EN BANC
G.R. Nos. 212761-62, July 31, 2018
SENATOR JINGGOY EJERCITO ESTRADA, Petitioner, v. OFFICE OF THE OMBUDSMAN, HON. SANDIGANBAYAN, FIELD INVESTIGATION OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION, AND ATTY. LEVITO D. BALIGOD, Respondents.
G.R. NOS. 213473-74
JOHN RAYMUND DE ASIS, Petitioner, v. CONCHITA CARPIO MORALES, IN HER OFFICIAL CAPACITY AS OMBUDSMAN, PEOPLE OF THE PHILIPPINES, AND SANDIGANBAYAN, FIFTH DIVISION, Respondents.
G.R. NOS. 213538-39
JANET LIM NAPOLES, Petitioner, v. CONCHITA CARPIO MORALES, IN HER OFFICIAL CAPACITY AS OMBUDSMAN, PEOPLE OF THE PHILIPPINES, AND SANDIGANBAYAN, FIFTH DIVISION, Respondents.
D E C I S I O N
CARPIO, J.:
SARO Number Amount (P) IA NGO 08-06025 16.490 million National Agribusines Corporation (NABCOR) MAMFI 09-02770 9.700 million 08-01697 24.250 million[11 08-03116 18.915 million[12 09-01612 19.400 million National Livelihood Development Corporation (NLDC) 09-02769 29.100 million G-09-07076 30.070 million G-09-07579 24.250 million 08-06025 19.400 million NABCOR SDPFFI G-09-07579 24.250 million NLDC F-09-09579 24.250 million 08-01698 22.500 million Technology Resource Center (TRC) TOTAL P262.575 million[13
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. As well put in Brinegar v. United States, while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
x x x. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. x x x.
x x x x
x x x. In the United States, from where we borrowed the concept of probable cause, the prevailing definition of probable cause is this:In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than evidence which would justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.39 (Emphasis supplied)
Owing to the nature of a preliminary investigation and its purpose, all of the foregoing elements need not be definitively established for it is enough that their presence becomes reasonably apparent. This is because probable cause - the determinative matter in a preliminary investigation implies mere probability of guilt; thus, a finding based on more than bare suspicion but less than evidence that would justify a conviction would suffice.
Also, it should be pointed out that a preliminary investigation is not the occasion for the full and exhaustive display of the prosecution's evidence, and that the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon after a full-blown trial on the merits. Therefore, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level."
Furthermore, owing to the initiatory nature of preliminary investigations, the "technical rules of evidence should not be applied" in the course of its proceedings, keeping in mind that "the determination of probable cause does not depend on the validity or merits of a party's accusation or defense or on the admissibility or veracity of testimonies presented." Thus, in Estrada v. Ombudsman (Estrada), the Court declared that since a preliminary investigation does not finally adjudicate the rights and obligations of parties, "probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay."42 (Emphasis supplied)
x x x [P]robable cause is determined during the context of a preliminary investigation which is "merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed and that the person charged should be held responsible for it." It "is not the occasion for the full and exhaustive display of the prosecution's evidence." Therefore, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level." Accordingly, "owing to the initiatory nature of preliminary investigations, the technical rules of evidence should not be applied in the course of its proceedings." In this light, and as will be elaborated upon below, this Court has ruled that "probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay," and that even an invocation of the rule on res inter alios acta at this stage of the proceedings is improper.44 (Boldfacing and underscoring in the original)
First, it is undisputed that Senator Estrada was a public officer at the time material to the charges.
Second, he amassed, accumulated or acquired ill-gotten wealth.
As disclosed by the evidence, he repeatedly received sums of money from Janet Napoles for endorsing her NGOs to implement the projects to be funded by his PDAF.
x x x x
As outlined by witnesses Luy, Sula and Suñas which Tuason similarly claimed, once a PDAF allocation becomes available to Senator Estrada, his staff Labayen would inform Tuason of this development. Tuason, in turn, would relay the information to either Napoles or witness Luy. Napoles or Luy would then prepare a listing of the projects available where Luy would specifically indicate the IAs. This listing would be sent to Labayen who would then endorse it to the DBM under her authority as Deputy Chief-of-Staff of Senator Estrada. After the listing is released by the Office of Senator Estrada to the DBM, Napoles would give Tuason or Labayen a down payment for delivery to Senator Estrada. After the SARO and/or NCA is released, Napoles would give Tuason the full payment for delivery to Senator Estrada through Labayen or by Tuason.
It bears noting that money was paid and delivered to Senator Estrada even before the SARO and/or NCA is released. Napoles would advance Senator Estrada's down payment from her own pocket upon the mere release by his Office of the listing of projects to the DBM, with the remainder of the amount payable to be given after the SARO representing the legislator's PDAF allocation is released by the DBM and a copy of the SARO forwarded to Napoles.
Significantly, after the DBM issues the SARO, Senator Estrada, through Labayen, would then write another letter addressed to the IAs which would identify and indorse Napoles' NGOs as his preferred NGO to undertake the PDAF-funded project, thereby effectively designating in writing the Napoles-affiliated NGO to implement projects funded by his PDAF. Along with the other PDAF documents, the indorsement letter of Senator Estrada is transmitted to the IA, which, in turn, handles the preparation of the MOA concerning the project, to be entered into by the Senator's Office, the IA and the chosen NGO.
[Dennis] Cunanan, [Deputy Director General of TRC], in his Counter-Affidavit, claimed that Senator Estrada confirmed to him that he, indeed, chose the NGOs named in the aforementioned letters and insisted that the choice be honored by the TRC:17.4. . . . I remember vividly how both Senators Revilla and Estrada admonished me because they thought that TRC was purportedly "delaying" the projects. Both Senators Revilla and Estrada insisted that the TRC should honor their choice of NGO, which they selected to implement the projects, since the projects were funded from their PDAF. They both asked me to ensure that TRC would immediately act on and approve their respective projects. (emphasis, italics and underscoring supplied)
As previously discussed, the indorsements enabled Napoles to gain access to substantial sums of public funds. The collective acts of Senator Estrada, Napoles, et al. allowed the illegal diversion of public funds to their own personal use.
It cannot be gainsaid that the sums of money received by Senator Estrada amount to "kickbacks" or "commissions" from a government project within the purview of Sec. 1 (d) (2) of RA 7080. He repeatedly received commissions, percentage or kickbacks representing his share in the project cost allocated from his PDAF, in exchange for his indorsement of Napole[s'] NGOs to implement his PDAF-funded projects.
Worse, the evidence indicates that he took undue advantage of his official position, authority and influence to unjustly enrich himself at the expense, and to the damage and prejudice of the Filipino people and the Republic of the Philippines, within the purview of Sec. 1 (d) (6) of RA 7080. He used and took undue advantage of his official position, authority and influence as a Senator of the Republic of the Philippines to access his PDAF and illegally divert the allocations to the possession and control of Napoles and her cohorts, in exchange for commissions, kickbacks, percentages from the PDAF allocations.
Undue pressure and influence from Senator Estrada's Office, as well as his endorsement of Napoles' NGOs, were brought to bear upon the public officers and employees of the IAs.
[Francisco] Figura, an officer from the TRC, claimed that the TRC management told him: "legislators highly recommended certain NGOs/Foundations as conduit implementors and since PDAFs are their discretionary funds, they have the prerogative to choose their NGO's"; and the TRC management warned him that "if TRC would disregard it (choice of NGO), they (legislators) would feel insulted and would simply take away their PDAF from TRC, and TRC losses (sic) the chance to earn service fees." Figura further claimed that he tried his best to resist the pressure exerted on him and did his best to perform his duties faithfully; [but] he and other low-ranking TRC officials had no power to "simply disregard the wishes of Senator [Estrada],"especially on the matter of public bidding for the PDAF projects.
Cunanan, narrates that he met Napoles sometime in 2006 or 2007, who "introduced herself as the representative of certain legislators wo supposedly picked TRC as a conduit for PDAF-funded projects;" at the same occasion, Napoles told him that "her principals were then Senate President Juan Ponce Enrile, Senators Ramon "Bong" Revilla, Jr., Sen. Jinggoy Ejercito Estrada;" letters signed by Estrada prove that he [Estrada] directly indorsed NGOs affiliated with or controlled by Napoles to implement his PDAF projects; in the course of his duties, he "often ended up taking and/or making telephone verifications and follow-ups and receiving legislators or their staff members;" during one of these telephone conversations, Estrada admonished him and "insisted that the TRC should honor their choice of the NGO....since the projects were funded from their PDAF;" "all the liquidation documents and the completion reports of the NGO always bore the signatures of Ms. Pauline Labayen, the duly designated representative of Sen. Estrada;" and he occasionally met with witness Luy, who pressured him to expedite the release of the funds by calling the offices of the legislators.
NLDC's [Gondelina] Amata also mentioned about undue pressure surrounding the designation of NLDC as one of the Implementing Agencies for PDAF. Her fellow NLDC employee [Gregoria] Buenaventura adds that in accordance with her functions, she "checked and verified the endorsement letters of Senator [Estrada], which designated the NGOs that would implement his PDAF projects and found them to be valid and authentic;" she also confirmed the authenticity of the authorization given by Estrada to his subordinates regarding the monitoring, supervision and implementation of PDAF projects; and her evaluation and verification reports were accurate.
Another NLDC officer, [Alexis] Sevidal, claimed that Senator Estrada and Napoles, not NLDC employees, were responsible for the misuse of the PDAF; Senator Estrada, through Labayen, was responsible for "identifying the projects, determining the project costs and choosing the NGOs" which was "manifested in the letters of Senator Estrada and Ms. Pauline Labayen...that were sent to the NLDC;" and that he and other NLDC employees were victims of the "political climate" and "bullied into submission by the lawmakers."
The evidence evinces that Senator Estrada used and took undue advantage of his official position, authority and influence as a Senator to unjustly enrich himself at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
The PDAF was allocated to Senator Estrada by virtue of his position, hence, he exercised control in the selection of his priority projects and programs. He indorsed Napoles' NGOs in consideration for the remittance of kickbacks and commissions from Napoles. These circumstances were compounded by the fact that the PDAF-funded projects were "ghost projects" and that the rest of the PDAF allocation went into the pockets of Napoles and her cohorts. Undeniably, Senator Estrada unjustly enriched himself at the expense, and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
Third, the amounts earned by Senator Estrada through kickbacks and commissions amounted to more than Fifty Million Pesos (P50,000,000.00).
Witness Luy's ledger shows, among others, that Senator Estrada received the following amounts as and by way of kickbacks and commissions:
Year Amount received by Senator Estrada (In PhP) 2004 1,500,000.00 2005 16,170,000.00 2006 12,750,000.00 2007 16,250,000.00 2008 51,250,000.00 2009 2,200,000.00 2010 73,923,750.00 2012 9,750,000.00 Total: Php183,793,750.00
The aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired by Senator Estrada stands at Php183,793,750.00, at the very least.
The sums were received by the Senator either personally or through his Deputy Chief-Of-Staff, Labayen, as earlier discussed.
Napoles provided those kickbacks and commissions. Witnesses Luy and Suñas, not to mention Tuason, stated that Napoles was assisted in delivering the kickbacks and commissions by her employees and cohorts John Raymond de Asis, Ronald John Lim and Tuason.
Senator Estrada's commission of the acts covered by Section 1 (d) (2) and Section 1 (d) (6) of RA No. 7080 repeatedly took place over the years 2004 to 2012. This shows a pattern – a combination or series of overt or criminal acts – directed towards a common purpose or goal, which is to enable Senator Estrada to amass, accumulate or acquire ill-gotten wealth.
Senator Estrada, taking undue advantage of official position, authority, relationship, connection or influence as a Senator acted, in connivance with his subordinate-authorized representative Labayen, to receive commissions and kickbacks for indorsing the Napoles NGOs to implement his PDAF-funded project; and likewise, in connivance with Napoles, with the assistance of her employees and cohorts Tuason, de Asis and Lim who delivered the kickbacks to him. These acts are linked by the fact that they were plainly geared towards a common goal which was to amass, acquire and accumulate ill-gotten wealth amounting to at least Php183,793,750.00 for Senator Estrada.49 (Emphasis in the original)
First, respondents Senator Estrada, Labayen, x x x were all public officers at the time material to the charges. Their respective roles in the processing and release of PDAF disbursements were in the exercise of their administrative and/or official functions.
Senator Estrada himself chose, in writing, the Napoles-affiliated NGO to implement projects funded by his PDAF. His trusted authorized staff: respondent Labayen, then prepared indorsement letters and other communications relating to the PDAF disbursements addressed to the DBM and the IAs (NABCOR, TRC and NLDC). This trusted staff member also participated in the preparation and execution of MOAs with the NGOs and the IAs, inspection and acceptance reports, disbursement reports and other PDAF documents.
x x x x
From the accounts of witnesses Luy, Sula and Suñas as well as of Tuason, Napoles made a business proposal to Labayen regarding the Senator's PDAF, which Labayen accepted. Senator Estrada later chose NGOs affiliated with/controlled by Napoles to implement his PDAF-funded projects.
x x x x
Second, Senator Estrada and respondent-public officers of the IAs were manifestly partial to Napoles, her staff and the NGOs affiliated she controlled.
x x x x
That Napoles and the NGOs affiliated with/controlled by her were extended undue favor is manifest.
Senator Estrada repeatedly and directly chose the NGOs headed or controlled by Napoles and her cohorts to implement his projects without the benefit of a public bidding, and without being authorized by an appropriation law or ordinance.
As correctly pointed out by the FIO, the Implementing Rules and Regulations of RA 9184 states that an NGO may be contracted only when so authorized by an appropriation law or ordinance.
x x x x
National Budget Circular (NBC) No. 476, as amended by NBC No. 479, provides that PDAF allocations should be directly released only to those government agencies identified in the project menu of the pertinent General Appropriations Act (GAAs). The GAAs in effect at the time material to the charges, however, did not authorize the direct release of funds to NGOs, let alone the direct contracting of NGOs to implement government projects. This, however, did not appear to have impeded Estrada's direct selection of the Napoles affiliated or controlled NGOs, and which choice was accepted in toto by the IAs.
Even assuming arguendo that the GAAs allowed the engagement of NGOs to implement PDAF-funded projects, such engagements remain subject to public bidding requirements. x x x.
x x x x
The aforementioned laws and rules, however, were disregarded by public respondents, Senator Estrada having just chosen the Napoles-founded NGOs. Such blatant disregard of public bidding requirements is highly suspect, especially in view of the ruling in Alvarez v. People.
x x x x
Notatu dignum is the extraordinary speed attendant to the examination, processing and approval by the concerned NABCOR, NLDC and TRC officers of the PDAF releases to the Napoles-affiliated or controlled NGOs. In most instances, the DVs were accomplished, signed and approved on the same day. Certainly, the required, careful examination of the transaction's supporting documents could not have taken place if the DV was processed and approved in one day.
x x x x
In addition to the presence of manifest partiality on the part of respondent public officers alluded to, evident bad faith is present.
x x x x
That several respondent public officers unduly benefitted from the diversion of the PDAF is borne by the records.
As earlier mentioned, Tuason claimed that she regularly remitted significant portions (around 50%) of the diverted sums to Estrada, which portions represented Senator Estrada's "share" or "commission" in the scheme, x x x.
x x x x
Notably, Tuason admitted having received a 5% commission for acting as liaison between Napoles and Senator Estrada.
Witness Luy's business ledgers validate Tuason's claim that Labayen did, from time to time, receive money from Napoles that was intended for Estrada.
x x x x
Indubitably, repeatedly receiving portions of sums of money wrongfully diverted from public coffers constitutes evident bad faith.
Third, the assailed PDAF-related transactions caused undue injury to the Government in the aggregate amount of PHP278,000,000.00.
Based on the 2007-2009 COA Report as well as on the independent field verification conducted by the FIO, the projects supposedly funded by Senator Estrada's PDAF were "ghost[s]" or inexistent. There were no livelihood kits distributed to beneficiaries. Witnesses Luy, Sula and Sufias declared that, per directive given by Napoles, they made up lists of fictitious beneficiaries to make it appear that the projects were implemented, albeit none took place.
Instead of using the PDAF disbursements received by them to implement the livelihood projects, respondent De Asis as well as witnesses Luy, Sula and Suñas, all acting for Napoles, continuously diverted these sums amounting to PHP278,000,000.00 to the pocket of Napoles.
Certainly, these repeated, illegal transfers of public funds to Napoles' control, purportedly for projects which did not exist, and just as repeated irregular disbursements thereof, represent quantifiable, pecuniary losses to the Government, constituting undue injury within the context of Section 3 (e) of RA 3019.
Fourth, respondents Estrada, Labayen x x x, granted respondent Napoles unwarranted benefits.
x x x x
x x x. That they repeatedly failed to observe the requirements of R.A. No. 9184, its implementing rules and regulations, GPPB regulations as well as national budget circulars shows that unwarranted benefits, advantage or preference were given to private respondents.
The NGOs selected by Estrada did not appear to have the capacity to implement the undertakings to begin with. At the time material to the charges, these entities did not possess the required accreditation to transact with the Government, let alone possess a track record in project implementation to speak of.50
Records show that De Asis was designated as the President/Incorporator of KPMFI which was one of the many NGOs controlled by Napoles that was used in the embezzlement of Sen. Revilla's PDAF allocations. Moreover, whistleblowers Luy and Suñas explicitly named De Asis as one of those who prepared money to be given to the lawmaker. Said whistleblowers even declared that De Asis, among others, received the checks issued by the IAs to the NGOs and deposited the same in the bank; and that, after the money is withdrawn from the bank, he was also one of those tasked to bring the money to Janet Napoles' house. Indeed, the foregoing prove to be well-grounded bases to believe that, in all probability, De Asis conspired with the other co-accused to commit the crimes charged.
To refute the foregoing allegations, De Asis presented defenses which heavily centered on his perceived want of criminal intent, as well as the alleged absence of the elements of the crimes charged. However, such defenses are evidentiary in nature, and thus, are better ventilated during trial and not during preliminary investigation. To stress, a preliminary investigation is not the occasion for the fulland exhaustive display of the prosecution's evidence; and the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense that may be passed upon only after a full-blown trial on the merits.59 (Emphasis supplied)
Anent Janet Napole[s'] complicity in the abovementioned crimes, records similarly show that she, in all reasonable likelihood, played an integral role in the calculated misuse of Senator Enrile's PDAF. As exhibited in the modus operandi discussed earlier, once Janet Napoles was informed of the availability of a PDAF allocation, either she or Luy, as the "lead employee" of the JLN Corporation, would prepare a listing of the available projects specifically indicating the IAs. After said listing is released by the Office of Senator Enrile to the DBM, Janet Napoles would give a down payment from her own pockets for delivery to Senator Enrile through Reyes, with the remainder of the amount given to the Senator after the SARO and/or NCA is released. Senator Enrile would then indorse Janet Napole[s'] NGOs to undertake the PDAF-funded projects, which were "ghost projects" that allowed Janet Napoles and her cohorts to pocket the PDAF allocation.
Based on the evidence in support thereof, the Court is convinced that there lies probable cause against Janet Napoles for the charge of Plunder as it has prima facie been established that: (a) she, in conspiracy with Senator Enrile, Reyes, and other personalities, was significantly involved in the afore-described modus operandi to obtain Senator Enrile's PDAF, who supposedly abused his authority as a public officer in order to do so; (b) through this modus operandi, it appears that Senator Enrile repeatedly received ill-gotten wealth in the form of "kickbacks" in the years 2004-2010; and (c) the total value of "kickbacks" given to Senator Enrile amounted to at least P172,834,500.00.
In the same manner, there is probable cause against Janet Napoles for violations of Section 3 (e) of RA 3019, as it is ostensible that: (a) she conspired with public officials, i.e., Senator Enrile and his chief of staff, Reyes, who exercised official functions whenever they would enter into transactions involving illegal disbursements of the PDAF; (b) Senator Enrile, among others, has shown manifest partiality and evident bad faith by repeatedly indorsing the JLN-controlled NGOs as beneficiaries of his PDAF-funded projects - even without the benefit of a public bidding and/or negotiated procurement, in direct violation of existing laws, rules, and regulations on government procurement;and (c) the "ghost" PDAF-funded projects caused undue prejudice to the government in the amount of P345,000,000.00.
x x x x
Furthermore, there is no merit in Janet Napole[s'] assertion that the complaints are insufficient in form and in substance for the reason that it lacked certain particularities such as the time, place, and manner of the commission of the crimes charged. "According to Section 6, Rule 110 of the 2000 Rules of Criminal Procedure, the complaint or information is sufficient if it states the names of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. The fundamental test in determining the sufficiency of the averments in a complaint or information is, therefore, whether the facts alleged therein, if hypotheticallv admitted, constitute the elements of the offense." In this case, the NBI and the FIO Complaints stated that: (a) Senator Emile, Reyes, and Janet Napoles, among others, are the ones responsible for the PDAF scam; (b) Janet Napoles, et al. are being accused of Plunder and violations of Section 3 (e) of RA 3019; (c) they used a certain modus operandi to perpetuate said scam, details of which were stated therein; (d) because of the PDAF scam, the Philippine government was prejudiced and defrauded in the approximate amount of P345,000,000.00; and (e) the PDAF scam happened sometime between the years 2004 and 2010, specifically in Taguig City, Pasig City, Quezon City, and Pasay City. The aforesaid allegations were essentially reproduced in the sixteen (16) Informations — one (1) for Plunder and fifteen (15) for violation of RA 3019 — filed before the Sandiganbayan. Evidently, these factual assertions already square with the requirements of Section 6, Rule 110 of the Rules of Criminal Procedure as above-cited. Upon such averments, there is no gainsaying that Janet Napoles has been completely informed of the accusations against her to enable her to prepare for an intelligent defense. The NBI and the FIO Complaints are, therefore, sufficient in form and in substance.60 (Boldfacing and underscoring in the original)
Neither can the Napoles siblings discount the testimonies of the whistleblowers based on their invocation of the res inter alios acta rule under Section 28, Rule 130 of the Rules on Evidence, which states that the rights of a party cannot be prejudiced by an act, declaration, or omission of another, unless the admission is by a conspirator under the parameters of Section 30 of the same Rule. To be sure, the foregoing rule constitutes a technical rule on evidence which should not be rigidly applied in the course of preliminary investigation proceedings. In Estrada, the Court sanctioned the Ombudsman's appreciation of hearsay evidence, which would otherwise be inadmissible under technical rules on evidence, during the preliminary investigation "as long as there is substantial basis for crediting the hearsay." This is because "such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties." Applying the same logic, and with the similar observation that there lies substantial basis for crediting the testimonies of the whistleblowers herein, the objection interposed by the Napoles siblings under the evidentiary res inter alios acta rule should falter. Ultimately, as case law edifies, "[t]he technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation," as in this case.62 (Emphasis supplied)
Luy's testimony therefore explicates that although the whistleblowers would sometimes forge the legislators' signatures, such were made with the approval of Napoles based on her prior agreement with the said legislators. It is not difficult to discern that this authorization allows for a more expedient processing of PDAF funds since the documents required for their release need not pass through the legislator's respective offices. It is also apparent that this grant of authority gives the legislators room for plausible deniability: the forging of signatures may serve as a security measure for legislators to disclaim their participation in the event of discovery. Therefore, Luy's testimony completely makes sense as to why the legislators would agree to authorize Napoles and her staff to forge their signatures. As such, even if it is assumed that the signatures were forged, it does not mean that the legislators did not authorize such forgery.66 (Emphasis supplied)
The findings of the COA in its SAO Report No. 2012-2013 (COA report) also buttress the finding of probable cause against Sen. Revilla. This report presents in detail the various irregularities in the disbursement of the PDAF allocations of several legislators in the years 2007 to 2009, such as: (a) the IAs not actually implementing the purported projects, and instead, directly releasing the funds to the NGOs after deducting a "management fee," which were done at the behest of the sponsoring legislator x x x; (b) the involved NGOs did not have any track record in the implementation of government projects, provided fictitious addresses, submitted false documents, and were selected without any public bidding and complying with COA Circular No. 2007-001 and GPPB Resolution No. 12-2007; and (c) the suppliers who purportedly provided supplies to the NGOs denied ever dealing with the latter. Resultantly, the COA Report concluded that the PDAF-funded projects of Sen. Revilla were "ghost" or inexistent.
The findings in the COA report were further corroborated by the field verifications conducted by the Field Investigation Office - Office of the Ombudsman (FIO) to determine whether or not Sen. Revilla's PDAF was indeed utilized for its intended livelihood projects. In the course of investigation, it was revealed that the mayors and municipal agriculturists, who had reportedly received livelihood assistance kits/packages, purportedly procured through Sen. Revilla's PDAF, actually denied receiving the same and worse, were not even aware of any PDAF-funded projects intended for their benefit. Moreover, the signatures on the certificates of acceptance and delivery reports were forged, and in fact, the supposed beneficiaries listed therein were neither residents of the place where they were named as such; had jumbled surnames; deceased; or even downright fictitious. The foregoing led the FIO to similarly conclude that the purported livelihood projects were "ghost" projects, and that its proceeds amounting to P517,000,000.00 were never used for the same.67
Certainly, prosecutors are given a wide latitude of discretion in determining whether an information should be filed in court or whether the complaint shall be dismissed, and the courts must respect the exercise of such discretion when the information filed against the person charged is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor. It is for this reason that Sen. Estrada's asseveration of political persecution has no leg to stand on. Before such a claim may prosper, it must be proved that the public prosecutor – the Ombudsman, in this case – employed bad faith in prosecuting the case, or that it has employed schemes that lead to no other purpose than to place Sen. Estrada in contempt and disrepute. I do not find such malevolent designs in the case at bar.72 (Emphasis supplied)
Endnotes:
1 See orders of consolidation in Court Resolutions dated 30 September 2014 (rollo [G.R. Nos. 213473-74], pp. 430-431) and 16 November 2015 (rollo [G.R. Nos. 213538-39], unpaged).
2 Under Rule 65 of the Rules of Court. Pertain to the following petitions: (a) petition in G.R. Nos. 212761-62 filed by Estrada; (b) petition in G.R. Nos. 213473-74 filed by De Asis; and (c) petition in G.R. Nos. 213538-39 filed by Napoles.
3Rollo (G.R. Nos. 212761-62), Vol. I, pp. 68-187.
4 Id. at 188-232.
5 Id. at 233-251.
6 Id., Vol. II, pp. 675-736.
7 Id., Vol. I, p. 94.
8 Id. at 242.
9 Id. at 246.
10 Id., Vol. II, p. 727.
11 P23,710,000.00 in the FIO Complaint.
12 P18,914,000.00 in the FIO Complaint.
13 P262,034,000.00 in the FIO Complaint.
14Rollo (G.R. Nos. 212761-62), Vol. II, pp. 722-723.
15 Id. at 737-776 and 777-821.
16 Id. at 771 and 817.
17 Id. at 803-804, 808.
18 1987 CONSTITUTION, Article XI, Section 12 provides: "The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof."
19 An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for Other Purposes (1989).
20Reyes v. Office of the Ombudsman, G.R. No. 208243, 5 June 2017, 825 SCRA 436, 446, citing Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273.
21 Id.
22 Id.; Cambe v. Office of the Ombudsman, G.R. Nos. 212014-15, 6 December 2016, 812 SCRA 537, 580; Clave v. Office of the Ombudsman, G.R. No. 206425, 5 December 2016, 812 SCRA 187, 196-197; Joson v. Office of the Ombudsman, 784 Phil. 172, 189 (2016); Reyes v. Ombudsman, 783 Phil. 304, 332 (2016); Ciron v. Ombudsman Gutierrez, 758 Phil. 354, 362 (2015).
23Reyes v. Office of the Ombudsman, supra note 20, at 447, citing Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273.
24Reyes v. Office of the Ombudsman, supra note 20, at 447, citing Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273.
25Reyes v. Office of the Ombudsman, supra note 20, at 447, citing Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273; Cambe v. Office of the Ombudsman, supra note 22, at 580; Clave v. Office of the Ombudsman, supra note 22, at 197; Joson v. Office of the Ombudsman, supra note 22, at 189; Reyes v. Ombudsman, supra note 22, at 333; Ciron v. Ombudsman Gutierrez, supra note 22, at 363.
26Reyes v. Office of the Ombudsman, supra note 20, at 447, citing Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273, further citing Republic v. Ombudsman Desierto, 541 Phil. 57 (2007); Clave v. Office of the Ombudsman, supra note 22, at 197; Joson v. Office of the Ombudsman, supra note 22, at 189; Reyes v. Ombudsman, supra note 22, at 333; Ciron v. Ombudsman Gutierrez, supra note 22, at 363.
27Soriano v. Deputy Ombudsman Fernandez, 767 Phil. 226, 240 (2015); Reyes v. Ombudsman, supra note 22, at 332; Ciron v. Ombudsman Gutierrez, supra note 22, at 362.
28Duque v. Ombudsman, G.R. Nos. 224648 and 224806-07, 29 March 2017 (Unsigned Resolution); Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 7 December 2016, 813 SCRA 273, 300, citing Casing v. Ombudsman, 687 Phil. 468 (2012); Cambe v. Office of the Ombudsman, supra note 22, at 580; Clave v. Office of the Ombudsman, supra note 22, at 197-198; Reyes v. Ombudsman, supra note 22, at 332; Ciron v. Ombudsman Gutierrez, supra note 22, at 362.
29Duque v. Ombudsman, supra note 28; Dichaves v. Office of the Ombudsman, supra note 20, at 300, citing Casing v. Ombudsman, 687 Phil. 468 (2012); Cambe v. Office of the Ombudsman, supra note 22, at 580; Clave v. Office of the Ombudsman, supra note 22, at 197-198; Reyes v. Ombudsman, supra note 22, at 332-333; Ciron v. Ombudsman Gutierrez, supra note 22, at 362.
30Clave v. Office of the Ombudsman, supra note 22, at 198.
31Inocentes v. People of the Philippines, 789 Phil. 318, 331 (2016), citing People v. Castillo, 607 Phil. 754, 764 (2009).
32 Id.
33 Id.
34 Id.
35Joson v. Office of the Ombudsman, supra note 22, at 185; Estrada v. Office of the Ombudsman, 751 Phil. 821, 873 (2015) (citations omitted); Hasegawa v. Giron, 716 Phil. 364, 373 (2013).
36Cambe v. Office of the Ombudsman, supra note 22, at 580; Clave v. Office of the Ombudsman, supra note 22, at 199; Reyes v. Ombudsman, supra note 22, at 334; Estrada v. Office of the Ombudsman, supra note 35, at 873, (citations omitted); Aguilar v. Department of Justice, 717 Phil. 789, 800 (2013); Hasegawa v. Giron, supra note 35, at 374; Ang-Abaya v. Ang, 593 Phil. 530, 541(2008).
37Dichaves v. Office of the Ombudsman, supra note 20, at 302-303, citing Kalalo v. Office of the Ombudsman, 633 Phil. 160 (2010); Relampagos v. Office of the Ombudsman, G.R. Nos. 216812-16, 19 July 2016 (Unsigned Resolution); Aguilar v. Department of Justice, supra note 36, at 800; Hasegawa v. Giron, supra note 35, at 374.
38 751 Phil. 821 (2015).
39Estrada v. Office of the Ombudsman, supra note 35 at 868-871.
40Hasegawa v. Giron, supra note 35, at 374.
41 783 Phil. 304 (2016).
42 Id. at 336-337.
43 G.R. Nos. 212014-15, 6 December 2016, 812 SCRA 537.
44 Id. at 583-584.
45 This provision reads:
Section 2. Definition of the Crime of Plunder; Penalties. – Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.
46 Section 1(d) states:d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and or business associates by any combination or series of the following means or similar schemes.1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
47 This provisions 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 unlawful:
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.
48Rollo (G. R. Nos. 212761-62), Vol. I, pp. 68-187.
49 Id. at 145-157.
50 Id. at 127-140.
51 Supra note 22.
52Reyes v. Ombudsman, supra note 22, at 340-341.
53Cambe v. Office of the Ombudsman, supra note 22, at 599.
54Estrada v. Office of the Ombudsman, supra note 35, at 865.
55 776 Phil. 623, 652 (2016).
56Cambe v. Office of the Ombudsman, supra note 22, at 604; Reyes v. Ombudsman, supra note 22, at 336-337.
57Cambe v. Office of the Ombudsman, supra note 22, at 583; Reyes v. Ombudsman, supra note 22, at 337; Hasegawa v. Giron, supra note 35, at 376.
58Rollo (G.R. Nos. 213473-74), pp. 24-26.
59Cambe v. Office of the Ombudsman, supra note 22, at 604.
60Reyes v. Ombudsman, supra note 22, at 348-351.
61 G.R. No. 229781, 10 October 2017.
62Cambe v. Office of the Ombudsman, supra note 22, at 592-593, citing Reyes v. Ombudsman, 783 Phil. 304 (2016).
63Estrada v. Office of the Ombudsman, supra note 35, at 874.
64Estrada v. Office of the Ombudsman, supra note 35, at 865.
65Cambe v. Office of the Ombudsman, supra note 22, at 584-586. Emphasis supplied.
66Cambe v. Office of the Ombudsman, supra note 22, at 589-590.
67Cambe v. Office of the Ombudsman, supra note 22, at 598-599.
68 Concurring and Dissenting Opinion of Justice Velasco, p. 7.
69Ramiscal, Jr. v. Sandiganbayan, 530 Phil. 773, 792 (2006).
70Cambe v. Office of the Ombudsman, supra note 22, at 607; Duque v. Ombudsman, supra note 28.
71Cambe v. Office of the Ombudsman, supra note 22, at 607; Duque v. Ombudsman, supra note 28.
72 Concurring and Dissenting Opinion of Justice Velasco, p. 11.
VELASCO, JR., J.:
The scheme commences when Napoles first meets with a legislator and offers to "acquire" his or her PDAF allocation in exchange for a "commission" or kickback amounting to a certain percentage of the PDAF.
Once an agreement is reached, Napoles would then advance to the legislator a down payment representing a portion of his or her kickback. The legislator would then request the Senate President or the House Speaker, as the case may be, for the immediate release of his or her PDAF. The Senate President or Speaker would then indorse the request to the [Department of Budget and Management (DBM)]. This initial letter-request to the DBM contains a program or list of IAs and the amount of PDAF to be released in order to guide the DBM in its preparation and release of the corresponding SARO.
The kickbacks, around 50% of the PDAF amount involved, are received by legislators personally or through their representatives, in the form of cash, fund transfer, manager's check or personal check issued by Napoles.
After the DBM issues the SARO representing the legislator's PDAF allocation, the legislator would forward a copy of said issuance to Napoles. She, in turn, would remit the remaining portion of the kickback due the legislator.
The legislator would then write another letter addressed to the IAs which would identify his or her preferred NGO to undertake the PDAF-funded project. However, the NGO chosen by the legislator would be among those organized and controlled by Janet Napoles. These NGOs were, in fact, specifically set up by Napoles for the purpose.
Upon receipt of the SARO, Napoles would direct her staff, at the time material to these cases, including witnesses Benhur Luy (Luy), Marina Sula (Sula) and Merlina Suñas (Suñas), to prepare the PDAF documents for the approval of the legislator. These documents reflect, among other things, the preferred NGO to implement the undertaking, the project proposals by the identified NGO/s; and [e]ndorsement letters to be signed by the legislator and/or his staff. Once signed by the legislator or his/her authorized staff, the PDAF documents are transmitted to the IA, which, in turn, handles the preparation of the MOA relating to the project to be executed by the legislator's office, the IA and the chosen NGO.
The projects are authorized as eligible under the DBM's menu for pork barrel allocations. Note that the NGO is directly selected by the legislator. No public bidding or negotiated procurement takes place in violation of RA 9184 or the Government Procurement Reform Act.
Napoles, through her employees, would then follow up the release of the NCA with the DBM.
After the DBM releases the NCA to the IA concerned, the IA would expedite the processing of the transaction and the release of the corresponding check representing the PDAF disbursement. Among those tasked by Napoles to pick up the checks and deposit the same to bank accounts in the name of the NGO concerned were witnesses Luy and Suñas as well as respondent De Asis.
Once the funds are deposited in the NGO's account, Napoles would then call the bank to facilitate the withdrawal thereof. Her staff would then withdraw the funds and remit the same to her, thereby placing said amount under Napoles' full control and possession.
To liquidate the disbursements, Napoles and her staff would then manufacture fictitious lists of beneficiaries, liquidation reports, inspection reports, project activity reports and similar documents that would make it appear that, indeed, the PDAF[-]related project was implemented.11
I.
Whether or not the Ombudsman committed grave abuse of discretion in refusing to furnish Sen. Estrada copies of his co-respondents' counter-affidavits prior to resolving the preliminary investigation, in violation of his right to due process; andII.
Whether or not the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding probable cause to indict petitioners for Plunder and violation of Sec. 3(e) of RA 3019.
A public prosecutor's determination of probable cause - that is, one made for the purpose of filing an information in court - is essentially an executive function and, therefore, generally lies beyond the pale of judicial scrutiny. The exception to this rule is when such determination is tainted with grave abuse of discretion and perforce becomes correctible through the extraordinary writ of certiorari. It is fundamental that the concept of grave abuse of discretion transcends mere judgmental error as it properly pertains to a jurisdictional aberration.21
The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense [for] an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. (Emphasis supplied)
Hence, even at this stage, the investigating prosecutors are duty-bound to sift through all the documents, objects, and testimonies to determine what may serve as a relevant and competent evidentiary foundation of a possible case against the accused persons. They cannot defer and entirely leave this verification of all the various matters to the courts. Otherwise, the conduct of a preliminary investigation would be rendered worthless; the State would still be forced to prosecute frivolous suits and innocent men would still be unnecessarily dragged to defend themselves in courts against groundless charges. Indeed, while prosecutors are not required to determine the rights and liabilities of the parties, a preliminary investigation still constitutes a realistic judicial appraisal of the merits of the case so that the investigating prosecutor is not excused from the duty to weigh the evidence submitted and ensure that what will be filed in court is only such criminal charge that the evidence and inferences can properly warrant.
116.T:May iba pa ba kayong gagawin maliban sa report of disbursement patungkol sa liquidation?
S:Mayroon pa po. Pini-prepare din yung list of beneficiaries, certificate of inspection and acceptance coming from the office ng proponent or legislators, certificate of project completion, delivery receipts, sales invoice, official receipts from the supplier, independent auditor's report, accomplishment report, at pictures ng implementation kung mayroong implementation. Kung wala pong implementation, wala po kaming i-attach na pictures. At sa mga nasabing mga dokumento na kailangan ang pirma ng legislators, may mga panahon po na kami na ang pumipirma sa mga pangalan ng mga Chief of Staff ng mga legislators o sa pangalan ng iilang Congressman sa utos ni Madame Janet Lim Napoles.
117.T:Nabanggit mona may mga panahon na kayo ang pumipirma sa pangalan ng mga Chief of Staff ng mga legislators or sa pangalan ng iilang Congressman, ano ang ibig sabihin dito at sinu-sino ang mga kasama mong pumipirma?
S:Kapag kami ay nagli-liquidate at may mga dokumento na kailangan ang pirma ng Chief of Staff ng mga legislators o ng Congressman ay kami na po ang pumipirma para sa kanila sa utos po ni Madame Janel Lim Napoles. Ang mga kasama ko po na pumipirma sa mga nasabing dokumento ay sila Evelyn de Leon, at Merlina Suñas.[53
Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.
1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That the offender amasses, accumulates or acquires ill-gotten wealth through a combination or series of the following overt or criminal acts:(a)through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
(b)by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer;
(c)by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries;
(d)by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
(e)by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
(f)by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.57
(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.
67.T:Mayroon bang pagkakataon na ikaw mismo ay nakapagbigay ng pera na "rebates" ng transaction sa Senador o Congressman o sa kung sino mang representative ng pulitiko?
S:Opo. Sa mga Chief-of-Staff ng mga Senador at sa mga Congressman mismo ay nakapag-abot na po ako ng personal. Pero sa mga Senador po ay wala pong pagkakataon na ako mismo ang nag-abot. Naririnig ko lang kay Madame JANET LIM NAPOLES na nagbibigay daw siya sa mga Senador.61 (Emphasis supplied)
Endnotes:
1 Section 2. Definition of the Crime of Plunder; Penalties - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State.
2 Section 1. Definition of Terms - As used in this Act, the term – x x x
d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents. subordinates and/or business associates by any combination or series of the following means or similar schemes:1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;
x x x
6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
3Rollo, pp. 94, 246.
4 Id. at 737-776.
5 Id. at 777-821.
6 These are Tuason, Amata, Buenaventura, Sevidal, Cruz; Sucgang, Javellana, Cacal, Villaralvo-Johnson, Mendoza, Guañizo, Cunanan, Jover, Figura, Nuñez, Paule, Bare, and Relampagos.
7Rollo, p. 783, p. 7 of Counter Affidavit.
8 Id. at 822-828.
9 Id. at 829-832.
10 Id. at 66-187.
11 Id. at 119-122.
12 Id. at 123, 127, 150-151.
13 Id. at 859-860.
14 Id. at 1639-1642.
15 Id. at
16 Id. at 188-232.
17 Docketed as Crim. Case Nos. SB14CRM0256, SB14CRM0257, SB14CRM0258, SB14CRM0259, SB14CRM0260, SB14CRM0261, SB14CRM0262, SB14CRM0263, SB14CRM0264, SBI4CRM0265, SB14CRM0266; id. at 1656-1691.
18 As mandated under in Section 15 of [RA] No. 6770, otherwise known as the Ombudsman Act of 1989:
Sec. 15. Powers, Fooctions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases.
19Joson v. Office of the Ombudsman, G.R. Nos. 210220-21, April 6, 2016, 788 SCRA 647, 658.
20 Section 1, Article VIII of the Constitution states: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
21 G.R. No. 197522, September 11, 2013, 705 SCRA 629, 638.
22Heirs of Federico C. Delgado v. Gonzalez, G.R. No. 184337, August 7, 2009, 595 SCRA 501, 522.
23Arroyo v. Department of Justice, G.R. No. 199082, September 18, 2012, 681 SCRA 181, 232, citing Ladlad v. Velasco, G.R. Nos. 170270-72, June 1, 2007, 523 SCRA 318, 344.
24 G.R. No. 183551, November 12, 2014, 734 SCRA 719, 730-731, citing Ledesma v. Court of Appeals, 344 Phil. 207, 226, 227 (1997).
25Maza v. Gonzalez, G.R. Nos. 172074-76, June 1, 2007, 523 SCRA 318, 344.
26Webb v. De Leon, 317 Phil. 759, 803 (1995).
27Cam v. Casimiro, G.R. No. 184130, June 29, 2015, 760 SCRA 467, 480.
28Rollo, p. 20.
29 Second Supplement to the Petition, p. 2.
30 Id. at 6.
31 Promulgated on January 21, 2015, 748 SCRA 1.
32 Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner: x x x
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
x x x
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for exan1ination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
33Estrada v. Office of the Ombudsman, supra note 31, at 37.
34 273 Phil. 290, 299 (1991).
35Estrada v. Office of the Ombudsman, supra note 31, at 40.
36People v. Borje, Jr., G.R. No. 170046, December 10, 2014, 744 SCRA 399, 409; Aguilar v. Department of Justice, supra note 23, at 639-640.
37Kalalo v. Office of the Ombudsman, G.R. No. 158189, April 23, 2010, 619 SCRA 141, 148. citing Advincula v. Court of Appeals, G.R. No. 131144, October 18, 2000, 343 SCRA 583, 589-590.
38Reyes v. Pearlbank Securities, Inc., G.R. No. 171435, July 30, 2008, 560 SCRA 518.
39De Lima v. Reyes, G.R. No. 209330, January 11, 2016, 779 SCRA 1, 27, citing Crespo v. Mogul, 235 Phil. 465 (1987)
40People of the Philippines v. Castillo, G.R. No. 171188, June 19, 2009; 590 SCRA 95, citing Schroeder v. Saldevar, G.R. No. 163656, April 27, 2007, 522 SCRA 624
41Paredes, Jr. v. Sandiganbayan, G.R. No. 108251, January 31, 1996, 252 SCRA 641, citing Dimayuga v. Fernandez, 43 Phil 304, 306-307 (1922).
42 G.R No. 178511, December 4, 2008, 573 SCRA 129, 143.
43 G.R. No. 184681, February 25, 2013, 691 SCRA 578, 599.
44 Section 28. Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.
45People v. Cachuela, G.R No. 191752, June 10, 2013.
46People v. Tena, G.R. No. 100909, October 21, 1992 (citations omitted).
47 Section 29. Admission by co-partner or agent. — The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.
48People v. Bokingo, G.R. No. 187536, August 10, 2011, 655 SCRA 313, 333.
49Medija, Jr. v. Sandiganbayan (First Div.), 291 Phil. 236, 241 (1993).
50 271 Phil. 496, 507 (1991).
51Rollo, p. 126.
52 Id. at 598-631.
53 Id. at 618-619.
54 Otherwise known as "Guidelines for the Release and Utilization of the PDAF for FY 2001 and thereafter."
55 53.11. NGO Participation.
When an appropriation law or ordinance earmarks an amount to be specifically contracted out to Non-Governmental Organizations (NGOs), the procuring entity may enter into a Memorandum of Agreement with an NGO, subject to guidelines to be issued by the GPPB.
56Ang-Abaya v. Ang, supra note 42.
57Macapagal-Arroyo v. People of the Philippines, G.R. No. 220598, July 19, 2016, 797 SCRA 241, 329-330.
58 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 unlawful:
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.
59Garcia v. Office of the Ombudsman, G.R. No. 197567, November 19, 2014, 741 SCRA 172, 184-185, citing Lihaylihay v. People, G.R. No. 191219, July 31, 2013, 702 SCRA 755.
60Macapagal-Arroyo v. People of the Philippines, supra note 57, at 330.
61Rollo, p. 984.
62Macapagal-Arroyo v. People of the Philippines, supra note 57, at 331.
63 G.R Nos. 175750-51, April 2, 2014, 720 SCRA 350, 367-368, citing Cabrera v. Sandiganbayan, 484 Phil. 350, 360 (2004).
64 Guidelines on the Release of Funds Chargeable Against the Priority Development Assistance Fund for the Second Semester of FY 2001 and Thereafter.
65 Guidelines on the Release of Funds Chargeable Against the Priority Development Assistance Fund for FY 2012.
66Rollo, pp. 41-42.
67 Id. at 49.
68Civil Service Commission v. Maala, G.R. No. 165253, August 18, 2005, 467 SCRA 390, 399.
69 Id. at 398, citing Alfredo v. Borras, G.R. No. 144225, June 17, 2003, 404 SCRA 145.
Definition of the Crime of Plunder; Penalties - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State.6
1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts:(a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer;
(c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries;
(d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;
(e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or
(f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.7
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 unlawful:
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.
(1) the offender is a public officer or a private person charged in conspiracy with the public officer;
(2) the act was done in the discharge of the public officer's official, administrative or judicial functions;
(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.8
Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power.11
Endnotes:
1Napoles v. Secretary De Lima, et. al., 790 Phil. 161, 172 (2016).
2Id. at 172-173.
3Id. at 173.
4Id.
5Id.
6 Emphasis supplied.
7Estrada v. Sandiganbayan, 421 Phil. 290, 343-344 (2001); Enrile v. People, et al., 766 Phil. 75, 115-116 (2015).
8Ampil v. The Honorable Office of the Ombudsman, et al., 715 Phil. 733, 755 (2013); People v. The Honorable Sandiganbayan (4th Div.), 642 Phil. 640, 650 (2010).
9 Webster's Third New International Dictionary of the English Language, Unabridged, Copyright 1993, p. 1786; 72 C.J.S. 478.
10 427 Phil. 820 (2002).
11Estrada v. Sandiganbayan (Third Division), supra, at 851-852.
Section 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.
(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.
Practicality also leads this Court to exercise restraint in interfering with the Office of the Ombudsman's finding of probable cause. Republic v. Ombudsman Desierto explains:[T]he 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.7 (Citations omitted)
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials.10
Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certit1ed as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
Probable cause has been defined as the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on opinion and reasonable belief, it does not import absolute certainty. Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.16 (Citations omitted)
It should be borne in mind that probable cause is determined during the context of a preliminary investigation which is "merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed and that the person charged should be held responsible for it." It "is not the occasion for the full and exhaustive display of the prosecution's evidence." Therefore, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level."19 (Citations omitted)
[P]robable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence.21 (Emphasis supplied)
The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable ause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.
Corollary to the principle that a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so, the judge in turn should not override the public prosecutor's determination of probable cause to hold an accused for trial on the ground that the evidence presented to substantiate the issuance of an arrest warrant was insufficient. It must be stressed that in our criminal justice system, the public prosecutor exercises a wide latitude of discretion in determining whether a criminal case should be filed in court, and that courts must respect the exercise of such discretion when the information filed against the person charged is valid on its face, and that no manifest error or grave abuse of discretion can be imputed to the public prosecutor.
Thus, absent a finding that an information is invalid on its face or that the prosecutor committed manifest error or grave abuse of discretion, a judge's determination of probable cause is limited only to the judicial kind or for the purpose of deciding whether the arrest warrants should be issued against the accused.24 (Citations omitted, emphasis supplied)
Once the information is filed in court, the court acquires jurisdiction of the case and any motion to dismiss the case or to determine the accused's guilt or innocence rests within the sound discretion of the court
....
[It] would be ill-advised for the Secretary of Justice to proceed with resolving respondent's Petition for Review pending before her. It would be more prudent to refrain from entertaining the Petition considering that the trial court already issued a warrant of arrest against respondent. The issuance of the warrant signifies that the trial court has made an independent determination of the existence of probable cause....
Here, the trial court has already determined, independently of any finding or recommendation by the First Panel or the Second Panel, that probable cause exists for the issuance of the warrant of arrest against respondent. Probable cause has been judicially determined. Jurisdiction over the case, therefore, has transferred to the trial court. A petition for certiorari questioning the validity of the preliminary investigation in any other venue has been rendered moot by the issuance of the warrant of arrest and the conduct of arraignment.
The Court of Appeals should have dismissed the Petition for Certiorari filed before them when the trial court issued its warrant of arrest. Since the trial court has already acquired jurisdiction over the case and the existence of probable cause has been judicially determined, a petition for certiorari questioning the conduct of the preliminary investigation ceases to be the "plain, speedy, and adequate remedy" provided by law. Since this Petition for Review is an appeal from a moot Petition for Certiorari, it must also be rendered moot.28 (Citations omitted)
The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.
The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law.
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.
However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possible designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.
The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control.
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. (Citations omitted, emphasis supplied)
Endnotes:
1 CONST., art. XI, sec. 12 provides:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.
2Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 415 Phil. 145, 151 (2001) [Per J. Pardo, En Banc].
3 Rep. Act No. 6770, sec. 15 provides:
Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:(1)Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;(2)Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties;(3)Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglect to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;(4)Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action;(5)Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;(6)Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases may not be made public: Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair and true;(7)Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency;(8)Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records;(9)Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein;(10)Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;(11)Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the parties involved therein.
The Ombudsman shall give priority to complaints tiled against high ranking government officials and/or those occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of money and/or properties.
4Deloso v. Domingo, 269 Phil. 580, 586 (1990) [Per J. Griño-Aquino, En Banc].
5Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, December 7, 2016 [Per J. Leonen, Second Division]; Reyes v. Office of the Ombudsman, G.R. No. 208243, June 5, 2017 [Per J. Leonen, Second Division]; Cambe v. Office of the Ombudsman, G.R. Nos. 212014-15, December 6, 2016 [Per J. Perlas- Bernabe, En Banc].
6 G.R. Nos. 206310-11, December 7, 2016 [Per J. Leonen, Second Division].
7 Id. at 17.
8 Id. 16-17.
9 219 Phil. 402 (1985) [Per J. Gutierrez, Jr., En Banc].
10 Id. at 428.
11 Rules of Procedure of the Office of the Ombudsman, Adm. Order No. 07, sec. 4.
12De Lima v. Reyes, 776 Phil. 623 (2016) [Per J. Leonen, Second Division] citing Pilapil v. Sandiganbayan, 298 Phil. 368 (1993) [Per J. Nocon, En Banc].
13Paderanga v. Drilon, 273 Phil. 290, 299 (1991) [Per J. Regalado, En Banc]; Cambe v. Office of the Ombudsman, G.R. Nos. 212014-15, December 6, 2016 [Per J. Perlas-Bernabe, En Banc].
14People v. Narca, 341 Phil. 696, 705 (1997) [Per J. Francisco, Third Division].
15See Paderanga v. Drilon, 273 Phil. 290, 296-299 (1991) [Per J. Regalado, En Banc].
16Chan v. Secretary of Justice, 572 Phil. 118, 132 (2008) [Per J. Nachura, Third Division].
17Estrada v. Office of the Ombudsman, 751 Phil. 821 (2015) [Per J. Carpio, En Banc]; Reyes v. Office of the Ombudsman, G.R. Nos. 212593-94, March 15, 2016 [Per J. Perlas-Bernabe, En Banc].
18 G.R. Nos. 212014-15, December 6, 2016 [Per J. Perlas-Bernabe, En Banc].
19 Id. at 16-17.
20 751 Phil. 821 (2015) [Per J. Carpio, En Banc].
21 Id. at 874.
22Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, December 7, 2016 17 [Per J. Leonen, Second Division].
23 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
24 Id. at 764-766.
25Mendoza v. People, 733 Phil. 603, 611 (2014) [Per J. Leonen, Second Division].
26Parma, Jr. v. Office of the Deputy Ombudsman, 576 Phil 558 (2008) [Per J. Velasco, Jr., Second Division] citing Longos Rural Waterworks and Sanitation Association, Inc. v. Desierto, 434 Phil. 618 (2002) [Per J. Austria-Martinez, First Division].
27 776 Phil. 623 (2016) [Per J. Leonen, Second Division].
28 Id. at 649-653.
29 784 Phil. 918 (2016) [Per J. Leonen, Second Division].
30 G.R. Nos. 212014-15, December 6, 2016 [Per J. Perlas-Bernabe, En Banc].
31Ponencia, p. 7.
32 235 Phil. 465 (1987) [Per J. Gancayo, En Banc].
In line with the constitutionally-guaranteed independence of the Office of the Ombudsman and coupled with the inherent limitations in a certiorari proceeding in reviewing the Ombudsmans discretion, we have consistently held that so long as substantial evidence supports the Ombudsman's ruling, his decision should stand. In a criminal proceeding before the Ombudsman, the Ombudsman merely determines whether probable cause exists, i.e., whether there is a sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded on such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. As the term itself implies, probable cause is concerned merely with probability and not absolute or even moral certainty; it is merely based on opinion and reasonable belief. On this score, Galario v. Office of the Ombudsman (Mindanao) is instructive:[A] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is enough reason to believe that it was committed by the accused. It need not be based on clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. x x x
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.
x x x x
In closing, we reiterate the rule that absent good and compelling reason, the Ombudsmans finding of probable cause or lack thereof deserves great respect from the Court. If it were otherwise, the Court would be inundated with innumerable petitions ultimately aimed at seeking a review of the Ombudsman's exercise of discretion on whether to file a case in the courts, wreaking havoc to our orderly system of government, based on the principles of separation of powers, and checks and balances. It is only in a clear case of grave abuse of discretion that the Court may properly supplant the Ombudsman's exercise of discretion.5 (Citations omitted, emphasis ours, italics and underscoring in the original)
Probable cause, for the purpose of filing a criminal information, exists when the facts are sufficient to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof. To engender a well-founded belief that a crime has been committed, and to determine if the suspect is probably guilty of the same, the elements of the crime charged should, in all reasonable likelihood, be present. This is based on the principle that every crime is defined by its elements, without which there should be, at the most, no criminal offense.7 (Citation omitted)
(1)That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates, or other persons; (2)That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of government-owned or -controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and (3)That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.9 (Emphasis in the original)
- The accused must be a public officer discharging administrative, judicial or official functions;
- He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and
- 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.
Evidence | Justice Velasco's findings |
| Unreliable because Luy himself, in his affidavit, admitted having forged various PDAF documents, including certificate of inspection and acceptance from the office of the proponent or lawmaker. |
| Not material to establish his involvement because he merely identified the projects to be implemented and recommended a project partner. The COA Reports merely stated that the implementing agencies directly released the funds to the NGOS that were selected in violation of public bidding requirements. |
| Inadequate to presume his involvement in the scheme |
Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to participate in – as Guingona, Jr. puts it — "the various operational aspects of budgeting," including "the evaluation of work and financial plans for individual activities" and the "regulation and release of funds" in violation of the separation of powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated — from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the same is merely recommendatory and, as such, respondents' reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the identification authority of legislators is only of recommendatory import. Quite the contrary, respondents — through the statements of the Solicitor General during the Oral Arguments — have admitted that the identification of the legislator constitutes a mandatory requirement before his PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget execution process[.]12 (Citation omitted, Emphasis in the original, and emphasis ours)
Endnotes:
1Leviste v. Hon. Alameda, et al., 640 Phil. 620, 638 (2010)
2Mendoza v. People, et al., 733 Phil. 603, 612 (2014)
3 Id.
4 687 Phil. 468 (2012).
5 Id. at 476-478, 481.
6 747 Phil. 445 (2014)
7 Id. at 459.
8 766 Phil. 75 (2015).
9 Id. at 115-116.
10 G.R. Nos. 212014-15, December 6, 2016, 812 SCRA 537.
11 721 Phil. 416 (2013).
12 Id. at 542-543.