HERNANDO, J.:
The complainant alleges that in April 1979, barely six (6) months after [Marbella] was incorporated, the National Investment and Development Corporation (NIDC), a subsidiary of PNB, approved the request of [Marbella] for the issuance of an NIDC Letter of Guaranty in favor of Europe-Asia Finance Corporation (EAFC) or any other financiers to guarantee foreign credit in the principal amount of US$20.0 Million. When the credit arrangement with EAFC did not materialize, [Marbella] applied for US$20.0 Million loan with PNB, which the latter approved on September 1, 1980[,] under Board Resolution No. 155.Ongpin, Domingo, Agulto, Ingco, Vergara, except for Salcedo and Deen, filed their respective counter-affidavits. The Ombudsman briefly discussed each, viz.:
To fund the loan of [Marbella], the Central Bank (CB) granted PNB a US$20.0 Million loan under its Consolidated Foreign Borrowings Program (CFBP). PNB approved the loan of [Marbella] even before it became the registered owner of the land where the purported tourism resort was to be established. Two years thereafter, or in December 1982, PNB, under Board Resolution No. 291 dated February 14, 1983, advanced Php15.6 Million to [Marbella], to enable the latter to pay the interest due on its foreign loan when it defaulted its interest payment due in November 1982.
The complainant asserts that such early default on mere interest payment, is already a clear indicium that the borrower was a poor credit risk, that loan was unwarranted, and that the loan granted by the respondent officials of PNB was attended with manifest partiality, bad faith and/or inexcusable negligence. The same manifest partiality and/or bad faith were evident in PNB's waiver of its share in the sale proceeds of condominium units bought by the Philippine Tourism Authority (PTA), wherein under the Loan Agreement, [Marbella] assigned to PNB all sale proceeds of the condominium units as a source of payment. With the waiver, PNB gave away the main source of funding for the payment of the subject loan, thereby reducing the change of its payment. By so doing, PNB entered into an agreement grossly disadvantageous to it, and ultimately, the government and the Filipino people.[6]
The alleged offenses committed in 1980, x x x, has already prescribed. The government, thru the various units and offices tasked with investigating and prosecuting ill-gotten wealth and behest account cases connected with the Marcos Dictatorship regime, was in position to discover, and is considered to have imputed discovery of the anti-graft violations as early as March 1986. So, counting the prescriptive period from March 1986, the reckoning point is laid down in the Desierto rulings, more than 16 years have lapsed when the herein Affidavit-Complaint was filed on March 31, 2003. Clearly, this is beyond the 15-year period prescribed in Section 11, R.A. No. 3019, as amended.August 24, 2012 Resolution of the Ombudsman
Respondent Ongpin avers that the acts attributed to him do not constitute an offense. The said acts are not supported by competent and admissible evidence. He explains that the only "testimonial evidence" submitted is the Affidavit-Complaint of Virgilio P.A. Ocaya which, on its face, is hearsay, several times over. The papers appended to the Complaint are but photocopies and worse, photocopies of photocopies, not of the original papers (or even photocopies of the original papers), the genuineness and authenticity of which is not shown by any piece of evidence.
Respondent Ingco, for his part, declares that paragraph 24 of the Affidavit- Complaint explicitly alleged and charged him as then PNB Senior Vice President and Panfilo O. Domingo, then PNB President who jointly recommended to the PNB Board of Directors the approval of the US$20.0 Million Central Bank Consolidated Foreign Borrowings [Program] (CB-[CFBP]) loan. Such act of recommending is the only act being charged against him, thus, he did not commit any violation. He might have been a ranking official of PNB but, unassailably, he neither had the title nor the authority to conclude and bind the bank to the questioned transactions. Like any other corporate banking institution, PNB's affairs were directed and its properties managed and preserved and its corporate powers exercised by its Board of Directors.
As for the transaction itself, it is an official FX lending under the CB-CFBP facility wherein the two principal parties are the Central Bank of the Philippines (CBP), which is the lender-fund provider, while [Marbella], which is the end-user borrower. The PNB, as mere institutional conduit or channel for the CB-provided FX funds under the CB-CFBP, was not the one who did the credit decision; rather, it was the CBP, whose FX funds are to be lent out. Therefore, if ever there was any flaw or defect, or even irregularity in that credit judgment, then it is the CBP, who approved the FX loan that should be asked to explain. At any rate, the FX loan approval by the CBP is itself an official act of a governmental instrumentality which enjoys the presumption of regularity and validity.
In addition to the above defenses, respondent Domingo clarifies that [Marbella] is not fictional. It was a duly organized and existing corporation under Philippine laws with its Articles of Incorporation duly registered with the Securities and Exchange Commission on November 29, 1978. The paid-up capital of [Marbella] at the time of the loan application was P19,693,961.31 and not merely P2.5 Million. Arturo Q. Trinidad, Senior [Vice President] and [Officer-In-Charge] of NIDC prepared a Memorandum addressed to the Board of Directors of the NIDC recommending the approval of the supposed request of [Marbella] for an NIDC Letter of Guaranty. This recommendation was apparently made after Mr. Trinidad conducted a thorough study and evaluation of the following relevant points for consideration: a) Identity of Firm; b) Project Proposal; c) Collateral Position of P176.828 Million; d) Capitalization and Management; e) Market Aspects; f) Technical Aspects; g) Financial Aspects. There was nothing irregular or illegal in the methodology adopted by Mr. Trinidad.
Further, based on the records attached to the Affidavit-Complaint, [Marbella] was a fully owned subsidiary of Philippine Tourism Authority. Its five (5) incorporators/directors were all PTA nominees. However, at the time of the loan application (no stated date in the records), PTA held 60% of the shareholdings in [Marbella] with the remaining 40% held by a British Corporation. The CBP approved PNB's request for a loan in the amount of US$20.0 Million for re-lending to Marbella under its CFBP on December 12, 1980 by way of Resolution No. 2361. In this CBP Resolution, it was stated that, "the authority to finalize the loan shall have a prescriptive period of 90 days reckoned from receipt of notice of (CBP's) approval." Clearly therefore, at the time then President Marcos approved the transfer of land from PTA to [Marbella] on November 6, 1980, the CBP loan to PNB and PNB loan to [Marbella] were not yet finalized. When the loans were finalized after December 23, 1980, the said land was already approved for transfer to [Marbella] and covered by [Transfer Certificate of Title] No. 108288.
The foreign currency loan of [Marbella] was secured by the following: 1) First Mortgage on Marbella's 125 hectare site of Marina Complex in Ternate, Cavite covered by TCT No. T-108288; 2) Full and unconditional guarantee of the PTA duly approved by the President of the Philippines; and, 3) Assignment by way of payment of proceeds of Marbella's sale of units in its resort/Marina complex in Ternate, Cavite in such amounts necessary to meet [Marbella's] maturing amortizations. He stresses that [Marbella] was a fully owned subsidiary of PTA upon its incorporation in 1978. At the time of the loan application, Marbella was [60% owned] by PTA.
Respondent Domingo urges the [Ombudsman] to take into account the following material facts and considerations: 1) That he should be summarily dropped as respondent in this case; 2) That he cannot be held liable for transactions consummated after March 7, 1983, when he completely terminated his services with PNB; 3) That it is the Monetary Board, Central Bank and the Board of Directors of the PNB which approved the two (2) Board Resolutions in this case, and there is total absence of proof that he "conspired and confederate with (other respondents) in granting unwarranted preference, advantage and benefits to the fictional Marbella"; 4) That all the charges, under any manner of computation, are barred forever by the rules on prescription, Statute of Limitations, estoppel and laches; 5) That the Affidavit-Complaint and the Executive Summary and the Reports are based on inadmissible hearsay evidence; without evidentiary value; 6) That the proposed documentary evidence, being mere photocopies (or even photocopies of photocopies are inadmissible as evidence, most especially in criminal cases; 7) That Administrative Order No. 13 and Memorandum No. 61 are not material or relevant to the charges and are inapplicable under the rule on Ex Post Facto laws/rules/regulations; 8) That he cannot be held liable for official acts as PNB President under the Corporation Code and the New Civil Code; 9) That he was never a "crony" of former President Marcos; 10) That he never conspired with any of the respondents or [Marbella] to enter into a loan or credit agreement, inimical or disadvantageous to the government and the people.
As for respondent Vergara, he alleges that [Marbella] was in the business of tourism development. [Marbella's] main project was the construction of a first class, all-exclusive international tourist resort at Ternate, Cavite. The project was ambitious, but it had a very high chance of success. It was consistent with the objectives of the government to promote the country's tourism industry. There was absolutely nothing irregular or suspicious about the rationale behind the project. Further, since the terms and conditions of the Loan Agreement were regular, nothing therein appeared to be in contravention of the law and the terms of the loan was sufficiently covered by collaterals, respondent Vergara co-signed the agreement with PNB's [Ingco]. [Marbella] was clearly a corporation under the control of the Philippine government. [Marbella's] resort project was in essence a project of the government. The Loan Agreement was necessary for the PTA to pursue its tourism project. Furthermore, [Marbella's] proponents planned on infusing additional capital into the company. From the above, it appeared to respondent Vergara that the transactions of [Marbella] were all in the regular course of business of the corporation and in consonance with the purposes of the PTA.[7]
WHEREFORE, this case is, DISMISSED, for lack of probable cause.PCGG moved for the reconsideration of the Ombudsman's resolution,[16] however, it was denied in the Ombudsman's October 9, 2012 Order.[17] Hence, this present Petition for Certiorari[18] raising the following issues:
SO RESOLVED.[15]
CERTIORARI LIES TO REVIEW THE ACTION OF THE OMBUDSMAN IN FINDING LACK OF PROBABLE CAUSE TO INDICT RESPONDENTS FOR SECTION 3(e) AND (g) OF R.A. NO. 3019.PCGG contends that this Court is "not precluded from reviewing the Ombudsman's action when there is grave abuse of discretion"[20] despite the latter's wide latitude of judgment whether to proceed with the charge or not. The Ombudsman committed grave abuse of discretion when it found no probable cause against respondents even if Marbella received unwarranted benefits brought about by the approval of the loan to the prejudice and disadvantage of the government. Ongpin, Aspiras, the officials of PNB, and the directors of Marbella conspired and confederated to grant preference and advantage to a fictional corporation Marbella, through manifest partiality, evident bad faith, and gross inexcusable negligence.[21] It specifically avers:II.
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION TAINTED THE DISMISSAL OF THE SUBJECT COMPLAINT FOR VIOLATION OF SECTIONS 3(e) and (g) OF R.A. NO. 3019.III.
PROBABLE CAUSE EXISTS TO INDICT RESPONDENTS FOR VIOLATION OF SECTIONS 3(e) and (g) [OF] R.A. NO. 3019.[19]
The approval of the loan was highly irregular and bore badges of former President [Ferdinand] Marcos' direct intervention to accommodate [Marbella], as can be gleaned from the following: (i) the transfer of the land owned by [PTA], a government agency created pursuant to Presidential Decree No. 189, to [Marbella] to be used as collateral for the loan secured by the latter from PNB; (ii) PTA's guaranty of said loans of [Marbella]; (iii) PNB's waiver of its share in the proceeds of the condominium units purchased by National Development Company (NDC) in favor of[Marbella]; (iv) the PTA-NDC's venture regarding 48 condominium units in the [Marbella] project; (v) the pro bono dredging of Caylabne Bay for [Marbella]; and (vi) the additional capital infusion of NDC and PTA in [Marbella].[22]In addition, Marbella's loan may be characterized as under collateralized and lacking in sufficient equity. These factors, coupled with the non-feasibility of the project and the swift release of the loan, would point to the existence of probable cause for violation of Sec. 3 (e) and (g) of Republic Act No. 3019.[23] Hence, the Office of the Ombudsman gravely abused its discretion in dismissing the case for lack of probable cause.
Meanwhile, with respect to criminal charges, the Court has settled that the remedy of an aggrieved party from a resolution of the Ombudsman finding the presence or absence of probable cause is to file a petition for certiorari under Rule 65 of the Rules of Court and the petition should be filed not before the CA, but before the Supreme Court. In the fairly recent case of Gatchalian v. Office of the Ombudsman, (decided on August 1, 2018), the Court traced the genesis of the foregoing procedure and cited a wealth of jurisprudence recognizing the same:Thus, it is evident from the foregoing that the remedy to assail the ruling of the Ombudsman in non-administrative/criminal cases (i.e., file a petition for certiorari under Rule 65 of the Rules of Court before the Supreme Court) is well entrenched in our jurisprudence.[55] (Citations omitted)
x x x x
With regard to orders, directives, or decisions of the Ombudsman in criminal or non-administrative cases, the Court, in Tirol, Jr. v. Del Rosario, held that the remedy for the same is to file a petition for certiorari under Rule 65 of the Rules of Court. x x x.
x x x x
The Court in Tirol, Jr., however, was unable to specify the court - whether it be the RTC, the CA, or the Supreme Court - to which the petition for certiorari under Rule 65 should be filed given the concurrent jurisdictions of the aforementioned courts over petitions for certiorari.
Five years after, the Court clarified in Estrada v. Desierto that a petition for certiorari under Rule 65 of the Rules of Court questioning the finding of the existence of probable cause - or the lack thereof - by the Ombudsman should be filed with the Supreme Court. x x x:
x x x x
Kuizon and the subsequent case of Mendoza-Arce v. Office of the Ombudsman (Visayas) drove home the point that the remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding probable cause in criminal cases or non-administrative cases, when tainted with grave abuse of discretion, is to file an original action for certiorari with this Court and not with the Court of Appeals. In cases when the aggrieved party is questioning the Office of the Ombudsman's finding of lack of probable cause, as in this case, there is likewise the remedy of certiorari under Rule 65 to be filed with this Court and not with the Court of Appeals following our ruling in Perez v. Office of the Ombudsman.
In the 2009 case of Ombudsman v. Heirs of Margarita Vda. De Ventura, the Court reiterated Kuizon, Golangco, and Estrada, and ruled that the CA did not have jurisdiction over orders and decisions of the Ombudsman in non-administrative cases, and that the remedy of aggrieved parties was to file a petition for certiorari under Rule 65 with this Court. The foregoing principles were repeatedly upheld in other cases, such as in Soriano v. Cabais and Duyon v. Court of Appeals. x x x.
The Ombudsman is endowed with a wide latitude of investigatory and prosecutory prerogatives in the exercise of its power to pass upon criminal complaints." As a general rule, this Court does not interfere with the Office of the Ombudsman's exercise of its constitutional mandate. It is an executive function, which must be respected consistent with the principle of separation of powers, thus:This Court, in a petition for certiorari, will not hesitate to correspondingly address the issues when a tribunal acts with grave abuse of discretion in rendering judgment, in order to dispense and administer justice to the parties especially when the citizenry is affected by the actions of an errant public officer or tribunal. Conversely, this Court will exercise restraint when the petition for certiorari fails to show or lacks adequate evidence to support the assertion that the decision, resolution, decree, or order was tainted with grave abuse of discretion, as in this case.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 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."
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 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.
Practicality also leads this Court to exercise restraint in interfering with the Office of the Ombudsman's finding of probable cause. Republic v. Ombudsman Desierto explains:[T]he functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complaint. x x x.Jurisprudence has consistently ruled in favor of non-interference in the Ombudsman's determination of the existence of probable cause, unless there is a clear showing of grave abuse of discretion. This policy is based on respect for the Ombudsman's mandate and on practical grounds.x x x.[66]
(a) To afford protection to the constitutional rights of the accused;[57] G.R No. 228281, June 14, 2021.
(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;
(c) When there is a prejudicial question which is sub judice;
(d) When the acts of the officer are without or in excess of authority;
(e) Where the prosecution is under an invalid law, ordinance or regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the cou1t has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution; [and]
(i) Where the charges are manifestly false and motivated by the lust for vengeance."