SECOND DIVISION
G.R. No. 197613, November 22, 2017
PUBLIC ATTORNEY'S OFFICE, Petitioner, v. OFFICE OF THE OMBUDSMAN AND ATTY. TERENCIA S. ERNI-RIVERA, Respondents.
D E C I S I O N
CAGUIOA, J.:
(i) | Section 7(b)(2) and (d)4 of Republic Act No. (RA) 6713,5 which prohibits public officers from engaging in the private practice of their profession while in the public service; |
(ii) | Section 3(e)6 of RA 30197 as amended, which prohibits public officers from 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; and |
(iii) | Article 171 (4)8 of Act No. 3815, otherwise known as the Revised Penal Code (RPC), which treats the crime of falsification by a public officer. |
I, TERENCIA S. ERNI-RIVERA, do hereby certify that I reported for work and performed my duties and functions as Regional Public Attorney for PAO, Region IV-B, for the month of November 2006.23 (Emphasis supplied)District Public Attorney Emilio G. Aclan (DPA Aclan) submitted a subsequent Certification dated December 19, 2006 which states:
This is to certify that ATTY. TERENCIA E. RIVERA, Regional Director, Region IV-B (MIMAROPA), reported for work in this Office from November 13, 2006 up to November 24, 2006. x x x24 (Emphasis in the original; underscoring omitted.)Thereafter, Deputy Chief Public Attorney Silvestre Mosing issued a Memorandum dated December 22, 2006 requiring Atty. Rivera to explain why she should not be held administratively and criminally liable for the "discrepancies" between her Certificate of Service and the Certification issued by DPA Aclan.25
With due respect, there is no irregularity in [my Certificate of Service], as shown hereunder:After consideration, the PAO Legal Research Division issued its Report and Recommendation dated January 5, 2007 recommending that Atty. Rivera be held administratively liable for violation of: (i) Civil Service (CSC) Omnibus Rules on Leave; (ii) PAO Memorandum Circular No. 18, series of 2002 on reasonable office rules and regulations; (iii) Falsification of Official Documents treated under Section 52(A)(6), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service (URACCS); and (iv) Dishonesty treated under Section 52(A)(1) of the URACCS.27 The Report and Recommendation was forwarded to the Presidential Anti-Graft Commission (PAGC) for action, Atty. Rivera being a presidential appointee.28I do not see any need to attach a Certificate of Appearance or approved Travel Order when I am on leave.26
November 1, 2006 All Saints Day November 2 & 3, 2006 On leave November 4 & 5, 2006 Saturday & Sunday November 6-10, 2006 PAO-convention, Manila Hotel November 13-24, 2006 PAO-District Office, Batangas City November 25 & 26, 2006 Saturday & Sunday November 27-30, 2006 On leave
On the basis of the findings in said Report, Atty. Recto (as PAO Designated Resident Ombudsman), together with the National Bureau of Investigation (NBI), filed the Criminal Complaints against Atty. Rivera.RECOMMENDATION
x x x In view of the above-stated disquisitions, the undersigned most respectfully recommends that [Atty. Rivera] be criminally charged for:a. Violation of [Section] 7 (D) of [RA 6713]Atty. Rivera should likewise be administratively charged for:
b. Falsification of Official Document
c. Four (4) counts of Neglect of Duty [as] defined under Section 52 A (2), Rule IV of the [URACCS] in relation to Section 5 (B) of [RA 6713]. [d.] Simple Misconduct under Section 52 (B) (4) Rule IV of the [URACCS] in relation to violation of PAO Memorandum Circular No. 18, Series of 2002.31
PREMISES CONSIDERED, the separate complaints for alleged violation of Section 7, paragraph (b), subparagraph (2), and paragraph (d) of [RA 6713]; Section 3, paragraph (e), of [RA 3019], as amended; and Article 171, paragraph (4) of [the RPC], as amended; filed by [Atty. Recto] and the [NBI] against respondent [Atty. Rivera] are hereby DISMISSED for lack of probable cause.PAO filed a Motion for Reconsideration33 and subsequent Supplemental Motion for Reconsideration34 dated September 24, 2010 and October 26, 2010, respectively. Both motions were denied by the Ombudsman for lack of merit in the Assailed Order dated November 30, 2010.35
SO ORDERED.32
x x x [Probable cause] does not mean "actual or positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. 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.Indeed, the determination of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction.47 However, there is nothing in the Assailed Resolution and Order which suggests that the Ombudsman dismissed the Criminal Complaints due to PAO's failure to offer such higher quantum of evidence. The Court quotes the relevant portions of the Assailed Resolution, thus:
x x x In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. What is determined is whether there is sufficient ground to engender a well-founded belief that a crime has been committed, and that the accused is probably guilty thereof and should be held for trial. x x x46 (Emphasis in the original omitted; emphasis and underscoring supplied.)
After a careful evaluation of the different pleadings of the parties herein, together with the various pieces of documentary evidence attached thereto, [the Ombudsman] finds that there is no sufficient ground to engender a well-founded belief that the charged offenses have been committed and that public respondent is probably guilty thereof, and should be held for trial. This is so for the evidence on record failed to establish that Atty. Rivera indeed solicited, took, or accepted money from [Magabol in the course of her official duties as Chief of the Legal Research Division of the [PAO], or in connection with any operation being regulated by, or any transaction which may be affected by the functions of her office, x x x [I]nasmuch as the purported receipt of [the money] had no connection whatsoever to the official duties of Atty. Rivera at the [PAO] x x x no case for the supposed violation of [Section 7(d)] of [RA 6713] and [Section 3(e)] of [RA 3019] x x x could be maintained against her. x x xContrary to PAO's assertions, the Ombudsman did not impose a higher quantum of proof. The dismissal of the Criminal Complaints was not prompted by PAO's failure to present evidence to establish Atty. Rivera's criminal liability beyond reasonable doubt, but rather, on its failure to establish, by substantial evidence, that Atty. Rivera committed the acts subject of the Criminal Complaints. Evidently, probable cause cannot exist where the acts which constitute the offenses charged are not proven to have been committed by the respondent.
Similarly, it cannot be maintained that [Atty. Rivera] transgressed the provisions of [Section 7(b)(2)] of [RA 6713], considering that no satisfactory proof was even adduced to the effect that Atty. Rivera has been habitually or customarily holding herself to the public as a lawyer. Furthermore, the Affidavit of Desistance executed by [Magabo] x x x expressing x x x that [her administrative complaint] was merely the result of a miscommunication between her and her siblings Edna Villoria and [Fayloga] likewise made the finding of probable cause vis-a-vis (sic) [Atty. Rivera] for the abovementioned offenses difficult, considering that the [Criminal Complaints] against the latter for the supposed violation of [RA 3019], as amended, and [RA] 6713, are evidently based on the administrative suit previously filed by [Magabo] x xx.
Finally, the [Ombudsman] also finds no sufficient evidence to indict [Atty. Rivera] for the supposed violation of [Article 171(4)] of [the RPC], as amended, since the latter never stated in her Certification x x x that she rendered full time service for the month of November 2006. x x x48 (Emphasis and underscoring supplied.)
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. He may dismiss the complaint forthwith should he find it to be insufficient in form or substance, or he may proceed with the investigation if, in his view, the complaint is in due and proper form and substance. We have consistently refrained from interfering with the constitutionally mandated investigatory and prosecutorial powers of the Ombudsman. Thus, if the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings, unless the exercise of such discretionary powers is tainted by grave abuse of discretion.57 (Emphasis supplied)WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED. The Assailed Resolution dated September 1, 2010 and Order dated November 30, 2010 issued by the Ombudsman in OMB: C-C-08-0419-I are hereby AFFIRMED.
Endnotes:
1Rollo, pp. 2-36.
2 Id. at 37-50.
3 Id. at 80-90.
4 RA 6713, Sec. 7(b)(2) and (d) provides:SEC. 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:5 CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES.
x x x x
(b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
x x x x
(2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions[.]
x x x x
(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.
6 RA 3019, Sec. 3(e) provides:SEC. 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 unlawful:7 ANTI-GRAFT AND CORRUPT PRACTICES ACT.
x 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 of offices or government corporations charged with the grant of licenses or permits or other concessions.
8 RPC, Art. 171 (4) provides:ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts:9Rollo, p.121.
x x x x
4. Making untruthful statements in a narration of facts[.]
10 Id.
11 Id. at 40, 95.
12 Id. at 38, 95 and 109.
13 Id. at 43.
14 See id. at 95.
15 Id.
16 See id. at 110.
17 Id.
18 Id. at 95.
19 Id. at 96.
20 Id. at 111.
21 Id. at 109-115.
22 Id. at 114-115.
23 Id. at 98.
24 Id. at 97.
25 Id. at 98.
26 Id.
27 Id. at 99-100.
28 Id. at 100.
29 Id.
30 Id. at 94-105.
31 Id. at 103-104.
32 Id. at 50.
33 Id. at 51-60.
34 Id. at 61-67.
35 Id. at 80-90.
36 Id. at 3.
37 See Angeles v. Gutierrez, 685 Phil. 183, 193 (2012).
38Presidential Commission on Good Government v. Desierto, 563 Phil. 517, 526 (2007).
39 1987 CONSTITUTION, Art. XI, Sec. 13(1).
40 See Soriano v. Marcelo, 597 Phil. 308, 316 (2009).
41 See Angeles v. Gutierrez, supra note 37, at 195.
42 1987 CONSTITUTION, Art. VIII, Sec. 1(2).
43Philippine Deposit Insurance Corp. v. Casimiro, 768 Phil. 429, 436 (2015).
44 See rollo, p. 19.
45Philippine Deposit Insurance Corp. v. Casimiro, supra note 43, at 437.
46 Id.
47 Id.
48Rollo, pp. 46-49.
49 557 Phil. 507 (2007).
50Rollo, pp. 25-26.
51 Supra note 49, at 510, 517.
52Rollo, pp. 226-227.
53 Id. at 98.
54 Id. at 97.
55 See id. at 98-99.
56 Supra note 38.
57 Id. at 525-526.