To facilitate the payment of the hospital items, Check No. 06279, covered by Disbursement Voucher No. 1730, was issued on April 30, 2001. This, however, only covered the amount of P35,106,910.91.
Item Quantity Price per Unit Hospital beds 188 P 148,000.00 Bedside cabinets 220 P 17,850.00 Intensive Care Unit beds 10 P 545,000.00 Orthopedic beds 4 P 480,000.00
No probable cause was found against Mayor Binay. In so ruling, the Office of the Overall Deputy Ombudsman cited the Arias doctrine:
- Nicanor V. Santiago, Jr. (SG 27), Former City Administrator, Makati City;
- Ernesto A. Aspillaga (SG 27), Head, General Services Department, Makati City;
- Ramoncito R. Coronel (SG 25), Officer-in-Charge, Assistant Medical Director, Ospital ng Makati;
- Lolita G. Valdez (SG 16), Head, Nursing Services, Ospital ng Makati;
- Althea C. Suico (SG 14), Nurse, Department of Obstetrics and Gynecology, Ospital ng Makati;
- Maria Perpetua Q. Reyeg (SG 16), Head Nurse, Department of Medicine, Ospital ng Makati;
- Jaime P. de los Reyes (SG 11), Administrative Officer I, General Services Division, Makati City;
- Conrado B. Pamintuan (SG 14), Supply Officer II, Supply and Property Division, Makati City;
- Rudolfo B. Fernandez, Chief, Supply and Property Department Office of the Treasurer, Makati City;
- Eduardo G. de Guzman (SG 6), Storekeeper II, Supply and Property Division, General Services Department, Makati City;
- Nestor R. Bulos (SG 11), Storekeeper IV, General Services Department, Makati City;
- Lilia Nonato (SG 6), Clerk III, Supply and Property Department, General Services Division, Makati City;
- Ligaya Ibay (SG 6), Inspector, Medical Section, Supply and Property Department, General Services Division, Makati City;
- Apollo B. Carreon, and o. Carmen C. Maano[.]
As the final approving authority for the Award of Purchase and of the Purchase Orders, respondent Binay is within the scope of the Arias doctrine, the evidence showing that she had relied in good faith on the representations of respondent Aspillaga, as City General Services Officer, and of respondent Santiago, as City Administrator, that the transaction was regular on its face.On July 4, 2011, two (2) Informations were filed before the Sandiganbayan based on the May 9, 2011 Ombudsman Resolution. The cases were raffled to the Sandiganbayan Third Division.
A painstaking review of the evidence reveals that respondents Santiago and Coronel had crafted the Purchase Requests and Purchase Orders so well that by the time that the City Government of Makati had to issue the Award of Purchase dated 13 March 2001, there was nothing before respondent Binay that would have behooved her to examine the purchase further.
Without any further evidence, the signatures of respondent Binay on the Purchase Requests, Purchase Orders, and Award of Purchase, standing alone, cannot sustain a finding of probable cause sufficient to prosecute respondent Binay for Violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
With respect to Binay, the Arias doctrine cannot be properly invoked so as to relieve her from any liability. It is undeniable that Binay extensively participated in the most decisive parts of the procurement process and in the eventual disbursement of funds. On the whole, she had an extensive and active participation in this transaction for which she cannot disclaim responsibility and liability. She cannot feign good faith in claiming that she merely relied in the representations of Aspillaga and Santiago. As the local chief executive of the City of Makati, it is her bounden duty to see to it that laws are faithfully complied with. Good faith is a matter of defense that should be determined in the course of trial. . . .On October 4, 2013, then Ombudsman Conchita Carpio Morales (Ombudsman Carpio Morales) approved the Consolidated Resolution. Subsequently, the Informations filed before the Sandiganbayan were amended to reflect the recommendation in the August 29, 2013 Consolidated Resolution.
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Quite notable, likewise, is the unusual haste in the procurement of the subject items. It took only thirty (30) days from February 12, 2001 to award the contract to Apollo on March 14, 2001. It cannot be ignored that the amount involved in this procurement is not a measly sum of P36Million. Considering the magnitude of the amount involved before her, it should have put her on guard to have assured the propriety of the transaction.
There was likewise no claim nor proof that the need for the subject items was urgent or under an emergency that would prompt a hasty procurement. Absent such a situation, the Committee on Awards of which she is the chairman, could have directed a re-assessment or re-validation of Apollo's credentials in order to comply with the mandatory requisites of resorting to exclusive distributorship or at best directed the conduct of a public bidding. (Citations omitted)
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.In Singian, Jr. v. Sandiganbayan, grave abuse of discretion was defined as:
. . . .
SECTION 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are 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 other 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 commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.
". . . the capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility."Mere "disagreement with the Ombudsman's findings is not enough to constitute grave abuse of discretion." It is necessary for the petitioner to prove "that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty under the law."
The Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. And Roxas v. Hon. Vasquez teaches that new matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted. (Emphasis in the original, citations omitted)Similarly, in Roxas v. Hon. Vasquez:
In criminal prosecutions, a reinvestigation, like an appeal, renders the entire case open for review. It matters not that the complainants did not seek a reinvestigation or reconsideration of the dismissal of the charges against petitioners. Consistent with its independence as protector of the people and as prosecutor to ensure accountability of public officers, the Ombudsman is not and should not be limited in its review by the action or inaction of complainants. On the other hand, it is clear from Section 15 of R.A. 6770 that the Ombudsman may motu proprio conduct a reinvestigation to assure that the guilty do not go unpunished.This Court will not interfere with the Office of the Ombudsman's determination of probable cause except when it acted with grave abuse of discretion. in Dichaves v. Office of the Ombudsman:
likewise, petitioners' insistence that the Ombudsman and the Sandiganbayan had lost jurisdiction over them after the initial dismissal of the charges against them is untenable. In the case of Abdula v. Guiani, this Court held:With respect to the allegation that the respondent had no legal authority to order a reinvestigation of the criminal charge considering that the said charge had been previously dismissed as against them, we hold that respondent did not abuse his discretion in doing so.It is not material either that no new matter or evidence was presented during the reinvestigation of the case. It should be stressed that reinvestigation, as the word itself implies, is merely a repeat investigation of the case. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings and the evidence already submitted. (Emphasis supplied, citations omitted)
As a general rule, this Court does not interfere with the Office of the Ombudsman's exercise of its constitutional mandate. Both the Constitution and Republic Act No. 6770 (The Ombudsman Act of 1989) give the Ombudsman wide latitude to act on criminal complaints against public officials and government employees. The rule on non-interference is based on the "respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman[.]"The Office of the Ombudsman may have full discretionary powers to determine whether a criminal case should be filed before the Sandiganbayan. But once it files a case, it passes full control over it to the Sandiganbayan. The Sandiganbayan is empowered to proceed with trial in the "manner it determines best conducive to orderly proceedings and speedy termination of the case."
An independent constitutional body, the Office of the Ombudsman is "beholden to no one, acts as the champion of the people[,] and [is] the preserver of the integrity of the public service." Thus, it has the sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused. This function is executive in nature.
The executive determination of probable cause is a highly factual matter. It requires probing into the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he [or she] was prosecuted."
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.
. . . .
While, indeed, this Court may step in if the public prosecutor gravely abused its discretion in acting on the case, such grave abuse must be substantiated, not merely alleged. (Emphasis in the original, citations omitted)
Preliminary investigation is not part of trial and is conducted only to establish whether probable cause exists. Consequently, it is not subject to the same due process requirements that must be present during trial. In Webb v. De Leon:
All the same, petitioner cannot insist that she was deprived of due process. It has been consistently held that "due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or an opportunity to move for a reconsideration of the action or ruling complained of." Petitioner does not deny that she moved for reconsideration of the assailed August 29, 2013 Consolidated Resolution. She was given the opportunity to question the decision against her. She was not denied due process.Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary.A person's rights during preliminary investigation are limited to those provided by procedural law. Rule 112, Section 3 of the Rules of Court provides:Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:Under procedural law, a respondent under preliminary investigation has the right to examine the evidence submitted by the complainant, but he does not have a similar right over the evidence submitted by his or her co-respondents. (Emphasis supplied, citations omitted)
. . . .
(b) . . . .
The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
This Court now clarifies the mode of analysis in situations where the right to speedy disposition of cases or the right to speedy trial is invoked.An examination of the records reveals that petitioner's right to speedy disposition was not violated. Public respondents have sufficiently explained the delay in the resolution of the Complaints.
First, the right to speedy disposition of cases is different from the right to speedy trial. While the rationale for both rights is the same, the right to speedy trial may only be invoked in criminal prosecutions against courts of law. The right to speedy disposition of cases, however, may be invoked before any tribunal, whether judicial or quasi-judicial. What is important is that the accused may already be prejudiced by the proceeding for the right to speedy disposition of cases to be invoked.
Second, a case is deemed initiated upon the filing of a formal complaint prior to a conduct of a preliminary investigation. This Court acknowledges, however, that the Ombudsman should set reasonable periods for preliminary investigation, with due regard to the complexities and nuances of each case. Delays beyond this period will be taken against the prosecution. The period taken for fact-finding investigations prior to the filing of the formal complaint shall not be included in the determination of whether there has been inordinate delay.
Third, courts must first determine which party carries the burden of proof. If the right is invoked within the given time periods contained in current Supreme Court resolutions and circulars, and the time periods that will be promulgated by the Office of the Ombudsman, the defense has the burden of proving that the right was justifiably invoked. If the delay occurs beyond the given time period and the right is invoked, the prosecution has the burden of justifying the delay.
If the defense has the burden of proof, it must prove first, whether the case is motivated by malice or clearly only politically motivated and is attended by utter lack of evidence, and second, that the defense did not contribute to the delay.
Once the burden of proof shifts to the prosecution, the prosecution must prove first, that it followed the prescribed procedure in the conduct of preliminary investigation and in the prosecution of the case; second, that the complexity of the issues and the volume of evidence made the delay inevitable; and third, that no prejudice was suffered by the accused as a result of the delay.
Fourth, determination of the length of delay is never mechanical. Courts must consider the entire context of the case, from the amount of evidence to be weighed to the simplicity or complexity of the issues raised.
An exception to this rule is if there is an allegation that the prosecution of the case was solely motivated by malice, such as when the case is politically motivated or when there is continued prosecution despite utter lack of evidence. Malicious intent may be gauged from the behavior of the prosecution throughout the proceedings. If malicious prosecution is properly alleged and substantially proven, the case would automatically be dismissed without need of further analysis of the delay.
Another exception would be the waiver of the accused to the right to speedy disposition of cases or the right to speedy trial. If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be invoked.
In all cases of dismissals due to inordinate delay, the causes of the delays must be properly laid out and discussed by the relevant court.
Fifth, the right to speedy disposition of cases or the right to speedy trial must be timely raised. The respondent or the accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, they are deemed to have waived their right to speedy disposition of cases.
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Very truly yours,
(SGD) MISAEL DOMINGO C. BATTUNG III
Deputy Division Clerk of Court