THIRD
DIVISION
RODRIGO
R.
DUTERTE
AND BENJAMIN C. DE GUZMAN,
Petitioners,
G.
R.
No. 130191
April
27, 1998
-versus-
THE
HONORABLE
SANDIGANBAYAN,
Respondent.
D
E C I S I
O N
KAPUNAN,
J :
The right to a preliminary
investigation is not a mere formal right; it is a substantive right. To
deny the accused of such right would be to deprive him of due process.
In this Special Civil
action for Certiorari with Preliminary Injunction, petitioners seek to
set aside the Order of the Sandiganbayan dated 27 June 1997 denying the
Motion to Quash the Information filed against them for violating Sec.
3[g]
of R.A. No. 3019, otherwise known as the Anti-Graft And Corrupt
Practices
Act. Petitioners similarly impugn the Resolution of the Sandiganbayan
dated
5 August 1997 which denied their Motion for Reconsideration thereof.
Pertinent to this case
are the following facts:
In 1990, the Davao
City Local Automation Project was launched by the city government of
Davao.
The goal of said project was to make Davao City a leading center for
computer
systems and technology development. It also aimed to provide
consultancy
and training services and to assist all local government units in
Mindanao
set up their respective computer systems.
To implement the
project,
a Computerization Program Committee composed of the following was
formed:
Chairman : Atty.
Benjamin
C. de Guzman, City Administrator
Members : Mr. Jorge
Silvosa, Acting City Treasurer
Atty.
Victorino
Advincula, City Councilor
Mr. Alexis
Almendras,
City Councilor
Atty. Onofre
Francisco, City Legal Officer
Mr. Rufino
Ambrocio,
Jr., Chief of Internal Control Office
Atty. Mariano
Kintanar, COA Resident Auditor.[1]
The Committee's duty was
to "conduct a thorough study of the different computers in the market,
taking into account the quality and acceptability of the products, the
reputation and track record of the manufacturers and/or their
Philippine
distributors, the availability of the replacement parts and accessories
in the Philippines, the availability of service centers in the country
that can undertake preventive maintenance of the computer hardwares to
ensure a long and uninterrupted use and, last but not the least, the
capability
of the manufacturers and/or Philippine distributors to design and put
into
place the computer system — complete with the flow of paperwork, forms
to be used and personnel required."[2]
Following these
guidelines,
the Committee recommended the acquisition of Goldstar computers
manufactured
by Goldstar Information and Communication, Ltd., South Korea and
exclusively
distributed in the Philippines by Systems Plus, Inc. [SPI].
After obtaining prior
clearance from COA Auditor Kintanar, the Committee proceeded to
negotiate
with SPI, represented by its President Rodolfo V. Jao and Executive
Vice
President Manuel T. Asis, for the acquisition and installation of the
computer
hardware and the training of personnel for the Electronic Data
Processing
Center. The total contract cost amounted to P11,656,810.00.
On 5 November 1990,
the City Council [Sangguniang Panlungsod] of Davao unanimously passed
Resolution
No. 1402 and Ordinance No. 173 approving the proposed contract for
computerization
between Davao City and SPI. The Sanggunian, likewise, authorized the
City
Mayor (petitioner Duterte) to sign the said contract for and in behalf
of Davao City.[3]
On the same day, the
Sanggunian issued Resolution No. 1403 and Ordinance No. 174, the
General
Fund Supplemental Budget No. 07 for CY 1990 appropriating P3,000,000.00
for the city's computerization project.
Given the go-signal,
the contract was duly signed by the parties thereto and on 8 November
1990,
petitioner City Administrator de Guzman released to SPI PNB Check No.
65521
in the amount of P1,748,521.58 as downpayment.
On 27 November 1990,
the Office of the Ombudsman-Mindanao received a letter-complaint from a
"concerned citizen," stating that "some city officials are going to
make
a killing" in the transaction.[4]
The complaint was docketed as OMB-MIN-90-0425. However, no action was
taken
thereon.[5]
Thereafter, sometime
in February 1991, a complaint docketed as Civil Case No. 20,550-91, was
instituted before the Regional Trial Court of Davao City, Branch 12 by
Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw
Foundation,
Inc. against the petitioners, the City Council, various city officials
and SPI for the judicial declaration of nullity of the aforestated
resolutions
and ordinances and the computer contract executed pursuant thereto.
On 22 February 1991,
Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to petitioner
Duterte for the cancellation of the computerization contract.
Consequently, on 8
April 1991, the Sanggunian issued Resolution No. 449 and Ordinance No.
53 accepting Goldstar's offer to cancel the computerization contract
provided
the latter return the advance payment of P1,748,521.58 to the City
Treasurer's
Office within a period of one month. Petitioner Duterte, as City Mayor,
was thus authorized to take the proper steps for the mutual
cancellation
of the said contract and to sign all documents relevant thereto.[6]
Pursuant to the
aforestated
authority, on 6 May 1991, petitioner Duterte, in behalf of Davao City,
and SPI mutually rescinded the contract and the downpayment was duly
refunded.
In the meantime, a
Special Audit Team of the Commission on Audit was tasked to conduct an
audit of the Davao City Local Automation Project to determine if said
contract
conformed to government laws and regulations.
On 31 May 1991, the
team submitted its Special Audit Report (SAR) No. 91-05 recommending
rescission
of the subject contract. A copy of the report was sent to petitioner
Duterte
by COA Chairman Eufemio C. Domingo on 7 June 1991. In the latter's
transmittal
letter, Chairman Domingo summarized the findings of the special audit
team,
thus:
1. The award of the
contract for the "Davao City Local Automation Project" to Systems Plus,
Inc., for P11,656,810 was done thru negotiated contract rather than
thru
competitive public bidding in violation of Sections 2 and 8 of PD 526.
Moreover, there was no sufficient appropriation for this particular
contract
in violation of Sec. 85 of PD 1445.
2. Advance payment
of P1.7M was made to Systems Plus, Inc. covering 15% of the contract
cost
of P11.6M in violation of Sec. 45 of PD 477 and Sec. 88 of PD 1445.
3. The cost of
computer
hardware and accessories under contract with "Systems Plus, Inc. (SPI)"
differed from the team's canvass by as much as 1200% or a total of
P1.8M.
4. The City had no
Information Systems Plan (ISP) prior to the award of the contract to
SPI
in direct violation of Malacañang Memo. Order No. 287 and NCC
Memo.
Circular 89-1 dated June 22, 1989. This omission resulted in undue
disadvantage
to the City Government.
5. To remedy the
foregoing
deficiencies, the team recommends that the contract with Systems Plus,
Inc. be rescinded in view of the questionable validity due to
insufficient
funding. Further, the provisions of NCC-MC 89-1 dated June 22, 1989
regarding
procurement and/or installation of computer hardware/system should be
strictly
adhered to.[7]
The City Government, intent
on pursuing its computerization plan, decided to follow the audit
team's
recommendation and sought the assistance of the National Computer
Center
[NCC]. After conducting the necessary studies, the NCC recommended the
acquisition of Philips computers in the amount of P15,792,150.00. Davao
City complied with the NCC's advice and hence, was finally able to
obtain
the needed computers.
Subsequently, on 1
August 1991, the Anti-Graft League-Davao City Chapter, through one,
Miguel
C. Enriquez, filed an unverified Complaint with the Ombudsman-Mindanao
against petitioners, the City Treasurer, City Auditor, the whole City
Government
of Davao and SPI. The League alleged that the respondents, in entering
into the computerization contract, violated R.A. No. 3019 [Anti-Graft
and
Corrupt Practices Act], P. D. No. 1445 [Government Auditing Code of the
Philippines], COA circulars and regulations, the Revised Penal Code and
other pertinent penal laws. The case was docketed as OMB-3- 91-1768.[8]
On 9 October 1991,
Graft Investigation Officer (GIO) Pepito A. Manriquez of the Office of
the Ombudsman sent a letter 9 to COA Chairman Domingo requesting the
Special
Audit Team to submit their joint affidavit to substantiate the
Complaint
in compliance with Section 4, par. [a] of the Rules of Procedure of the
Office of the Ombudsman [A. O. No. 07].
On 14 October 1991,
Judge Paul T. Arcangel, issued an Order dismissing Civil Case No.
20,550-91.
The dispositive portion reads, thus:
"WHEREFORE, in view
of all the foregoing, this case is hereby dismissed on the ground of
prematurity
and that it has become moot and academic with the mutual cancellation
of
the contract. The other claims of the parties are hereby denied. No
pronouncement
as to costs.
"SO ORDERED."[10]
On 12 November 1991, Graft
Investigator Manriquez issued an Order in OMB-3-91-1768 directing
petitioners,
Jorge Silvosa [City Treasurer], Mariano Kintanar [City Auditor] and
Manuel
T. Asis of SPI to:
"file in ten (10)
days
(1) their respective verified point-by-point comment under oath upon
every
allegation of the complaint in Civil Case No. 20,550-91 in the Regional
Trial Court [RTC], Branch 12, Davao City "Dean Pilar C. Braga, et al.
vs.
Hon. Rodrigo Duterte," for Judicial Declaration of Nullity and
Illegality
of City Council of Davao Resolutions and Ordinances, and the Computer
Contract
executed Pursuant Thereto, for Recovery of Sum of Money, Professional
Fees
and Costs — with Injunctive Relief, including the Issuance of a
Restraining
Order and/or a Writ of Preliminary Prohibitory Injunction in which they
filed a motion to dismiss, not an answer and (2) the respective
comments,
also under oath, on the Special Audit Report No. 91-05, a copy of which
is attached."[11]
On 4 December 1991, the
Ombudsman received the affidavits of the Special Audit Team but failed
to furnish petitioners copies thereof.
On 18 February 1992,
petitioners submitted a Manifestation adopting the Comments filed by
their
co-respondents Jorge Silvosa and Mariano Kintanar dated 25 November
1991
and 17 January 1992, respectively.
Four years after, or
on 22 February 1996, petitioners received a copy of a Memorandum
prepared
by Special Prosecution Officer I, Lemuel M. De Guzman dated 8 February
1996 addressed to Ombudsman Aniano A. Desierto regarding
OMB-MIN-90-0425
and OMB-3-91-1768. Prosecutor De Guzman recommended that the charges of
malversation, violation of Sec. 3[e], R.A. No. 3019 and Art. 177,
Revised
Penal Code against petitioners and their co-respondents be dismissed.
He
opined that any issue pertaining to unwarranted benefits or injury to
the
government and malversation were rendered moot and academic by the
mutual
rescission of the subject contract before the COA submitted its
findings
[SAR No. 91-05] or before the disbursement was disallowed. However,
Prosecutor
De Guzman recommended that petitioners be charged under Sec. 3[g] of
R.A
No. 3019 "for having entered into a contract manifestly and grossly
disadvantageous
to the government, the elements of profit, unwarranted benefits or loss
to government being immaterial."[12]
Accordingly, the
following
Information dated 8 February 1996 was filed against petitioners before
the Sandiganbayan [docketed as Criminal Case No. 23193]:
"That on or about
November
5, 1990, in the City of Davao, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, both public officers,
accused Rodrigo R. Duterte being then the City Mayor and accused
Benjamin
C. De Guzman being then the City Administrator of Davao City,
committing
the crime herein charged in relation to, while in the performance and
taking
advantage of their official functions, and conspiring and confederating
with each other, did then and there willfully, unlawfully and
criminally
enter into a negotiated contract for the purchase of computer hardware
and accessories with the Systems Plus, Incorporated for and in
consideration
of the amount of Pesos: Eleven Million Six Hundred Fifty-Six
Thousand
Eight Hundred Ten [P11,656,810.00], which contract is manifestly and
grossly
disadvantageous to the government, said accused knowing fully-well that
the said acquisition cost has been overpriced by as much as twelve
hundred
[1200%] percent and without subjecting said acquisition to the required
public bidding.
"Contrary to law."[13]
On 27 February 1996, petitioners
filed a Motion for Reconsideration and on 29 March 1996, a Supplemental
Motion for Reconsideration on the following grounds:
1. Petitioners were
deprived of their right to a preliminary investigation, due process and
the speedy disposition of their case;
2. Petitioner Duterte
acted in good faith and was clothed with authority to enter into the
subject
contract;
3. There is no
contract
manifestly and grossly disadvantageous to the government since the
subject
contract has been duly rescinded.
On 19 March 1996, the Ombudsman
issued a Resolution denying petitioners' motion for reconsideration.
On 18 June 1997,
petitioners
filed a Motion to Quash which was denied by the Sandiganbayan in its
Order
dated 27 June 1997. The Sandiganbayan ruled:
It appears, however,
that the accused were able to file Motions for the Reconsideration of
the
Resolution authorizing the filing of the Information herein with the
Ombudsman
in Manila. This would mean, therefore, that whatever decision which
might
have occurred with respect to the preliminary investigation would have
been remedied by the motion for reconsideration in the sense that
whatever
the accused had to say in their behalf, they were able to do in that
motion
for reconsideration.
Considering the
denial
thereof by the Office of the Ombudsman, the Court does not believe
itself
empowered to authorize a reinvestigation on the ground of an inadequacy
of the basic preliminary investigation nor with respect to a dispute as
to the proper appreciation by the prosecution of the evidence at that
time.
In view hereof, upon
further representation by Atty. Medialdea that he represents not only
Mayor
Duterte but City Administrator de Guzman as well, upon his commitment,
the arraignment hereof is now set for July 25, 1997 at 8:00 o'clock in
the morning.[14]
On 15 July 1997, petitioners
moved for reconsideration of the above Order but the same was denied by
the Sandiganbayan for lack of merit in its Resolution dated 5 August
1997.[15]
Hence, the present
recourse.
Petitioners allege
that:
THE HONORABLE
SANDIGANBAYAN
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION
IN DENYING PETITIONERS' MOTION TO QUASH AND MOTION FOR RECONSIDERATION,
CONSIDERING THAT:
A.
[1] PETITIONERS WERE
EFFECTIVELY DEPRIVED OF THEIR RIGHT TO A PRELIMINARY INVESTIGATION
PURSUANT
TO SEC. 4, RULE II OF ADMINISTRATIVE ORDER NO. 07 (RULES OF PROCEDURE
OF
THE OFFICE OF THE OMBUDSMAN); and
[2] ASSUMING THAT A
PRELIMINARY INVESTIGATION WAS PROPERLY CONDUCTED, THERE WAS AN
INORDINATE
DELAY IN TERMINATING THE SAME THEREBY DEPRIVING THEM OF THEIR RIGHT TO
DUE PROCESS AND SPEEDY DISPOSITION OF THE CASE.
B.
THERE IS NO
SUFFICIENT
BASIS, IN FACT AND IN LAW, TO CHARGE PETITIONERS DUTERTE AND DE GUZMAN
OF VIOLATING SEC. 3 (G) OF R.A. 3019 IN THAT:
[1] PETITIONER
DUTERTE
ACTED IN GOOD FAITH AND WAS CLOTHED WITH FULL LEGAL AUTHORITY FROM THE
CITY COUNCIL TO ENTER INTO A CONTRACT WITH SYSTEMS PLUS, INC.;
[2] THERE IS NO
CONTRACT
MANIFESTLY AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT TO SPEAK OF AS
THE SAME HAS BEEN RESCINDED AND NO DAMAGE WAS SUFFERED BY THE CITY
GOVERNMENT;
[3] ASSUMING THAT THE
CONTRACT WAS NOT RESCINDED, THE SAME CANNOT BE CONSIDERED AS MANIFESTLY
AND GROSSLY DISADVANTAGEOUS TO THE GOVERNMENT.[16]
On 4 September 1997, the
Court issued a Temporary Restraining Order enjoining the Sandiganbayan
from further proceeding with Criminal Case No. 23193.
The Court finds the
petition meritorious.
I.We have judiciously
studied
the case records and We find that the preliminary investigation of the
charges against petitioners has been conducted not in the manner laid
down
in Administrative Order No. 07.
In the 12 November
1991 Order of Graft Investigator Manriquez, petitioners were merely
directed
to submit a point-by-point Comment under oath on the allegations in
Civil
Case No. 20,550-91 and on SAR No. 91-05. The said Order was not
accompanied
by a single affidavit of any person charging petitioners of any offense
as required by law.[17]
They were just required to comment upon the allegations in Civil Case
No.
20,550-91 of the Regional Trial Court of Davao City which had earlier
been
dismissed and on the COA Special Audit Report. Petitioners had no
inkling
that they were being subjected to a preliminary investigation as in
fact
there was no indication in the order that a preliminary investigation
was
being conducted. If Graft Investigator Manriquez had intended merely to
adopt the allegations of the plaintiffs in the civil case or the
Special
Audit Report [whose recommendation for the cancellation of the contract
in question had been complied with] as his bases for criminal
prosecution,
then the procedure was plainly anomalous and highly irregular. As a
consequence,
petitioners' constitutional right to due process was violated.
Sections [2] and [4],
Rule II of Administrative Order No. 07 [Rules of Procedure of the
Office
of the Ombudsman] provide:
Sec. 2. Evaluation.
- Upon evaluating the complaint, the investigating officer shall
recommend
whether or not it may be:
(a) dismissed
outright
for want of palpable merit;
(b) referred to
respondent
for comment;
(c) endorsed to the
proper government office or agency which has jurisdiction over the case;
(d) forwarded to
the
appropriate office or official for fact-finding investigation;
(e) referred for
administrative
adjudication; or
(f) subjected to a
preliminary investigation.
xxx
Sec. 4. Procedure.
- The preliminary investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts shall be conducted in
the
manner prescribed in Section 3, Rule 112 of the Rules of Court, subject
to the following provisions:
(a) If the
complaint
is not under oath or is based only on official reports, the
investigating
officer shall require the complainant or supporting witnesses to
execute
affidavits to substantiate the complaints.
(b) After such
affidavits
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 and controverting evidence with proof of service
thereof
on the complainant. The complainant may file reply affidavits within
ten
(10) days after service of the counter-affidavits.
(c) If the
respondent
does not file a counter-affidavit, the investigating officer may
consider
the comment filed by him, if any, as his answer to the complaint. In
any
event, the respondent shall have access to the evidence on record.
(d) No motion to
dismiss
shall be allowed except for lack of jurisdiction. Neither may a motion
for a bill of particulars be entertained. If respondent desires any
matter
in the complainant's affidavit to be clarified, the particularization
thereof
may be done at the time of clarificatory questioning in the manner
provided
in paragraph [f] of this section.
(e) If the
respondent
cannot be served with the order mentioned in paragraph 6 hereof, or
having
been served, does not comply therewith, the complaint shall be deemed
submitted
for resolution on the basis of the evidence on record.
(f) If, after the
filing
of the requisite affidavits and their supporting evidences, there are
facts
material to the case which the investigating officer may need to be
clarified
on, he may conduct a clarificatory hearing during which the parties
shall
be afforded the opportunity to be present but without the right to
examine
or cross-examine the witness being questioned. Where the appearance of
the parties or witnesses is impracticable, the clarificatory
questioning
may be conducted in writing, whereby the questions desired to be asked
by the investigating officer or a party shall be reduced into writing
and
served on the witness concerned who shall be required to answer the
same
in writing and under oath.
(g) Upon the
termination
of the preliminary investigation, the investigating officer shall
forward
the records of the case together with his resolution to the designated
authorities for their appropriate action thereon.
No information may
be filed and no complaint may be dismissed without the written
authority
or approval of the Ombudsman in cases falling within the jurisdiction
of
the Sandiganbayan or the proper Deputy Ombudsman in all other cases.
In what passes off as application
of the foregoing rules, all that petitioners were asked to do was
merely
to file their comment upon every allegation of the complaint in Civil
Case
No. 20,550-91 in the Regional Trial Court [RTC] and on the COA Special
Audit Report. The comment referred to in Section 2[b] Rule II, of A.O.
No. 07 is not part of or is equivalent to the preliminary investigation
contemplated in Sec. 4, Rule II, of the same Administrative Order. A
plain
reading of Sec. 2 would convey the idea that upon evaluation of the
complaint,
the investigating officer may recommend its outright dismissal for
palpable
want of merit; otherwise, or if the complaint appears to have some
merit,
the investigator may recommend action under any of those enumerated
from
[b] to [f], that is, the investigator may recommend that the complaint
be: referred to respondent for comment, or endorsed to the proper
government
office or agency which has jurisdiction over the case; or forwarded to
the appropriate office or official for fact-finding investigation; or
referred
for administrative adjudication; or subjected to preliminary
investigation.
Now, if the investigator opts to recommend the filing of a comment by
the
respondent, it is presumably because he needs more facts and
information
for further evaluation of the merits of the complaint. That being done,
the investigating officer shall again recommend any one of the actions
enumerated in Section 2, which include the conduct of a preliminary
investigation.
A preliminary
investigation,
on the other hand, takes on an adversarial quality and an entirely
different
procedure comes into play. This must be so, because the purpose of a
preliminary
investigation or a previous inquiry of some kind before an accused
person
is placed on trial, is to secure the innocent against hasty, malicious
and oppressive prosecution, and to protect him from an open and public
accusation of a crime, from the trouble, expenses and anxiety of public
trial.[18]
It is also intended to protect the state from having to conduct useless
and expensive trials.[19]
While the right is statutory rather than constitutional in its
fundament,
it is a component part of due process in criminal justice. The right to
have a preliminary investigation conducted before being bound over to
trial
for a criminal offense and hence formally at risk of incarceration or
some
other penalty, is not a mere formal or technical right; it is a
substantive
right. To deny the accused's claim to a preliminary investigation would
be to deprive him of the full measure of his right to due process.[20]
Note that in
preliminary
investigation, if the complaint is unverified or based only on official
reports [which is the situation obtaining in the case at bar], the
complainant
is required to submit affidavits to substantiate the complaint. The
investigating
officer, thereafter, shall issue an order, to which copies of the
complaint-affidavit
are attached, requiring the respondent to submit his
counter-affidavits.
In the preliminary investigation, what the respondent is required to
file
is a counter-affidavit, not a comment. It is only when the respondent
fails
to file a counter-affidavit may the investigating officer consider the
respondent's comment as the answer to the complaint. Against the
foregoing
backdrop, there was a palpable non-observance by the Office of the
Ombudsman
of the fundamental requirements of preliminary investigation.
Apparently, in the
case at bar, the investigating officer considered the filing of
petitioner's
comment as a substantial compliance with the requirements of a
preliminary
investigation. Initially, Graft Investigator Manriquez directed the
members
of the Special Audit Team on 9 October 1991 to submit their affidavits
relative to SAR No. 91-05. However, on 12 November 1991, before the
affidavits
were submitted, Manriquez required petitioners to submit their
respective
comments on the complaint in the civil case and on Special Audit Report
[SAR] 91-05. Even when the required affidavits were filed by the audit
team on 4 December 1991, petitioners were still not furnished copies
thereof.
The Ombudsman contends that failure to provide petitioners the
complaint-affidavits
is immaterial since petitioners were well aware of the existence of the
civil complaint and SAR No. 91-05. We find the Ombudsman's reasoning
flawed.
The civil complaint and the COA Special Audit Report are not equivalent
to the complaint-affidavits required by the rules. Moreover, long
before
petitioners were directed to file their comments, the civil complaint
(Civil
Case No. 20,550-91) was rendered moot and academic and, accordingly,
dismissed
following the mutual cancellation of the computerization contract. In
SAR
No. 91-05, on the other hand, petitioners were merely advised to
rescind
the subject contract - which was accomplished even before the audit
report
came out. In light of these circumstances, the Court cannot blame
petitioners
for being unaware of the proceedings conducted against them.
In Olivas vs. Office
of the Ombudsman,[21]
this Court, speaking through Justice Vicente V. Mendoza, emphasized
that
it is mandatory requirement for the complainant to submit his affidavit
and those of his witnesses before the respondent can be compelled to
submit
his counter-affidavits and other supporting documents. Thus:
Even in
investigations
looking to the prosecution of a party, Rule I, Section 3 can only apply
to the general criminal investigation, which in the case at bar was
already
conducted by the PCGG. But after the Ombudsman and his deputies have
gathered
evidence and their investigation has ceased to be a general exploratory
one and they decide to bring the action against a party, their
proceedings
become adversary and Rule II Section 4[a] then applies. This means that
before the respondent can be required to submit counter-affidavits and
other supporting documents, the complainantt must submit his affidavit
and those of his witnesses. This is true not only of prosecutions of
graft
cases under Rep. Act No. 3019 but also of actions for the recovery of
unexplained
wealth under Rep. Act No. 1379, because Section 2 of this latter law
requires
that before a petition is filed there must be a "previous inquiry
similar
to preliminary investigation in criminal cases."
Indeed, since a preliminary
investigation is designed to screen cases for trial, only evidence may
be considered. While reports and even raw information may justify the
initiation
of an investigation, the stage of preliminary investigation can be held
only after sufficient evidence has been gathered and evaluated
warranting
the eventual prosecution of the case in Court. As this Court held in
Cojuangco,
Jr. v. PCGG:
Although such a
preliminary
investigation is not a trial and is not intended to usurp the function
of the trial court, it is not a casual affair. The officer conducting
the
same investigates or inquires into the facts concerning the commission
of the crime with the end in view of determining whether or not an
information
may be prepared against the accused. Indeed, a preliminary
investigation
is in effect a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that
when
the case is tried, the trial court may not be bound as a matter of law
to order an acquittal. A preliminary investigation has then been called
a judicial inquiry. It is a judicial proceeding. An act becomes
judicial
when there is opportunity to be heard and for the production and
weighing
of evidence, and a decision is rendered thereof.
II.
Compounding the
deprivation
of petitioners of their right to a preliminary investigation was the
undue
and unreasonable delay in the termination of the irregularly conducted
preliminary investigation. Petitioners' manifestation adopting the
comments
of their co-respondents was filed on 18 February 1992. However, it was
only on 22 February 1996 or four [4] years later, that petitioners
received
a memorandum dated 8 February 1996 submitted by Special Prosecutor
Officer
I Lemuel M. De Guzman recommending the filing of Information against
them
for violation of Sec. 3[g] of R.A. No. 3019 [Anti-Graft and Corrupt
Practices
Act]. The inordinate delay in the conduct of the "preliminary
investigation"
infringed upon their constitutionally guaranteed right to a speedy
disposition
of their case.[22]
In Tatad vs. Sandiganbayan,[23]
We held that an undue delay of close to three [3] years in the
termination
of the preliminary investigation in the light of the circumstances
obtaining
in that case warranted the dismissal of the case:
We find the long
delay
in the termination of the preliminary investigation by the Tanodbayan
in
the instant case to be violative of the constitutional right of the
accused
to due process. Substantial adherence to the requirements of the law
governing
the conduct of preliminary investigation, including substantial
compliance
with the time limitation prescribed by the law for the resolution of
the
case by the prosecutor, is part of the procedural due process
constitutionally
guaranteed by the fundamental law. Not only under the broad umbrella of
the due process clause, but under the constitutional guarantee of
"speedy
disposition" of cases as embodied in Section 16 of the Bill of Rights
[both
in the 1973 and 1987 Constitution], the inordinate delay is violative
of
the petitioner's constitutional rights. A delay of close to three [3]
years
can not be deemed reasonable or justifiable in the light of the
circumstances
obtaining in the case at bar. We are not impressed by the attempt of
the
Sandiganbayan to sanitize the long delay by indulging in the
speculative
assumption that "the delay may be due to a painstaking and grueling
scrutiny
by the Tanodbayan as to whether the evidence presented during the
preliminary
investigation merited prosecution of a former high-ranking government
official."
In the first place, such a statement suggests a double standard of
treatment,
which must be emphatically rejected. Secondly, three out of the five
charges
against the petitioner were for his alleged failure to file his sworn
statement
of assets and liabilities required by Republic Act No. 3019, which
certainly
did not involve complicated legal and factual issues necessitating such
"painstaking and grueling scrutiny" as would justify a delay of almost
three years in terminating the preliminary investigation. The other two
charges relating to alleged bribery and alleged giving of unwarranted
benefits
to a relative, while presenting more substantial legal and factual
issues,
certainly do not warrant or justify the period of three years, which it
took the Tanodbayan to resolve the case.
It has been suggested that
the long delay in terminating the preliminary investigation should not
be deemed fatal, for even the complete absence of a preliminary
investigation
does not warrant dismissal of the information. True, but the absence of
a preliminary investigation can be corrected by giving the accused such
investigation. But an undue delay in the conduct of the preliminary
investigation
can not be corrected, for until now, man has not yet invented a device
for setting back time.
In the recent case
of Angchangco, Jr. vs. Ombudsman,[24]
the Court upheld Angchangco's right to the speedy disposition of his
case.
Angchangco was a Sheriff in the Regional Trial Court of Agusan del
Norte
and Butuan City. In 1990 criminal complaints were filed against him
which
remained pending before the Ombudsman even after his retirement in
1994.
The Court, thus, ruled:
Here, the Office of
the Ombudsman, due to its failure to resolve the criminal charges
against
petitioner for more than six years, has transgressed on the
constitutional
right of petitioner to due process and to a speedy disposition of the
cases
against him, as well as the Ombudsman's own constitutional duty to act
promptly on complaints filed before it. For all these past 6 years,
petitioner
has remained under a cloud, and since his retirement in September 1994,
he has been deprived of the fruits of his retirement after serving the
government for over 42 years all because of the inaction of respondent
Ombudsman. If we wait any longer, it may be too late for petitioner to
receive his retirement benefits, not to speak of clearing his name.
This
is a case of plain injustice which calls for the issuance of the writ
prayed
for.[25]
We are not persuaded by
the Ombudsman's argument that the Tatad ruling does not apply to the
present
case which is not politically motivated unlike the former, pointing out
the following findings of the Court in the Tatad decision:
A painstaking review
of the facts can not but leave the impression that political
motivations
played a vital role in activating and propelling the prosecutorial
process
in this case. Firstly, the complaint came to life, as it were, only
after
petitioner Tatad had a falling out with President Marcos. Secondly,
departing
from established procedures prescribed by law for preliminary
investigation,
which require the submission of affidavits and counter-affidavits by
the
complainant and the respondent and their witnesses, the Tanodbayan
referred
the complaint to the Presidential Security Command for fact-finding
investigation
and report.
We find such blatant
departure from the established procedure as a dubious, but revealing
attempt
to involve an office directly under the President in the prosecutorial
process, lending credence to the suspicion that the prosecution was
politically
motivated. We cannot emphasize too strongly that prosecutors should not
allow, and should avoid, giving the impression that their noble office
is being used or prostituted, wittingly or unwittingly, for political
ends,
or other purposes alien to, or subversive of, the basic and fundamental
objective observing the interest of justice evenhandedly, without fear
or favor to any and all litigants alike whether rich or poor, weak or
strong,
powerless or mighty. Only by strict adherence to the established
procedure
may be public's perception of the impartiality of the prosecutor be
enhanced.[26]
The Ombudsman endeavored
to distinguish the present suit from the Angchangco case by arguing
that
in the latter, Angchangco filed several motions for early resolution,
implying
that in the case at bar petitioners were not as vigilant in asserting
or
protecting their rights.
We disagree. The
constitutional
right to speedy disposition of cases does not come into play only when
political considerations are involved. The Constitution makes no such
distinction.
While political motivation in Tatad may have been a factor in the undue
delay in the termination of the preliminary investigation therein to
justify
the invocation of their right to speedy disposition of cases, the
particular
facts of each case must be taken into consideration in the grant of the
relief sought. In the Tatad case, We are reminded:
In a number of cases,
this Court has not hesitated to grant the so-called "radical relief"
and
to spare the accused from undergoing the rigors and expense of a
full-blown
trial where it is clear that he has been deprived of due process of law
or other constitutionally guaranteed rights. Of course, it goes without
saying that in the application of the doctrine enunciated in those
cases,
particular regard must be taken of the facts and circumstances peculiar
to its case.[27]
In Alviso vs. Sandiganbayan,[28]
the Court observed that the concept of speedy disposition of cases "is
a relative term and must necessarily be a flexible concept" and that
the
factors that may be considered and balanced are the "length of the
delay,
the assertion or failure to assert such right by the accused, and the
prejudice
caused by the delay."
Petitioners in this
case, however, could not have urged the speedy resolution of their case
because they were completely unaware that the investigation against
them
was still on-going. Peculiar to this case, we reiterate, is the fact
that
petitioners were merely asked to comment, and not file
counter-affidavits
which is the proper procedure to follow in a preliminary investigation.
After giving their explanation and after four long years of being in
the
dark, petitioners, naturally, had reason to assume that the charges
against
them had already been dismissed.
On the other hand,
the Office of the Ombudsman failed to present any plausible, special or
even novel reason which could justify the four-year delay in
terminating
its investigation. Its excuse for the delay - the many layers of review
that the case had to undergo and the meticulous scrutiny it had to
entail
- has lost its novelty and is no longer appealing, as was the
invocation
in the Tatad case. The incident before us does not involve complicated
factual and legal issues, specially in view of the fact that the
subject
computerization contract had been mutually cancelled by the parties
thereto
even before the Anti-Graft League filed its Complaint.
The Office of the
Ombudsman
capitalizes on petitioners' three motions for extension of time to file
comment which it imputed for the delay. However, the delay was not
caused
by the motions for extension. The delay occurred after petitioners
filed
their comment. Between 1992 to 1996, petitioners were under no
obligation
to make any move because there was no preliminary investigation within
the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in
the
first place.
III.Finally, under the
facts
of the case, there is no basis, in law or in fact, to charge
petitioners
for violation of Sec. 3[g] of R.A. No. 3019. To establish probable
cause
against the offender for violation of Sec. 3[g], the following elements
must be present: [1] the offender is a public officer; [2] he entered
into
a contract or transaction in behalf of the government; and [3] the
contract
or transaction is grossly and manifestly disadvantageous to the
government.
The second element of the crime - that the accused public officers
entered
into a contract in behalf of the government - is absent. The
computerization
contract was rescinded on 6 May 1991 before SAR No. 91-05 came out on
31
May 1991 and before the Anti-Graft League filed its complaint with the
Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League
instituted
their complaint and the Ombudsman issued its Order on 12 November 1991,
there was no longer any contract to speak of. The contract, after 6 May
1991 became in contemplation of law, non-existent, as if no contract
was
ever executed.
WHEREFORE, premises
considered, the petition is GRANTED and Criminal Case No. 23193 is
hereby
DISMISSED. The temporary restraining order issued on 4 September 1997,
is made PERMANENT.
SO ORDERED.
Narvasa, C.J.,
Romero and Purisima, JJ., concur.
________________________
Endnotes:
[1]
Rollo, p. 7.
[2]
Ibid.
[3]
Id., at 38-41.
[4]
Id., at 42.
[5]
Ibid.
[6]
Id., at 43-45.
[7]
Id., at 46-47.
[8]
Id., at 48-62.
[9]
Id., at 71-72.
[10]
Id.,
at 68.
[11]
Id., at 69.
[12]
Id., at 75.
[13]
Id., at 76.
[14]
Id., at 143.
[15]
Id., at 162-164.
[16]
Id., at 16.
[17]
A.O. No. 07, Rule II, Sec. 4(b.
[18]
Rodis, Sr. vs. Sandiganbayan, 166 SCRA 618 [1988]; People vs. Poculan,
167 SCRA 155 [1988].
[19]
Tandoc vs. Resultan, 175 SCRA 37 [1989].
[20]
Doromal vs. Sandiganbayan, 177 SCRA 354 [1980]; Go vs. Court of
Appeals,
206 SCRA 138 [1992].
[21]
239 SCRA 283 [1994].
[22]
Section 16, Article III of the 1987 Constitution mandates that:chanroblesvirtuallawlibrary
All
persons shall have the right to a speedy disposition of their cases
before
all judicial, quasi-judicial, or administrative bodies.
[23]
159 SCRA 70 [1988].
[24]
268 SCRA 301 [1997].
[25]
Id., at 306.
[26]
See note 23 at 81.
[27]
Id., at 80.
[28]
220 SCRA 55 [1993]. |