds to believe that a crime has been
committed and that the accused is probably guilty thereof and, thereafter, to
file the corresponding information with the appropriate courts. The Ombudsman may thus conduct an
investigation if the complaint filed is found to be in the proper form and
substance. Conversely, the Ombudsman may
also dismiss the complaint should it be found insufficient in form or substance.
Unless there are good and
compelling reasons to do so, the Court will refrain from interfering with the
exercise of the Ombudsman’s powers, and respect the initiative and independence
inherent in the latter who, beholden to no one, acts as the champion of the
people and the preserver of the integrity of public service.[11]
Public
respondent, however, in this case has ignored
vital evidence submitted by
petitioner consisting
not
only of the stock certificates of VMC and TEC found
in Malacańang when the late President
Marcos fled the country but also the
affidavit executed by private respondent Manahan
stating that there was
a divestment plan to turn over those certificates
to the late President. Notwithstanding
these pieces of evidence, public respondent found
no probable cause to charge private respondents with violation
of Sections 3 and 4 of Republic Act No. 3019
in the resolution, to wit:
x x x However, the said letter which was allegedly
written by respondent Disini to President Marcos has no evidentiary value
whatsoever, considering that the same has not been identified nor authenticated
by a qualified person, not to mention that its contents are pure hearsay, since
it has not been affirmed by respondent Disini.
x x x
There is nothing in the complaint and its annexes that
could show that indeed the above named respondents members of the Board of
Directors of the Herdis Group Inc. allegedly conspired with respondent Disini
in giving the certificates of stocks to then President Marcos. In fact, the [c]ertificates of [s]tocks which
appear to have been signed by them, could have been delivered to anyone or
anybody without the knowledge nor authority of the Herdis Board of Directors.[12]
Finding that
the evidence did
not engender sufficient belief that the complained acts constituted
violation of those sections of Republic Act No. 3019, the public
respondent reasoned out in this manner:
x x x If
ever mention of [Velayo’s]
name was made by Manahan, it was because he approved the proposed divestment
plan which was made in the performance of a professional business function
which cannot be a source of any cause of action, whether criminal, civil or
administrative.
x x x The alleged new evidence presented by PCGG which is
the affidavit of respondent Manahan, is not enough to justify a reversal of the
questioned resolution. Manahan’s alleged
familiarity with the aide memoires among them, the questioned letter of Disini
to “Sir” who is allegedly Pres. Marcos, has not been convincingly shown. In fact, according to him, it was a certain
Federico E. Navera, HGI’s controller who provides financial information that
were written in the aforesaid aide memoires, while Pedro Padre, another HGI
employee who is in charge of Corporate Affairs, prepared the aide memoire for
Disini’s signature. In effect, his
testimony is hearsay in nature, considering that he based his knowledge of the
aide memoire on the information relayed to him by his above named subordinates
and that he has no participation official or otherwise in the preparation of
the same.[13]
Probable cause
“does not mean ‘actual
and positive cause’”[14]
or “x x x import absolute certainty. It is merely
based on opinion and reasonable belief.”[15] It “has been
defined x x x as the existence of such
facts and circumstances as would excite the belief, in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.”[16] “Thus, a finding
of probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act
or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of
the charge.”[17]
The wide latitude in determining the
existence of probable cause or the lack of it cannot be exercised
arbitrarily. The Ombudsman must
weigh “facts
and circumstances without resorting to the calibrations of our technical rules
of evidence x x x. Rather, he
relies on the calculus of common sense of which all reasonable men have an
abundance.”[18] “A finding of
probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and
was committed by the suspects. Probable cause
need not be based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and,
definitely not on evidence establishing absolute certainty of
guilt.”[19] A finding of probable cause “is not a
pronouncement of guilt.”[20]
It is well settled that as long as substantial evidence
supports it,
the Ombudsman’s
ruling will not be overturned.[21] Courts should not interfere with the
“exercise of the Ombudsman’s powers based upon constitutional mandate.”[22] The pragmatic basis for this rule is
explained in this wise:
“The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.”[23]
However,
where there appears to be a grave abuse of discretion,[24]
as there appears to be here, the Court will so declare and direct that the
proper complaint or information be filed.
The resolution of dismissal is not based on the evidence presented and is
not warranted by the facts thus far available to public
respondent.
WHEREFORE,
the petition is GRANTED. The
Resolution and Order of the public respondent Ombudsman in OMB Case No.
093-1374, dated May 2, 1997 and May 28, 1998, respectively, are hereby
REVERSED, and the case is
REMANDED for the filing of the
proper information. Costs against private
respondents.
SO
ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA
Associate Justice
Associate Justice
CANCIO C. GARCIA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of
the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Rollo, pp. 26-28; Ombudsman Resolution, pp. 2-3. All typographical errors eliminated.
[2]
[3]
[4]
[5]
[6] Ocampo IV v. Ombudsman, G.R. Nos. 103446-47,
[7] Zaldivar v. Sandiganbayan, G.R. Nos. 79690-79707, April 27, 1988, 160 SCRA 843, 846, quoting the CONSTITUTION, Article XI, Sec. 13(1).
[8] Deloso v. Domingo, G.R. No. 90591,
[9] Cojuangco, Jr. v. PCGG, G.R. Nos. 92319-20,
[10] Bautista
v. Salonga, G.R. No. 86439,
[11] PCGG v. Desierto, G.R. No. 139675, July 21, 2006, pp. 8-9, citing Esquivel v. Ombudsman, G.R. No. 137237, September 17, 2002, 389 SCRA 143, 150; PCGG v. Desierto, 400 Phil. 1368, 1377 (2000); and Espinosa v. Ombudsman, 397 Phil. 829, 835-836 (2000).
[12] Rollo, p. 28, Resolution, p. 3.
[13] Rollo, pp. 31-32, Resolution, pp. 2-3.
[14] Pilapil
v. Sandiganbayan, G.R. No. 101978,
[15] Ibid.
[16] Ibid., citing the leading case of Buchanan v. Esteban, 32 Phil. 360, 365 (1915).
[17] Ibid.
[18] Webb
v. De
[19]
[20]
[21] PCGG v. Desierto, supra at note 11, p. 9, citing Salvador v. Desierto, G.R. No. 135249, January 16, 2004, 420 SCRA 76, 83; Morong Water District v. Office of the Deputy Ombudsman, G.R. No. 116754, March 17, 2000, 328 SCRA 363, 373; Tan v. Office of the Ombudsman, G.R. Nos. 114332 & 114895, September 10, 1998, 295 SCRA 315, 323.
[22] Ocampo
IV v. Ombudsman, G.R. Nos. 103446-47,
[23] Ibid., citing Sesbreno v. Deputy Ombudsman, G.R. No. 92789,
[24] See Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,
G.R. No. 136192,