G.R. No. 239168 Concurring Opinion

G.R. No. 239168, September 15, 2020,
♦ Decision, Reyes, Jr., [J]
♦ Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Opinion, Leonen, [J]
♦ Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Dissenting Opinion, Zalameda, [J]

ALFREDO J. NON, GLORIA VICTORIA C. YAP-TARUC, JOSEFINA PATRICIA A. MAGPALE-ASIRIT AND GERONIMO D. STA. ANA, PETITIONERS, VS. OFFICE OF THE OMBUDSMAN AND ALYANSA PARA SA BAGONG PILIPINAS, INC., RESPONDENTS.

I concur with the ponencia in granting the petition, reversing and setting aside the September 29, 2017 Resolution and April 20, 2018 Order of the Ombudsman, and directing the dismissal of the Information. The ponencia is absolutely correct in finding that the Ombudsman committed grave abuse of discretion when it found the existence of probable cause that petitioners violated Section 3(e) of Republic Act (R.A.) No. 3019.1

To my mind, this case highlights the need for the prosecutorial arms of the State to carefully balance the need to prosecute criminal offenses, on the one hand, and the duty to protect the innocent from baseless suits, especially when innocent public officers are involved, on the other.

At the very heart of a preliminary investigation is the duty to secure the innocent against hasty, malicious and oppressive prosecution, and to protect them from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. Indeed, the Ombudsman has this duty, as well as the duty to protect the State from useless and expensive trial. As the Court held in Baylon v. Office of the Ombudsman2 (Baylon):

Agencies tasked with the preliminary investigation and prosecution of crimes must always be wary of undertones of political harassment. They should never forget that the purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect one from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trial. It is, therefore, imperative upon such agencies to relieve any person from the trauma of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused.3

The Ombudsman's grave abuse of discretion in this case is starkly evident when it found the existence of probable cause even if no proof at all was presented of the elements of Section 3(e) of R.A. No. 3019.

Courts and the prosecutorial arms of the State ought to bear in mind that our penal laws on corrupt public officials are meant to enhance, instead of stifle, public service. If every mistake, error, or oversight is met with criminal prosecution, then no one would ever dare take on the responsibility of serving in the government. We cannot continue to weaponize each little misstep lest we lose even the good people in government.4

(2) the act was done in the discharge of the public officer's official, administrative or judicial functions;

(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.5

Petitioners are public officers who acted in the discharge of their official functions, thus the presence of the first two elements above are present. The third and fourth elements, however, are completely absent in the case at bar.

While it is true that finding probable cause is a prosecutorial prerogative, the Court cannot, under the guise of non-interference, abdicate its solemn duty "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government,"6 including the Ombudsman. Stated differently, one of the known exceptions to the rule on non-interference with respect to the Ombudsman's determination of probable cause is when there is grave abuse in the exercise of its discretion.7

More important than the conventional adherence to rules of procedure is the right of persons to be free from unwarranted and vexatious prosecution.8 Thus, the general rule that the Court does not interfere with the discretion of the Ombudsman to determine the existence of probable cause has several settled exceptions in jurisprudence,9 including grave abuse of discretion.

In Baylon, the Court ruled that the Ombudsman committed grave abuse of discretion because an Information was filed against therein petitioner for violation of Section 3(e), R.A. No. 3019 despite the lack of probable cause. In the case, the Court emphatically pointed out that some essential elements of the offense charged were missing; hence, the Ombudsman's resolution finding probable cause against therein petitioner was reversed and set aside and the Sandiganbayan was ordered to dismiss the criminal case.

In the same vein, the Court in Venus v. Desierto10 set aside the Ombudsman's finding of probable cause because of the absence of a prima facie case. The case involved a public officer, Eriberto L. Venus (Venus), who was charged with the violation of Section 3(e) of R.A. No. 3019. In a petition for prohibition under Rule 65, Venus assailed among others, the filing of an Information against him based on the alleged existence of bad faith on his part, and argued that the facts did not make out even a prima facie case for violation of Section 3(e) of R.A. No. 3019. The Court examined the facts and eventually ruled that the finding of bad faith, and thus probable cause, by the Ombudsman was unsupported. In any event, to be liable under the law, "evident" bad faith must be shown. There being no bad faith to speak of in the first place, there was no reasonable ground to believe that Venus had violated the law. Hence, the Court ordered the dismissal of the criminal case in the Sandiganbayan for want of probable cause.

Significantly, in the Court's discussion explaining its reasons for ordering the dismissal of the case, it cautioned the agencies tasked with the preliminary investigation and prosecution of crimes to be wary of undertones of political harassment. Further, the Court emphasized that these agencies were duty-bound to relieve any person from the trauma of going through a trial after ascertaining that the evidence was insufficient to sustain a prima facie case or that no probable cause existed to form a sufficient belief as to the guilt of the accused.

As will be shown below, the Ombudsman gravely abused its discretion in finding probable cause against petitioners despite the absence of the third and fourth elements in accordance with the above jurisprudential rulings.

Lack of the third element: Manifest partiality, or evident bad faith, or gross inexcusable negligence

In Sison v. People,11 it was held that "[t]he third element of Section 3(e) of [R.A. No.] 3019 may be committed in three ways, i.e., through manifest partiality, evident bad faith or gross inexcusable negligence."12

A perusal of the complaint filed against the Energy Regulatory Commission (ERC) Commissioners, however, reveals that there was absolutely no substantiation at all (i.e., no reference to any proof or evidence) of its accusation that the restatement of the effectivity date of the competitive selection process (CSP) requirement was done with "manifest partiality, evident bad faith, or gross inexcusable negligence." All that the complaint did was make blanket claims that the issuance of Resolution No. 1, series of 201613 (Resolution No. 1) was meant to favor Manila Electric Company (MERALCO) and its sister companies, as there was allegedly "no visible valid reason"14 for the ERC Commissioners to extend the effectivity of the CSP requirement. The complaint thus appears only to hint that the issuance of Resolution No. 1 was done with manifest partiality in favor of MERALCO.

Manifest partiality, however, is defined in jurisprudence as "clear, notorious, or plain inclination or predilection to favor one side or person rather than another."15 Viewed from this definition, it is quite clear that there could not be any reasonable belief that Resolution No. 1 was issued with manifest partiality. To repeat, there was absolutely no proof submitted to establish this point. In contrast, the ERC Commissioners submitted a considerable amount of evidence establishing the contrary.

In one of the Whereas Clauses of Resolution No. 1 itself, there is mention of the letters for clarification received by the ERC from various stakeholders. It reads:

WHEREAS, since the publication of the CSP Resolution on 06 November 2015, the Commission has received several letters from stakeholders which raised issues on the constitutionality of the effectivity of the CSP Resolution; sought clarification on the implementation of the CSP and its applicability to the renewal and extension of PSAs, as requested a determination of the accepted forms of CSP, and submitted grounds for exemption from its applicability, among others.16

The letters referred to in the above Whereas Clause were submitted by petitioners as attachments in their Joint Counter-Affidavit dated February 1, 2017 and again in their Motion for Reconsideration dated December 27, 2017 before the Ombudsman. Some of these letters include:

a. In a November 25, 2015 letter, SMC Global Power requested that it be allowed to file its Power Supply Contracts (PSCs) because the requirements imposed pursuant to the CSP implementation were nonexistent when their PSCs were evaluated and signed:

Upon filing with the ERC, however, our counter-part counsel for the DUs and the ECs (Dechavez & Evangelista Law Offices) informed us that even at the pre-filing stage, the ERC rejects applications which do not include the following: DUs/ECs Invitation to Participate and Submit Proposal, DUs/ECs' Terms of Reference, Proposals Received by the DU/EC, tender offers, DU/ECs Special Bids and Awards Committees (SBAC) Evaluation Report, DU Board Resolution confirming the approval of the SBAC Evaluation report and Notice of Award issued by the DU/EC.

It is significant to note that all of these requirements, even the creation of the SBAC, were non-existent when our PSCs were evaluated and signed. x x x

To this end, we respectfully request the consideration of the Honorable Commission to allow us to file, and for the Commission to accept, the applications for approval of the subject PSCs. In our case, mere filing is critical for us to achieve financial close for purposes of funding our power plant project.

The filing of the application will enable us to continue financing the Limay Phase 1 Project, Malita Project and proceed with Limay Phase 2 Project to augment the capacity in the Luzon and Mindanao Grids and prevent the projected shortage in 2017.17

b. In another letter dated December 14, 2015 letter, SMC Global Power, reiterated its request above for the acceptance and approval of its PSCs that were signed prior to the issuance of ERC Resolution No. 13:

Further to our letter dated November 25, 2015, we would like to reiterate our request to the Honorable Commission En Bane to accept and allow the filing of Power Supply Contracts (PSC) already signed prior to its issuance Resolution No. 13, Series of 2015 "A Resolution Directing All Distribution Utilities (DUs) to Conduct Competitive Selection Process (CSP) in the Procurement of Their Supply to the Captive Market."

We wish to stress that in the event the subject PSCs cannot be filed, the Honorable Commission would effectively invalidate the same to the detriment of the contracting parties and the industry. It is significant to note that Distribution Utilities (DU) and Electric Cooperatives (EC) have carefully evaluated and considered the most advantageous terms and conditions for its consumers prior to signing the subject PSCs.

Meanwhile, another round of CSP may likely alter the terms of the contract that could prove to be disadvantageous to the DU or EC.

Considering the execution of the PSCs and the stage of their application process prior to the issuance of the CSP requirement, we beg the indulgence of the Honorable Commission En Bane to accept the subject PSCs and allow the filing thereof to proceed.18

c. In a December 1, 2015 letter, Philippine Rural Electric Cooperative Association, Inc. (PHILRECA) requested for exemption from coverage of Department Circular No. DC2015-06-0008:

May we respectfully furnish you a copy of the PHILRECA Board Resolution No. 10-23-2015 "Resolution Requesting the Department of Energy and the Energy Regulatory Commission (ERC) to exempt the Southern Philippines Power Corporation (SPPC) and Western Mindanao Power Corporation (WMPC) from the coverage of Department Circular No. DC2015-06-0008".19

In the Board Resolution, PHILRECA stated that "Mindanao is currently experiencing power shortage and the Electric Cooperatives (ECs) to undergo the competitive selection process in order to enter into a contract with these two (2) power plants will further aggravate the power situation in Mindanao."20

d. In a December 10, 2015 letter, Agusan del Norte Electric Cooperative, Inc. (ANECO), asked for confirmation that any extension of PSAs or Energy Supply Agreements (ESAs) previously approved is outside the scope of ERC Resolution No. 13:

The ESA, as amended and supplemented, will expire on 25 June 2016. Given the power shortage in Mindanao, the insufficiency of the NPC/PSALM supply, taken together with the continuing demand growth of our end-users, we wish to exercise the option provided under the Amendment to the ESA to extend the Term of our Agreement and Supplemented ESA with TMI x x x:

Relating to this provision to Reso 13, we are of the impression that Reso 13 may not be strictly applied to ESA extensions, especially considering that the Honorable Commission has already meticulously scrutinized and approved TMI's Fixed and O&M, Energy and Fuel Fees, as well as its asset base in determining the Capital Recovery Fee.

Since Section 4 of the Resolution states that the CSP requirement shall not apply to PSAs (or ESAs) already filed with the ERC, we are of the understanding that an extension of an existing ESA, which is part of the provisions submitted to and has been approved by the ERC, albeit provisionally, is outside the coverage of the present Resolution. Hence, we intend to enter into an extension of our existing ESA with TMI, applying the same methodology and asset base as approved by the Honorable Commission in arriving at the rates.21

e. In a December 21, 2015 letter of Camarines Sur IV Electric Cooperative, Inc. (CASURECO) and Unified Leyte Geothermal Energy, Inc. (ULGEI), they asked for an extension to file their joint application:

On 03 August 2015, CASURECO IV and San Miguel Energy Corporation (SMEC) entered into a mutual agreement before this Honorable Commission to pre-terminate the Power Supply Contract dated 23 August 2013 between CASURECO IV and SMEC. As a result of the pretermination of SMEC PSC, beginning 00:00H of 26 August 2015, SMEC ceased to supply power to CASURECO IV. x x x

x x x Because CASURECO IV received no proposals for its power supply requirements, it began direct negotiations with ULGEI. x x x

Since CASURECO IV received such letter on 24 September 2015, CASURECO IV and ULGEI had until 23 November 2015 to file a joint application for the approval of a power supply agreement. Due, however, to the extensive negotiations conducted to provide the Franchise Area a competitive and reliable supply of power, and since it will take time to prepare and finalize a power supply agreement, CASURECO IV and ULGI requested this Honorable Commission for an additional thirty (30) days within which to file a joint application, or until 23 December 2015.22

f. In a March 9, 2016 letter of Aklan Electric Cooperative Inc. (AKELCO), it posed some queries regarding the CSP requirement:

We write to advance our queries pertaining to the Competitive Selection Process which is now part of the Power Supply Procurement requirements for all DUs. The related ERC Resolution No. 13 Series of 2015 was already in effect 15 days after its publication last October 20, 2015.

In the case of AKELCO where in previous years, two (2) Power Supply Contracts for base load requirements were already signed by both parties but were not filed with the ERC before the effectivity of the CSP. The queries are as follows:

g. In a December 15, 2015 letter of Astronergy Development, it raised the issue of impairment of contracts:

We respectfully request a meeting with you at your earliest convenience, so that we can discuss our peculiar situation following the issuance of the Resolution. Our meeting objective is to understand your view regarding the retroactive application of the Resolution and further, to understand how to harmonize [the] Resolution in light of the third party legal opinion we have attached herein for your consideration. Lastly, we hope to be allowed a brief opportunity to present and discuss our views on why the Commission's staff should interpret the Resolution in a manner that is consistent with the Commission's past written responses on RE to the Senate Energy Committee; and the Commission's related Decision relevant to our particular circumstances.

Section 4 of the Resolution requires the DUs to conduct a CSP for PSAs that have not yet submitted its PSA with the ERC. We believe the result is a retroactive application of the Resolution that impairs our contracts that were entered into in good faith. This creates uncertainties, including the possible revision and rescission of existing binding agreements, which our group of companies, and their shareholders and creditors, are greatly concerned about. There are also specific considerations with each DU: for each PSA we have executed since the application of the Resolution would potentially lead to losses and additional project delay. Any further delay (such as revisiting CSP) would result in a breach of contract for not meeting deadlines.24

Even the Department of Energy (DOE) itself recognized the reasonable and legitimate concerns when it endorsed one letter to the ERC. On January 18 2016, the DOE endorsed for the ERC's consideration to allow Abra Electric Corporation (ABRECO) to directly negotiate with a power supplier, albeit without following the CSP requirement.25 The DOE explained that the said request for endorsement was made in consideration of ABRECO's situation as an ailing electric cooperative and to prevent its vulnerability to volatile wholesale electricity spot market (WESM) prices given that its supply is sourced from it.26

Another fact that negates the existence of any manifest partiality by the ERC Commissioners in favor of MERALCO is the ERC's denial of MERALCO's request for exemption from the CSP requirement. Even the Ombudsman itself, in the Resolution in question, acknowledged that ERC had denied MERALCO's request on December 10, 2015.27

Lastly, the complaint lamented that, as a consequence of the issuance of Resolution No. 1, MERALCO was able to submit to ERC, for its approval, seven28 Power Supply Agreements (PSAs) that did not go through CSP. In the same breath, however, the Ombudsman noted that there were "38 more companies who were able to enter into PSAs and file them with ERC without complying with the CSP requirement."29

Given the foregoing, it is thus worth asking: how could there be manifest partiality in favor of MERALCO when it was not just the said company who sought clarification/exemption from the CSP requirement? How could there be manifest partiality when the ERC itself denied MERALCO's request for exemption? How could there be manifest partiality when the perceived benefit, if there even was any, was enjoyed not just by MERALCO but by 38 more companies?

To reiterate, "manifest partiality" requires that there be a clear, notorious, or plain inclination or predilection to favor one side or person rather than another.30 It is abundantly clear from the foregoing discussion that the evidence or proof that had been submitted by the ERC Commissioners, not to mention the recitals of Resolution No. 1 itself, showed that there was no manifest partiality to favor one side, i.e. MERALCO.

The same is true with respect to the Ombudsman's "finding" of gross inexcusable negligence and evident bad faith in its Resolution: its existence is not supported by any evidence.

To recall, the Ombudsman's Resolution states that "[t]he gross inexcusable negligence of [the ERC Commissioners] benefitted 38 more companies who were able to enter into PSAs and file them with ERC without complying with the CSP requirement."31

On the other hand, for evident bad faith, the Ombudsman merely made the following blanket statement:

The manifest partiality, evident bad faith or gross inexcusable negligence of respondents can be gleaned from the following documented chronological events:

1. On 20 October 2015, the ERC issued Resolution No. 13, Series of 2015 with the provision that all PSAs and PSCs not filed with the ERC as of 06 November 2015 should already be covered by CSP as their Mandatory Selection Process;

2. Thus, by 07 November 2015, the requirement that PSAs not filed with ERC as of said date should already be covered by CSP, already took effect (sic);

3. In a Letter dated 26 November 2015, Meralco sought the permission of ERC to exempt their PSCs from CSP requirement;

4. On 10 December 2015, the ERC, through Salazar's letter, denied MERALCO's request;

5. On 15 March 2016, ERC, through respondents, issued Resolution No. 1, Series of 2016, modifying the effectivity of the Resolution from 07 November 2015 to 30 April 2016, thus, giving a window period for PSAs without CSPs to be filed from 15 March 2016 to 30 April 2016;

6. On 29 April 2016, a day before the extended deadline of 30 April 2016, Meralco filed seven PSAs that did not undergo the CSP requirement.32 (Italics and underscoring omitted)

Based on jurisprudence, "gross inexcusable negligence" refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected.33

However, apart from the use in passing of the term "gross inexcusable negligence," there is absolutely no factual allegation or any logical explanation in the Resolution supporting the conclusion that the ERC Commissioners can be held guilty of gross inexcusable negligence.

The same is true for the Ombudsman's conclusion of the existence of evident bad faith. Evident bad faith "connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will."34 It "contemplates a state of mind affirmatively operating with furtive design or with some motive or self-interest or ill will or for ulterior purpose[s]."35 Simply put, it partakes of the nature of fraud.36

The presence of evident bad faith requires that the accused acted with a malicious motive or intent, or ill will. It is not enough that the accused violated a provision of law. To constitute evident had faith, it must be proven that the accused acted with fraudulent intent.37

As explained by the Court in Sistoza v. Desierto (Sistoza),38 "mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law since the act of bad faith or partiality must in the first place be evident or manifest."39

Because evident bad faith entails manifest deliberate intent on the part of the accused to do wrong or to cause damage, it must be shown that the accused was "spurred by any corrupt motive."40 Mistakes, therefore, no matter how patently clear, committed by a public officer are not actionable "absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith."41

In the present case, much like with the other modes of committing the third element, there is absolutely no proof to prove the existence of bad faith. If there is not even an iota of bad faith exhibited here, then how could there be evident bad faith?

More importantly, there could be no evident bad faith on the part of the ERC Commissioners in issuing Resolution No. 1 because it is quite evident from the chronology of events outlined by the Ombudsman itself that they believed, in good faith, that they possessed powers granted under the Electric Power Industry Reform Act of 2001 (EPIRA) to issue Resolution No. 1.

There is good faith in this case because not only is there a presumption that official duty has been regularly performed,42 but also because mistakes committed upon a doubtful or difficult question of law may be the basis of good faith.43 Considering that even members of the Court differed44 in their opinions as regards the extent of ERC's - and its Commissioners' powers, the question is thus undoubtedly a difficult question of law, which is certainly basis of the Commissioners' good faith.

Clear from the foregoing, therefore, is that there could be no evident bad faith that can be ascribed to the ERC Commissioners.

Absence of the fourth element: Causing undue injury to any party, or giving any private party any unwarranted benefit

With regard to the fourth element, the Court held in Santiago v. Garchitorena45 that 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."46 Similar to the third element, the last element of either causing undue injury to any party or giving any private party any unwarranted advantage or benefit is likewise absent.

The Ombudsman, in its Resolution finding probable cause against the ERC Commissioners, ruled that the element was present, ratiocinating as follows:

Respondents, in the exercise of their official regulatory functions, have given unwarranted benefits, advantage or preference to MERALCO and other companies. Under the CSP Resolution, said companies were not qualified to file their PSAs for being non-compliant with the CSP requirement. But respondents' failure to recognize the effects of the suspension of the implementation of CSP gave said companies the concession to file their PSAs and PSCs without having to comply with the CSP policy.

They committed the offense in connection with the duty to promote competition as mandated by the EPIRA and to implement CSP as required by several DOE and ERC Resolutions. In performing their duty, they issued [Resolution No. 1, purportedly to pursue the government's policy of infusing competition and implementing CSP in PSAs and PSCs, but which, as evidence shows, digresses from said policies to favor companies.47

First of all, the element of "unwarranted benefits" must be understood in the context of corruption. As I stated at length in my Concurring Opinion in Villarosa v. People:48

As its name implies, and as what can be gleaned from the deliberations of Congress, RA 3019 was crafted as an anti-graft and corruption measure. At the heart of the acts punishable under RA 3019 is corruption. As explained by one of the sponsors of the law, Senator Arturo M. Tolentino,"[w]hile we are trying to penalize, the main idea of the bill is graft and corrupt practices. x x x Well, the idea of graft is the one emphasized."49 Graft entails the acquisition of gain in dishonest ways.50

Hence, in saying that a public officer gave "unwarranted benefits, advantage or preference," it is not enough that the benefits, advantage, or preference was obtained in transgression of laws, rules, and regulations. Such benefits must have been given by the public officer to the private party with corrupt intent, a dishonest design, or some unethical interest. This is in alignment with the spirit of RA 3019, which centers on the concept of graft.

I recognize that this is not the understanding under the current state of jurisprudence. Jurisprudence has defined the term "unwarranted" as simply lacking adequate or official support; unjustified; unauthorized or without justification or adequate reason. "Advantage" means a more favorable or improved position or condition; benefit, profit or gain of any kind; benefit from some course of action. "Preference" signifies priority or higher evaluation or desirability; choice or estimation above another.51 The term "private party" may be used to refer to persons other than those holding public office,52 which may either be a private person or a public officer acting in a private capacity to protect his personal interest.53

Thus, order current jurisprudence, in order to be found guilty for giving any unwarranted benefit, advantage, or preference, it is enough that the public officer has given an unauthorized or unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions.54 By giving any private party unwarranted benefit, advantage, or preference, damage is not required. It suffices that the public officer has given unjustified favor or benefit to another in the exercise of his official functions.55 Proof of the extent or quantum of damage is not even essential, it being sufficient that the injury suffered or benefit received could be perceived to be substantial enough and not merely negligible.56

I respectfully submit, and evidently the majority agrees, that it is high time for the Court to revisit this line of reasoning.

The foregoing understanding of "unwarranted benefit, advantage, or preference" is too broad that every single misstep committed by public officers that result in benefits to private parties falls under the definition and would thus possibly be criminally punishable. Every little error-no matter how minor - would satisfy the fourth element as the threshold is simply that the benefit be "unjustified," "unauthorized," or "without justification." For instance, a contract awarded in good faith based on an interpretation of the law that would later on be judicially declared incorrect would be sufficient basis for affirming the existence of the fourth element, which may lead to the incarceration of a public officer simply because a private party received a benefit "without justification," yet was revealed to be so only in hindsight.

While it is true that public office is a public trust, the Court is called upon to likewise play its part in not interpreting the laws to effectively be a disincentive to individuals in joining the public service. It is simply absurd to criminally punish every minute mistake that incidentally caused a benefit to private parties even when these acts were not done with corrupt intent.57 (Emphasis and underscoring supplied)

In this case, as discussed, there is absolutely no proof that the incidental benefits received by the companies - if there is any at all was linked to, or rooted in, any corrupt intent.

Second, the Court must view the actions of the ERC within the context of the process of approval of PSAs. The mere filing of an application for the approval of a PSA does not equate to an approval of the PSA. There is no guarantee that the ERC would eventually approve the same. PSAs themselves are bilateral power supply contracts that are made subject to review by the ERC precisely to promote true market competition and prevent harmful monopoly and market power abuse.58

Thus, prior to the approval of the PSA, the PSA could not affect the consumers, as the distribution utilities (DUs) and the power producers (or Generation Companies or "GenCos") cannot implement the PSA without the ERC's approval. In the same manner that the consumers are not affected, the DUs and the GenCos cannot benefit from a PSA that has yet to be approved by the ERC.

As I discussed in my Dissenting Opinion in Alyansa Para sa Bagong Pilipinas v. Energy Regulatory Commission59 (Alyansa), to get the approval of the ERC, the applicant must submit documents and agreements as listed in Rule 20 B, Section 2 of ERC Rules,60 which include, among others, their Articles of Incorporation, Certificate of Registration from the Securities and Exchange Commission, Certificate of Registration from the Board of Investments, the Power Supply Agreement itself (including an Executive Summary, Sources of Funds, Purchased Power Rate, etc.), and many other documents to show the financial and economic impact of the transaction to the DUs, GenCos and the consumers.

The application has to likewise comply with pre-filing requirements,61 jurisdictional requirements of publication and notice to all affected parties,62 pre-trial,63 and public hearings64 where the applicant presents its witnesses, who will be subject to cross-examination, re-direct examination, and re-cross examination.65

It is only then that the ERC issues a decision on the application after the reception of evidence and compliance with the foregoing requirements.66

In the interim, parties may request for provisional authority together with their application for approval of their PSA. The ERC resolves these requests within 75 days from the filing of the application, and if it issues a provisional authority, the ERC is mandated to start the hearing on the application within 30 days from the issuance of the provisional authority.67 The ERC then resolves the application within 12 months from the issuance of the provisional authority.68

The foregoing shows that a PSA will have no impact on consumers unless the ERC has issued a provisional authority or when it approves the application.

There is therefore no basis for the Ombudsman's holding that "there is sufficient evidence that [petitioners] gave unwarranted benefits to Meralco and other companies by exempting them from the coverage of the CSP requirement."69 There is likewise no basis in the Ombudsman ruling that "[petitioners'] gross inexcusable negligence led to the circumvention of the government policy requiring CSP, and denied the consumers the opportunities to elicit the best price offers and other PSA terms and conditions from suppliers."70 To be sure, all these are mere unwarranted conjectures.

The ERC, as the industry's independent regulatory body, possesses sufficient powers, as granted to it by the EPIRA, to disapprove or reject a PSA, even without the CSP requirement, if, in its discretion, the PSA would not allow the relevant player in the industry to supply electricity in the least cost manner. As I pointed out in my Dissenting Opinion in Alyansa:

Prior to the CSP requirement, DUs would secure their supply of electricity by entering into bilateral contracts with GenCos and the choice of which GenCo to have business with - or from which it will get their supply - rested on the sole discretion of the DUs. This did not mean, however, that prior to the CSP requirement, the DUs had unbridled discretion on the price of electricity to impose on consumers. Far from it. The EPIRA itself provides that DUs "shall have the obligation to supply electricity in the least cost manner to [their] captive market, subject to the collection of retail rate duly approved by the ERC." Further, the ERC was empowered by the EPIRA to review "bilateral power supply contracts" entered into by DUs, and to likewise impose price controls and order the disgorgement of excess profits where, for instance, the DU is found to be engaged in market power abuse or anti-competitive behavior.1âшphi1

Indeed, the EPIRA was passed as far back as 2001, or 18 years ago, and the DOE and ERC only conceptualized the CSP in recent years. Throughout the years that the EPIRA was already in effect, and while there was still no CSP requirement in place, the ERC had been continuously doing its mandate of regulating the industry - particularly the DUs - to ensure that the prices passed on to the consumers are at a reasonable cost.71 (Emphasis and underscoring in the original; citations omitted)

The ERC Commissioners likewise did not cause any party undue injury. According to jurisprudence, "undue injury" as an element of Section 3(e) of R.A. No. 3019 is akin to the concept of actual damages in civil law, and must thus be quantified with certainty. In Llorente v. Sandiganbayan,72 the Court explained:

This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be presumed even after a wrong or a violation of a right has been established. Its existence must be proven as one of the elements of the crime. In fact, the causing of undue injury or the giving of any unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross inexcusable negligence constitutes the very act punished under this section. Thus, it is required that the undue injury be specified, quantified and proven to the point of moral certainty.

In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another, either in his person, rights, reputation or property[; that is, the] invasion of any legally protected interest of another." Actual damage, in the context of these definitions, is akin to that in civil law.

In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as follows:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages.

Fundamental in the law on damages is that one injured by a breach of a contract, or by a wrongful or negligent act or omission shall have a fair and just compensation commensurate to the loss sustained as a consequence of the defendant's act. Actual pecuniary compensation is awarded as a general rule, except where the circumstances warrant the allowance of other kinds of damages. Actual damages are primarily intended to simply make good or replace the loss caused by the wrong.

Furthermore, damages must not only be capable of proof, but must be actually proven with a reasonable degree of certainty. They cannot be based on flimsy and non-substantial evidence or upon speculation, conjecture or guesswork. They cannot include speculative damages which are too remote to be included in an accurate estimate of the loss or injury.73 (Emphasis and underscoring supplied; citations omitted)

The foregoing was affirmed in the case of Pecho v. Sandiganbayan,74 where the Court en banc said:

Secondly, the third requisite of Section 3(e), viz., "causing undue injury to any party, including the government," could only mean actual injury or damage which must be established by evidence, the word causing is the present participle of the word cause. As a verb, the latter means "to be the cause or occasion of; to effect as an agent; to bring about; to bring into existence; to make[;] to induce; to compel." The word undue means "more than necessary; not proper; illegal." And the word injury means "any wrong or damage done to another, either in his person, rights, reputation or property. The invasion of any legally protected interest of another." Taken together, proof of actual injury or damage is required.75 (Emphasis and underscoring supplied; citations omitted)

Here, the records are bereft of any showing that any party - whether the government or any private party - suffered any actual damage or injury. To stress anew, there could be no injury to any party as the PSAs submitted during the period of extension had not been approved.

As the ERC Commissioners clearly did not give any party unwarranted advantages or benefits, or caused any party undue injury, it is without doubt therefore that the fourth element of Section 3(e) of R.A. No. 3019 is not present in this case.

Given the foregoing, it is thus grave abuse of discretion amounting to lack or excess of jurisdiction for the Ombudsman to still find probable cause against the ERC Commissioners despite the evident absence of two of the four elements of the crime charged.

In his Dissenting Opinion, while Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) concedes that the Court will only interfere when the finding of probable cause was arrived at with grave abuse of discretion,76 he posits that the Ombudsman did not commit grave abuse of discretion here as it arrived at its conclusion "objectively, with due regard to the evidence on hand."77

As threshed out above, there was, in fact, no evidence presented or relied upon by which any neutral person could conclude that there was probable cause. To repeat, the Ombudsman's findings were conjectures and failed to consider the process of arriving at PSAs and that the extension addressed concerns of numerous stakeholders. To my mind, in determining the existence of grave abuse of discretion, the Court is charged to take a look at whether there is evidence to support such finding of the Ombudsman. If the issue pertains to the weighing of evidence - that is, when evidence is presented and there is doubt as to whether the Ombudsman assessed them correctly as proving the existence of the elements of the offense - then a petition for certiorari is not the proper remedy. However, when the records show the absolute lack of evidence to support the Ombudsman's conclusion, then such conclusion was arrived at with grave abuse of discretion and may be subject of a petition for certiorari.

The case of Villarosa v. Ombudsman78 aptly defines and describes grave abuse of discretion and how it may be shown, viz.:

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined by law.

For the present petition to prosper, petitioners must show this Court that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty mandated by law, which petitioners have failed to do.79

In relation to this, Sistoza states that "[w]hen the Ombudsman does not take essential facts into consideration in the determination of probable cause, it has been ruled that he gravely abuses his discretion."80

Here, because the Ombudsman found probable cause to charge Non, et al. with violating Section 3 (e) of R.A. No. 3019 despite the lack of evidence supporting the existence of the elements of the offense, it is clear that the Ombudsman committed grave abuse of discretion.

At this juncture, it is well to point out that I am aware that the Court had already held in Alyansa that the issuance of Resolution No. 1 was attended with grave abuse of discretion. As I maintain my dissent therein - because, to my mind, EPIRA grants the ERC sufficient powers to set the effectivity of the CSP requirement - it is equally worth mentioning that a finding of probable cause is not a necessary consequence of a finding of grave abuse of discretion. Assuming arguendo that the ERC, through its Commissioners, erred in "restating" the effectivity of the CSP requirement, this error does not, and should not, mean that the Commissioners should automatically be criminally indicted for such error. Stated differently, errors in the performance of duty should not automatically merit criminal prosecution especially where, as here, no one suffered any undue injury as a result of the error.