EN BANC
G.R. No. 239168, September 15, 2020
ALFREDO J. NON, GLORIA VICTORIA C. YAP-TARUC, JOSEFINA PATRICIA A. MAGPALE-ASIRIT AND GERONIMO D. STA. ANA, Petitioners, v. OFFICE OF THE OMBUDSMAN AND ALYANSA PARA SA BAGONG PILIPINAS, INC., Respondents.
D E C I S I O N
REYES, J. JR., J.:
Before the Court is a Petition for Certiorari1 assailing the 29 September 2017 Resolution2 and the 20 April 2018 Order3 of the Office of the Ombudsman (Ombudsman), respectively finding probable cause to hold petitioners Alfredo J. Non (Non), Gloria Victoria C. Yap-Taruc (Yap-Taruc), Josefina Patricia A. Magpale-Asirit (Magpale-Asirit), and Geronimo D. Sta. Ana (Sta. Ana; collectively, petitioners) - Commissioners of the Energy Regulatory Commission (ERC) for prosecution under Section 3(e)4 of Republic Act (R.A.) No. 3019,5 and denying reconsideration.
A review of the attendant circumstances shows that the present case falls under the exception.
- When necessary to afford adequate protection to the constitutional rights of the accused;
- When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
- When there is a prejudicial question which is sub judice;
- When the acts of the officer are without or in excess of authority;
- Where the prosecution is under an invalid law, ordinance or regulation;
- When double jeopardy is clearly apparent;
- Where the court has no jurisdiction over the offense;
- Where it is a case of persecution rather than prosecution;
- Where the charges are manifestly false and motivated by the lust for vengeance;
- When there is clearly no prima facie case against the accused and motion to quash on that ground has been denied.43 (Emphases
supplied)
x x x [R]espondents acted with manifest partiality, evident bad faith or gross inexcusable negligence when they suspended the implementation of the required CSP, to accommodate the PSAs/PSCs of [distribution utilities] and [generation companies], particularly of MERALCO, thereby exempting them from the CSP mandated requirement.It is clear therefore that the Ombudman's finding of probable cause rests on the supposition that petitioners violated R.A. No. 3019 with the issuance of ERC Resolution No. 1-2016, which suspended the implementation of the CSP requirement. For the Ombudsman, the mere act of suspending the implementation of the CSP, shows that petitioners acted with manifest partiality, evident bad faith or gross and inexcusable negligence to accommodate the PSAs/Power Supply Contracts (PSCs) of DUs and generation companies, specifically, MERALCO. Stated differently, the premise is that since MERALCO benefited from Resolution No. 1-2016, then the subject resolution was, from the start, meant only to give an undue advantage to MERALCO, that is tantamount to a crime.
The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:
1. On 20 October 2015, the ERC issued [Resolution No. 13-2015] with the provision that all PSAs and PSCs not filed with the ERC as of 06 November 2015 should already be covered by CSP as their Mandatory Selection Process;
2. Thus, by 07 November 2015, the requirement that PSAs not filed with ERC as of said date should already be covered by CSP, already took effect [sic];
3. In a Letter dated 26 November 2015, MERALCO sought the permission of ERC to exempt their PSCs from the CSP requirement;
4. On 10 December 2015, the ERC, through Salazar's letter, denied MERALCO's request;
5. On 15 March 2016, ERC, through respondents, issued ERC [Resolution No. 1-2016], modifying the effectivity date of the Resolution from 07 November 2015 to 30 April 2016, thus, giving a window period for PSAs without CSPs to be filed from 15 March 2016 to 30 April 2016; [and]
6. On 29 April 2016, a day before the extended deadline of 30 April 2016, MERALCO filed seven PSAs that did not undergo the CSP requirement.
x x x x
Their non-implementation of the requirement of CSP cannot hide under the cloak of presumption of regularity in the performance of their official duties. There is sufficient evidence that respondents gave unwarranted benefits to MERALCO and other companies by exempting them from the coverage of the CSP requirement which was already in effect after 06 November 2015. The 45-day period gave MERALCO and other companies the opportunity to dispense with CSP. Their gross inexcusable negligence led to the circumvention of the government policy requiring CSP, and denied the consumers the opportunities to elicit the best price offers and other PSA terms and conditions from suppliers.48
WHEREAS, since the publication of the CSP [Guidelines] on 06 November 2015, the [ERC] has received several letters from stakeholders which raised issues on the constitutionality of the effectivity of the CSP [Guidelines], sought clarification on the implementation of the CSP and its applicability to the renewal and extension of PSAs, requested a determination of the accepted forms of CSP, and submitted grounds for exemption from its applicability, among others.Among these stakeholders are: (1) SMC Global Power which requested, through a Letter dated 25 November 2015, that they be allowed to file their PSCs because the requirements imposed pursuant to the CSP implementations were non-existent when their PSCs were evaluated and signed;49 (2) Philippine Rural Electric Cooperative Association, Inc., which requested for exemption from coverage of Department Circular No. DC2015-06-0008, via a Letter dated 1 December 2015;50 (3) Agusan del Norte Electric Cooperative, Inc., which requested, per Letter dated 10 December 2015, confirmation that any extension of PSAs or Energy Supply Agreements previously approved is outside the scope of ERC Resolution No. 13-2015;51 (4) Astronergy Development, which requested, through a Letter dated 15 December 2015, a meeting to discuss their situation following the issuance of Resolution No. 13-2015;52 (5) Camarines Sur IV Electric Cooperative, Inc. and Unified Leyte Geothermal Energy, Inc., which requested for an extension to file their joint application for the approval of a PSA in their Letter dated 21 December 2015;53 and (6) Aklan Electric Cooperative, Inc. which sent a letter dated 9 March 2016 inquiring about the CSP requirement.54
WHEREAS, after judicious study and due consideration of the different perspectives raised in the aforementioned letters, with the end in view of ensuring the successful implementation of the CSP for the benefit of consumers, DUs, and GenCos, the [ERC] has resolved to allow a period of transition for the full implementation of the CSP [Guidelines] and, as such, restates the effectivity date of the CSP [Guidelines] to a later date.
Judicial power of review includes the determination of whether there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.This was reiterated in Sistoza v. Desierto56 where the Court categorically held that we can direct the Sandiganbayan to dismiss the criminal case filed against petitioner after finding that the Ombudsman wrongfully found probable cause against him. For want of a well-founded and reasonable ground to believe that petitioner violated Section 3(e), of R.A. No. 3019 or for want of probable cause, the Court ordered the Sandiganbayan to dismiss the criminal case against petitioner.
x x x x
Certainly, this will not be the first time that we order the dismissal of a case filed before the Sandiganbayan for want of probable cause. In the case of Fernando v. Sandiganbayan, we justified our action as follows:
We emphasize at this point that the Court has a policy of noninterference in the Ombudsman's exercise of his constitutionally mandated powers. The overwhelming number of petitions brought to us questioning the filing by the Ombudsman of charges against them are invariably denied due course. Occasionally, however, there are rare cases when, for various reasons there has been a misapprehension of facts, we step in with our review power. This is one such case. (Emphases supplied and citations omitted)
Endnotes:
1 Under Rule 65 of the RULES OF COURT; rollo, pp. 3-35.
2 Signed by Graft Investigation and Prosecution Officer II, Cezar M. Tirol II, id. at 37-51.
3 Id. at 52-58.
4Sec. 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.
5 THE ANTI-GRAFT AND CORRUPT PRACTICES ACT.
6 Republic Act No. 9136, entitled AN ACT ORDAINING REFORMS IN THE ELECTRIC POWER INDUSTRY, AMENDING FOR THE PURPOSE CERTAIN LAWS AND FOR OTHER PURPOSES.
7 The Commission replaced the Energy Regulatory Board.
8 Id., Section 2.
9 Section 7 of R.A. No. 9136.
10 Per the Resolution No. 13 s. 2015, the ERC had posted a notice on its website directing interested parties to comment on the first and second draft of the rules governing power supply agreements. After making all inputs of record, the ERC then conducted a series of public consultations in February 2014 as well as focus group discussions in April of the same year.
11 Signed by herein petitioners in their official capacity, as well as by the ERC Chairman, Jose Vicente B. Salazar.
12 In Circular No. DC2015-06-0008. Sec. 3 thereof provides:
Sec. 3. Standard features in the conduct of CSP. After the effectivity of this Circular, all DUs shall procure PSAs only through CSP conducted through a Third Party duly recognized by the ERC and the DOE In the case of the ECs, the Third Party shall also be duly recognized by the National Electrification Administration.
13 Dated October 20, 2015.
14 Final Whereas Clause of Resolution No. 13-2015.
15 Resolution No. 13-2015, Sec. 1 and Sec. 3.
16 Id. at Sec. 2. The terms of reference include: (a) Required/Contracted Capacity and/or Energy Volumes; (b) Generation Sources; (c) Method of Procurement for Fuel, if applicable; (d) Cooperation/Contract Period; (e) Tariff Structure Unbundled to Capacity Fees, Variable and Fixed Operating and Maintenance Fee, Fuel Fee and Others, including the derivation of each component. Base Fee Adjustment Formula, if any; (f) Form of Payment; (g) Penalties, if applicable; (h) If applicable, details regarding any transmission projects necessary to complement the proposed generation capacity; and (i) Other Key Parameters.
17 Id. at Sec. 4.
18Rollo, pp. 162-19l. Some of these letter-inquiries challenged the legality of Resolution No. 13-2015.
19 Entitled, A RESOLUTION CLARIFYING THE EFFECTIVITY OF ERC RESOLUTION NO. 13, SERIES OF 2015.
20Alyansa Para sa Bagang Pilipinas, Inc. v. Energy Regulatory Commission, G.R. No. 227670, May 3, 2019.
21Rollo, pp. 59-79.
22 Salazar filed a separate petition for certiorari before the Court, docketed as G.R. No. 240288.
23Rollo, pp. 49-50. The dispositive portion of the Resolution reads:cralawredWHEREFORE, this Office finds probable cause to prosecute Jose Vicente Buenviaje Salazar, Gloria Victoria Cabales Yap-Taruc, Alfredo Jacinto Non, Josefina Patricia Almendras Magpale-Asirit, and Geronimo Delgado Sta. Ana for violation of Section 3(e) of Republic Act No. 3019, as amended. Let the corresponding Information be filed against them with the proper court.24Rollo, pp. 117-161.
SO ORDERED.
25 Id. at 192-196.
26 Id. at 52-56. The dispositive portion reads:cralawredWHEREFORE, the Motions for Reconsideration are DENIED.27 Branch 155, rollo, pp. 844-846.
SO ORDERED.
28 Together with Salazar.
29 Alyansa Para sa Bagong Pilipinas, Inc., rep. by Noel G. Villones and Evelyn V. Jallorina v. Court of Appeals, Jose Vicente B. Salazar, Gloria Victoria C. Yap-Taruc, Alfredo J. Non, G.R. No. 237586, rollo, pp. 3-4.
30 AN ACT STRENGTHENING FURTHER THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE SANDIGANBAYAN, FURTHER AMENDING PRESIDENTIAL DECREE No. 1606, AS AMENDED, AND APPROPRIATING FUNDS THEREFOR.
31 Signed by Graft Investigation and Prosecution Officer II, Cezar M. Tirol II.
32Rollo, p. 52-57.
33 Id. at 10-11.
34 The Comment was filed also in connection with G.R. No. 240288 (rollo, pp. 642-657). Note that the OSG filed a Manifestation and Motion on September 3, 2018 in which it made a preliminary assessment that the petition in G.R. No. 227670 is a prejudicial question in the resolution of the instant petition (rollo, pp. 265-292). It has not yet filed its Comment on the present petition. ABP also submitted its Comment on 17 December 2018, but only on Meralco's earlier Manifestation in G.R. No. 227670 (rollo, pp. 851-853).
35Villarosa v. Ombudsman, G.R. No. 221418, January 23, 2019.
36Joson v. Office of the Ombudsman, 816 Phil. 288, 320 (2017).
37Villarosa v. Ombudsman, supra.
38Estrada v. Office of the Ombudsman, G.R. Nos. 212761-62, July 31, 2018.
39Crucillo v. Office of the Ombudsman, 552 Phil. 699, 713 (2007).
40Casing v. Ombudsman, 687 Phil. 468, 476 (2012).
41Sistazu v. Desierto, 437 Phil. 117, 129 (2002).
42Crucillo v. Ombudsman, supra note 39, at 712-713.
43Mendoza-Arce v. Office of the Ombudsman, 430 Phil. 101, 113 (2002).
44Alberto v. Court of Appeals, 711 Phil. 530, 553 (2013).
45 Id. at 553-554.
46Rivera v. People, G.R. No. 228154, October 16, 2019.
47 Id.
48Rollo, pp. 44-45, 49.
49 Id. at 162-163.
50 Id. at 164.
51 Id. at 167-168.
52 Id. at 176-177.
53 Id. at 171-174.
54 Id. at 175.
55 426 Phil. 490, 509-510 (2002).
56 Supra note 41.
57 See Cabahug v. People, supra note 55, at 509.
58Jimenez v. Tolentino, Jr., 490 Phil. 367, 375-376 (2005).
PERLAS-BERNABE, J.:
In the context of filing criminal charges, grave abuse of discretion exists in cases where the determination of probable cause is exercised in an arbitrary and despotic manner. There is probable cause "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."1 "In order 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."2
One of the essential elements3 to hold a person criminally liable under Section 3 (e) of Republic Act No. (RA) 3019 is the presence of manifest partiality, evident bad faith, or inexcusable negligence. There is "manifest partiality" when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.4 On the other hand, "evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. It contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purposes.5 Meanwhile, "gross negligence" is negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.6
In this case, the Office of the Ombudsman's finding of probable case rests on the sweeping supposition that petitioners committed the crime of violation of RA 3019 by suspending, through the issuance of Energy Regulatory Commission (ERC) Resolution No. 1, Series of 2016 (Resolution No. 1, s. 2016), the implementation of the Competitive Selection Process requirement (CSP). By the solitary fact of suspending the implementation of the CSP, without anything more, the Ombudsman already jumped to the conclusion that petitioners acted with manifest partiality, evident bad faith, or gross inexcusable negligence to accommodate the Power Supply Agreements (PSAs)/Power Supply Contracts (PSCs) of distribution utilities and generation companies, particularly, MERALCO, viz.:
[R]espondents acted with manifest partiality, evident bad faith or gross inexcusable negligence when they suspended the implementation of the required CSP, to accommodate the PSAs/PSCs of [distribution utilities] and [generation companies], particularly Meralco, thereby exempting them from the CSP mandated requirement.Notably, the Ombudsman mentions that there is "sufficient evidence" that petitioners gave unwarranted benefits to MERALCO and other companies. However, after carefully scrutinizing its resolution, as well as poring over the records, there is not a single shred of evidence on record which would buttress this claim.
The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:
1. On 20 October 2015, the ERC issued Resolution No. 13, Series of 2015 [(Resolution No. 13, s. 2015)] with the provision that all PSAs and PSCs not filed with the ERC as of 06 November 2015 should already be covered by CSP as their Mandatory Selection Process;
2. Thus, by 07 November 2015, the requirement that PSAs not filed with ERC as of said date should already be covered by CSP, already took effect effect (sic);
3. In a Letter dated 26 November 2015, Meralco sought the permission ofERC to exempt their PSCs from the CSP requirement;
4. On 10 December 2015, the ERC, through Salazar's letter, denied Meralco's request;
5. On 15 March 2016, ERC, through respondents, issued Resolution No. 1, Series of 2016, modifying the effectivity date of the Resolution from 07 November 2015 to 30 April 2016, thus, giving a window period for PSAs without CSPs to be filed from 15 March 2016 to 30 April 2016;
6. On 29 April 2016, a day before the extended deadline of 30 April 2016, Meralco filed seven PSAs that did not undergo the CSP requirement.
x x x Their non-implementation of the requirement of CSP cannot hide under the cloak of presumption of regularity in the performance of their official duties. There is sufficient evidence that respondents gave unwarranted benefits to Meralco and other companies by exempting them from the coverage of the CSP requirement which was already in effect after 06 November 2015. The 45-day period gave Meralco and other companies the opportunity to dispense with CSP. Their gross inexcusable negligence led to the circumvention of the government policy requiring CSP, and denied the consumers the opportunities to elicit the best price offers and other PSA terms and conditions from suppliers.7
WHEREAS, since the publication of the CSP [Guidelines] on 06 November 2015, the [ERC] has received several letters from stakeholders which raised issues on the constitutionality of the effectivity of the CSP [Guidelines], sought clarification on the implementation of the CSP and its applicability to the renewal and extension of PSAs, requested a determination of the accepted forms of CSP, and submitted grounds for exemption from its applicability, among others.As culled from the records, these letters include the following:
WHEREAS, after judicious study and due consideration of the different perspectives raised in the aforementioned letters, with the end in view of ensuring the successful implementation of the CSP for the benefit of consumers, DUs, and GenCos, the [ERC] has resolved to allow a period of transition for the full implementation of the CSP [Guidelines] and, as such, restates the effectivity date of the CSP [Guidelines] to a later date[.]8
Upon filing with the ERC, however, our counter-part counsel for the DUs and ECs (Dechavez & Evangelista Law Offices) informed us that even at the pre-filing stage, the ERC rejects applications which do not include the following: DUs/ECs Invitation to Participate and Submit Proposal, DUs/ECs' Terms of Reference, Proposals Received by the DU/EC, tender offers, DU/ECs Special Bids and Awards Committees (SBAC) Evaluation Report, DU Board Resolution confirming the approval of the SBAC Evaluation report and Notice of Award issued by the DU/EC.(b) Request of Philippine Rural Electric Cooperative Association, Inc. for exemption from coverage of Department Circular No. DC2015-06-0008;10
It is significant to note that all of these requirements, even the creation of the SBAC, were non-existent when our PSCs were evaluated and signed. x x x
To this end, we respectfully request the consideration of the Honorable Commission to allow us to file, and for the Commission to accept, the applications for approval of the subject PSCs. In our case, mere filing is critical for us to achieve financial close for purposes of funding our power plant project.
The filing of the application will enable us to continue financing the Limay Phase 1 Project, Malita Project and proceed with Limay Phase 2 Project to augment the capacity in the Luzon and Mindanao Grids and prevent the projected shortage in 2017.9
The ESA, as amended and supplemented, will expire on 25 June 2016. Given the power shortage in Mindanao, the insufficiency of the NPC/PSALM supply, taken together with the continuing demand growth of our end-users, we wish to exercise the option provided under the Amendment to the ESA to extend the Term of our Amended and Supplemented ESA with TMI x x x.(d) Reiteration by SMC Global Power of its request to the ERC to accept and allow the filing of their PSCs already signed prior to the issuance ofERC Resolution No. 13, s. 2015:cralawred
Relating this provision to Reso 13, we are of the impression that Reso 13 may not be strictly applied to ESA extensions, especially considering that the Honorable Commission has already meticulously scrutinized and approved TMI's Fixed O&M, Energy and Fuel Fees, as well as its asset base in determining the Capital Recovery Fee.
x x x x
Since Section 4 of the Resolution states that the CSP requirement shall not apply to PSAs (or ESAs) already filed with the ERC, we are of the understanding that an extension of an existing ESA, which is part of the provisions submitted to and has been approved by the ERC, albeit provisionally, is outside the coverage of the present Resolution. Hence, we intend to enter into an extension of our existing ESA with TMI, applying the same methodology and asset base as approved by the Honorable Commission in arriving at the rates. x x x11
Further to our letter dated November 25, 2015, we would like to reiterate our request to the Honorable Commission En Banc to accept and allow the filing of Power Supply Contracts (PSC) already signed prior to its issuance Resolution No. 13, Series of 2015 "A Resolution Directing All Distribution Utilities (DUs) to Conduct Competitive Selection Process (CSP) in the Procurement of Their Supply to the Captive Market."(e) Request of Astronergy Development for a meeting to discuss their peculiar situation following the issuance of Resolution No. 13, s. 2015 in that, it impairs the contracts that were entered into in good faith:cralawred
We wish to stress that in the event the subject PSCs cannot be filed, the Honorable Commission would effectively invalidate the same to the detriment of the contracting parties and the industry. It is significant to note that the Distribution Utilities (DU) and Electric Cooperatives (EC) have carefully evaluated and considered the most advantageous terms and conditions for its consumers prior to signing the subject PSCs.
x x x x
Meanwhile, another round of CSP may likely alter the terms of the contract that could prove to be disadvantageous to the DU or EC.
Considering the execution of the PSCs and the stage of their application process prior to the issuance of the CSP requirement, we beg the indulgence of the Honorable Commission En Banc to accept the subject PSCs and allow the filing thereof to proceed.12
We respectfully request a meetiug with you at your earliest convenience, so that we can discuss our peculiar situation following the issuance of the Resolution. Our meeting objective is to understand your views regarding the retroactive application of the Resolution and further, to understand how to harmonize Resolution in light of the third party legal opinion we have attached herein for your consideration. Lastly, we hope to be allowed a brief opportunity to present and discuss our views on why the Commission's staff should interpret the Resolution in a manner that is consistent with the Commission's past written responses on RE to the Senate Energy Committee; and the Commission's related Decision relevant to our particular circumstances.(f) Request of Camarines Sur IV Electric Cooperative, Inc. and Unified Leyte Geothermal Energy, Inc. for an extension to file their joint application for the approval of a power supply agreement:cralawred
x x x x
Section 4 of the Resolution requires the DUs to conduct a CSP for PSAs that have not yet submitted its PSA with the ERC. We believe the result is a retroactive application of the Resolution that impairs our contracts that were entered into in good faith. This creates uncertainties, including the possible revision and rescission of existing binding agreements, which our group of companies, and their shareholders and creditors, are greatly concerned about. There are also specific considerations with each DU: for each PSA we have executed since the application of the Resolution would potentially lead to losses and additional project delay. Any further delay (such as revisiting CSP) would result in a breach of contract for not meeting deadlines.13
On 03 August 2015, CASURECO IV and San Miguel Energy Corporation ("SMEC") entered into a mutual agreement before this Honorable Commission to pre-terminate the Power Supply Contract dated 23 August 2013 between CASURECO IV and SMEC ("SMEC PSC"). As a result of the pre-termination of SMEC PSC, beginning 00:00H of 26 August 2015, SMEC ceased to supply power to CASURECO IV.(g) Query of Aklan Electric Cooperative, Inc. regarding the CSP requirement:cralawred
x x x Because CASURECO IV received no proposals for its power supply requirements, it began direct negotiations with ULGEI.
x x x x
Since CASURECO IV received such letter on 24 September 2015, CASURECO IV and ULGEI had until 23 November 2015 to file a jointapplication for the approval of a power supply agreement. Due, however, to the extensive negotiations conducted to provide the Franchise Area a competitive and reliable supply of power, and since it will take time to prepare and finalize a power supply agreement, CASURECO IV and ULGEI requested this Honorable Commission for an additional thirty (30) days within which to file a joint-application, or until23 December 2015.14
We write to advance our queries pertaining to the Competitive Selection Process which is now part of the Power Supply Procurement requirements for all DUs. The relatedERC Resolution No. 13 Series of 2015 was already in effect 15 days after its publication last October 20, 2015.To my mind, absent any other circumstance showing that some illicit interest was involved in the issuance of Resolution No. 1, s. 2016, the foregoing concerns of the various stakeholders of the power industry evince the good faith of petitioners and in turn, negate the existence of probable cause anent the element of manifest partiality or evident bad faith on their part.
In the case of AKELCO where in previous years, two (2) Power Supply Contracts for base load requirements were already signed by both parties but were not filed with the ERC before the effectivity of the CSP. The queries are as follows:
1. If the Power Supply Contracts that were not filed due to noncompliance to CSP still binding?
2. What are the ERC's recommended modes of CSPs? Is the so-called "Price Challenge" or Swiss Challenge allowed? And,
3. Presuming that some of the stipulated provisions (i.e., date of initial delivery, base load demand requirements) in the said contracts cannot be met due to CSP requirement or already unacceptable to either of the party, can we still re-negotiate the provisions and at the same time introduce the ERC recommended terms of reference?15
Endnotes:
1Alberto v. Court of Appeals, 711 Phil. 530, 553 (2013).
2 Id.
3 The elements of violation of Section 3 (e) of RA 3019 are as follows: (a) that the accused must be a public officer discharging administrative, judicial, or official functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue injury to any party, including the govemment, or giving any private party unwarranted benefits, advantage, or preference in the discharge of his function. (Fuentes v. People, 808 Phil. 586, 593 [2017].
4 Id. at 594.
5 Id.
6 Id. at 594-594, citing Coloma v. Sandiganbayan, 744 Phil. 214, 229 (2014).
7 See ponencia, pp. 9-10.
8 See Resolution No. 1, s. 2016.
9 See Letter dated November 25, 2015 ofSMC Global Power; rollo, pp. 162-163.
10 See Letter dated December 1, 2015 of Philippine Rural Electric Cooperative Association, Inc.; id. at 164.
11 See Letter dated December 10, 2015 of Agusan del Norte Electric Cooperative, Inc.; id. at 167-168.
12 See Letter dated December 14, 2015 SMC Global Power; id. at 169-170.
13 See Letter dated December 15, 2015 of Astronergy Development; id. at 176-177.
14 See Letter dated December 21, 2015 of Camarines Sur IV Electric Cooperative, Inc. and Unified Leyte Geothermal Energy, Inc.; id. at 171-174.
15 See Letter dated March 9, 2016 of Aklan Electric Cooperative, Inc.; id. at 175.
16 See my Separate Concurring Opinion, Justice Alfredo Benjamin S. Caguioa's Dissenting Opinion, and Justice Andres Reyes, Jr.'s Dissenting Opinion in G.R. No. 227670.
17Tio v. Abayata, 578 Phil. 731, 747 (2008); citation omitted.
18 Promulgated on May 3, 2019.
LEONEN, J.:
A petition for certiorari is the appropriate remedy if the prosecution's finding of probable cause was made with grave abuse of discretion. However, before determining if there was any grave abuse of discretion, this Court must first determine if the petition was the "plain, speedy, and adequate remedy in the ordinary course of law[.]"1 Once probable cause has been judicially determined, any petition questioning the executive determination of probable cause ceases to be the plain, speedy, and adequate remedy.
The controversy in this case arose from the Department of Energy's issuance of Circular No. DC2015-06-0008. This Circular provided that all distribution utilities shall procure power supply agreements only through a competitive selection process, conducted through a third party recognized by the Department of Energy and the Energy Regulatory Commission.2 In view of this Circular, on November 4, 2015, the Energy Regulation Commission issued Resolution No. 13, Series of 2015, requiring a successful, transparent, and competitive selection process as a precondition to an award of a supply agreement. Direct negotiation was allowed only when the competitive selection process fails twice.3
The Resolution likewise exempted all power supply agreements already filed and pending review with the Energy Regulatory Commission by November 6, 2015, the date the Resolution would take effect.4
Manila Electric Company (Meralco) was among the stakeholders that requested to be exempted from the requirement of competitive selection process. This request was denied.5
On March 15, 2016, the Energy Regulatory Commission issued Resolution No. 1, Series of 2016, which extended the effectivity date of Resolution No. 13 from November 6, 2015 to April 30, 2016. The extension was allegedly meant to be a transition period for the full implementation of Resolution No. 13.6
Meralco allegedly entered into seven power supply agreements on April 26, 2016, and filed them all with the Energy Regulatory Commission onApril29, 2016, a day before the new effectivity date.7
Thus, before the Office of the Ombudsman, Alyansa Para sa Bagong Pilipinas, Inc. (Alyansa) filed a verified Complaint against the Chair and Commissioners of the Energy Regulatory Commission for violating Section 3(e)8 of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act. It alleged that the extension of Resolution No. 13's effectivity date was meant to allow Meralco to acquire lucrative power supply agreements without undergoing the competition selection process. It alleged that the agreements Meralco entered into and pending approval from the Energy Regulatory Commission would prejudice the public in the next 20 years due to overpriced power charges.9
Alyansa simultaneously filed a Petition for Certiorari and Prohibition before this Court, docketed as G.R. No. 227670.10 It prayed that Resolution No. 1 be voided for having been issued with grave abuse of discretion.
In the meantime, the Office of the Ombudsman proceeded to investigate the Complaint filed before it. In a September 29, 2017 Resolution, it found probable cause to charge Energy Regulatory Commission Chair Jose Vicente Salazar, as with Commissioners Gloria Victoria C. Yap-Taruc, Alfredo J. Non, Josephina Patricia A. Magpale-Asirit, and Geronimo D. Sta. Ana (collectively, the Commissioners), for violating Section 3(e) of Republic Act No. 3019.11
The beleaguered Chair and Commissioners filed their Joint Motion for Reconsideration and Supplemental Motion for Reconsideration, but these were denied by the Office of the Ombudsman in an April 20, 2018 Order.12 Subsequently, on June 7, 2018, an Information was filed against them before the Regional Trial Court of Pasig City.13 They were later arraigned on November 21, 2018.14
Aggrieved, the Commissioners15 filed this Petition for Certiorari , assailing the Office of the Ombudsman's finding of probable cause for allegedly being tainted with grave abuse of discretion. They claim that the finding was not supported by substantial evidence and that the constitutionality of Resolution No. 1 had yet to be determined in G.R. No. 227670, which had still been pending at the time this Petition was filed.16
On May 3, 2019, a ruling in G.R. No. 227670 was rendered. Granting Alyansa's Petition, this Court declared, among others, that Resolution No. 1 was void for being tainted with grave abuse of discretion.17
Here, the majority resolved to grant the Commissioners' Petition. In so ruling, it opined that while this Court generally exercises a policy of noninterference with the Office of the Ombudsman's finding of probable cause, it can still review such finding if it is alleged to be tainted with grave abuse of discretion.18 The majority then explained that while G.R. No. 227670 later nullified Resolution No. 1, this is not enough basis to find probable cause to charge petitioners with violation of Section 3(e) of Republic Act No. 3019.19
While I agree that a petition for certiorari is appropriate when the finding of probable cause is made with grave abuse of discretion, this Court must first determine if the petition filed was procedurally sound. It must be, under the Rules of Court, the "plain, speedy, and adequate remedy in the ordinary course of law[.]"20
Here, petitioners had been charged21 and arraigned.22 The Regional Trial Court of Pasig City has already assumed jurisdiction over the case. Any question on the finding of probable cause should have been addressed to its sound discretion. Filing the present Petition for Certiorari before this Court, therefore, was not the "plain, speedy, and adequate remedy" contemplated by the Rules.
The Office of the Ombudsman is armed with the power to investigate. It is, therefore, in a better position to assess the strengths or weaknesses of the evidence on hand needed to make a finding of probable cause. As this Court is not a trier of facts, we defer to the sound judgment of the Ombudsman.29 (Citation omitted)Deference to the factual findings of prosecutorial bodies also serves a practical purpose:cralawred
[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 complaint.30This policy of non-interference, however, is a general rule. This Comi will generally defer to the Office of the Ombudsman's finding of probable cause, except when the findings were arrived at with grave abuse of discretion.31 Conversely, mere errors of judgment are not sufficient. A petitioner must show that the Office of the Ombudsman acted in an "arbitrary and despotic manner because of passion or personal hostility."32 In Reyes v. Office of the Ombudsman:33
[D]isagreement with the Ombudsman's findings is not enough to constitute grave abuse of discretion. It is settled:cralawredHere, the Office of the Ombudsman's assailed Resolution does not indicate any capricious or arbitrary exercise of power, and nor does it show a virtual refusal to perform a duty. On the contrary, its findings appear to have been arrived at objectively, with due regard to the evidence on hand:cralawredAn act of a court or tribunal may constitute grave abuse of discretion when the same is performed in a capricious or whimsical exercise of judgment amounting to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or personal hostility.Thus, for this Petition to prosper, petitioner would have to show this Court that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty under the law.34
[R]espondents acted with manifest partiality, evident bad faith or gross inexcusable negligence when they suspended the implementation of the required CSP, to accommodate the PSAs/PSCs of DUs and GenCos, particularly of Meralco, thereby exempting them from the CSP mandated requirement.These findings are evidentiary. Any error requires the review of evidence, something that is usually done during trial. In Drilon v. Court of Appeals:36
The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:
...
The justifications given by respondents in not implementing the CSP requirement are untenable. The requirement for CSP as mandated by EPIRA, DOE and ERC, cannot be reasonably stopped by the requests for clarification, exception and/or exemption from CSP from numerous industry participants, especially when the stakeholders were already heard in extensive consultations conducted by the ERC. Respondents themselves bared in the "WHEREAS CLAUSES" of the 2015 CSP Resolution that stakeholders have been informed, heard and consulted about the CSP, thus:
...
Furthermore, the CSP is an acknowledged mechanism to make the cost of PSAs more reasonable. Hence, accommodating companies' request to be exempted from CSP was a deviation from respondents' duty to promote public interest through the CSP requirement. The gross inexcusable negligence of respondents benefitted 38 more companies who were able to enter into PSAs and file them with ERC without complying with the CSP requirement.
...
Respondents, in their exercise of their official regulatory functions, have given unwarranted benefits, advantage or preference to MERALCO and other companies. Under the CSP Resolution, said companies were not qualified to file their PSAs for being non-compliant with the CSP requirement. But respondents' failure to recognize the effects of the suspension of the implementation of CSP gave said companies the concession to file their PSAs and PSCs without having to comply with the CSP policy.35
Probable cause should be determined in a summary but scrupulous manner to prevent material damage to a potential accused's constitutional right of liberty and the guarantees of freedom and fair play. The preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. It is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. It is a means of discovering the persons who may be reasonably charged with a crime. The validity and merits of a party's defense and accusation, as well as admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level.37Thus, the finding of probable cause may only be reviewed when there is reason to believe that it was arrived at in a capricious, whimsical, arbitrary, and despotic manner. The mere exercise of prosecutorial discretion, when done within the bounds of law and the rules of procedure, should not be subject to this Court's review. Excessive interference in matters that are distinctly prosecutorial may result in contradictory rulings based on the same set of facts, as what happened in this case. The majority here stated that Resolution No. 1 was issued with "sound judgment":cralawred
The issuance of the subject resolution was in the exercise of ERC's sound judgment as a regulator and pursuant to its mandate under the EPIRA to protect the public interest as it is affected by the rates and services of electric utilities and other providers of electric power. Thus, it cannot be classified as arbitrary, whimsical or capricious. The transition period, together with the clarifications provided in Resolution No. 1, constitute a reasonable response to the various concerns posed by DUs, GenCos and electric cooperatives.38This is in direct contradiction to the ruling in G.R. No. 227670, Alyansa Para sa Bagong Pilipinas v. Energy Regulatory Commission,39 where this Court found that Resolution No. 1 was issued with grave abuse of discretion:cralawred
The issuance of the ERC Clarificatory Resolution was attended with grave abuse of discretion amounting to lack or excess of jurisdiction for the following reasons:I agree with the majority that a finding of grave abuse of discretion does not equate to a finding of probable cause. However, at the very least, this Court should remain consistent. The majority's statement makes it appear as if there could have been no probable cause to charge petitioners since the assailed Resolution was not issued with grave abuse of discretion.
(1) Postponing the effectivity of CSP from 30 June 2015 to 7 November 2015, and again postponing the effectivity of CSP from 7 November 2015 to 30 April 2016, or a total of 305 days, allowed DUs nationwide to avoid the mandatory CSP;
(2) Postponing the effectivity of CSP effectively freezes for at least 20 years the DOE-mandated CSP to the great prejudice of the public. The purpose of CSP is to compel DUs to purchase their electric power at a transparent, reasonable, and least-cost basis, since this cost is entirely passed on to consumers. The ERC's postponement unconscionably placed this public purpose in deep freeze for at least 20 years.
Indisputably, the ERC committed grave abuse of discretion amounting to lack or excess of jurisdiction when the ERC postponed the effectivity of CSP. The postponement effectively prevented for at least 20 years the enforcement of a mechanism intended to ensure "transparent and reasonable prices in a regime of free and fair competition," as mandated by law under EPIRA, a mechanism implemented in the 2015 DOE Circular which took effect on 30 June 2015.40
This Court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this Court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter's competence to issue the extraordinary writs was restricted to those "in aid of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, w1restrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. It is a policy that is necessary to prevent inordinate demands upon the Court's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction on the jurisdiction of the Court of Appeals in this regard - resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction" - was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for the extraordinary writs which, but for the expansion of the Appellate Court's conesponding jurisdiction, would have had to be filed with it.43 (Citations omitted)Diocese of Bacolod v. Commission on Elections44 further refines this concept and discusses:cralawred
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law which may include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution. To effectively perform these functions, they are tenitorially organized into regions and then into branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the facts from the evidence as these are physically presented before them. In many instances, the facts occur within their territorial jurisdiction, which properly present the 'actual case' that makes ripe a determination of the constitutionality of such action. The consequences, of course, would be national in scope. There are, however, some cases where resort to courts at their level would not be practical considering their decisions could still be appealed before the higher courts, such as the Court of Appeals.We must be careful to distinguish between special civil actions filed under Rule 65 of the Rules of Court and those special civil actions which invoke this Court's power of judicial review under Article VIII, Section 1 of the Constitution. These are two different remedies.
The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is competent to determine facts and, ideally, should act on constitutional issues that may not necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating - in the light of new circumstances or in the light of some confusions of bench or bar - existing precedents. Rather than a court of first instance or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.45 (Citation omitted)
... 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.50 (Citations omitted)Considering that probable cause merely requires a probability of guilt, and not the absolute certainty of it, a review of its detennination requires no less than a showing of grave abuse of discretion. This is usually done through a petition for certiorari under Rule 6551 of the Rules of Court. Parties are always too quick to assume that their petitions will be entertained once they state the litany of acts alleged to be grave abuse of discretion. These parties forget that before delving into the substantial requirements of the petition, they must first prove that "there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law[.]"52
SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.57Although they may rely on the same evidence and case records, the prosecutor's finding of probable cause is not the same as the trial court's finding of probable cause. People v. Castillo58 explains:cralawred
There are two kinds of determination of probable cause: executive and judicial. 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 cause 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 tiled 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 trial court arrives at a finding independently of the prosecutor's findings. It cannot just blindly accept the prosecutor's conclusions that there was probable cause to issue a warrant of arrest. In Ho v. People:60
The judicial determination of probable cause, on the other hand, is one made by the judge to asceiiain whether a wanant of anest 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 anest warrant.59
Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.If the prosecutor finds probable cause, an information is filed in court. Once the information has been filed, the court acquires full jurisdiction over the case.62 Any question on the finding of probable cause, therefore, must be addressed to its sound discretion. In Crespo v. Mogul:63
Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have suppotiing evidence, other than the prosecutor's bare repmi, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to tmduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient suppotiing documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the repmi of the investigating officer.61
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 san1e. 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.64Even after the information is filed, a slew of other remedies is still available to the accused prior to arraignment. The accused may file a petition for review with the Secretary of Justice assailing the prosecutor's resolution finding probable cause. If the Secretary of Justice reverses the prosecutor's findings, they can move to dismiss the information.65 The trial court then has the discretion whether to dismiss the information or to proceed with the case. Its refusal to dismiss the case may also be subject to a petition for certiorari under Rule 65. Meanwhile, filing the petition for review before the Secretary of Justice also effectively suspends the arraignment.66 If the trial court refuses to suspend the arraignment despite the pendency of the petition for review, the accused may also file a certiorari action under Rule 65.
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 to cause 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.I understand that there is some hesitation with such a drastic pronouncement, since "[t]he purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect [them] 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."71 This Court, however, should be mindful enough to distinguish between fishing expeditions and legitimate investigations done to protect the public trust.
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 detennined, 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.
The prudent course of action at this stage would be to proceed to trial. Respondent, however, is not without remedies. He may still file any appropriate action before the trial court or question any alleged irregularity in the preliminary investigation during pre-trial.70
Endnotes:
1 RULES OF COURT, Rule 65, sec. 1.
2 Ponencia, p. 2.
3 Id.
4 Id. at 3. Alyansa Para sa Bagong Pilipinas v. Energy Regulatory Commission, G.R. No. 227670, May 3, 2019, [Per J. Carpio, En Banc], however, states that the effectivity date of the Department of Energy Circular was June 30, 2015. When the Energy Regulatory Commission issued the Competitive Selection Process Guidelines, the effectivity date was reset to November 7, 2015.
5 Id.
6 Id.
7 Id. at 4.
8 Republic Act No. 3019 (1960), sec. 3 provides:
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:
...
(e) Causing any undue injury to any party, including the Government, or giving any private patty 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.
9 Ponencia, p. 4.
10Alyansa Para sa Bagong Pilipinas v. Energy Regulatory Commission, G.R. No. 227670, May 3, 2019, [Per J. Carpio, En Banc].
11 Ponencia, pp. 4-5.
12 Id. at 5.
13 Id.
14See J. Zalameda, Dissenting Opinion, p. 9.
15 Chair Jose Vicente Salazar filed a separate Petition for Certiorari before this Court, docketed as G.R. No. 240288. There is no explanation why these cases were not consolidated.
16 Ponencia, p. 6.
17Alyansa Para sa Bagong Pilipinas v. Energy Regulatory Commission, G.R. No. 227670, May 3, 2019, [Per J. Carpio, En Banc].
18 Id. at 7.
19 Id. at 16-17.
20 RULES OF COURT, Rule 65, sec. 1.
21 Ponencia, p. 5.
22See J. Zalameda, Dissenting Opinion, p. 9.
23 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.
24Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 415 Phil. 145, 151 (2001) [Per J. Pardo, En Banc].
25Republic v. Desierto, 541 Phil. 57, 67 (2007) [Per J. Azcuna, First Division].
26People v. Court of Appeals, 361 Phil. 401, 410-413 (1999) [Per J. Panganiban, Third Division].
27Pilapil v. Sandiganbayan, 293 Phil. 368, 381-382 (1993) [Per J. Nocon, En Banc].
28 802 Phil. 564 (2016) [Per J. Leonen, Second Division].
29 Id. at 590.
30Republic v. Desierto, 541 Phil. 57, 67-68 (2007) [Per J. Azcuna, First Division].
31 CONST., art. VIII, sec. 1.
32Reyes v. Office of the Ombudsman, 810 Phil. 106, 115 (2017) [Per J. Leonen, Second Division].
33 810 Phil. 106 (2017) [Per J. Leonen, Second Division].
34 Id. at 115 citing Angeles v. Secretary of Justice, 503 Phil. 93, 100 (2005) [Per J. Carpio, First Division].
35Rollo, pp. 44-49 as cited in J. Zalameda's Dissenting Opinion, p. 3.
36 327 Phil. 916 (1996) [Per J. Romero, Second Division].
37 Id. at 923 citing Salonga v. Cruz Paño, 219 Phil. 402 (1985) [Per J. Gutierrez, Jr., En Banc]; Hashim v. Boncan, 71 Phil. 216 (1941) [Per J. Laurel, En Banc]; Paderanga v. Drilon, 273 Phil. 290 (1991) [Per J. Regalado, En Banc]; and J. Francisco, Concurring Opinion in Webb v. De Leon, 317 Phil. 758, 809-811 (1995) [Per J. Puno, Second Division].
38 Ponencia, pp. 11-12.
39 G.R. No. 227670, May 3, 2019, [Per J. Carpio, En Banc].
40 Id.
41 J. Caguioa, Concurring Opinion, pp. 2-3 citing CONST., art. VIII, sec. 1.
42 254 Phil. 418 (1989) [Per J. Narvasa, First Division].
43 Id. at 426-427.
44 751 Phil. 301 (2015) [PerJ. Leonen, En Banc].
45 Id. at 329-330.
46See J. Leonen, Concuning Opinion in Inmates of the New Bilibid Prison v. De Lima, G.R. Nos. 212719 and 214637, June 25, 2019, [Per J. Peralta, En Banc] citing Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116, 142 (2016) [Per J. Brion, En Banc].
47See GSIS Family Bank Employees Union v. Villanueva, G.R. No. 210773, January 23, 2019, [Per J. Leonen, Third Division] citing Association of Medical Clinics for Overseas Workers, Inc. (AMCOW) v. GCC Approved Medical Centers Association, Inc., 802 Phil. 116, 142 (2016) [Per J. Brion, En Banc].
48See J. Leonen, Separate Opinion in Gios-Samar, Inc. v. Department of Transportation and Communications, G.R. No. 217158, March 12, 2019, [Per J. Jardeleza, En Banc].
49Personal Collection Direct Selling v. Carandang, 820 Phil. 706, 722 (2017) [Per J. Leonen, Third Division].
50Chan v. Secretary of Justice, 572 Phil. 118, 132 (2008) [Per J. Nachura, Third Division].
51 RULES OF COURT, Rule 65, sec. 1 provides:
SECTION I. Petition for certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with ce11ainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
52 RULES OF COURT, Rule 65, sec. 1.
53People v. Castillo, 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
54See RULES OF COUR, Rule 112.
55 The Ombudsman Act of 1989.
56 The most common being the 2000 National Prosecution Service Rules on Appeal.
57 CONST., art. III, sec. 2.
58 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
59 Id. at 764-765 citing Paderanga v. Drilon, 273 Phil. 290, 296 (1991) [Per J. Regalado, En Banc]; Roberts, Jr. v. Court of Appeals, 324 Phil. 568, 620-621 (1996) [Per J. Davide, Jr., En Banc]; Ho v. People, 345 Phil. 597, 611 (1997) [Per J. Panganiban, En Banc]; and People and Dy v. Court Appeals, 361 Phil. 401 (1999) [Per J. Panganiban, Third Division].
60 345 Phil. 597 (1997) [Per J. Panganiban, En Banc].
61 Id. at 611-612 citing RULES OF COURT, Rule 112, sec. 6(b) and J. Puno, Dissenting Opinion in Roberts Jr. v. Court of Appeals, 324 Phil. 568 (1996) [Per J. Davide, Jr., En Banc].
62See People v. Castillo, 607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].
63 235 Phil. 465 (1987) [Per J. Gancayco, En Banc].
64 Id. at 476.
65See RULES OF COURT, Rule 112, sec. 4.
66See RULES OF COURT, Rule 116, sec. 11.
67 RULES OF COURT, Rule 117, sec. 3 provides:
SECTION 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the cou11trying the case has no jurisdiction over the offense charged;
(c) That the com1trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.
68See J. Zalameda, Dissenting Opinion, p. 9.
69 776 Phil. 623 (2016) [Per J. Leonen, Second Division].
70 Id. at 652-653 citing RULES OF COURT, Rule 65, sec. 1.
71Salonga v. Hon. Paño, 219 Phil. 402, 428 (1985) [Per J. Gutierrez, Jr., En Banc].
CAGUIOA, J.:
I concur with the ponencia in granting the petition, reversing and setting aside the September 29, 2017 Resolution and April 20, 2018 Order of the Ombudsman, and directing the dismissal of the Information. The ponencia is absolutely correct in finding that the Ombudsman committed grave abuse of discretion when it found the existence of probable cause that petitioners violated Section 3(e) of Republic Act (R.A.) No. 3019.1
To my mind, this case highlights the need for the prosecutorial arms of the State to carefully balance the need to prosecute criminal offenses, on the one hand, and the duty to protect the innocent from baseless suits, especially when innocent public officers are involved, on the other.
At the very heart of a preliminary investigation is the duty to secure the innocent against hasty, malicious and oppressive prosecution, and to protect them from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. Indeed, the Ombudsman has this duty, as well as the duty to protect the State from useless and expensive trial. As the Court held in Baylon v. Office of the Ombudsman2 (Baylon):
Agencies tasked with the preliminary investigation and prosecution of crimes must always be wary of undertones of political harassment. They should never forget that the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect one from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trial. It is, therefore, imperative upon such agencies to relieve any person from the trauma of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.3The Ombudsman's grave abuse of discretion in this case is starkly evident when it found the existence of probable cause even if no proof at all was presented of the elements of Section 3(e) of R.A. No. 3019.
(1) the offender is a public officer;Petitioners are public officers who acted in the discharge of their official functions, thus the presence of the first two elements above are present. The third an,d fourth elements, however, are completely absent in the case at bar.
(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.5
Lack of the third element: Manifest partiality, or evident bad faith, or gross inexcusable negligence |
WHEREAS, since the publication of the CSP Resolution on 06 November 2015, the Commission has received several letters from stakeholders which raised issues on the constitutionality of the effectivity of the CSP Resolution; sought clarification on the implementation of the CSP and its applicability to the renewal and extension ofPSAs, as requested a determination of the accepted forms of CSP, and submitted grounds for exemption from its applicability, among others.16The letters referred to in the above Whereas Clause were submitted by petitioners as attachments in their Joint Counter-Affidavit dated February 1, 2017 and again in their Motion for Reconsideration dated December 27, 2017 before the Ombudsman. Some of these letters include:
Upon filing with the ERC, however, our counter-part counsel for the DUs and the ECs (Dechavez & Evangelista Law Offices) informed us that even at the pre-filing stage, the ERC rejects applications which do not include the following: DUs/ECs Invitation to Participate and Submit Proposal, DUs/ECs' Terms of Reference, Proposals Received by the DU/EC, tender offers, DU/ECs Special Bids and Awards Committees (SBAC) Evaluation Report, DU Board Resolution confirming the approval of the SBAC Evaluation report and Notice of Award issued by the DU/EC.
It is significant to note that all of these requirements, even the creation of the SBAC, were non-existent when our PSCs were evaluated and signed. x x x
To this end, we respectfully request the consideration of the Honorable Commission to allow us to file, and for the Commission to accept, the applications for approval of the subject PSCs. In our case, mere filing is critical for us to achieve financial close for purposes of funding our power plant project.
The filing of the application will enable us to continue financing the Limay Phase 1 Project, Malita Project and proceed with Limay Phase 2 Project to augment the capacity in the Luzon and Mindanao Grids and prevent the projected shortage in 2017.17
Further to our letter dated November 25, 2015, we would like to reiterate our request to the Honorable Commission En Bane to accept and allow the filing of Power Supply Contracts (PSC) already signed prior to its issuance Resolution No. 13, Series of 2015 "A Resolution Directing All Distribution Utilities (DUs) to Conduct Competitive Selection Process (CSP) in the Procurement of Their Supply to the Captive Market."
We wish to stress that in the event the subject PSCs cannot be filed, the Honorable Commission would effectively invalidate the same to the detriment of the contracting parties and the industry. It is significant to note that Distribution Utilities (DU) and Electric Cooperatives (EC) have carefully evaluated and considered the most advantageous terms and conditions for its consumers prior to signing the subject PSCs.
x x x x
Meanwhile, another round of CSP may likely alter the terms of the contract that could prove to be disadvantageous to the DU or EC.
Considering the execution of the PSCs and the stage of their application process prior to the issuance of the CSP requirement, we beg the indulgence of the Honorable Commission En Bane to accept the subject PSCs and allow the filing thereof to proceed.18
May we respectfully furnish you a copy of the PHILRECA Board Resolution No. 10-23-2015 "Resolution Requesting the Department of Energy and the Energy Regulatory Commission (ERC) to exempt the Southern Philippines Power Corporation (SPPC) and Western Mindanao Power Corporation (WMPC) from the coverage of Department Circular No. DC2015-06-0008".19In the Board Resolution, PHILRECA stated that "Mindanao is currently experiencing power shortage and the Electric Cooperatives (ECs) to undergo the competitive selection process in order to enter into a contract with these two (2) power plants will further aggravate the power situation in Mindanao."20
The ESA, as amended and supplemented, will expire on 25 June 2016. Given the power shortage in Mindanao, the insufficiency of the NPC/PSALM supply, taken together with the continuing demand growth of our end-users, we wish to exercise the option provided under the Amendment to the ESA to extend the Term of our Agreement and Supplemented ESA with TMI x x x:
x x x x
Relating to this provision to Reso 13, we are of the impression that Reso 13 may not be strictly applied to ESA extensions, especially considering that the Honorable Commission has already meticulously scrutinized and approved TMI's Fixed and O&M, Energy and Fuel Fees, as well as its asset base in determining the Capital Recovery Fee.
x x x x
Since Section 4 of the Resolution states that the CSP requirement shall not apply to PSAs (or ESAs) already filed with the ERC, we are of the understanding that an extension of an existing ESA, which is part of the provisions submitted to and has been approved by the ERC, albeit provisionally, is outside the coverage of the present Resolution. Hence, we intend to enter into an extension of our existing ESA with TMI, applying the same methodology and asset base as approved by the Honorable Commission in arriving at the rates.21
On 03 August 2015, CASURECO IV and San Miguel Energy Corporation (SMEC) entered into a mutual agreement before this Honorable Commission to pre-terminate the Power Supply Contract dated 23 August 2013 between CASURECO IV and SMEC. As a result of the pretermination of SMEC PSC, beginning 00:00H of 26 August 2015, SMEC ceased to supply power to CASURECO IV. x x x
x x x x
x x x Because CASURECO IV received no proposals for its power supply requirements, it began direct negotiations with ULGEI. x x x
x x x x
Since CASURECO IV received such letter on 24 September 2015, CASURECO IV and ULGEI had until 23 November 2015 to file a joint application for the approval of a power supply agreement. Due, however, to the extensive negotiations conducted to provide the Franchise Area a competitive and reliable supply of power, and since it will take time to prepare and finalize a power supply agreement, CASURECO IV and ULGI requested this Honorable Commission for an additional thirty (30) days within which to file a joint application, or until 23 December 2015.22
We write to advance our queries pertaining to the Competitive Selection Process which is now part of the Power Supply Procurement requirements for all DUs. The related ERC Resolution No. 13 Series of 2015 was already in effect 15 days after its publication last October 20, 2015.
In the case of AKELCO where in previous years, two (2) Power Supply Contracts for base load requirements were already signed by both parties but were not filed with the ERC before the effectivity of the CSP. The queries are as follows:cralawred
- If the Power Supply Contracts that were not filed due to non-compliance to CSP still binding?
- What are the ERC's recommended mode of CSPs? Is the so-called "Price Challenge" or Swiss Challenge allowed? and
- Presuming that some of the stipulated provisions (i.e. date of initial delivery, base load demand requirements) in the said contracts cannot be met due to CSP requirement or already unacceptable to either of the party, can we still renegotiate the provisions and at the same time introduce the ERC recommended terms of reference?23
We respectfully request a meeting with you at your earliest convenience, so that we can discuss our peculiar situation following the issuance of the Resolution. Our meeting objective is to understand your view regarding the retroactive application of the Resolution and further, to understand how to harmonize [the] Resolution in light of the third party legal opinion we have attached herein for your consideration. Lastly, we hope to be allowed a brief opportunity to present and discuss our views on why the Commission's staff should interpret the Resolution in a manner that is consistent with the Commission's past written responses on RE to the Senate Energy Committee; and the Commission's related Decision relevant to our particular circumstances.
x x x x
Section 4 of the Resolution requires the DUs to conduct a CSP for PSAs that have not yet submitted its PSA with the ERC. We believe the result is a retroactive application of the Resolution that impairs our contracts that were entered into in good faith. This creates uncertainties, including the possible revision and rescission of existing binding agreements, which our group of companies, and their shareholders and creditors, are greatly concerned about. There are also specific considerations with each DU: for each PSA we have executed since the application of the Resolution would potentially lead to losses and additional project delay. Any further delay (such as revisiting CSP) would result in a breach of contract for not meeting deadlines.24
The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:cralawredBased on jurisprudence, "gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.33
- On 20 October 2015, the ERC issued Resolution No. 13, Series of 2015 with the provision that all PSAs and PSCs not filed with the ERC as of 06 November 2015 should already be covered by CSP as their Mandatory Selection Process;
- Thus, by 07 November 2015, the requirement that PSAs not filed with ERC as of said date should already be covered by CSP, already took effect (sic);
- In a Letter dated 26 November 2015, Meralco sought the permission of ERC to exempt their PSCs from CSP requirement;
- On 10 December 2015, the ERC, through Salazar's letter, denied MERALCO's request;
- On 15 March 2016, ERC, through respondents, issued Resolution No. 1, Series of 2016, modifying the effectivity of the Resolution from 07 November 2015 to 30 April 2016, thus, giving a window period for PSAs without CSPs to be filed from 15 March 2016 to 30 April 2016;
- On 29 April 2016, a day before the extended deadline of 30 April 2016, Meralco filed seven PSAs that did not undergo the CSP requirement.32 (Italics and underscoring omitted)
Absence of the fourth element: Causing undue injury to any party, or giving any private party any unwarranted benefit |
Respondents, in the exercise of their official regulatory functions, have given unwarranted benefits, advantage or preference to MERALCO and other companies. Under the CSP Resolution, said companies were not qualified to file their PSAs for being non-compliant with the CSP requirement. But respondents' failure to recognize the effects of the suspension of the implementation of CSP gave said companies the concession to file their PSAs and PSCs without having to comply with the CSP policy.This is sheer grave abuse of discretion.
They committed the offense in connection with the duty to promote competition as mandated by the EPIRA and to implement CSP as required by several DOE and ERC Resolutions. In performing their duty, they issued [Resolution No. 1], purportedly to pursue the government's policy of infusing competition and implementing CSP in PSAs and PSCs, but which, as evidence shows, digresses from said policies to favor companies.47
As its name implies, and as what can be gleaned from the deliberations of Congress, RA 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under RA 3019 is corruption. As explained by one of the sponsors of the law, Senator Arturo M. Tolentino,"[w]hile we are trying to penalize, the main idea of the bill is graft and corrupt practices. x x x Well, the idea of graft is the one emphasized."49 Graft entails the acquisition of gain in dishonest ways.50Thus, ooder current jurisprudence, in order to be found guilty for giving any unwarranted benefit, advantage, or preference, it is enough that the public officer has given an unauthorized or unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions.54 By giving any private party unwarranted benefit, advantage, or preference, damage is not required. It suffices that the public officer has given unjustified favor or benefit to another in the exercise of his official functions.55 Proof of the extent or quantum of damage is not even essential, it being sufficient that the injury suffered or benefit received could be perceived to be substantial enough and not merely negligible.56
Hence, in saying that a public officer gave "unwarranted benefits, advantage or preference," it is not enough that the benefits, advantage, or preference was obtained in transgression of laws, rules, and regulations. Such benefits must have been given by the public officer to the private party with corrupt intent, a dishonest design, or some unethical interest. This is in alignment with the spirit ofRA 3019, which centers on the concept of graft.
I recognize that this is not the understanding under the current state of jurisprudence. Jurisprudence has defined the term "unwarranted" as simply lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.51 The term "private party" may be used to refer to persons other than those holding public office,52 which may either be a private person or a public officer acting in a private capacity to protect his personal interest.53
Prior to the CSP requirement, DUs would secure their supply of electricity by entering into bilateral contracts with GenCos and the choice of which GenCo to have business with - or from which it will get their supply - rested on the sole discretion of the DUs. This did not mean, however, that prior to the CSP requirement, the DUs had unbridled discretion on the price of electricity to impose on consumers. Far from it. The EPIRA itself provides that DUs "shall have the obligation to supply electricity in the least cost manner to [their] captive market, subject to the collection of retail rate duly approved by the ERC." Further, the ERC was empowered by the EPIRA to review "bilateral power supply contracts" entered into by DUs, and to likewise impose price controls and order the disgorgement of excess profits where, for instance, the DU is found to be engaged in market power abuse or anti-competitive behavior.The ERC Commissioners likewise did not cause any party undue injury. According to jurisprudence, "undue injury" as an element of Section 3(e) of R.A. No. 3019 is akin to the concept of actual damages in civil law, and must thus be quantified with certainty. In Llorente v. Sandiganbayan,72 the Court explained:cralawred
x x x x
Indeed, the EPIRA was passed as far back as 2001, or 18 years ago, and the DOE and ERC only conceptualized the CSP in recent years. Throughout the years that the EPIRA was already in effect, and while there was still no CSP requirement in place, the ERC had been continuously doing its mandate of regulating the industry - particularly the DUs - to ensure that the prices passed on to the consumers are at a reasonable cost.71 (Emphasis and underscoring in the original; citations omitted)
This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.The foregoing was affirmed in the case of Pecho v. Sandiganbayan,74 where the Court en banc said:cralawred
In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property[; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.
In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows:cralawredArt. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendant's act. Actual pecuniary compensation is awarded as a general rule, except where the circumstances warrant the allowance of other kinds of damages. Actual damages are primarily intended to simply make good or replace the loss caused by the wrong.
Furthermore, damages must not only be capable of proof, but must be actually proven with a reasonable degree of certainty. They cannot be based on flimsy and non-substantial evidence or upon speculation, conjecture or guesswork. They cannot include speculative damages which are too remote to be included in an accurate estimate of the loss or injury.73 (Emphasis and underscoring supplied; citations omitted)
Secondly, the third requisite of Section 3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage which must be established by evidence. the word causing is the present participle of the word cause. As a verb, the latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make[;] to induce; to compel." The word undue means "more than necessary; not proper; illegal." And the word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another." Taken together, proof of actual injury or damage is required.75 (Emphasis and underscoring supplied; citations omitted)Here, the records are bereft of any showing that any party - whether the government or any private party - suffered any actual damage or injury. To stress anew, there could be no injury to any party as the PSAs submitted during the period of extension had not been approved.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined by law.In relation to this, Sistoza states that "[w]hen the Ombudsman does not take essential facts into consideration in the determination of probable cause, it has been ruled that he gravely abuses his discretion."80
For the present petition to prosper, petitioners must show this Court that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty mandated by law, which petitioners have failed to do.79
Endnotes:
1 ANTI-GRAFT AND CORRUPT PRACTICES ACT, dated August 17, 1960.
2 G.R. No. 142738, December 14, 2001, 372 SCRA 437.
3Baylon v. Office of the Ombudsman; id. at 438; citing Venus v. Desierto, 358 Phil. 675, 699-700 (1998).
4 Concurring Opinion of Justice Caguioa in Villarosa v. People, G.R. Nos. 233155-63, June 23, 2020.
5Sison v. People, G.R. Nos. 170339 & 170398-403, March 9, 2010, 614 SCRA 670, 679.
6 CONSTITUTION, Art. VIII, Sec. 1.
7Baylon v. Office of the Ombudsman, supra note 2 at 448.
8Posadas v. Ombudsman, G.R. No. 131492, September 29, 2000, 341 SCRA 388, 400.
9 See Posadas v. Ombudsman, id. at 397.
10 See note 3.
11 Supra note 5.
12 Id. at 679.
13 A RESOLUTION CLARIFYING THE EFFECTIVITY OF ERC RESOLUTION NO. 13, SERIES OF 2015, issued on March 15, 2016.
14Rollo, Vol. I, p. 65.
15Albert v. Sandiganbayan, G.R. No. 164015, February 26, 2009, 580 SCRA 279, 290.
16 Seventh Whereas Clause, Resolution No. 1.
17Rollo, Vol. I, p. 163.
18 Id. at 169-170.
19 Id. at 164.
20 Id. at 165; emphasis and underscoring supplied.
21 Id. at 167-168.
22 Id. at 171-172.
23 Id. at 175.
24 Id. at 176-177.
25 Id. at 178.
26 Id.
27 Id. at 45.
28 See id. at 63-64.
29 Id. at 48. Italics in the original.
30Albert v. Sandiganbayan, supra note 15.
31Rollo, Vol. I, p. 48. Italics in the original.
32 Id. at 44-45.
33Sanchez v. People, G.R. No. 187340, August 14, 2013, 703 SCRA 586, 593.
34Albert v. Sandiganbayan, supra note 15.
35 Id.
36Fonacier v. Sandiganbayan, G.R. Nos. L-50691, L-52263, L-52766, L-52821, L-53350, L-53397, L-53417 & L-53520, December 5, 1994, 238 SCRA 655, 687.
37 Concurring Opinion of Justice Caguioa in Villarosa v. People, supra note 4.
38 G.R. No. 144784, September 3, 2002, 388 SCRA 307.
39 Id. at 324. Italics in the original.
40Republic v. Desierto, G.R. No. 131397, January 31, 2006, 481 SCRA 153, 161.
41Collantes v. Marcelo, G.R. Nos. 167006-07, August 14, 2007, 530 SCRA 142, 155.
42 RULES OF COURT, Rule 131, Sec. 3(m).
43 CIVIL CODE, Art. 526.
44See Dissenting Opinions of Justices Alfredo Benjamin S. Caguioa and Andres B. Reyes, Jr. in Alyansa para sa Bagong Pilipinas, Inc. v. Energy Regulatory Commission, G.R. No. 227670, May 3, 2019, accessed at https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65064.
45 G.R. No. 109266, December 2, 1993, 228 SCRA 214.
46 Id. at 222.
47Rollo, Vol. I, pp. 48-49.
48 Supra note 4.
49 Senate Deliberations of R.A. No. 3019 dated July 1960; underscoring supplied.
50 BLACK'S LAW DICTIONARY 794 (9th ed. 2009).
51Cabrera v. Sandiganbayan, 484 Phil. 350, 364 (2004).
52Bautista v. Sandiganbayan, 387 Phil. 872, 884 (2000).
53Ambil, Jr. v. Sandiganbayan, 669 Phil. 32 (2011).
54Gallego v. Sandiganbayan, 201 Phil. 379, 384 (1982).
55 Supra note 5.
56Soriquez v. Sandiganbayan (Fifth Division), 510 Phil. 709, 718 (2005).
57 Concurring Opinion of Justice Caguioa in Villarosa v. People, supra note 4.
58 Republic Act No. 9136, otherwise known as Electric Power Industry Reform Act (EPIRA), Section 45.
59 Supra note 44.
60 ERC RULES OF PRACTICE AND PROCEDURE, Rule 20 B, Sec. 2.
61 Id. at Rule 6.
62 ld.
63 Id. at Rule 16, Sec. 1.
64 Id. at Rule 18, Sec. 1.
65 ld. at Rule 18.
66 Id. at Rule 20 B.
67 Id. at Rule 14, Sec. 3.
68 Id.
69Ponencia, p. 10
70 Id.
71 Dissenting Opinion of Justice Caguioa in Alyansa para sa Bagong Pilipinas, Inc. v. Energy Regulatory Commission, supra note 44, citing Sections 23 and 45 of the EPIRA.
72 G.R. No. 122166, March 11, 1998, 287 SCRA 382.
73 Id. at 399-400.
74 G.R. No. 111399, November 14, 1994, 238 SCRA 116.
75 Id. at 133.
76 Dissenting Opinion of Justice Leonen, p. 5.
77 Id.
78Villarosa v. Ombudsman, G.R. No. 221418, January 23, 2019, accessed at https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/64916.
79 Id.
80Sistoza v. Desierto, supra note 38 at 323-324.
LAZARO-JAVIER, J.:
Respondent Office of the Ombudsman (OMB) found probable cause to charge petitioners with violation of Section 3(e) of Republic Act No. 3019 (RA 3019). This offense involves "causing any undue injury to any party, including the Govetnment, or giving any private party, any unwarranted benefits, advantage or preference in the discharge ofhis official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence...."
The finding of probable cause stems from these circumstances:
Lest we forget, the ERC is expressly mandated in Section 43 (o) of the EPIRA of "ensuring that the x x x pass through of bulk purchase cost by distributors is transparent." The ERC's postponement of CSP twice, totalling 305 days and enabling 90 PSAs in various areas of the country to avoid CSP for at least 20 years, directly and glaringly violates this express mandate of the ERC, resulting in the non-transparent, secretive fixing of prices for bulk purchases of electricity, to the great prejudice of the 95 million Filipinos living in this country as well as the millions of business enterprises operating in this country. This ERC action is a most extreme instance of grave abuse of discretion, amounting to lack or excess of jurisdiction, warranting the strong condemnation by this Court and the annulment of the ERC's action.In his Dissent, Justice Caguioa, however, emphasized that "[i]ndeed, the EPIRA was passed as far back as 2001, or 18 years ago, and the DOE and ERC only conceptualized the CSP in recent years." Hence, petitioners cannot only be the ones criminally responsible - if we are to apply fairly the Ombudsman's logic in the determination of probable cause.
In this instance, the ERC has sufficiently established that "restating" the effectivity of ERC Resolution No. 13 at a later date is not exercised whimsically or capriciously. Neither is it an arbitrary exercise of power by reason of passion or hostility. Indeed, its issuance is clearly not without basis. In fact, the Court finds that the ratiocination put forth by the Office of the Solicitor General (OSG) is reasonable to justify ERC's action.Justice Caguioa described Resolution No. 1 as a "reasonable well thought-out response to the various concerns posed by Distribution Utilities (DUs), Generation Companies (GenCos) and electric cooperatives which arose from the immediate implementation of the CSP," for creating a "transition period" for compliance with the CSP requirement. The original period of implementation was characterized as an "untimely and unrealistic immediate imposition of a requirement that could not be reasonably be complied with ...." Petitioners' exercise of discretion was described as having been done in "good faith, or on the basis of its interpretation of the powers granted to [petitioners as ERC members] by the EPIRA."
First, the implementation of ERC Resolution No. 13 caused an avalanche of concerns and confusion from the stakeholders of the industry regarding the actual implementation of the provisions of the resolution, so much so that a multitude of DUs, mostly electric cooperatives, sought for an exemption from the guidelines in the resolution. There was a real possibility that the implementation of ERC Resolution No. 13 would invariably render nugatory the already pending negotiations among the DUs and generation companies. This fact is proven from the letters sent by SMC Global Power dated November 25, 2015 and December 14, 2015, Philippine Rural Electric Cooperative Association, Inc. dated December 1, 2015, Agusan Del Norte Electric Cooperative, Inc. dated December 10, 2015, Camarines Sur IV Electric Cooperative, Inc. dated December 21, 2015, and Aldan Electric Cooperative, Inc. dated March 9, 2016.
A reading of these letters confronted the ERC with probabilities of discontinuance in the financing of projects during their implementation stage, aggravation of power shortages, confusion of ERC Resolution No. 13's applicability on PSAs already filed with the ERC, disenfranchisement of Power Supply Contracts (PSCs) which have already been signed but were still unfiled to the ERC prior to the effectivity of ERC Resolution No. 13, and the reality of the necessity of sufficient period within which to complete the applications which are still governed by the rules prior to ERC Resolution No. 13.
All these concerns were presented to the ERC, which then, by its mandate, acted accordingly. There is wisdom in the OSG's assertion that by granting a period of transition, the ERC would avoid the risk of inconsistency in resolving individual requests for exemptions sought by the DUs, generation companies, and electric cooperatives, while at the same time, it would secure the steady supply of electricity for the same period.
It is therefore premature, if not outrightly erroneous, to claim that the executions of the PSAs during the transition period have placed the CSP into "deep freeze" for the duration of the PSAs, and that the public will be prejudiced. During. the transition period provided by Resolution No. 1, and even before the implementation of the CSP, the ERC, in compliance with its mandate under the EPIRA, has the power - nay, the duty - to ensure that any bilateral power supply contracts entered into by the DUs will be consistent with their mandate that they supply electricity to their captive market in the least cost manner.Three. Resolution No. 1 was available to all industry players and electric cooperatives alike. It was not limited to MERALCO. This is evident not only from the text of Resolution No. 1 but from the reasons that impelled petitioners to issue Resolution No. 1 - to provide a transition period for the facilitation of the full and encompassing implementation of Resolution No. 13, and to allow several industry participants, MERALCO being just one of them, and electric cooperatives to adjust to the impact of Resolution No. 13 to existing PSAs, PSAs for renewal, and negotiated PSAs, the specific mechanics of the CSP, and the ground rules for exemptions from the CSP, if any.
x x x Thus, with or without the CSP, the public is protected from practices that harm them or that would result in market increases arising from non-competitive practices. x x x
At the outset, it should be pointed out that the present case contains several factual matters that are not cognizable by the Court, and which should be threshed out before the appropriate forum. Whether the moving of the effective date of the CSP effectively puts the requirement into a "deep freeze," as maintained by the ponencia, is a factual matter that cannot intelligently be resolved by the Court. As to whether the restatement of the effectivity date of the CSP affected, or will continue to affect, the supply of electricity for the entire country is another matter that should be properly ventilated before a court equipped to receive evidence. As well, the problems that the DUs faced in the immediate effectivity of the requirement - which led them to seek exemption from the CSP requirement, and which later on prompted the ERC to issue Resolution No.1 - are also better appreciated in the context of actual evidence. In addition, whether the restatement of the effectivity date of the CSP was reasonable, or effective in guaranteeing the steady supply of electricity for the entire country is a factual matter that demands the presentation of evidence. All these factual matters need to be addressed before the Court can even begin to determine whether the ERC's act of issuing Resolution No. 1 can be considered to have been tainted with grave abuse of discretion amounting to lack or excess ofjurisdiction.If probable cause were to be based on a premise such as the one used by the OMB, decision-makers (especially judges) would be in danger of being indicted for violation of Section 3(e) of RA 3019, because in general, the nature of their job is to rule for one party against another. The interpretation made by the OMB in determining probable cause has and will result in such an unfair outcome and is therefore unreasonable. Verily, therefore, the action of the OMB to initiate a criminal action against petitioners does not fall within the range of possible, acceptable outcomes defensible in respect of the facts and law.
ZALAMEDA, J.:
Petitioners ascribe grave abuse of discretion on the part of the Office of the Ombudsman (the Ombudsman) when it rendered the assailed Resolution dated 29 September 2017 and Order dated 20 April 2018, ultimately allowing for the filing of charges against petitioners for violation of Sec. 3(e) of Republic Act No. (RA) 3019. Necessarily, in determining whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction, this Court have to review the Ombudsman's finding of probable cause against petitioners.
As a general rule, this Court does not interfere with the Ombudsman's exercise of its constitutional mandate. Both the Constitution1 and RA 67702 give the Ombudsman wide latitude to act on criminal complaints against public officials and government employees thereby giving rise to the rule on non-interference, which is based on the respect for the investigatory and prosecutorial powers of the Ombudsman.3
More importantly, the determination of probable cause for the purpose of filing an information in court is essentially an executive function. The State's self-preserving power to prosecute violators of its penal laws is a necessary component of the Executive's power and responsibility to faithfully execute the laws of the land.4
To justify judicial intrusion into what is fundamentally an executive domain, petitioners have the burden of proving that the Ombudsman committed grave abuse of discretion. Petitioners are duty-bound to demonstrate how the Ombudsman acted in an arbitrary and despotic manner by reason of passion or personal hostility; and it must be so patent and gross as to amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law, before judicial relief from a discretionary prosecutorial action may be obtained.5] However, petitioners' arguments in this case failed to overcome their burden.
Petitioners' main contention is that the Ombudsman's decision to indict them for violation of Sec. 3(e) of RA 3019 was tainted with grave abuse of discretion since the elements of the offense are wanting and not supported by evidence. Yet, a perusal of the assailed issuances readily negates this argument. Contrary to petitioners' claim, the Ombudsman identified pertinent facts and evaluated them against the three (3) constitutive elements6 of the offense charged. The decision to indict petitioners was reached after a painstaking review of the facts and evidence, a valid exercise of the Ombudsman's discretion. For reference, the relevant portion of the Ombudsman's discussion is reproduced, as follows:
The first element is present, respondents being all public officers of ERC at the time material to the charges, x x xIt must be emphasized that there are three (3) modes by which Sec. 3(e) of RA 3019 may be committed, namely, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence."8 As can be gleaned from the above excerpt, the Ombudsman did not limit its finding to just one mode, but discussed how petitioners' actuations related to the recognized modes for committing the offense charged. Thus, in my perspective, the Ombudsman "covered all the bases" before it reached the conclusion that there was probable cause to indict petitioners.
On the second element, respondents acted with manifest partiality, evident bad faith or gross inexcusable negligence when they suspended the implementation of the required CSP, to accommodate the PSAs/PSCs of DUs and GenCos, particularly of Meralco, thereby exempting them from the CSP mandated requirement.
The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:
x x x x
The justifications given by respondents in not implementing the CSP requirement are untenable. The requirement for CSP as mandated by EPIRA, DOE and ERC, cannot be reasonably stopped by the requests for clarification, exception and/or exemption from CSP from nwnerous industry participants, especially when the stakeholders were already heard in extensive consultations conducted by the ERC. Respondents themselves bared in the "WHEREAS CLAUSES" of the 2015 CSP Resolution that stakeholders have been informed, heard and consulted about the CSP, thus:
x x x x
Furthermore, the CSP is an acknowledged mechanism to make the cost of PSAs more reasonable. Hence, accommodating companies' request to be exempted from CSP was a deviation from respondents' duty to promote public interest through the CSP requirement. The gross inexcusable negligence of respondents benefitted 38 more companies who were able to enter into PSAs and file them with ERC without complying with the CSP requirement.
x x x x
The third element is also present.
Respondents, in their exercise of their official regulatory functions, have given unwarranted benefits, advantage or preference to MERALCO and other companies. Under the CSP Resolution, said companies were not qualified to file their PSAs for being non-compliant with the CSP requirement. But respondents' failure to recognize the effects of the suspension of the implementation of CSP gave said companies the concession to file their PSAs and PSCs without having to comply with the CSP policy.7 (Emphasis supplied)
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 wou1d justify conviction.9 (Emphasis supplied)Moreover, the finding of probable cause merely signifies that the suspect is to stand trial for the charges. It is not a pronouncement of guilt.10 Thus, a finding of probable cause need only rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects.11
x x x 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 cause 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.Hence, aside from the prosecutor's determination of probable cause, a judge will also make his or her own independent finding of whether probable cause exists to order the anest of the accused and proceed with trial. This is evident from Section 5(a) of Rule 112 of the Rules of Criminal Procedure, which gives the trial court three (3) options upon the filing of the criminal information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds probable cause; or (3) order the prosecutor to present additional evidence within five days from notice in case of doubt as to the existence of probable cause, viz:cralawred
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.
x x x x
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.
Section 5. When warrant of arrest may issue. - (a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.18Probable cause ceases once the court acquires jurisdiction over the case. The court's broad control over the direction of the case was explained in De Lima v. Reyes,19 to wit:cralawred
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 rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. x x x (Emphasis supplied)
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 shouJd be proper in the case thereatter 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.
x x x x
WHEREFORE, it is respectfully prayed that this Honorable Court (1) GIVE DUE COURSE to this petition, before considering it on its merits, (2) ISSUE A TEMPORARY RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION restraining the Ombudsman and anyone acting in her behalf, from filing an Information for violation of Section 3(e) RA No. 3019 against the petitioners with the Sandiganbayan, and thereafter, (3) GRANT THE PETITION by declaring as void the Resolution dated September 29, 2017 and the Order dated April 20, 2018 of the Ombudsman and DISMISSING OMB-C-C-16-0497 for lack of probable cause.21Petitioners are only assailing the executive finding of probable cause against them by the Ombudsman; their main prayer in their petition does not even involve the dismissal of the criminal case already filed in court. And, for this Court to order its dismissal preempts any exercise of jurisdiction by the trial court over the criminal case. To be sure, the decision whether to dismiss the case or not rests on the sound discretion of the trial court where the Information was filed.22
SECTION 1. Petition for Certiorari . - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis supplied)Petitioners must therefore invoke this Court's power and specifically ask for the reliefs they seek as stated in the rule instead of this Court volunteering reliefs outside the limits of the action. We cannot be so eager to exercise its powers and prerogatives at every turn, especially in a case where petitioners are asking for the application of an exception to a general principle, which by its innate nature, calls for a restrictive treatment.
Endnotes:
1 Art XI, Sec. 12 of the 1987 Constitution 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.
2 The Ombudsman Act of 1989.
3See Dichaves v. Office of the Ombudsman, G.R. Nos. 206310-11, 07 December 2016; 802 Phil. 564 (2016).
4See Information Technology Foundation of the Philippines v. Commission on Elections, G.R. Nos. 159139 & 174777, 06 June 2017; 810 Phil. 400 (2017).
5See Elma v. Jacobi, G.R. No. 155996, 27 June 2012; 689 Phil. 307 (2012).
6 The elements of violation of Section 3 (e) of RA 3019 are as follows: (a) that the accused must be a public officer discharging administrative, judicial, or official functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage, or preterence in the discharge of his functions. (Ferrer, Jr. v. People, G.R. No. 240209, 10 June 2019)
7Rollo, pp. 44-49.
8Albert v. Sandiganbayan, G.R. No. 164015, 26 February 2009; 580 SCRA 279, 290.
9Pineda-Ng v. People, G.R. No. 189533, 15 November 2010; 649 Phil. 225 (2010).
10Gonzalez v. Hongkong & Shanghai Banking Corp., G.R. No. 164904, 19 October 2007; 562 Phil. 841 (2007).
11Presidential Ad-Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R. No. 136225, 23 April 2008; 575 Phil. 468 (2008).
12Rivera v. People, G.R. Nos. 156577, 156587 & 156749, 03 December 2014; 749 Phil. 124 (2014).
13Estrada v. Office of the Ombudsman, G.R. Nos. 212761-62, 213473-74 & 213538-39, 31 July 2018.
14Olivarez v. Sandiganbayan, G.R. No. 118533, 04 October 1995; 319 Phil. 45 (1995).
15Id.
16See Reyes v. Ombudsman, G.R. Nos. 212593-94, 213163-78, 213540-41, 213542-43, 215880-94 & 213475-76, 15 March 2016; Estrada v. Office of the Ombudsman, G.R. Nos. 212761-62, 213473-74 & 213538-39, 31 July 2018.
17 G.R. No. 171188, 19 June 2009; 607 Phil. 754 (2009).
18 Formerly Section 6. The former Section 5 (Resolution of investigating judge and its review) was deleted per A.M. No. 05-8-26-SC, 03 October 2005.
19 G.R. No. 209330, 11 January 2016; 776 Phil. 623 (2016).
20Rollo, p. 880.
21Id., at p. 32.
22Chan v. Secretary of Justice, G.R. No. 147065, 14 March 2008; 572 Phil. 118 (2008).
23 G.R. Nos. 69863-65, 10 December 1990; 270 Phil. 271 (1990).
24 G.R. No. 130319, 21 October 1998; 358 Phil. 675 (1998).
25Baylon v. Office of the Ombudsman, G.R. No. 142738, 14 December 2001; 423 Phil. 705 (2001).
26 G.R. No. 144784, 03 2002; 437 Phil. 117 (2002).
27 G.R. No. 225718, 04 March 2020.
28 G.R. No. 96182, 96183, 19 August 1992; 287 Phil. 753 (1992).
29 G.R. No. 132816, 05 February 2002; 426 Phil. 490 (2002).
30 G.R. No. 167025, 19 2005; 514 Phil. 799 (2005).
31 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
x x x x