G.R. No. 239168 - Dissenting 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.

Petitioners ascribe grave abuse of discretion on the part of the Office of the Ombudsman (the Ombudsman) when it rendered the assailed Resolution dated 29 September 2017 and Order dated 20 April 2018, ultimately allowing for the filing of charges against petitioners for violation of Sec. 3(e) of Republic Act No. (RA) 3019. Necessarily, in determining whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction, this Court have to review the Ombudsman's finding of probable cause against petitioners.

As a general rule, this Court does not interfere with the Ombudsman's exercise of its constitutional mandate. Both the Constitution1 and RA 67702 give the Ombudsman wide latitude to act on criminal complaints against public officials and government employees thereby giving rise to the rule on non-interference, which is based on the respect for the investigatory and prosecutorial powers of the Ombudsman.3

More importantly, the determination of probable cause for the purpose of filing an information in court is essentially an executive function. The State's self-preserving power to prosecute violators of its penal laws is a necessary component of the Executive's power and responsibility to faithfully execute the laws of the land.4

To justify judicial intrusion into what is fundamentally an executive domain, petitioners have the burden of proving that the Ombudsman committed grave abuse of discretion. Petitioners are duty-bound to demonstrate how the Ombudsman acted in an arbitrary and despotic manner by reason of passion or personal hostility; and it must be so patent and gross as to amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law, before judicial relief from a discretionary prosecutorial action may be obtained.5 However, petitioners' arguments in this case failed to overcome their burden.

Petitioners' main contention is that the Ombudsman's decision to indict them for violation of Sec. 3(e) of RA 3019 was tainted with grave abuse of discretion since the elements of the offense are wanting and not supported by evidence. Yet, a perusal of the assailed issuances readily negates this argument. Contrary to petitioners' claim, the Ombudsman identified pertinent facts and evaluated them against the three (3) constitutive elements6 of the offense charged. The decision to indict petitioners was reached after a painstaking review of the facts and evidence, a valid exercise of the Ombudsman's discretion. For reference, the relevant portion of the Ombudsman's discussion is reproduced, as follows:

The first element is present, respondents being all public officers of ERC at the time material to the charges, x x x

On the second element, respondents acted with manifest partiality, evident bad faith or gross inexcusable negligence when they suspended the implementation of the required CSP, to accommodate the PSAs/PSCs of DUs and GenCos, particularly of Meralco, thereby exempting them from the CSP mandated requirement.

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

The justifications given by respondents in not implementing the CSP requirement are untenable. The requirement for CSP as mandated by EPIRA, DOE and ERC, cannot be reasonably stopped by the requests for clarification, exception and/or exemption from CSP from numerous industry participants, especially when the stakeholders were already heard in extensive consultations conducted by the ERC. Respondents themselves bared in the "WHEREAS CLAUSES" of the 2015 CSP Resolution that stakeholders have been informed, heard and consulted about the CSP, thus:

Furthermore, the CSP is an acknowledged mechanism to make the cost of PSAs more reasonable. Hence, accommodating companies' request to be exempted from CSP was a deviation from respondents' duty to promote public interest through the CSP requirement. The gross inexcusable negligence of respondents benefitted 38 more companies who were able to enter into PSAs and file them with ERC without complying with the CSP requirement.

Respondents, in their 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.7 (Emphasis supplied)

It must be emphasized that there are three (3) modes by which Sec. 3(e) of RA 3019 may be committed, namely, through "manifest partiality," "evident bad faith," or "gross inexcusable negligence."8 As can be gleaned from the above excerpt, the Ombudsman did not limit its finding to just one mode, but discussed how petitioners' actuations related to the recognized modes for committing the offense charged. Thus, in my perspective, the Ombudsman "covered all the bases" before it reached the conclusion that there was probable cause to indict petitioners.

Indeed, probable cause does not signify absolute certainty but only reasonable belief, to wit:

Probable cause has been defined as the 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 wou1d justify conviction.9 (Emphasis supplied)

Moreover, the finding of probable cause merely signifies that the suspect is to stand trial for the charges. It is not a pronouncement of guilt.10 Thus, a finding of probable cause need only rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects.11

For purposes of probable cause to file an information for the offense charged, I find that the Court's definition of "unwarranted benefits" is broad enough to more likely cover petitioners' actuations.

The word "unwarranted" means 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.12 The fact that the implementation of the CSP requirement was suspended twice, allowing for MERALCO and other companies to secure power supply agreements without the benefit of a CSP, supports a preliminary finding of the presence of the element of unwarranted benefit.

At any rate, the definitive finding of the presence or absence of the elements of the offense is a matter of evidence. Such finding is evidentiary in nature and consists of matters of defense, the truth of which can be passed upon after a full-blown trial on the merits. The validity and merit of a party's allegation or defense, as well as the admissibility of testimonies and evidence, are also better ventilated at the trial proper than at the preliminary investigation level.13 Accordingly, the issue of whether MERALCO and the other companies received unwarranted benefits, or whether petitioners acted in bad faith, with manifest partiality, or through gross inexcusable negligence would be conclusively determined, not in the preliminary investigation, but during trial.

A preliminary investigation is essentially inquisitorial. It is often the only means of discovering the persons who may be seasonably charged with a crime, allowing the prosecutor to prepare his complaint or information. It does not place the persons against whom it is taken in jeopardy. It is not the occasion for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.14

Further, assailing the Ombudsman's finding of probable cause on the ground of grave abuse of discretion raises questions of fact, which does not fall within the ambit of this Court's jurisdiction especially in an application for the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained.15

This is not a case where there is a glaring absence of any of the elements of the offense charged demonstrating that the prosecutor acted in an arbitrary and despotic manner by reason of passion or personal hostility. On the contrary, petitioners' conduct actually engenders more suspicion that the elements of RA 3019 are present and thus, satisfy the requirement of probable cause. Petitioners may have good reasons for the suspension of the CSP requirement, but those reasons are a matter of defense and best left to the trial court's evaluation after trial.

Absent a clear showing that the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in the issuance of its Resolution dated 29 September 2017 and Order dated 20 April 2018, the Court cannot depart from the policy of non-interference. Lest it be forgotten, the Information against petitioners had already been filed before the Regional Trial Court (RTC) of Pasig City during the pendency of this case. Its disposition now rests on the trial court's sound discretion. Although the prosecuting officer retains direction and control over the prosecution of the criminal case, he or she cannot impose any opinion on the trial court. The determination, conduct, and evaluation of the case lies within the exclusive jurisdiction of the trial court. For these reasons, this Court should have refrained from resolving the issues raised by petitioners. By refusing to bend the policy of non-interference, we are respecting the exclusive jurisdiction of the court trying the case and avoiding any pronouncement which would preempt its independent assessment. Undoubtedly, a determination by this Court of the existence or non-existence of probable cause would affect the resolution by the trial court of the matter still pending before it.

Surprisingly, this Court even went further, directing the dismissal of this Information already filed before the trial court. On this score, I wish to offer some discussion on the order to dismiss the Information where the trial court has already taken cognizance of the criminal case, if only to serve as a guide for future similar cases.

To recall, the Office of the Ombudsman's determination of the existence of probable cause during a preliminary investigation is an executive function, which is different from the judicial determination of probable cause. The executive determination of probable cause, is undertaken by either the public prosecutor or the Ombudsman for the purpose of determining whether an information charging an accused should be filed. On the other hand, judicial determination of probable cause is the process for the judge to determine whether a warrant of arrest should be issued. Once the public prosecutor or the Ombudsman determines probable cause and files the case before the trial court or the Sandiganbayan, the judge will make a judicial determination of probable cause to determine if a warrant of arrest should be issued against the accused.16

The difference between the two (2) modes of determining probable cause was discussed in People v. Castillo,17 viz:

x x x The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.

Thus, absent a finding that an information is invalid on its face or that the prosecutor committed manifest error or grave abuse of discretion, a judge's determination of probable cause is limited only to the judicial kind or for the purpose of deciding whether the arrest warrants should be issued against the accused.

Hence, aside from the prosecutor's determination of probable cause, a judge will also make his or her own independent finding of whether probable cause exists to order the arrest of the accused and proceed with trial. This is evident from Section 5(a) of Rule 112 of the Rules of Criminal Procedure, which gives the trial court three (3) options upon the filing of the criminal information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds probable cause; or (3) order the prosecutor to present additional evidence within five days from notice in case of doubt as to the existence of probable cause, viz:

Section 5. When warrant of arrest may issue. - (a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.18

Probable cause ceases once the court acquires jurisdiction over the case. The court's broad control over the direction of the case was explained in De Lima v. Reyes,19 to wit:

The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused.

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court, the only qualification is that the action of the Court must not impair the substantial rights of the accused or the right of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. x x x (Emphasis supplied)

Considering petitioners have already been arraigned on 21 November 2018,20 the disposition of the case should have stayed within the sound discretion of the trial court if not for the ensuing dismissal ordered by this Court. Any action from this Court should have been limited to directing the Ombudsman to withdraw the Information by filing the appropriate motion with the trial court instead of this Court dismissing the Information against petitioners for lack of probable cause. For one, it gives the impression of ordering the trial court to dismiss the Information, which impinges upon its own discretion.

Noteworthy, too, is that petitioners are not at all seeking for this particular relief, to wit:

WHEREFORE, it is respectfully prayed that this Honorable Court (1) GIVE DUE COURSE to this petition, before considering it on its merits, (2) ISSUE A TEMPORARY RESTRAINING ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION restraining the Ombudsman and anyone acting in her behalf, from filing an Information for violation of Section 3(e) RA No. 3019 against the petitioners with the Sandiganbayan, and thereafter, (3) GRANT THE PETITION by declaring as void the Resolution dated September 29, 2017 and the Order dated April 20, 2018 of the Ombudsman and DISMISSING OMB-C-C-16-0497 for lack of probable cause.21

Petitioners are only assailing the executive finding of probable cause against them by the Ombudsman; their main prayer in their petition does not even involve the dismissal of the criminal case already filed in court. And, for this Court to order its dismissal preempts any exercise of jurisdiction by the trial court over the criminal case. To be sure, the decision whether to dismiss the case or not rests on the sound discretion of the trial court where the Information was filed.22

Admittedly, this Court has, in previous instances, quashed an Information or even directly dismissed a criminal case pending before a court even if the solitary issue for resolution was the alleged error of the prosecutor or the Ombudsman in determining probable cause. However, those cases are not on all fours with the present case, either as to the stage of the criminal proceeding or the prayer of the petitioner/s.

In Brocka v. Enrile,23 Brocka, et al., came before the Court to permanently enjoin the City Fiscal of Quezon City from investigating charges of "Inciting to Sedition" filed against them. The Court granted their prayer after determining that a sham preliminary investigation for a second charge was hastily conducted in order to keep Brocka, et al., in detention.

Meanwhile, in Venus v. Desierto,24 Eriberto L. Venus (Venus), prayed not only for the reversal of the Ombudsman's finding of probable cause, but also for the Information against him to be set aside. The Sandiganbayan previously allowed Venus to file a motion for reconsideration directly with the Office of the Special Prosecutor. The Special Prosecutor recommended the dismissal of the case, but the Ombudsman did not heed the recommendation. After the Sandiganbayan had set the arraignment, the Court issued a temporary restraining order halting the proceedings. The Court eventually ordered the Sandiganbayan to dismiss the criminal case upon finding the absence of probable cause for the crime charged.1âшphi1

This Court's pronouncement in Baylon v. Office of the Ombudsman25 is also instructive. In that case, the Sandiganbayan ordered the Ombudsman to conduct a reinvestigation of the case and suspended proceedings pending review. By doing so, the Sandiganbayan deferred to the Ombudsman's authority to reinvestigate the case. The Ombudsman, however, sustained its finding of probable cause and denied the motion for reconsideration of therein petitioner, Dr. Baylon, who assailed "the decision of the Ombudsman for having been issued with grave abuse of discretion." In his petition, Dr. Baylon "prays that the Sandiganbayan be enjoined from further proceedings in the criminal case." Upon finding of a lack of probable cause, this Court ordered the Sandiganbayan to dismiss the criminal case against Dr. Baylon and his co-accused.

Much like in Venus and in Baylon, the Sandiganbayan in Sistoza v. Desierto,26 deferred to the authority of the Ombudsman when it granted a reinvestigation upon motion of therein petitioner. Before resolving the case, this Court also issued a temporary restraining order to enjoin the Sandiganbayan from conducting further proceedings in the criminal case against petitioner Sistoza.

Meanwhile, in Roy III v. Ombudsman,27 Jose M. Roy III asserted that the temporary restraining order or a writ of preliminary injunction issued, restraining the filing of an information against him, as well as the issuances of the Ombudsman, be reversed and set aside for being issued with grave abuse of discretion amounting to lack or excess of jurisdiction. However, it seems the criminal proceedings against him had yet to commence when he filed the petition before this Court as he prayed that the filing of an Information against him be restrained. Later, he also prayed for the issuance of a writ of certiorari setting aside and terminating any proceedings before the Sandiganbayan relative to his case. After finding the utter lack of probable cause as similarly found and recommended by the Office of the Solicitor General, this Court granted the petition, reversed the ruling of the Ombudsman, and dismissed the criminal case against Jose M. Roy III before the Sandiganbayan.

Other cases where this Court dismissed the Information or directly dismissed the criminal case consist of an action assailing issuances rendered by the very court trying the criminal case.

In Fernando v. Sandiganbayan,28 the subjects of the case were the two orders of the Sandiganbayan which denied the motion to defer arraignment and set the date for the arraignment of petitioners therein. Although called upon to determine whether the Ombudsman correctly found a prima facie case against therein petitioners, this Court held that the scope of its review necessarily involved examining whether the Sandiganbayan gravely abused its discretion in the exercise of judicial powers when it issued the assailed orders.

Similarly, this Court ordered the Sandiganbayan to dismiss the pertinent criminal case in Cabahug v. People.29 After the Ombudsman charged Susana Cabahug (Cabahug) with violation of Sec. 3(e) of RA 3019, she filed with the Sandiganbayan a Motion for Re-determination of Existence of Probable cause, which the latter denied. The case eventually reached this Court when Cabahug filed a "petition for Certiorari and/or Prohibition with Preliminary Injunction and/or Temporary Restraining Order assailing two (2) Orders of the Sandiganbayan in Criminal Case No. 23458."

Comparably, in Principio v. Barrientos,30 this Court ordered the RTC to dismiss the criminal case involving therein petitioner Herminio C. Principio (Principio) for want of probable cause. That particular appeal stemmed from the RTC's denial of Principio's motion to dismiss/motion to quash, which was elevated to the Court of Appeals via petition for certiorari.

Since this Court, in resolving the above cases, determined whether there was grave abuse of discretion or whether there was error on the part of the issuing body, specifically either the trial court or the Sandiganbayan, then the actions specifically filed before this Court in the said cases may be utilized to stop the trial court from exercising its judicial power. However, the same does not hold true for the present case wherein the assailed issuances were rendered by the Ombudsman without any prayer pertaining to the proceedings before the RTC. Hence, the certiorari action in the case at bar is limited to reviewing the Ombudsman's acts and cannot transcend to another court's exercise of its own powers. Otherwise stated, if the trial court (or the Sandiganbayan) has jurisdiction over the person and subject matter of the controversy, a petition for certiorari, which does not impute grave abuse of discretion on any of the trial court's (or Sandiganbayan's) issuances, will not lie to stop it from exercising judicial power.

The foregoing discussion certainly does not mean that this Court cannot dismiss an Information or even dismiss the criminal case upon finding of a lack of probable cause. My concern rests upon the apparent limits of herein petitioner's certiorari action as I have expounded in my disquisition above.

Ultimately, it must be stressed that this Court's judicial power under Section 1, Article VIII31 of the Constitution is sufficiently broad and wide but it is not limitless. There are still certain standards, most of which have been set by this Court itself, that must be fulfilled in the exercise of this Court's awesome power of review. For certiorari actions, our beacon is Section 65 of the Rules of Court, which specifically states:

SECTION 1. Petition for Certiorari. - When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis supplied)

Petitioners must therefore invoke this Court's power and specifically ask for the reliefs they seek as stated in the rule instead of this Court volunteering reliefs outside the limits of the action. We cannot be so eager to exercise its powers and prerogatives at every turn, especially in a case where petitioners are asking for the application of an exception to a general principle, which by its innate nature, calls for a restrictive treatment.

This Court certainly has judicial discretion to decide matters relevant to a case, but it must only touch upon collateral matters within the scope of an action and incorporated by issues clearly brought before it. Indeed, this Court should always take caution not to make hasty generalizations at the expense of our well-entrenched doctrines.