Republic of the
Supreme Court
THIRD DIVISION
|
Quintin B. Saludaga and SPO2 Fiel
E. Genio , Petitioners, - versus - The Honorable
Sandiganbayan, 4th Division and
the People of the Respondents. |
|
G.R. NO.
184537 Present: VELASCO, JR., NACHURA, PERALTA, and MENDOZA, JJ. Promulgated: April 23, 2010 |
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D E C I S I O N
MENDOZA, J.:
This
is a petition for certiorari, prohibition and mandamus under Rule 65 of the
1997 Rules on Civil Procedure with a prayer for the issuance of a writ of
preliminary injunction and temporary restraining order assailing the July 14,
2008 Resolution[1] of the
Sandiganbayan in Criminal Case No. SB-08 CRM 0263, denying the Motion for
Preliminary Investigation filed by the petitioners who were charged with a violation
of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for
Reconsideration done in open court on August 13, 2008.
An
Information[2] dated
The undersigned Graft Investigation Officer of the
Office of the Ombudsman-Visayas, accuses QUINTIN B. SALUDAGA and SPO2 FIEL E.
GENIO, for VIOLATION OF SECTION 3(e) OF REPUBLIC ACT NO. 3019, AS AMENDED (THE
ANTI-GRAFT AND CORRUPT PRACTICES ACT), committed as follows:
That in or about the months of November and
December, 1997, at the Municipality of Lavezares, Province of Northern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, public officials, being the Municipal Mayor and PNP Member of
Lavezares, Northern Samar in such capacity and committing the offense in
relation to office, conniving, confederating and mutually helping with one
another, and with the late Limpio Legua, a private individual, with deliberate
intent, with evident bad faith and manifest partiality, did then and there
willfully, unlawfully and feloniously enter into a Pakyaw Contract for the
Construction of Barangay Day Care Centers for Barangays Mac-arthur and
Urdaneta, Lavezares, Northern Samar, each in the amount of FORTY-EIGHT THOUSAND
FIVE HUNDRED PESOS (P48,500.00), Philippine Currency, or a total amount
of NINETY-SEVEN THOUSAND PESOS (P97,000.00), Philippine Currency,
without conducting a competitive public bidding, thus depriving the government
the chance to obtain the best, if not, the most reasonable price, and thereby
awarding said contracts to Olimpio Legua, a non-license contractor and
non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160 (The
Local Government Code) and COA Circular No. 91-368, to the damage and prejudice
of the government.
CONTRARY TO LAW.
This case was initially raffled to the
Third Division of Sandiganbayan and was docketed as Criminal Case No. 26319.
In a Resolution[3] promulgated
on
In a Memorandum[4]
dated
Thus,
the OSP re-filed the Information[5]
dated
The
information, subject of the petition, now reads:
The undersigned Prosecutor of the Office of the
Special Prosecutor/Office of the Ombudsman, hereby accuses, MAYOR QUINTIN B.
SALUDAGA and SPO2 FIEL E. GENIO, for the violation of Section 3(e) of Republic
Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, committed as follows:
That
in or about the months of November and December, 1997 at the Municipality of
Lavezares, Province of Northern Samar, Philippines, and within the jurisdiction
of this Honorable Court, accused QUINTIN
B. SALUDAGA, a high ranking public official being then the Mayor of
Lavezares, Northern Samar, and committing the crime herein charged while in the
discharge of his official administrative function, conspiring and conniving
with accused SPO2 FIEL B. GENIO, a
member of Lavezares Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent, did
then and there willfully, unlawfully and criminally give unwarranted benefit or advantage
to the late
Olimpio Legua, a non-license
contractor and non-
accredited NGO, through evident bad faith and
manifest partiality by then and there entering into a Pakyaw Contract with the
latter for the Construction of Barangay Day Care Centers for barangays
Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY
EIGHT THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN
THOUSAND PESOS (P97,000.00) Philippine Currency, without the benefit of a
competitive public bidding to the prejudice of the Government and public
interest.
CONTRARY TO LAW.
Petitioners filed a Motion for
Preliminary Investigation[6]
dated
Petitioners contend that the failure
of the prosecution to conduct a new preliminary investigation before the filing
of the second Information constituted a violation of the law because the latter
charged a different offense–that is, violation of Section 3(e) by giving
unwarranted benefit to private parties. Hence, there was a substitution of the first
Information. They argue that assuming
that no substitution took place, at the very least, there was a substantial
amendment in the new information and that its submission should have been
preceded by a new preliminary investigation.
Further, they claim that newly discovered evidence mandates
re-examination of the finding of a prima
facie cause to file the case.
On
The re-filed information did not change the nature
of the offense charged, but merely modified the mode by which accused committed
the offense. The substance of such
modification is not such as to necessitate the conduct of another preliminary
investigation.
Moreover, no new allegations were made, nor was the
criminal liability of the accused upgraded in the re-filed information. Thus, new preliminary investigation is not in
order.
The dispositive portion of the Resolution
states:
Finding the arguments of accused-movants
indefensible, the sufficiency of the information must be sustained.
WHEREFORE, having established the sufficiency of
the Information, the motion under consideration is hereby DENIED for lack of
merit. Accordingly, the arraignment of
both accused shall proceed as scheduled.[8]
Petitioners filed a Motion
for Reconsideration[9] dated
On
Hence, petitioners interpose
the present petition for certiorari, prohibition and mandamus with prayer for
the issuance of a writ of preliminary injunction and temporary restraining
order under Rule 65 of the Rules of Court anchored on the following grounds:
I
The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it refused to order the preliminary investigation of the case a quo, when the second Information in the instant case constituted substituted Information whose submission required the conduct of preliminary investigation.
II
The Honorable Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it refused
to order the conduct of a preliminary investigation of the case a quo, since the second Information
therein contained substantial amendments whose submission required the conduct
of preliminary investigation.
III
The Honorable Sandiganbayan acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it refused
to order the preliminary investigation of the case a quo, although the newly discovered evidence mandates due
re-examination of the finding that prima
facie cause existed to file the case a
quo.[11]
From the
arguments raised by petitioners, the core issue is whether or not the two (2)
ways of violating section 3(e) of Republic Act 3019, namely: (a) by causing
undue injury to any party, including the Government; or (b) by giving any
private party any unwarranted benefit, advantage or preference constitute two
distinct and separate offenses that would warrant a new or another preliminary
investigation.
In its Comment[12]
dated
In their
Reply,[13] dated
We find no merit in this
petition.
Petitioners
were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft
and Corrupt Practices Act which reads:
Section 3. Corrupt practices of public officers.-
In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be 0unlawful:
x x x
(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 charged with the grant of licenses or permits or other concessions.
The
essential elements of the offense are as follows:
1.
The accused
must be a public officer discharging administrative, judicial or official
functions;
2.
He must have
acted with manifest partiality, evident bad faith or inexcusable negligence;
and
3.
That his
action caused any undue injury to any party, including the government, or
giving any private party unwarranted benefits, advantage or preference in the
discharge of his functions.[14]
In a string of decisions, the Court
has consistently ruled:
R.A. 3019, Section 3, paragraph (e), 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. The use of
the disjunctive term “or” connotes that either act qualifies as a violation of
Section 3 paragraph (e), or as aptly held in
The afore-stated ruling is consistent
with the well-entrenched principle of statutory construction that “The word or is a disjunctive term signifying
disassociation and independence of one thing from the other things enumerated;
it should, as a rule, be construed in the sense in which it ordinarily implies,
as a disjunctive word.”[16]
Contrary to the argument of petitioners, there
is no substituted information. The
Information dated
Petitioners’ reliance on the Teehankee v. Madayag,[20]
ruling that, “in substitution of information another preliminary investigation
is entailed and that the accused has to plead anew to the new information” is
not applicable to the present case because, as already stated, there is no
substitution of information there being no change in the nature of the offense
charged.
Consequently, petitioners cannot
invoke the principle enunciated in Villaflor
v. Vivar,[21] that failure to conduct a new
preliminary investigation is tantamount to a violation of their rights. While it is true that preliminary
investigation is a statutory and substantive right accorded to the accused
before trial, the denial of petitioners’ claim for a new investigation,
however, did not deprive them of their right to due process. An examination of the records of the case discloses
that there was a full-blown preliminary investigation wherein both petitioners
actively participated.
Anent the contention of petitioners
that the information contained substantial amendments warranting a new
preliminary investigation, the same must likewise fail.
Petitioners
erroneously concluded that giving undue
injury, as alleged in the first Information, and conferring unwarranted benefits, alleged in the second Information,
are two distinct violations of, or two distinct ways of violating Section 3(e)
of Republic Act No. 3019, and that such shift from giving undue injury to conferring
unwarranted benefit constituted, at the very least, a substantial
amendment. It should be noted that the
Information is founded on the same transaction as the first Information, that
of entering into a Pakyaw Contract for the construction of barangay day care
centers for barangays Mac-Arthur and Urdaneta, Lavezares,
To bolster their claim for a
reinvestigation of the offense, petitioners cited the case of Matalam v. Sandiganbayan.[22] The same is inapplicable to petitioners’
case. In Matalam, there was indeed a substantial amendment which entitled
the accused to another preliminary investigation. The recital of facts constituting the offense
charged therein was definitely altered. In the original information, the prohibited
act allegedly committed by the petitioner was the illegal and unjustifiable
refusal to pay the monetary claims of the private complainants, whereas in the
amended information, it is the illegal dismissal from the service of the
private complainants. In the case at
bar, there is no substantial amendment to speak of. As discussed previously, the Information in
Criminal Case No. 26319 was already dismissed by the Third Division of the
Sandiganbayan in view of the petitioners’ Motion to Quash. As such, there is nothing more to be amended.
The Court is not unaware of the case
of People v. Lacson,[23]
where it was written:
The case may be revived by the State within the
time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense
necessarily included therein. There
would be no need of a new preliminary investigation. However, in a case wherein after the
provisional dismissal of a criminal case, the original witnesses of the
prosecution or some of them may have recanted their testimonies or may have
died or may no longer be available and new witnesses for the State have
emerged, a new preliminary investigation must be conducted before an
Information is refiled or a new Information is filed. A new preliminary investigation is also
required if aside from the original accused, other persons are charged under a
new criminal complaint for the same offense or necessarily included therein; or
if under a new criminal complaint, the original charge has been upgraded; or if
under a new criminal complaint, the criminal liability of the accused is
upgraded from that as an accessory to that as a principal. The accused must be accorded the right to
submit counter-affidavits and evidence.
No such circumstance is obtaining in
this case, because there was no modification in the nature of the charged
offense. Consequently, a new preliminary
investigation is unnecessary and cannot be demanded by the petitioners.
Finally, the third assigned error,
that newly discovered evidence mandates due re-examination of the finding of prima facie cause to file the case,
deserves scant consideration. For petitioners,
it is necessary that a new investigation be conducted to consider newly discovered
evidence, in particular, the Affidavit of COA Auditor Carlos G. Pornelos,
author of the audit report. We are not
convinced.
Under Section 2, Rule 121 of the
Rules of Court, the requisites for newly discovered evidence are: (a) the
evidence was discovered after trial (in this case, after investigation); (b)
such evidence could not have been discovered and produced at the trial with
reasonable diligence; and (c) that it is material, not merely cumulative,
corroborative or impeaching, and is of such weight that, if admitted, will
probably change the judgment.[24]
The Pornelos affidavit, which
petitioners claim as newly-discovered, was executed by affiant way back in
More important is the prosecution’s
statement in its Memorandum that, “after a careful re-evaluation of the
documentary evidence available to the prosecution at the time of the filing of
the initial Information, and at the time of the re-filing of the Information, the
prosecution insists on the finding of probable cause, an exercise within the
exclusive province of the Office of the Ombudsman.”[26]
Worthy of note is the case of Soriano v. Marcelo,[27] viz:
Case
law has it that the determination of probable cause against those in public
office during a preliminary investigation is a function that belongs to the
Office of the Ombudsman. The Ombudsman
has the discretion to determine whether a criminal case, given its attendant
facts and circumstances, should be filed or not. It is basically his call.
Without good and compelling reasons,
the Court cannot interfere in the exercise by the Office of the Ombudsman of
its investigatory and prosecutory powers.[28] The only ground upon which it may entertain a
review of the Office of the Ombudsman’s action is grave abuse of discretion.[29]
Grave abuse of discretion is an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law or to act in contemplation of law as when the judgment rendered is not based
on law and evidence but on caprice, whim and despotism.[30]
The special civil action for
certiorari under Rule 65 of the Rules of Court is intended to correct errors of
jurisdiction or grave abuse of discretion amounting to lack or excess of
jurisdiction. The writ of certiorari is
directed against a tribunal, board or officer exercising judicial or
quasi-judicial function that acted without or in excess of its or his
jurisdiction or with grave abuse of discretion.
Grave abuse of discretion means such capricious or whimsical exercise of
judgment which is equivalent to lack of jurisdiction. To justify the issuance of the writ of
certiorari, the abuse of discretion must be grave, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined, or to act
at all, in contemplation of law, as to be equivalent to having acted without
jurisdiction.[31]
The case at bench discloses no
evident indication that respondent Sandiganbayan acted with arbitrariness, whim
or caprice. It committed no error in
refusing to order the conduct of another preliminary investigation. As sufficiently explained by the prosecution,
a new preliminary investigation is not necessary as there was neither a
modification of the nature of the offense charged nor a new allegation. Such conduct of preliminary investigation
anew will only delay the resolution of the case and would be an exercise in
futility in as much as there was a complete preliminary investigation actively
participated by both petitioners.
In view of the foregoing, we hold
that the public respondent committed no grave abuse of discretion in issuing
its Resolution of
WHEREFORE, the
petition is DENIED.
SO ORDERED.
JOSE CATRAL
Associate Justice
WE CONCUR:
RENATO C. CORONA
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
DIOSDADO M.
PERALTA
Associate Justice
A T T E S T A T I O N
I attest 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.
RENATO C.
CORONA
Associate Justice
Chairperson,
Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution and the Division Chairperson’s Attestation, I certify 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]Penned
by Associate Justice Gregory S. Ong, with Associate Justices Jose R. Hernandez
and Samuel R. Martires (sitting as Special Member per Administrative Order No.
154-2007 dated
[2]Annex B, Petition; Rollo, pp. 33-34
[3]Annex C, id. at 35-37.
[4]Annex 5 of the Comment; id. at 112.
[5]Annex D, Petition; id. at 38-39.
[6]Annex E, id. 41-52.
[7]Annex 8 of the Comment, id. at 139-144.
[8]Annex F, Petition, id. at 55-56.
[9]Annex G, id. at 58-64.
[10]Annex A, id. at 24-31.
[11]Rollo, p. 8.
[12]
[13]
[14]Albert v. Sandiganbayan, G.R. No.
164015,
[15]Santiago v. Garchitorena, G.R. No.
109266, December 2, 1993, 228 SCRA 214; Bautista
v. Sandiganbayan, G.R. No. 136082, May 12, 2000, 332 SCRA 126; Evangelista v. People, G.R. Nos.
108135-36,
[16]Agpalo, statutory Construction, 2003,
p. 204; see also The Heirs of George Poe v. Malayan InsuranceCompany, Inc.,
G.R. No. 156302,
[17]G.R.
No. 169888,
[18]Constantino v. Sandiganbayan, G.R. No.
140656,
[19]Constantino v. Sandiganbayan, G.R. No. 140656, September 13, 2007, 533 SCRA 205 citing Pareño v. Sandiganbayan, G.R. Nos. 107110-20, April 17, 1996, 256 SCRA 242.
[20]G.R.
No. 103102,
[21]G.R.
No. 134744,
[22]G.R.
No. 165751,
[23]G.R.
No. 149453,
[24]Amarillo et al. v. Sandiganbayan, G.R. Nos. 145007-08, January 28, 2003, 396 SCRA 434 citing Amper v. Sandiganbayan, G.R. No. 120391, September 24,1997, 279 SCRA 434.
[25]Annex 15 of Comment, Rollo pp. 181-183.
[26]Respondent’s
Memorandum dated
[27]G.R. No. 160772, July 13, 2009 citing Presidential Commission on Good Government v. Desierto, G.R. No. 139296, November 23, 2007, 538 SCRA 207.
[28]Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322 citing Knecht v. Desierto, G.R. No. 121916, June 26, 1998, 291 SCRA 292; Tirol, Jr. v. COA, G.R. No. 133954, August 3, 2000, 337 SCRA 198.
[29]Peralta v. Desierto, G.R. No. 153152, October 19, 2005, 473 SCRA 322 citing PCGG v. Desierto, G.R. No. 132120, February 10, 2003, 397 SCRA 171.
[30]Ferrer v. Office of the Ombudsman, et al., G.R. No. 129036, August 6, 2008, 561 SCRA 51 citing Galvante v. Casimiro etal., G.R. No. 162808, April 22, 2008, 552 SCRA 304.
[31]Julie’s Franchise Corp. et al. v. Ruiz et al.,
G.R. No. 180988,