The prosecution cannot appeal from a ruling granting the demurrer to evidence of the accused as it is equivalent to an acquittal, unless the prosecution can sufficiently prove that the court's action is attended with grave abuse of discretion. Otherwise, the constitutional right of the accused against double jeopardy will be violated.
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court filed by the People of the Philippines, represented by the Office of the Ombudsman, assailing the July 23, 2004 Resolution1
of the Sandiganbayan granting the accused's respective demurrers to evidence filed with prior leave of court.THE FACTS:
On November 23, 1999, private respondents Victorino A. Basco, Romeo S. David and Rogelio L. Luis were charged with having violated Section 3(e) of Republic Act No. 3019,2
as amended, (Anti-Graft and Corrupt Practices Act) before the Sandiganbayan.3
The Information, docketed as Criminal Case No. 25752, alleged:
That between November 15, 1996 to May 7, 1998 or some time prior or subsequent thereto, in the Municipality of Mabalacat, Pampanga, Philippines, and within the jurisdiction of this Honorable Court, accused Victorino A. Basco, Romeo S. David and Rogelio L. Luis, all high ranking public officers, being then Chairman and President/Presidents and Chief Executive Officers of the Bases Conversion Development Authority [BCDA], Clark Development Corporation/Clark International Airport, [CDC /CIAC] and Philippine National Construction Corporation [PNCC], respectively, while in the performance of their official functions, taking advantage of their positions and committing the offenses in relation to their office, confederating and conspiring with one another, with manifest partiality and evident bad faith, did then and there, willfully, unlawfully and criminally enter into contracts/transactions for the construction of the Mabalacat-Clark Spur Road and the Clark Perimeter Road, without the benefit of public bidding and at the price higher by 60 to 167% than the typical roadway construction cost, thus, depriving the government of the opportunity of obtaining the most advantageous construction cost, causing undue injury to the same and giving unwarranted benefits, advantage and preference to their preferred private contractors.
Before the arraignment, the accused filed a Motion for Leave of Court to File Motion for Reconsideration/Re-investigation. Acting thereon, the Sandiganbayan required the Office of the Special Prosecutor to comment and submit the final action taken by the Office of Ombudsman.
In a Memorandum, dated March 26, 2000, Special Prosecution Officer Roberto T. Agagon recommended the withdrawal of the information without prejudice to the conduct of further preliminary investigation to resolve the issue on overpricing by referring the matter to the Commission on Audit (COA) "whose report shall serve as legal basis for indictment against the accused."4
Then Ombudsman Aniano Desierto, however, disapproved the recommendation and directed the prosecutor to "proceed with the trial."
Upon arraignment, the three (3) respondents pleaded not guilty.
On August 23, 2002, the Sandiganbayan issued a Pre-trial Order identifying the issues as follows: (i) whether or not the construction projects involved should have been subjected to a public bidding as mandated by P.D. 1594,5
(ii) whether or not there was overpricing in the construction costs of the projects; (iii) whether or not the government suffered undue injury or damage as a consequence; (iv) whether or not the accused acted with evident bad faith and/or manifest partiality; and (v) whether or not the accused conspired with each other in committing the offense charged.
During the trial, the prosecution presented its lone witness, Atty. Emora C. Pagunuran, Legal Counsel, Office of the Legal Affairs, Office of the Ombudsman. Thereafter, the prosecution filed its Formal Offer of Evidence. After the evidence were admitted, the prosecution rested its case.
Instead of presenting their evidence, the respondents filed their respective motions for leave to file their demurrer to evidence based substantially on the following grounds: (i) that Atty. Pagunuran had no personal knowledge of the transactions involved and so her testimony was hearsay; (ii) that the prosecution failed to prove that the questioned contracts were indeed overpriced as Atty. Pagunuran merely relied on the Department of Public Works and Highways (DPWH) table of "Typical Construction Costs, 1999" without more; and (iii) that the ruling of the Court of Appeals in an administrative case (C.A. G.R. SP No. 62084), which upheld the validity of the direct negotiated contracts, even in the absence of a public bidding, was already the law of the case.
The motions were granted and the Sandiganbayan directed the prosecution to file its opposition.
It appears that accused Rogelio L. Luis and Victorino A. Basco (and several other BCDA officers) were also charged administratively in the Office of the Ombudsman, docketed as OMB-ADM-0-98-0430 and entitled Joseph M. Ocol//FFIB vs. Victorino A. Basco et. al., based on the same act subject of the criminal indictment. The Office of the Ombudsman found one of the respondents therein (Isaac Puno III) administratively liable for simple misconduct. In the case of Basco and Luis, however, the complaint against them was dismissed for lack of jurisdiction.7
Isaac Puno III then filed a petition for review with the Court of Appeals (CA). After a study of his case, the CA exonerated him on the ground that the failure to conduct a public bidding was legally justified as "time was of the essence." It likewise considered the absence of a prior written approval from then President Ramos as merely confirmatory rather than curative in nature and, as a consequence, did not render the negotiated contracts8
On April 15, 2004, Sandiganbayan issued a Resolution9
denying the demurrers to evidence. It opined that the prosecution's evidence substantiated the essential elements charged in the Information. For said reason, it was incumbent on the respondents to present controverting evidence. On the exoneration in the administrative case, Sandiganbayan was of the view that there was disparity in the nature of the two proceedings and in the quantum of evidence required, and so it did not necessarily bar a successful criminal prosecution involving the same or similar acts.
The private respondents filed their motion for reconsideration which was granted in a Resolution dated July 23, 2004. The fallo
of the resolution reads:
WHEREFORE, in view of the foregoing, this Court is constrained to GRANT, as it hereby GRANTS, the Motions for Reconsideration of accused Victorino A. Basco, Romeo S. David and Rogelio L. Luis, as the evidence of the prosecution failed to sufficiently establish the essential elements of the offense charged and to overcome the presumption of innocence in favor of the said accused. Accordingly, the cases against accused Victorino A. Basco, Romeo S. David and Rogelio L. Luis are hereby DISMISSED.
In making such a turnaround, the Sandiganbayan took into account the decision of the Court of Appeals in the administrative case, which upheld the legality and validity of the subject contracts, as a "persuasive ruling" considering that it involved the same issues, subject matter and parties. It reasoned out that since the bases for the two (2) separate and distinct proceedings pertain to the same evidence, then the principle that the dismissal of an administrative case does not necessarily bar the filing of a criminal prosecution for the same or similar acts subject of the administrative complaint, on which its previous resolution was anchored, no longer applies. It, thus, concluded that there being want of substantial evidence to support an administrative charge, there could be no sufficient evidence to warrant a conclusion that there is probable cause for a violation of Section 3(e) of R.A. No. 3019.
The Sandiganbayan further stated that the prosecution failed to establish the fact of overpricing. The prosecution witness was unable to justify her sole reliance on DPWH table of "Typical Construction Costs, 1999" vis-a