EN BANC
G.R. No. 226898, May 11, 2021
JOEL NEMENSIO M. MACASIL,* Petitioner, v. FRAUD AUDIT AND INVESTIGATION OFFICE (FAIO) - COMMISSION ON AUDIT, PUBLIC ASSISTANCE AND CORRUPTION PREVENTION OFFICE OMBUDSMAN - VISAYAS REGIONAL OFFICE NO. VIII, AND OFFICE OF THE OMBUDSMAN (VISAYAS), Respondents.
R E S O L U T I O N
LOPEZ, M., J.:
The effort to eradicate graft and corruption and remove scalawags in government is commendable. Yet, this Court cannot overemphasize the admonition to agencies tasked with preliminary investigation to shield the innocent from precipitate, spiteful and burdensome prosecution.1 The existence of probable cause is the core issue in this Petition for Certiorari2 assailing the Office of the Ombudsman's Consolidated Resolution3 dated May 8, 2015 finding prima facie case for violation of the Anti-Graft and Corrupt Practices Act and Falsification.
On the basis of the FAIO's findings, the Public Assistance and Corruption Prevention Office Fact-Finding Unit filed a Complaint5 against Materials Engineer Joel Nemensio M. Macasil (Macasil) and other officials for violation of Section 3(e) of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act and Falsification under Article 171 of the Revised Penal Code (RPC) before the Office of the Deputy Ombudsman Visayas. Allegedly, Macasil certified that the Statements of Work Accomplished (SWA) for 32 infrastructure projects were in accordance with the approved plans and specifications, despite the fact that the reported accomplishments were overstated/bloated, and that the projects were overpaid, to wit:chanroblesvirtualawlibrary
- Reported accomplishments in the Statements of Work Accomplished (SWAs) for 32 infrastructure projects, which were the bases for the payments to the contractors, were overstated resulting in overpayment in the amount of P52,178,645.18[.] Moreover, the reported actual accomplishments for two projects amounting to P 1,972,962.00 were not properly identified during the ocular inspection; while one project was found out not in accordance with DPWH Highway Design and Standards.4 (Emphases supplied.)
Macasil denied the charges and averred that, as a Materials Engineer, his work revolves around the quality control aspect of the infrastructure projects, such as quality control testing, sampling, and pre-testing of construction materials. On the other hand, the FAIO inspection reports focused on the quantity aspect. Specifically, Engr. Owen Kim S. Monter, a member of the investigating team, stated that "[t]he conduct of inspection was limited only to the existence of visible portion of the project as physically examined and validated by the undersigned"7 and that the "inspection was focused on the verification of [the] quantity."8 Moreover, it is the Project Engineer who certifies the SWAs. Macasil also disavowed any participation in the alleged overpayment of the projects as he was not part of the team that recommended payment of the contract price to the contractors. He also did not sign any disbursement voucher. Lastly, he was not included in the fact-finding phase of the investigation, and was not named in the notice of suspension. He only came to know of the investigation and the adverse findings when he received a copy of the complaint.9
Project Name Percentage of Completion Variance Extent of Participation Per SWA Per FAIO evaluation In% In Pesos 1. Completion of 4 CL Elem[.] School, San Jose Elem[.] School 100 63.00 37 P175,693.18 For certifying that the reported and paid accomplishments in SWA are in accordance with the approved plans and specifications. 2. Completion of Multi-Purpose Bldg., Leyte National Highschool (Phase II) 100 81.83 18.17 P2,157,311.70 - do - 3. Concreting of Brgy. 109A V&G Subd., Tacloban City 100 53.44 46.56 P709,641.11 - do - 4. Improvement/Widening of Manlurip-McArthur Rd, Along Manlurip 90 87.19 2.81 P49,776.12 - do - 5. Conc./Rahab [sic] of Calanipawan Road, Tacloban City 100 78.78 21.22 P397,579.13 - do - 6. Improvement/Rehab of National Rd (Picas-San Jose Rd.), Tacloban City (Sta. Km 907+850 - Km 913+450 w/ exceptions) 90 55.80 34.20 P653,782.50 - do - 7. Construction of drainage system along Daan Maharlika (Nula-Tula Section) 100 74.54 25.46 P521,065.08 - do - 8. Const, of Multi-Purpose Bldg. (Covered Court), Brgy. 82, Tacloban City, Phase III 89.22 39.63 49.59 P471,054.15 - do - 9. Improvement/Rehab along Manlurip-McArthur Park Rd Tacloban City (Sta. Km 911+200 - Km 914+950, Traffic Eng'g Signage & Pavement Markers) 100 89.81 10.19 P490,363.00 - do - 10. Repair/Improvement of drainage system along Apitong-Paterno Rd, Tacloban City 88.90 40.23 48.67 P1,199,782.00 - do - 11. Conc. Of shoulders along Daan Maharlika Rd, Tacloban City (Sta. Km 901+000 - Km 904+100) 98.84 72.01 26.93 P782.210.00 - do - 12. Improvement/Widening of shoulders along Daan Maharlika Rd-Diit Babalawan Section, Tacloban City (Sta. Km 903+210 - Km 903+828) 100 85.59 14.41 P301,645.68 - do - 13. Const, of One (1) classroom, Sto. Niño SPED Tacloban City 88.07 79.23 8.84 P45,802.43 - do - 14. Improvement/Rehab of Tigbao Sta. Fe Rd., Brgy. Salvacion (Sta. Km 903+552 - Km 908+600, with exceptions) 85.30 20.18 65.12 P7,625,709.00 - do - 15. Improvement/Rehab of Tigbao Sta. Fe San Miguel Rd., (Km 904+000 - Km 908+000) Traffic Eng'g Signage Markers 100 91.12 8.88 P426,926.65 - do - 16. Improvement/Rehab along Leyte-Samar Rd., (Km 897+341.70 - Km 904+841.70), with exceptions 100 52.40 47.60 P2,281,237.00 - do - 17. Improvement/Rehab along Leyte-Samar Rd., (Km 898+417 - Km 904+841.70), with exceptions. Traffic Eng'g Signage Pavement Markers; Description: Guardrails, Road Signs 100 73.81 26.19 P1,258,480.19 - do - 18. Improvement/Rehab along Tacloban Baybay Rd., (Km 907+982 - Km 916+615), with exceptions. Caibaan Rd., Traffic Eng'g Signage Pavement Markers 100 50.41 49.59 P1,897,751.79 - do - 19. Improvement/Rehab along Daan Maharlika (Km 895+361.97 - Km 910+870.20) w/ exception. Traffic Eng'g Signage Pavement Markers: Description: Guardrails, Thermoplastic 100 23.29 76.71 P3,650,922.31 - do - 20. Improvement/Rehab along Daan Maharlika (Km 895+361.97 - Km 910+870.20) w/ exception. Traffic Eng'g Signage Pavement Markers: Description: Guardrails & Road Signs 100 16.98 83.02 P3,994,746.24 - do - 21. Improvement/Rehab of Caibaan Road (Km 912+165 - Km 915+665) 100 16.04 83.96 P3,995,684.00 - do - 22. Improvement/Rehab of Rizal Ave. & Rizal Ave. Ext. (Km 904+357.78 - Km 906+054, Km 907+982 - Km 908+546) Traffic Eng'g Signage Pavement Markers 100 48.33 51.67 P2,482,618.57 - do - 23. Improvement/Rehab along Daan Maharlika (Km 905+000 - Km 909+000) w/ exception
90.00 77.52 12.48 P139,991.00 - do - 24. Construction of Perimeter drainage at LNHS 100 6.92 93.08 P3,503,583.28 - do - 25. Completion of LNHS Gymnasium, Phase IV 100 46.87 53.13 P1,487,899.75 - do - 26. Completion of Multi-purpose Bldg. at LNHS Gymnasium, Phase V 100 94.58 5.42 P52,079.71 - do - 27. Fabrication & Installation of RROW along Daan Maharlika Km. 895+361.97 - Km 910+870.20, with exceptions 100 69.29 30.71 P141,285.64 - do - 28. Improvement/Widening of Tigbao Sta. Fe Rd., (Km 905+300 - Km 906+040) 100 31.13 68.87 P1,908,367.91 - do - 29. Improvement/Rehab of Daang Mahalika Rd. (Km 898+000 - Km 902+370.20) w/ exceptions, Traffic Eng'g Signage 100 1.59 0.98 P1,870,618.31 - do - 30. Widening/downgrading of Salvacion-San Miguel Road 100 29.83 70.17 P3,285,247.32 - do - 31. Improvement/Widening of Tigbao Sta. Fe-San Miguel Rd. 100 24.56 75.44 P3,507,826.60 - do - 32. Rehabilitation of LNHS Gymnasium 84.75 59.98 24.76 P711,961.36 - do - TOTAL P52,178,645.186
CONCLUSIONMacasil's Motion for Reconsideration12 was denied.13 Hence, this Petition for Certiorari14 imputing grave abuse of discretion on the part of the Ombudsman (Visayas) in finding probable cause for violation of Section 3(e) of RA No. 3019, as amended, and paragraph 4, Article 171 of the RPC.
In fine, sufficient evidence shows that there is probable cause to indict the following respondents x x x for Violation of Section 3(e) of RA 3019, as amended, and Falsification of Public Documents under paragraph 4, Article 171, Revised Penal Code for their respective participation in signing in each of the SWAs and DV for the 34 infrastructure projects per Finding No. 3 of the FAIO Report No. 2011-02 that are considered by complainant FAIO as either bloated or overstated as regards the extent of the project accomplishment.x x x
Moreover, of the 49 infrastructure projects subject of the case, 31 projects were shown to be irregular and had sufficient evidence showing Violation of Section 3(e) of RA 3019, as amended. 34 projects were likewise shown to be irregular and had sufficient evidence for Falsification of Public Document under Article 171, paragraph 4 of the Revised Penal Code.x x x
WHEREFORE, this Resolution is rendered:
a) FINDING PROBABLE CAUSE for Violation of Section 3(e), RA 3019, as amended, x x x;
NAME OF PROJECT NAME OF RESPONDENTS 1. Completion of 4 CL Elem. School, San Jose Elementary School, Tacloban City xxx
Joel [Nemensio] Macasil 2. Completion of Multi-Purpose Bldg., Leyte National Highschool (Phase II) - do - 3. Concreting of Brgy. 109A V&G Subdivision, Tacloban City - do - 4. Construction/ Rehabilitation of Calanipawan Road, Tacloban City - do - 5. Improvement/Rehab of National Rd. (Picas-San Jose Rd.) Tacloban City (Sta. Km 907+850 - Km 913+450 w/ exceptions) - do - 6. Construction of Drainage System along Daan Maharlika (Nula-Tula Section), Tacloban City - do - 7. [Construction] of Multi-Purpose Bldg. (Covered Court), Brgy. 82, Tacloban City, Phase III - do - 8. Improvement/Rehabilitation along Manlurip McArthur Park Rd[,] Tacloban City (Sta. Km 914+950, Traffic Eng'g Signage & Pavement Markers) - do - [9.] Construction Of one (1) Classroom, Sto. Nino SPED Center Tacloban City - do - [10.] Improvement/Rehab along Leyte-Samar Rd., (Km 897+341.70 Km 904+841.70), with exceptions - do - [11.] Improvement/Rehab along Leyte-Samar Rd., (Km 898+417 - Km 904+841.70), with exceptions. Traffic Eng'g Signage Pavement Markers; Description: Guardrails, Road Signs - do - [12.] Improvement/Rehab along Tacloban Baybay Rd., (Km 907+982 - Km 916+615), with exceptions. Caibaan Rd., Traffic Eng'g Signage Pavement Markers - do - [13.] Improvement/Rehab along Daan Maharlika (Km 895+361.97 - Km [910+870.20) w/ exception. Traffic Eng'g Signage Pavement Markers: Description: Guardrails, Thermoplastic - do - [14.] Improvement/Rehab along Daan Maharlika (Km 895+361.97 - Km 910+870.20) w/ exception. Traffic Eng'g. Signage Pavement Markers: Description: Guardrails & Road Signs - do - [15.] Improvement/Rehab of Caibaan Road (Km 912+165 - Km 915+665) - do - [16.] Improvement/Rehab of Rizal Ave. & Rizal Ave. Ext. (Km. 904+357.78 - Km 906+054, Km 907+982 - Km 908+546) Traffic Eng'g Signage Pavement Markers - do - [17.] Improvement/Rehab along Daan Maharlika (Km 905+000 - Km 909+000) w/ exception - do - [18.] Rehabilitation of LNHS Gymnasium - do - [19.] Improvement/Widening of Tigbao Sta. Fe Rd., (Km 905+300 - Km 906+040) - do - [20.] Improvement/Rehab of Daang Mahalika Rd. (Km 898+000 - Km 902+370.20) w/ exceptions, Traffic Eng'g Signage - do - [21.] Widening/downgrading of Salvacion-San Miguel Road - do - [22.] Improvement/Widening of Tigbao Sta. Fe-San Miguel Road - do - [23.] Completion of LNHS Gymnasium, Phase IV[,] Rehabilitation of LNHS Gymnasium - do -
b) FINDING PROBABLE CAUSE for Falsification of Public/Official Documents x x x:
NAME OF PROJECT NAME OF RESPONDENTS 1. Completion of 4 CL Elem. School, San Jose Elementary School, Tacloban City Joel [Nemensio] Macasil 2. Completion of Multi-Purpose Bldg., Leyte National Highschool (Phase II) - do - 3. Concreting of Brgy. 109A, V&G Subdivision, Tacloban City - do - 4. Construction/ Rehabilitation Calanipawan Road, Tacloban City - do - 5. Improvement/Rehab of National Rd. (Picas-San Jose Rd.), Tacloban City (Sta. Km 907+850-Km 913+450 w/ exceptions) - do - 6. Construction of Drainage System along Daan Maharlika (Nula-Tula Section), Tacloban City - do - 7. Construction of Multi-purpose Bldg., (Covered Court), Brgy. 82, Tacloban City, Phase III - do - 8. Improvement/Rehabilitation along Manlurip-McArthur Park Rd Tacloban City (Sta. Km 911+200-Km 914+950, Traffic Eng'g Signage & Pavement Markers) - do - [9.] Improvement/Widening of Shoulders along Daan Maharlika Rd.-Diit Cabalawan Section, Tacloban City (Sta. Km 903+210 - Km 903+828) - do - [10.] Construction of one (1) Classroom, Sto Niño SPED Center, Tacloban City - do - [11.] Improvement/Rehab along Leyte-Samar Rd., (Km 897+341.70 Km 904+841.70), with exceptions - do - [12.] Improvement/Rehab along Leyte-Samar Rd., (Km 898+417 - Km 904+841.70), with exceptions. Traffic Eng'g Signage Pavement Markers; Description: Guardrails, Road - do - [13.] Improvement/Rehab along Tacloban - Baybay Rd., (Km 907+982 - Km 916+615), with exceptions. Caibaan Rd., Traffic Eng'g Signage Pavement Markers - do - [14.] Improvement/Rehab along Daan Maharlika (Km 895+361.97 - Km 910+870.20) w/ exception. Traffic Eng'g Signage Pavement Markers: Description: Guardrails, Thermoplastic - do - [15.] Improvement/Rehab along Daan Maharlika (Km. 895+361.97 - Km 910+870.20) with exception. Traffic Eng'g Signage Pavement Markers: Description: Guardrails & Road Signs - do - [16.] Improvement/Rehab of Caibaan Road (Km 912+165 - Km 915+665) - do - [17.] Improvement/Rehab of Rizal Ave. & Rizal Ave. Ext. (Km. 904+357.78 - Km 906+054, Km 907+982 - Km 908+546) Traffic Eng'g Signage Pavement Markers - do - [18.] Improvement/Rehab along Daan Maharlika (Km 905+000 - Km 909+000) w/ exception - do - [19.] Rehabilitation of LNHS Gymnasium - do - [20.] Improvement/Widening of Tigbao` Sta. Fe Rd., (Km 905+300 - Km 906+040) - do - [21.] Improvement/Rehab of Daang Mahalika Rd. (Km 898+000 - Km 902+370.20) w/ exceptions, Traffic Eng'g Signage - do - [22.] Widening/Downgrading of Salvacion-San Miguel Road - do - [23.] Improvement/Widening of Tigbao Sta. Fe-San Miguel Road - do -x x x x
SO ORDERED.11 (Emphases in the original.)
I HEREBY CERTIFY that the amount and work accomplished stated below are correct and all labor and materials in connection with this project were completed.As can be gleaned from the certifications, it is the contractor who certified that the amount and work accomplished x x x are correct while it is the Project Engineer who certified that the work items x x x have been accomplished in accordance with the approved plans and specifications of the project. Incidentally, DPWH Department Order No. 115, Series of 201825 provides that the duty to check/verify statement of work accomplished, among others, pertains to the Project Engineer. DPWH's Department Memorandum dated April 12, 1994 (Circular No. 49)26 also states that a project shall be the responsibility of the [P]roject Engineer. In addition, the Memorandum listed down the tasks of a Materials Engineer for the purpose of fixing the responsibility where quality and quantity of construction materials are concerned, to wit:chanroblesvirtualawlibrary___________________
x x x
Name of Firm
I HEREBY CERTIFY that all work items were only certified by undersigned and have been accomplished in accordance with the approved plans and specifications of the project.___________________
x x x
Project Engineer
I FIEREBY CERTIFY that the materials used in this project have been tested and passed all the requirements.___________________
JOEL NEMENSIO MACASIL
Materials Engineer24 (Emphases in the original.)
In order to pinpoint responsibility where quality and quantity of construction materials are concerned, the following guidelines are hereby prescribed for the guideline of all concerned.Macasil's name appears on the third certification which guarantees the quality of the materials used, and the fact that such materials underwent and passed the required tests. Pertinently, the DPWH Staffing Manual enumerates the duties and responsibilities of a Materials Engineer,28 namely: (1) ascertain that all materials incorporated into the work pass the requirements of the DPWH Standard Specifications for Highways, Bridges, Airports, and to strictly comply with the schedule of Minimum Testing Requirements; (2) advise the Project Engineer on the acceptance or rejection of construction materials intended for use in the project, based on test results; (3) recommend to the Project Engineer remedial measures for the correction of unsatisfactory conditions of materials; (4) check/certify design mixes prepared by contractors for concrete and bituminous mixtures; (5) fully acquaint himself with the standard procedures of sampling, testing and control; (6) see that the field laboratory is adequately equipped such that the progress of the work will not be impeded to laboratory testing and non-performance of tests should not be a cause of delay in the prosecution of the work; (7) keep a record of the daily activities ready for inspection anytime; and (8) submit within the required time frame test reports and other pertinent papers to the Regional Office concerned.291. Quality of materials is the primary responsibility of Materials Engineers. This includes responsibility over the sampling, testing, inspection and the submittal of data and recommendations on whether the quality of materials to be used is acceptable or not and, if not acceptable, whatever corrective measures may be done to improve the quality and make the materials acceptable.The foregoing notwithstanding, it must be kept in mind that the overall supervision of the project shall be the responsibility of the [P]roject Engineer.27 (Emphasis supplied.)
2. Quantity control is the primary responsibility of Quantity Engineers, such checkers, inspectors or Resident engineers, under the Project/Maintenance engineers of Construction/Maintenance Projects. This includes responsibility for weight, volume, area, thickness, width and/or other lineal measurements.x x x
Very truly yours, | |
(SGD.) MARIFE M. LOMIBAO-CUEVAS | |
Clerk of Court |
Endnotes:
* Also referred to as "Joel Nemesio Macasil" in some parts of the rollo.
1De Jesus v. Sandiganbayan, 562 Phil. 377, 389 (2007).
2Rollo, pp. 3-96.
3 Id. at 100-274
4 Id. at 670-673.
5 Id. at 460-602.
6 Id. at 506-509; and 537-564.
7 Id. at 799.
8 Id.
9 Id. at 797-800
10 Supra note 3.
11 Id. at 260-271.
12 Id. at 290-349 and 390-395.
13 Id. at 275-287.
14 Supra note 2.
15Casing v. Hon. Ombudsman, 687 Phil. 468, 475-476 (2012)
16Vergara v. Hon. Ombudsman, 600 Phil. 26, 42 (2009).
17Gov. Garcia, Jr. v, Office of the Ombudsman, 747 Phil. 445, 458 (2014).
18Public Attorney's Office v. Office of the Ombudsman, 821 Phil. 286, 296 (2017).
19 SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:
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.
x x x
20Roy III v. The Honorable Ombudsman, G.R. No. 225718, March 4, 2020, citing Garcia v. Sandiganbayan, 730 Phil. 521, 534 (2014).
21 See Khan v. Office of Ombudsman, 528 Phil. 32, 40 (2006).
22Belongilot v. Cua, 650 Phil. 392, 408 (2010).
23Catindig v. People, 616 Phil. 718, 734 (2009), citing Soriano v. Marcelo, 610 Phil. 72, 80 (2009); and Albert v. Sandiganbayan, 599 Phil. 439, 450-451 (2009).
24 Rollo, p. 351.
25 REVISED GUIDELINES ON THE ACCREDITATION AND ASSIGNMENT OF DPWH PROJECT ENGINEERS AND INSPECTORS; dated August 3, 2018.
26Rollo, p. 828.
27 Id.
28 Id. at 802.
29 Id.
30 ART 171. Falsification by public officer, employee; or notary or ecclesiastical minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position shall falsify a document by committing any of the following acts:chanroblesvirtualawlibraryx x x31Fullero v. People, 359 Phil. 524, 539 (2007).
4. Making untruthful statements in a narration of facts.
x x x
32Mendoza-Arce v. Office of the Ombudsman (Visayas), 430 Phil. 101, 116 (2002).
33Ledesma v. CA, 344 Phil. 207, 226 (1997).
34De Jesus v. Sandiganbayan, supra note 1.cralawredlibrary