332 Phil. 869
MENDOZA, J.:
Require the submission of the required documents covering claims for intelligence activities, before making payment. Require claimant to complete the documentation on payments made with incomplete papers otherwise, refund of the same should be made. Stop provincial officials from using the 20% Development Fund for purposes other than for development projects under MLG Circular No. 83-4.On February 3, 1992, the COA Director, Feliciano B. Clemencio, filed with the Office of the Ombudsman a complaint, alleging "anomalies consisting of irregular/illegal disbursements of government funds." Named respondents in the complaint were petitioner and the members of the Provincial Board of Cagayan, the Assistant Provincial Treasurer and the Accountant.
[Petitioner] cannot, however submit receipts or documents evidencing disbursements for intelligence activities which are required under paragraph B-4 of COA Circular No. 77-17D dated April 15, 1977. Under these circumstances, being an accountable public officer and who could not account for the insurgency funds when audited, there is prima-facie evidence that he has put such missing funds to personal use and therefore liable for malversation of public funds under Article 217 of the Revised Penal Code. Likewise there is also prima-facie evidence to charge respondent Governor Aguinaldo with violation of Section 3 , paragraph (3) of R.A. 3019.Two cases of Malversation of Public Funds under Art. 217 of the Revised Penal Code were accordingly filed against petitioner on August 16, 1994.
In Crim. Case No. 20948, the information states:Upon motion of petitioner, the Sandiganbayan ordered the Office of the Ombudsman to reinvestigate the cases. Petitioner was allowed to submit the affidavits executed by twelve military officers who acknowledged receipt from petitioner of unspecified amounts which they claimed had been used for counter-insurgency operations. In addition petitioner presented his counter-affidavit.
That in or about the year 1988 in the Municipality of Tuguegarao, Province of Cagayan, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, Rodolfo E. Aguinaldo, then holding the position of Provincial Governor of Cagayan Province, hence a public officer who, by reason of the duties of his office, is accountable for public funds or property, taking advantage of his official position, did then and there wilfully, unlawfully and feloniously take or misappropriate for his personal use public funds in his custody in the total amount of Four Hundred Thousand Pesos (P400,000.00), Philippine Currency, which amount he had earlier withdrawn from the provincial treasury of Cagayan to be used in the province’s intelligence activities, to the damage and prejudice of the provincial government of Cagayan.
In Crim. Case No. 20949, the information alleges:
That in or about the year 1989 in the Municipality of Tuguegarao, Province of Cagayan, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, Rodolfo E Aguinaldo, then holding the position of Provincial Governor of Cagayan province, hence a public officer who, by reason of the duties of his office, is accountable for public funds or property, taking advantage of his official position, did then and there wilfully, unlawfully and feloniously take or misappropriate for his personal use public funds in his custody in the total amount of Three Hundred Fifty Thousand Pesos (P350,000.00), Philippine Currency, to the damage and prejudice of the provincial government of Cagayan.
[E]xcept for the list of recipients and the machine copies of the duly subscribed affidavits of some of the recipients, records do not show that this office received the documents required from the Governor. However, the list of recipients and the duly subscribed affidavits including the representations made in the letter of the Provincial Treasurer and the Provincial Auditor, may be a convincing proof that the questioned disbursements were disbursed according to the intended purpose and not for private consumption. It could also be surmised that even the former Provincial Auditor may be convinced as to the existence of the recipients of counter-insurgency/intelligence funds as no notice of disallowance or suspension was issued on the reimbursements.[1]Apparently not satisfied with the explanation, Prosecutor Espinosa recommended to the Ombudsman that the malversation cases against petitioner be pressed. His recommendation was approved and so, on April 26, 1995, he asked the Sandiganbayan for the suspension pendente lite of petitioner.
First. THE PRELIMINARY INVESTIGATION CONDUCTED HEREIN WAS TAINTED BY SERIOUS IRREGULARITIES THAT EFFECTIVELY DENIED THE ACCUSED OF HIS RIGHT TO DUE PROCESS AND THEREBY RENDERED THE PROCEEDINGS TAKEN THEREIN NULL AND VOID; andIn a supplemental motion to quash the informations filed on May 29, 1995, petitioner submitted to the court indorsements by officials. In a first indorsement to the Chairman of the COA, Regional Director Rafael Marquez stated that he agreed with Provincial Auditor Teresita Rios that the documents submitted by petitioner "may be a convincing proof that the questioned disbursements were disbursed according to the intended purpose and not for private consumption." In turn, in a second indorsement addressed to petitioner, COA Chairman Celso D. Gangan stated that the documents submitted by petitioner "are substantial evidence to support disbursements of the intelligence and confidential funds in question" as required by COA Circular No. 92-385, dated October 1, 1992.
Second. EVEN IF THE IRREGULARITIES THAT INFECT THE PRELIMINARY INVESTIGATION ARE OVERLOOKED, NO PROBABLE CAUSE FOR THE CRIME OF MALVERSATION IS MADE OUT BY THE EVIDENCE ON RECORD AND, CONSEQUENTLY, THE INFORMATIONS FILED HEREIN ARE INVALID.
Notwithstanding the repeated efforts of the Court as well as of the prosecution to categorically identify the position of the COA on the matter, what consistently appears in the various communications is that the COA is of the view that the affidavits in lieu of the actual liquidation of expenses might serve as adequate liquidation. This position has been the same view which the prosecution has earlier seen and has rejected.The Sandiganbayan withheld action on the prosecution’s motion to suspend petitioner pending the pretrial.
Undoubtedly, the COA could have been more responsive to the request both of the Court and of the accused itself in stating its position on the matter more categorically. However, the fact is that it did not do so, and even if it had done so, the same does not appear to have altered the fact that the prosecution at this time is of the view that the adequate cause exists to proceed with the prosecution of the accused Governor Rodolfo E. Aguinaldo. It is for this reason that the Instant Urgent Motion to Defer Arraignment wherein the various endorsements of COA officials are appended is denied as is the Motion to Quash and other pleadings in connection herewith.
It is well to note that prosecution of cases is left in the hands of the prosecutor. While the COA can and may assist in collating evidence to substantiate a charge of malversation, it does not preclude the Ombudsman from conducting its own investigation, and filing the appropriate charge if, by its own determination, the evidence warrants the same.On the other hand, the prosecution argues that the affidavits of military officers are inadequate for the purpose of liquidating disbursements in view of COA Circular No. 92-385 which provides that "any disbursement from the confidential and/or intelligence fund shall be accounted for solely on the certification of the head of the agency or by the officer-in-charge of the intelligence, confidential or national security mission" and MLG Circular No. 83-4, dated February 7, 1983, which provides that the 20% Development Fund should be utilized exclusively for development projects and excludes expenditures for counter-insurgency operations.
The COA is merely the source of the facts in these cases. Any determination made by the COA outside of the narration of facts duly supported by evidence will not by itself determine whether or not adequate cause exists to prosecute a case. To demonstrate this point, the Supreme Court has ruled that ..... a public officer may be held guilty of malversation based on a ‘preliminary’ audit report .... (De Guzman v. People, 119 SCRA 337, 348 (1982) and that ....[t]he absence of a post-audit is not ... a fatal omission... nor is it a .... preliminary requirement to the filing of an information for malversation as long as the prima facie guilt of the suspect has already been established.. (Corpuz v. People, 194 SCRA 73, 79 (1990))
Nor is COA’s final determination required for a malversation case to prosper, much less will it decide one way or the other the propriety of the suspension of an accused in a malversation case filed, as sought herein.
Hence this petition for certiorari. Petitioner alleges that:
1. The Sandiganbayan gravely abused its discretion by completely disregarding the COA findings and post-audit clearances, including the COA Chairman’s confirmation, which the respondent court itself, together with the prosecution, sought and solicited during the course of the proceedings;
2. In the higher interest of justice, the consideration of the post-audit findings of the COA can still be the subject of the motion to dismiss even after arraignment of the petitioner;
3. And then, the presumptive validity of informations has been conclusively overcome by the subsequent post audit of accountability of the accused petitioner by the COA which had since issued a certificate of settlement and balances by which the accused’s subject claims have been allowed in audit; and such audit was confirmed by the COA Chairman.
Any disbursement from the confidential and/or intelligence fund shall be accounted for solely on the certification of the head of the agency or by the officer-in-charge of the intelligence, confidential or national security mission.and COA Circular No. 88-293 which provides:
For national defense and related agencies engaged in highly confidential operations or missions the details of which cannot be divulged without posing a threat to national security, a certification by the head of agency bearing on the nature of such highly confidential operations may instead be submitted using Form # 2 (see attached sample). However, the agency concerned shall maintain a complete file of all supporting documents for such transactions to ensure the undertaking of a more extensive audit and examination by this Commission at anytime it deems desirable or when the operations are completed and declassified. Such file shall include, among others, the following data: name of asset or informer; nature and purpose or type of information; date and amount given; signature if payee and such other relevant information.This counter-affidavit falls short of the requirements of COA Circular No. 88-293 which, while allowing the use of "mere certification" to support liquidation vouchers (Par. VII(G)), nonetheless requires the prescribed form to state that "the details and supporting documents are in our custody and kept in our confidential file and may be audited if the circumstances so demand."
Petitioner filed a counter-affidavit in which he stated:
I hereby certify, in my capacity as Governor of Cagayan, that the funds involved therein were duly appropriated by the Sangguniang Panlalawigan of Cagayan and approved by the Department of Interior and Local Government specifically for intelligence and counter-insurgency purposes; that all the subject disbursements were made by me to bona fide officers/personnel of the Armed Forces, para-military units and civilian components then involved in anti-insurgency operations in Cagayan for intelligence and counter-insurgency activities and operations; that said funds were to the best of my knowledge actually spent for the purposes for which they were appropriated; that the expenses paid for were necessary, lawful and incurred under the supervision of the officers/men who received them; and, that the amounts spent were reasonable.
3. That [in] the course of the operations of the counter-insurgency program, I received certain amount in many occasions from the Provincial Government of Cagayan through Governor Rodolfo Aguinaldo in pursuance of the same counter-insurgency program;Thus, the amounts allegedly received by the affiants are unspecified; the date the amounts received by the affiants are not given; the affiants do not state how the amounts were spent by them but only that they were spent "in pursuance" and "in support" of the counter-insurgency operations. Moreover, while the affiants attested that they signed receipts for the amounts they received from petitioner, not a single receipt was presented by petitioner. It is noteworthy that while petitioner claims that he had also required receipts from civilian informants, runners, couriers and families of victims of counter-insurgency operations,[3] no receipt nor any form of acknowledgment by the said recipients was presented by petitioner.
4. That I issued the corresponding receipt for all the amounts I received from Governor Aguinaldo;
5. That I am willing to testify as to the truth and veracity of my statement if called upon by the proper authorities.
The Auditor General, as noted is vested with the power to examine, audit and settle all accounts pertaining to the revenues and receipts from whatever source, and to audit, in accordance with law and administrative regulations, all expenditures of funds or property pertaining to or held in trust by the government as well as the provinces or municipalities thereof. That is one thing. The ascertainment of whether a crime [is] committed and by whom is definitely another.[6]COA’s approval of petitioner’s disbursements only relates to the administrative aspect of the matter[7] of his accountability but it does not foreclose the Ombudsman’s authority to investigate and determine whether there is a crime to be prosecuted for which petitioner is answerable.[8] Therefore, as correctly stated by the Sandiganbayan in its order of April 12, 1996, while the COA may assist in gathering evidence to substantiate a charge of malversation, any determination made by it will not be conclusive as to whether adequate cause exists to prosecute a case. This is so because the Ombudsman is given the power to investigate on its own an illegal act or omission of a public official.[9]
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.Petitioner may still prove his innocence. Until he does this, however, the presumption that public funds were put to personal use stands.
[T]his Court is loath to interfere with the discretion of the Ombudsman unless such discretion is clearly shown to have been abused. As explained in Young v. Office of the Ombudsman:It is insisted, however, that because COA has the constitutional authority to examine, audit and settle accounts pertaining to the expenditures of the funds in question, its finding is conclusive and mandatory and not reviewable except on certiorari and only by this Court. Petitioner cites P.D. No. 1445 (Government Auditing Code) which provides:
The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it , in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.
Sec. 52. OPENING AND REVISION OF SETTLED ACCOUNTS.- (1) At any time before the expiration of three years after the settlement of any account by an auditor, the Commission may motu proprio review and revise the account or settlement and certify a new balance. For that purpose, it may require any account, vouchers, or other papers connected with the matter to be forwarded to it.Petitioner asserts that because of this provision any account already settled by the COA may only be reopened within three years by the COA itself and not by the Sandiganbayan.
(2) When any settled account appears to be tainted with fraud, collusion, or error of calculation, or when new and material evidence is discovered, the Commission may, within three years after the original settlement, open the account, and after a reasonable time for reply or appearance of the party concerned, may certify thereon a new balance. An auditor may exercise the same power with respect to settled account pertaining to the agencies under his audit jurisdiction.
(3) Accounts once finally settled shall in no case be opened or reviewed except as herein provided.
There is likewise an invocation by appellants of alleged statutory support for their untenable view. It is likewise in vain. All that appellants have to go on is the concluding paragraph of Section 657 of the Revised Administrative Code: "Accounts once finally settled shall in no case be opened or reviewed except as herein provided." The paragraph immediately preceeding should have disabused the minds of appellants of any cause for optimism. All that it provides is that in case any settled account "appears to be infected with fraud, collusion or error of calculation or when new and material evidence is discovered, the Auditor General may, within three years after original settlement, open such account, and after a reasonable time for his reply or appearance, may certify thereon a new balance." The official given the opportunity for a reply or appearance is the provincial auditor, for under the first paragraph of this particular section, the Auditor General at any time before the expiration of three years after the making of any settlement by a provincial auditor, may, of his own motion, review and revise the same and certify a new balance. Nowhere does it appear that such a statutory grant of authority of the Auditor General to open revised settled accounts carries with it the power to determine who may be prosecuted in the event that in the preparation thereof a crime has been committed. The conclusive effect of the finality of his decision on the executive branch of the government thus relates solely to the administrative aspect of the matter.[11]Finally, it is contended that while preventive suspension is mandatory in cases involving fraud upon government or public funds or property,[12] it is not automatic because a pre-suspension hearing on the validity of the information must first be conducted. Petitioner quotes from People v. Albano[13] that "[the] pre-suspension hearing is conducted to determine basically the validity of the information, from which the court can have a basis to either suspend the accused, and proceed with the trial on the merits of the case, or withhold the suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity."
[U]pon a proper determination of the validity of the information, it becomes mandatory for the court to immediately issue the suspension order. The rule on the matter is specific and categorical. It leaves no room for interpretation. It is not within the court’s discretion to hold in abeyance the suspension of the accused officer on the pretext that the order denying the motion to quash is pending review before the appellate courts. Its discretion lies only during the pre-suspension hearing where it is required to ascertain whether or not (1) the accused had been afforded due preliminary investigation prior to the filing of the information against him, (2) the acts for which he was charged constitute a violation of the provisions of Republic Act No. 3019 or of the provisions of Title 7, Book II of the Revised Penal Code, or (3) the informations against him can be quashed, under any of the grounds provided in Section 2, Rule 117 of the Rules of Court.[14]All told, we find no basis for holding that the Sandiganbayan committed grave abuse of its discretion in denying the motion to quash and ordering the preventive suspension of petitioner.