511 Phil. 402
CALLEJO, SR., J.:
CERTIFICATION
TO WHOM IT MAY CONCERN:
This is to certify that Mrs. Fe "Neneng" N. Valenzuela, a resident of Purok 5, Brgy. Libertad, Isabel, Leyte/Brgy. San Roque, Isabel, Leyte, a Ship Chandler of this Municipality, is not involved in any illegal business activities/operations particular with drugs after three (3) weeks of our discreet surveillance conducted by intel operatives of this station.
This certification is issued upon the request of Mrs. Fe "Neneng" N. Valenzuela for whatever legal purposes it may serve.
Issued this 26th day of April 2002, at Isabel, Leyte, Philippines.
Valenzuela also claimed that she submitted a police clearance in her application for business permit.[17] She alleged that the Mayor refused to issue the permit to her because of his partiality in favor of her competitor, Maria Jesusa Larriba, the proprietor/manager of S.E. De Guzman Ship Chandler and General Maritime Services. Valenzuela alleged that Larriba was "a stranger, a new applicant and new to the business of [s]hip chandling" who also harassed her (Valenzuela). She further claimed that Mayor Fuentes gave the capital investment of another competitor, Ronilo Sentones, the proprietor/manager of Golden Sea Kers Marine Service, to whom a permit was later issued.[18]CHIEF OF POLICE[16]
RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT FOUND PROBABLE CAUSE AGAINST PETITIONER FOR VIOLATION OF SEC. 3(E) OF R.A. NO. 3019.The petitioner maintains that the issuance of a business permit is a discretionary power that is vested on him as a municipal mayor by virtue of Section 444(b)(3)(iv) of the Local Government Code of 1991 (R.A. No. 7160).[32] He claims that there is no factual basis for the finding of manifest partiality, bad faith or gross inexcusable negligence. Moreover, the finding of the Deputy Ombudsman that the private respondent lost thousands of pesos because he (petitioner) refused to issue the permit to her was without basis. While he concedes that manifest partiality and evident bad faith may co-exist, both terms could not be lumped up together with gross inexcusable neglect because malice is an element of the first two but not in the third. The petitioner posits that his refusal to issue a mayor's permit does not equate to manifest partiality, evident bad faith, or gross and inexcusable negligence. He argues that the assailed resolution and decision of the Deputy Ombudsman were based on pure conjectures and speculations; so was the assailed Order of the Ombudsman. He insists that in finding probable cause against him, the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction.
... [T]his Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service.The rationale of this rule is based not only upon respect for the investigatory and prosecutory powers that the Office of the Ombudsman is granted under the present Constitution, but upon practicality as well; otherwise, the functions of the courts would be perilously bound by numerous petitions assailing the result of the investigatory proceedings conducted by the Office, in much the same way that the courts would be saturated if compelled to review the prosecutors' exercise of discretion each time they decide to file an information or dismiss a complaint.[38]
Here, it appears that respondent acted with manifest partiality, evident bad faith, or gross inexcusable negligence in his dealings with complainant when he refused to renew complainant's mayor's business permit on the basis of the raw reports on complainant's alleged involvement in prohibited drugs and on grounds of the pendency of his investigation thereon. In the first place, it is unlikely that respondent conducted an investigation on the matter before his refusal. Records show that complainant's renewal application was ready for respondent's signature in January 2002 but the reports of his confidential agents came only on 09 February 2002 and 12 March 2002. Respondent in effect was putting the cart ahead of the horse.The Court defined probable cause for the filing of an Information in Presidential Commission on Good Government v. Desierto,[41] thus:
Granting that he conducted an earlier investigation thereon, would it take ten (10) months, or so, to determine whether the confidential agents' reports are true or not? Or respondent would not renew complainant's business permit on purpose?
Respondent did not give weight to the clearances of nine (9) offices for complainant's renewal of her business permit even with the recommending approval of the Municipal Treasurer. Among these offices are the Municipal Licensing Office, the Department of Trade and Industry, and the Philippine National Police. Respondent appeared that he did not rely on the clearances of the said offices but on the reports of his confidential agents whose existence can hardly be identified and confirmed. With the mere reports of the confidential agents, respondent set aside complainant's business permit application.
Moreover, respondent appeared to have influenced the PPA and the BOC to revoke complainant's special permit to engage in ship chandling activities on the basis of respondent's 14 March 2002 Memorandum. Respondent must have a personal reason for his going after complainant. "Nullius commodum potest de injuria sua propia." No one should be allowed to take advantage of his own wrong.
Respondent's contention that he would renew complainant's business permit after the investigation is dubious. During the clarificatory hearing at this Office on 04 October 2002, P/Insp. Martin Tamse testified, inter alia, that he has already closed his investigation without adverse findings, yet respondent has not renewed complainant's business permit. Complainant is still at the mercy of the respondent.[40]
Probable cause is a reasonable ground for presuming that a matter is or may be well-founded on such state of facts in the prosecutor's mind as would lead a person of ordinary caution and prudence to believe — or entertain an honest or strong suspicion — that it is so. The term does not mean "actual and positive cause"; neither does it import absolute certainty. It is based merely on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to secure a conviction. It is enough that the act or the omission complained of is believed to constitute the offense charged. Precisely, there is a trial to allow the reception of evidence for the prosecution in support of the charge.Thus, the Ombudsman did not commit a grave abuse of his discretion in giving his imprimatur to the Resolution and Order of the Deputy Ombudsman. In fact, the Ombudsman correctly ruled that –
It ought to be emphasized that in determining probable cause, the average person weighs facts and circumstances without resorting to the calibrations of technical rules of evidence, of which such person's knowledge is nil. Rather, the lay person usually relies on the calculus of common sense, of which all reasonable persons have an abundance. [42]
Respondent has failed to prove his allegations of criminal activity against the complainant. His statement that it is his duty "to see to it that the mayor's permit is granted only to legitimate businesses, not to legitimize an otherwise illegal activity" is laudable, but such statement implies or presupposes that complainant was or is engaged in illegal activity. It must be noted that there is no evidence showing that a criminal case for illegal activity has been filed against the complainant from the time she applied for a business permit in January 2002 up to and until the present. Being a ship chandler for Smith Bell Shipping Company, which complainant was at the time this case was instituted, is certainly not an illegal activity. Mere suspicion that a person is engaged in illegal activity, not being equivalent to proof, is insufficient to warrant the deprivation of livelihood or legitimate source of income. This is certainly the effect if an applicant who has complied with all the legal requirements for a mayor's permit is not granted one on mere suspicion that he is engaged in illegal activity.[43]The petitioner further claims that the Deputy Ombudsman committed grave abuse of discretion amounting to excess or lack of jurisdiction in finding that the private respondent suffered undue injury due to his obstinate refusal to issue a mayor's permit, since such injury was not duly proved. The Special Prosecutor, on the other hand, avers:
The Court agrees with the Special Prosecutor. The element of "undue injury" in violation of Section 3(e) of R.A. No. 3019 was extensively discussed in Cabrera v. Sandiganbayan,[45] to wit:
- The People are convinced that petitioners' reliance on Arce is misplaced. In the case of Olaguer vs. Military Commission No. 34, (G.R. No. L-54448, 22 May 1987), for instance, it was held that:
"xxx [R]everence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this court should be right."- Considering the phraseology of the law itself, the People submit that the cases of Jacinto vs. Sandiganbayan and Santiago vs. Garchitorena are applicable. Said cases remain good law. The court's pronouncements therein have not been categorically abandoned.
- In Santiago, the Supreme Court had occasion to delve into the verbal composition of Section 3(e) and, in turn, deliberate on the meaning thereof, as follows:
"Anent petitioner's claim that the Amended Informations did not allege that she had caused 'undue injury to any party, including the Government,' there are two ways of violating Section 3(e) of R.A. No. 3019. These are (a) by causing any undue injury to any party, including the government; and (b) by giving any private party any unwarranted benefit, advantage or preference....
The use of the distinctive term 'or' connotes that either act qualifies as a violation of Section 3(a) (sic). In other words the act of giving any private party any unwarranted benefit, advantage or preference is not an indispensable element of the offense of "causing any undue injury to any party" as claimed by petitioners although there may be instances where both elements concur.""The third element of the offense is satisfied when the questioned conduct causes undue injury to any party, including the government, or gives unwarranted benefit, advantage or preference. Proof of the extent or quantum of damage is not thus essential; it should be sufficient that the injury suffered or the benefit received can be perceived to be substantial enough and not merely negligible.[44]
- Otherwise stated, said phrases are distinct and independent of each other although at times, could be both present. The offense could be committed by either causing undue injury or by giving unwarranted benefits. This does not preclude, however, instances where both circumstances attend the commission of the crime. Hence, it is not necessary that both elements be present.
- In herein case, the complaint against petitioner alleged unwarranted and unjustified refusal by the mayor to issue the business permit necessary for Valenzuela to continue the operation of her ship chandling business. It was alleged further that as a result of petitioner's act, Valenzuela lost not only her means of livelihood but thousands of pesos worth of perishable commodities as well.
- In the case of Fonacier vs. Sandiganbayan, the Supreme Court declared that proof of the extent of injury is not essential, thus:
We find the contention of the petitioners to be untenable. For one thing, we have reviewed the rulings of the Court in Mendoza-Arce and kindred cases and find that the issue of whether or not violation of Section 3(e) of Rep. Act No. 3019 may be committed only by causing undue injury to the government or to a private individual, the giving of unwarranted benefits, advantage or preference being only a mode of causing undue injury to the government or to a private party had not been raised therein, nor resolved by the Court. In any event, the ruling in this case has categorized any perceived inconsistencies spawned by the rulings of the Court in Mendoza-Arce and other cases and those in Jacinto, Santiago, Evangelista, Quibal and Bautista.In the instant case, the evidence on record shows that by the time the petitioner had issued his unnumbered Memorandum on March 14, 2002, the private respondent had already purchased perishable provisions and supplies worth thousands of pesos intended for the M/V Ace Dragon. Thus, the private respondent alleged in her Complaint-Affidavit:
In Gallego v. Sandiganbayan, the Court ruled that "unwarranted" means lacking adequate or official support; unjustified; unauthorized; or without justification or adequate reasons. "Advantage" means a more favorable or improved position or condition; benefit or gain of any kind; benefit from course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.
Section (e) of Rep. Act No. 3019, which was approved by Congress in Spanish reads:(e) Causar algun perjuicio indebido a cualquiera, incluyendo al Gobierno, o dar a alguna persona particular cualesquier beneficios, vengaja o preferencia injustificados en el desempeño de sus funciones administrativas judiciales de indole oficial con manifesta parcialidad, evidente mala fe o crasa negligencia inexecusable. Esta disposicion se aplicara a los funcionarios y empleados de oficinas o de las corporaciones del gobierno encargados de otogar licencias o permisos u otras concesiones."Perjuicio" means prejudice, mischief, injury, damages. Prejudice means injury or damage, due to some judgment or action of another. Mischief connotes a specific injury or damage caused by another. "Indebido" means undue, illegal, immoral, unlawful, void of equity and moderations. In Pecho v. Sandiganbayan, the Court en banc defined injury as "any wrong or damage done to another, either in his person, or in his rights, reputation or property; the invasion of any legally protected interests of another. It must be more than necessary or are excessive, improper or illegal. It is required that the undue injury caused by the positive or passive acts of the accused be quantifiable and demonstrable and proven to the point of moral certainty. Undue injury cannot be presumed even after a wrong or a violation of a right has been established.
In Fonacier v. Sandiganbayan, the Court en banc held that proof of the extent or quantum of damage is not essential. It is sufficient that the injury suffered or benefits received can be perceived to be substantial enough and not merely negligible.
21.) That because of the oppressive and unlawful memorandum of the herein respondent the Acting Port Collector of the Bureau of Customs Atty. Vicente V. Yutangco Jr. issued a memorandum disallowing me to board foreign vessels. Copy of social memorandum is hereto attached marked as Annex "L" likewise PPA terminal supervisor Romulo T. Diu issued a memorandum recalling the Hold Over Authority. Copy of said memorandum is hereto attached marked as Annex "M";IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED for lack of merit. The September 12, 2003 and November 17, 2003 Orders of the Ombudsman are AFFIRMED. Costs against the petitioner.
22.) That because of the unlawful refusal of the herein respondent mayor I am denied of my right to engaged in a legitimate calling or livelihood and a lost thousands of pesos because my purchased perishable provision/commodities to be supplied to M/V ACE DRAGON got rotten and perished because I was not allowed to supply without legal basis but by sheer whims and caprices and discriminatory acts of the herein respondent mayor amounting to violation of Republic Act No. 3019 as amended (Anti-Graft and Corrupt Practices Act. And Grave abuse and misconduct in the performance of function.[46]