810 Phil. 106
LEONEN, J.:
WHEREFORE, this Office finds probable cause to indict respondents Edwin G. Reyes, Solomon A. De Castilla, Gil C. Andres, and Rita P. Domingo for violation of Section 3 (e) of Republic Act No. 3019, as amended (Anti-Graft and Corrupt Practices Act). Let an Information for violation of Section 3 (e) of Republic Act No. 3019 be filed against the respondents before the Sandiganbayan.Thus, an Information[20] was filed against Reyes, together with his co-respondents a quo Domingo, de Castilla, and Andres for violating Section 3(e) of Republic Act No. 3019. It read:
The other charges against the respondents are dismissed.[19]
On December 14, 2009, or sometime prior or subsequent thereto, in the Municipality of Bansalan, Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, EDWIN GRANADA REYES, RITA POTESTAS DOMINGO, SOLOMON ANORE DE CASTILLA, GIL CURAMENG ANDRES, public officers being then the Mayor, Permits and Licensing Officer Designate, Chief of Police, and Fire Marshall, respectively, of the Municipality of Bansalan, while in the discharge of their official functions, conspiring and confederating with one another, with evident bad faith, manifest partiality, or at the very least, gross inexcusable negligence, did then and there willfully, unlawfully, and criminally give unwarranted benefit to a group of firecracker vendors by approving and issuing them a mayor's permit "to sell firecrackers on December 21, 2009 to January 1, 2010 at Public Market, Bansalan, Davao del Sur" despite fully knowing the existence of a municipal ordinance expressly prohibiting the storing, displaying, selling and blowing-up of firecrackers at the Bansalan Public Market and the non-issuance of the requisite Fire Safety Inspection Certificate (FSIC) to the firecracker vendors, thereby giving the said firecracker vendors the unwarranted benefit and advantage of holding the business of selling firecrackers at the Bansalan Public Market.The Ombudsman denied a motion for reconsideration of its March 20, 2013 Resolution.[22]
CONTRARY TO LAW.[21]
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[.]"Despite this well-established principle, petitioner would have this Court interfere with the Ombudsman's assessment on the basis of grave abuse of discretion. However, disagreement with the Ombudsman's findings is not enough to constitute grave abuse of discretion. It is settled:
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.
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 complainant.[50] (Emphasis in the original, citations omitted)
An act of a court or tribunal may constitute grave abuse of discretion when the same is performed in a capricious or whimsical exercise of judgment amounting to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or personal hostility.[51] (Emphasis in the original, citations omitted)Thus, for this Petition to prosper, petitioner would have to show this Court that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty under the law. Petitioner has failed to do this. "A preliminary investigation is only for the determination of probable cause."[52] Further, probable cause is:
[T]he existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on opinion and reasonable belief, it does not import absolute certainty. Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.[53] (Citations omitted)Here, the Ombudsman properly performed its duty to determine probable cause as to whether petitioner and his co-respondents a quo violated Section 3(e) of Republic Act No. 3019. Section 3(e) provides:
Section 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:Based on opinion, reasonable belief, and the evidence on record, the Ombudsman found that the elements of the crime punishable under Section 3(e) of Republic Act No. 3019 existed.[54] Petitioner and his co-respondents a quo did not deny that they were public officers when the alleged acts were committed.[55] There was "unwarranted benefit and advantage [given] to the firecracker vendors."[56] The issuance of the mayor's permit was "tainted with bad faith" or gross inexcusable negligence.[57]
. . . .
(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.
Nevertheless, respondents' approval and issuance of the subject mayor's permit gave unwarranted benefit and advantage to the [firecracker] vendors. "Unwarranted" means lacking adequate or official support; unjustified, unauthorized; or without justification or adequate reasons; while "advantage" is defined as "a more favorable or improved position or condition; benefit or gain of any kind." The approval and issuance of the mayor's permit was clearly without basis as it was, in fact, in violation of a municipal ordinance and the Fire Code of the Philippines. It gave a group of vendors the benefit and advantage of holding the business of selling firecrackers in the public market despite existing prohibition.[59] (Citations omitted)Petitioner's claim that the Ombudsman did not explain the evident bad faith or gross inexcusable neglect[60] also cannot be countenanced. The Ombudsman likewise sufficiently explained the finding of bad faith:
. . . Respondents' action was patently tainted with bad faith and partiality or, at the very least, gross inexcusable negligence. "Bad faith" refers to a conscious doing of a wrong; a breach of sworn duty through some motive or intent or ill will; "partiality" is synonymous with "bias" which excites a disposition to see and report matters as they are wished for rather than as they are; while "gross negligence" is negligence characterized by the want of even slight care with a conscious indifference to consequences as far as other persons are concerned.Petitioner may insist on his innocence and the absence of bad faith, but the presence or absence of bad faith is a matter of evidence, best threshed out during trial. In any case, petitioner has failed to show how the Ombudsman's determinations constituted grave abuse of discretion.
Based on their respective counter-affidavits, respondents were well aware of Municipal Ordinance No. 357 which expressly prohibits "the storing, displaying, selling and blowing up ("pagbubuto") of those pyrotechnics products allowed by law, commonly called as "firecrackers" or "pabuto" within the premises of buildings 1 and 2 of Bansalan Public Market." In clear violation of this ordinance, respondents approved and issued a mayor's permit stating[,] "Permit is hereby granted to sell firecrackers on December 21, 2009 to January 1, 2010 at Public Market, Bansalan, Davao del Sur." Furthermore, as respondent Andres narrated in his counter-affidavit, the firecracker vendors were not issued a Fire Safety Inspection Certificate (FSIC) because they did not comply with fire safety requirements. The issuance of a FSIC by the Bureau of Fire [Protection] is a prerequisite to the grant of permits by local governments. According to Andres, he expressly informed respondent Reyes of the lack of the safety requirements and objected to the issuance of the mayor's permit because of the fire risk involved in such sale of firecrackers. Nevertheless, despite the absence of the required FSIC, respondents Domingo, Castilla, and Andres himself recommended for approval the application for the subject mayor's permit. Respondent mayor, for his part, cannot claim that he merely relied on the other respondents' recommendation for approval since he knew of an existing ordinance prohibiting such sale of firecrackers and was apprised of the fact that the firecracker vendors were not given a FSIC.[61] (Citations omitted)
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.[64]A person's rights during preliminary investigation are limited to those provided by procedural law.[65] 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,[66] but he does not have a similar right over the evidence submitted by his or her co-respondents.
. . . .
(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.
First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his corespondents.Thus, petitioner's non-receipt of Andres' affidavit did not violate his procedural rights during preliminary investigation.
. . . .
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his co-respondents violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section 3 (b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4 (c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada's claim.
What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits and documents at the time the order to submit the counter-affidavit is issued to the respondent. This is clear from Section 4 (b), Rule II of the Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits . . . ." At this point, there is still no counter-affidavit submitted by any respondent. Clearly, what Section 4 (b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied Sen. Estrada's Request.
Although Section 4 (c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent "shall have access to the evidence on record," this provision should be construed in relation to Section 4 (a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4 (a) states that "the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.
Second, Section 4 (b) states that "the investigating officer shall issue an order attaching thereto a copy of the affidavits and all other supporting documents, directing the respondent" to submit his counter-affidavit. The affidavits referred to in Section 4 (b) are the affidavits mentioned in Section 4 (a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting witnesses. The provision in the immediately succeeding Section 4 (c) of the same Rule II that a respondent shall have "access to the evidence on record" does not stand alone, but should be read in relation to the provisions of Section 4 (a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the "affidavits and other supporting documents" submitted by "the complainant or supporting witnesses." Thus, a respondent's "access to evidence on record" in Section 4 (c), Rule II of the Ombudsman's Rules of Procedure refers to the affidavits and supporting documents of "the complainant or supporting witnesses" in Section 4 (a) of the same Rule II.
Third, Section 3 (b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he 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." A respondent's right to examine refers only to "the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsman's Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the co-respondents should be furnished to a respondent.[68] (Emphasis in the original, citations omitted)
We have consistently held that the essence of due process is simply an opportunity to be heard, or an opportunity to explain one's side or an opportunity to seek for a reconsideration of the action or ruling complained of. For as long as the parties are given the opportunity to present their cause of defense, their interest in due course as in this case, it cannot be said that there was denial of due process.Here, petitioner was able to file a counter-affidavit to explain his side and to respond to the complaint filed against him. He was not denied due process.