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DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

With due respect, I dissent from the ponencia of Mr. Justice Artemio V. Panganiban. I vote to dismiss the instant petition.

I

The central issue posed by the PCGG in its present petition necessitates a review by this Court of the finding of facts of the Ombudsman. In effect, this Court is constrained to calibrate the evidence presented by the prosecution. This procedure is not within the realm of the instant petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended. Where, as here, the petition assails the Ombudsmans appreciation of facts, the instant recourse is impermissible.¹ As this Court ruled in Cruz, Jr. vs. People:²cräläwvirtualibräry

Furthermore, the Ombudsmans findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here (Cf. Sesbreno vs. Ala, et al., G.R. No. 95393, May 5, 1992, 208 SCRA 359). His arguments are anchored on the propriety of or error in the Ombudsmans appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion (Commission of Audit vs. Tanodbayan, et al., G.R. No. 81476, July 26, 1991, 199 SCRA 622). x x x. (emphasis supplied)

It was mainly on this ground that this Court, in its Resolution dated August 5, 1996 in G.R. No. 114377 (Republic vs. Vasquez, et al.), dismissed with finality³ the PCGG petition involving the same complaintagainst the co-respondents of Herminio T. Disini. The said Resolution, which I quote in full, reads:

"After deliberating on the averments and arguments raised in the petition for certiorari which prays for the nullification and setting aside of the Ombudsmans Resolution dated June 29, 1993, and the Order dated November 29, 1993, the Court resolved to dismiss the petition for lack of merit. The bottomline issue which petitioner asks of this Court is to review the Ombudsman's ruling that dismissed, for lack of prima facie evidence, the criminal charges against respondents Paciencia E. Disini, Angel E. Disini, Liliana L. Disini and Lea E. Disini. Such a review cannot be done in the proceeding at bar for it challenges the Ombudsman's FACTUAL findings and CALIBRATION OF EVIDENCE matters not ordinarily within the realm of the instant petition as the Court is not a trier of facts. Moreover, the Court, recognizing the investigatory and prosecutory powers granted by the 1987 Constitution to the Office of the Ombudsman and for reasons of practicality, will neither interfere with the findings of the Office of the Ombudsman nor review the exercise of its discretion in filing an information in court or dismissing a complaint to avoid its being hampered by innumerable petitions, as in this case (See: Gulpo, et al. vs. Ombudsman, G.R. No. 119355, May 24, 1995; Pontinela vs. Rosales, G.R. No. 119189, April 19, 1995; Labita vs. Office of the Ombudsman and Sariego, G.R. No. 116161, August 8, 1994, 235 SCRA xi; Ocampo IV vs. Ombudsman, 225 SCRA 725 (1993). Accordingly, the petition should be at it is hereby DISMISSED." (emphasis supplied)

This Courts ruling in G.R. No. 114377 is squarely apropos to the instant case. Since the ponente concedes that (t)here should be no disagreement with the Courts Resolution in Vasquez,⁴ then the instant petition should likewise be dismissed.

In refusing to apply the Vasquez ruling to the present case, the ponente made a distinction between the two cases, thus: In that case (Vasquez), we agreed with the ombudsmans Resolution dismissing, for lack of evidence, the criminal charges against (Disinis co-respondents). x x x. In the previous Resolution in GR No. 114377, no grave abuse of discretion was found in the dismissal of the indictment against Disinis relatives. In the case before us, however, it is clear that the ombudsman gravely abused his discretion in disregarding the evidence on record, as well as some settled principles and rulings laid down by this Court. Verily, there should be a divergence of results between the present Petition and the previous one, which distinguished the charge against the other respondents. They were classified therein as mere accomplices or accessories. In the present case, Herminio T. Disini is being charged as the principal.⁵cräläwvirtualibräry

The ponente misread the August 5, 1996 Resolution in G.R. No. 114377. The reasons he cited as bases for the dismissal of the PCGGs petition are not the grounds upon which the Vasquez ruling was anchored. To recall, in Vasquez, this Court dismissed outright the petition of PCGG because it challenges the factual findings of the Ombudsman which cannot be done through a petition for certiorari. Also, that the complaint against Disinis co-respondents was dismissed for lack of evidence as they were merely charged as accomplices or accessories, was not even taken into account by this Court when it dismissed PCGGs petition in Vasquez.

II

At any rate, I am constrained to make a determination whether indeed there is a prima facie case against Disini, although in doing so, I shall reexamine the factual findings of the Ombudsman.

Contrary to the findings by the ponente, the Ombudsman did not act with grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing the complaint against respondent Herminio Disini for lack of a prima facie case. Utilizing the very same portions of the affidavits of Samuel P. Hull, Jr.⁶ and Angelo V. Manahan⁷ cited in support of the ponencia, let me refute point-by-point the arguments raised therein.

First. The ponente finds that the affidavit of Hull dated November 28, 1988⁸ detailed how he met and communicated with Disini to discuss matters leading to (1) the revocation of the consulting contract with Ebasco and (2) the eventual award of the PNPP project to Westinghouse and Burns & Roe;⁹ and that Hulls supplemental affidavit¹⁰ was even more detailed and damning (as) it elaborated on his communications and negotiations with, and payments of commissions to Disini in exchange for the selection of Westinghouse and Burns & Roe over other corporations vying for the PNPP project.¹¹ The Ombudsman, says the ponente, opted to disregard these pieces of evidence and thereby demonstrated his capricious and arbitrary exercise of judgment.¹²cräläwvirtualibräry

Section 3(a), Rule 112 of the Revised Rules on Criminal Procedure requires, among others, that the complaint subject of a preliminary investigation, shall be accompanied by the affidavits of the complainant AND his witnesses, as well as other supporting documents, to establish probable cause.

Section 1 of the same Rule likewise directs that the investigating or prosecuting officers determination of probable cause must be based on SUFFICIENT ground (which) engender(s) a WELL-FOUNDED belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Just recently, this Court, in Sales vs. Sandiganbayan, et al.,¹³ expounded on the nature and function of a preliminary investigation and the duties of the investigating officer, thus:

Although 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 been called a judicial inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when there is an opportunity to be heard and for the production of and weighing of evidence, and a decision is rendered thereon (Cojuangco vs. PCGG, 190 SCRA 226 [1990]).

The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking, is not a judge by the nature of his functions, he is and must be considered to be a quasi-judicial officer because a preliminary investigation is considered a judicial proceeding (Cruz vs. People, 237 SCRA 439 [1994]). A preliminary investigation should therefore be SCRUPULOUSLY conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage (Webb vs. De Leon, 247 SCRA 652 [1995]).

Indeed, since a preliminary investigation is designed to SCREEN cases for trial, ONLY EVIDENCE MAY BE CONSIDERED. While 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 (Olivas vs. Office of the Ombudsman, 239 SCRA 283 [1994]). In other words

it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantee of freedom and fair play which are the birthrights of all who live in our country. It is therefore imperative upon the fiscal or the judge, as the case may be, to relieve the accused from the pain 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. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (Justice Oscar M. Herrera, Remedial Law, Vol. IV, 2001 ed., p. 231, citing La Chemise Lacoste S.A. vs. Fernandez, 129 SCRA 391 [1984] and Ortis vs. Palaypon, 234 SCRA 391 [1994]). (emphasis supplied)

Measured vis--vis the foregoing legal yardsticks, I find that the Ombudsman followed the proper procedure in conducting the preliminary investigation. Therefore, he did not commit any grave abuse of discretion in dismissing PCGGs complaint against Disini.

Let us now examine Hulls declarations quoted in the ponencia:

12. In the same conversation, Disini indicated that he could arrange award of the entire nuclear power plant contract to Westinghouse on a turnkey basis, in which case he would see to it that Burns & Roe was awarded the Architect/Engineer assignment as subcontractor to Westinghouse. I took notes of our conversation on an Intercontinental Hotel coffee shop placemat, which I took with me and saved.

13. Following this meeting, Jesus Vergara assured me repeatedly that Disini would take the matter up with President Marcos and that everything would come out all right for Burns & Roe and Westinghouse. He said he was in constant touch with Disini, and knew that Disini would come through.

14. I learned a day or two after my meeting with Disini that NPCS negotiations with Ebasco on the consulting contract had ceased, and NPC was ready to enter into a consulting contract with Burns & Roe. I learned of this decision in a telephone message from either Mr. Ravanzo or Mr. Del Rosario of NPC. Jesus Vergara later explained to me at a meeting in his office that Burns & Roe was replacing Ebasco because Herminio Disini had spoken to President Marcos, and Marcos had ordered NPC to hire Burns & Roe. To prove this, Vergara gave me a copy of a letter from Westinghouse to Marcos dated February 22, 1974 bearing a handwritten notation in the margin, which I was told was written by Marcos, and which instructed NPCs general manager to enter into the contract for the consultants Burns & Roe. A copy of the letter is attached to this Affidavit as Exhibit A. Vergara said he was giving me this letter as proof that Disini could deliver.

15. Len Sabol, Jesus Vergara, and others in Manila told me at that time that Westinghouse was in the process of negotiating a similar SSR agreement with Disini whereby he would secure the prime PNPP contract on a turnkey basis for Westinghouse. The replacement of Ebasco by Burns & Roe was also being used by Westinghouse as a test of Disinis influence with President Marcos. I understood that it was only after he passed this test that Westinghouse finalized its deal with him.¹⁴ (emphasis supplied)

In paragraph 12 initially reproduced above, Hull said that he had conversation with Disini to discuss how the latter could arrange the award of the nuclear power plant contract to Westinghouse and the architect/engineer subcontract to Burns & Roe. Note that the conversation was merely an initial discussion of a plan or transaction. Thus, such incident, by itself, does not as yet provide a sufficient ground to engender a well-founded belief that a crime has been committed by Disini. Specifically, it does not support the charge in PCGGs complaint that Disini brib(ed) the late President E. Marcos as a means to induce him to assist and favor individuals and corporate entitiesin connection with the negotiation, award, signing, amendment and implementation of the main and related contracts for the Philippine Power Plant (PNPP) project of the National Power Corporation (NPC) in Bataan.

Paragraphs 13 and 14 above, which narrate the alleged implementation by Disini of the plan to award the PNPP project to Westinghouse are plain hearsay. Hull stated matters merely relayed to him by Jesus Vergara, Mr. Ravanzo or Mr. Del Rosario that Burns & Roe was replacing Ebasco because Disini had spoken to President Marcos, and Marcos had ordered NPC to hire Burns & Roe. Hull said that Vergara gave him a copy of Westinghouses letter to Marcos with a handwritten notation on its margin (Exhibit A) instructing NPCs general manager to negotiate a contract for the consultants Burns & Roe, which, Hull honestly admitted, I was told was written by Marcos.

Clearly, Hull has absolutely no personal knowledge that Disini talked to former President Marcos and influenced him to award the PNPP project to Westinghouse and Burns & Roe.

Similarly, in paragraph 15, Hull stated that it was Len Sabol, Jesus Vergara, and others in Manila who told me that Westinghouse was in the process of negotiating a similar SSR agreement with Disini whereby he would secure the prime PNPP contract on a turnkey basis for Westinghouse.

The Ombudsman, therefore, correctly found that Hulls statements are hearsay, conjectures and speculations. They are worthless since they have no probative value.¹⁵ The persons named by Hull Jesus Vergara, Mr. Ravanzo, Mr. Del Rosario and Len Sabol never executed any affidavit on what they knew about Disinis participation or role in the award of the PNPP project to Westinghouse and Burns & Roe. It is elementary that (a)ny evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other persons.¹⁶cräläwvirtualibräry

Second. The ponente likewise argues that the ombudsman found no evidence that Disini had actually met with and assured Hull that the former could influence Marcos to overturn the award of the consulting contract to Ebasco and the eventual award of the PNPP project to Westinghouse and Burns & Roe. The aforesaid Affidavits completely controvert his finding. Hulls statements on the matter are clear, specific and categorical:

10. x x x I met Disini at the Intercontinental Hotel. We discussed the basic terms of a Special Sales Representative (SSR) agreement between Disini and Burns & Roe, whereby he would assist us in obtaining PNPP business in return for commission payments. Disini flaunted his close relationship with President Marcos. He represented that he had the authority to arrange the entire nuclear power plant project in any way he wished. Specifically, Disini told me that he could get the Architect/Engineering contract to Burns & Roe. He stated that overturning the award of the consulting contract to Ebasco was no problem, and in fact was only a small part of what he could do for Burns and Roe. In fact, he offered to stop the award of the consulting contract to Ebasco and have it awarded to Burns & Roe as a test of his ability to deliver.¹⁷

x x x

16. In April 1974 Kenneth Roe visited Manila and met with Disini. Roe called me and another Burns & Roe executive, Lawton Hammett, from Manila on April 23 and explained that he had confirmed in his meeting with Disini the SSR relationship I had worked out in my February trip. Roe reported that Westinghouse also had a deal with Disini and that Westinghouses commissions were to be paid to President Marcos. Hammett took notes on this telephone call.

17. The Burns & Roe SSR agreement with Disini was put in writing. I believe it was between Burns & Roe and one of Disinis companies. While I do not recall the exact formula for the commissions to be paid under the contract, I believe that we were to pay at least $1 million in four equal installments, plus additional amounts calculated under the formula, to be paid through the life of our Architect/Engineer subcontract. I know that the amount we agreed to pay Disini was far higher than would have been justified by the services Disini was to render pursuant to the SSR agreement (such as providing advice and counsel to us, secretarial help, or telex services). The real purpose of our agreement with Disini was simply for him to influence President Marcos to award Burns & Roe the Architect/Engineer subcontract on the PNPP project.¹⁸ (emphasis supplied)

Paragraph 10 narrates Hulls meeting with Disini to discuss the basic terms of a Special Sales Representative Agreement (SSR) between (the latter) and Burns & Roe, whereby he (Disini) would assist us in obtaining PNPP business in return for commission payments. According to Hull, Disini flaunted his close relationship with President Marcos, suggesting that the latter can deliver. However, to repeat, such incident was merely a discussion of their transaction which, by itself, is hardly a criminal offense.

Paragraph 16 is hearsay. Hull stated that it was Kenneth Roe and Lawton Hammett who told him (Hull) through telephone that Westinghouse also had a deal with Disini and that Westinghouses commissions were to be paid to President Marcos.

Hull, in paragraph 17, even contradicted himself when he said that the SSR agreement was between Burns & Roe and one of Disinis companies,meaning, Disini was not personally involved in the SSR transaction. As to the payment of commissions under the agreement, Hull is not also certain about the exact formula for commissions. He merely conjectured or speculated that he believe(s) we were to pay at least $1 million in four equal installments, plus additional amounts calculated under the formula, . Being a mere hearsay or speculation, Hulls declarations in paragraphs 16 and 17 have no evidentiary value.

Third. The ponente contends that the aide memoires and telexes show Disinis complicity in the crimes charged.¹⁹ In support of his posture, he cited Manahans statements in his affidavit, thus:

7. Aide memoires were confidential memoranda from Mr. Disini to President Marcos (who was addressed as Sir), in which Mr. Disini provided information to the President or requested that the President take specified actions in favor of HMIC/HFI, or of Disini personally. Typically, Mr. Federico E. Navera (HGIs controller, and my direct subordinate) would provide any financial information that went into an aide memoire. Mr. Jacob would prepare an initial draft of the aide memoire, and Mr. Padre would provide the final drafting, editing and reorganization of the document. Mr. Disini would then approve and sign the document, and either he or his wife Paciencia Disini (President Marcos personal physician, who according to rumors visited the President daily) would deliver the aide memoire to President Marcos. Mr. Disinis main contribution to HGIs business was, in fact, preparing the aide memoires and influencing President Marcos to act favorably on the requests for action they contained. Mr. Disini was extremely successful in this; I estimate that 85% of the aide memoires he submitted to President Marcos resulted in the President taking the action solicited by Mr. Disini.²⁰ (emphasis supplied)

Manahan, in his statements above, admitted that the aide memoires were confidential memoranda prepared by Mr. Federico E. Navera (who provided any financial information), Mr. Jacob (who prepared an initial draft), Mr. Padre (who provided the final drafting, editing and reorganization), and Mr. Disini (who would approve and sign the document). Having no hand in the preparation of those confidential documents, Manahan, therefore, has no personal knowledge of the aide memoires. Surprisingly, the persons who prepared them did not execute any affidavit concerning the same.

Thus, as correctly found by the Ombudsman:

"It is likewise noted that the Aide Memoirs for Marcos purportedly sent by Westinghouse and Burns & Roe thru H. Disini (Annex C, Folder of Exhibits) to show the alleged favorable recommendation that the consultancy contract be awarded to Burns & Roe, cannot by itself stand in court. In the first place, the said document does not so indicate the author and the addressee thereof nor the date it was drafted or sent.

"Similarly, the other Aide Memoires (Annexes H and J, Folder of Exhibits) which are alleged to have been prepared by Westinghouse cannot be authenticated considering that all these documents were unsigned and the supposed author thereof is the only person who can identify or attest to the real addressees of said Memoires.²¹ (emphasis supplied)

Moreover, Manahan is not even certain as to the identity of the person or persons who delivered the aide memoires to Marcos. He simply speculated that either he or his wife Paciencia Disini (President Marcos personal physician, who according to rumors visited the President daily) delivered them to Marcos. Incidentally, as earlier mentioned, the case against Paciencia Disini, who was charged together with herein respondent Herminio Disini in this case, had long been dismissed by the Ombudsman. Such dismissal was affirmed with finality by this Court in G.R. No. 114377.

Hulls declaration in his supplemental affidavit that

37. On February 26, 1974, Ketterer and I traveled to Hongkong, he to return to his post and I on my way back to the U.S. That evening, as we reflected on the events of the prior two weeks, we decided it would be prudent to develop a secret code that would permit rapid communication by telex while maintaining confidentiality. We agreed on code names for key individuals (e.g., President Marcos was Lester, Ravanzo was Bozo), parties (e.g., Westinghouse was Willy, Ebasco was Seagull, Burns & Roe was Home, NPC was Charlie), and terms (e.g., contract was lucky, negotiation was festival, turnkey was door), etc. I marked up a copy of my February 20, 1974 telex (Exhibit 11) with the codes, as an example of how an encoded communication would be read. Exhibit 15 hereto is a copy of the marked up telex, with my handwritten notations identifying the various code names. Subsequently, we used some of these codes (or modifications to them) to communicate between the U.S. and Manila.²²cräläwvirtualibräry

is not sufficient to positively (link) Disini and Marcos to the dealings between Westinghouse and Burns & Roe. Disinis name, who was supposed to be one of the key individuals in the transaction, is not even mentioned by Hull. Moreover, Ketterer did not execute any affidavit about Hulls statement on this matter. Section 3(a), Rule 112 of the Revised Rules on Criminal Procedure requires that the complaint shall be accompanied not only by the affidavits of the complainant but also his witnesses, as well as other supporting documents, to establish probable cause. Significantly, we note the Ombudsmans statement in its assailed Resolution of May 31, 1997 that Ketterer and Hull are not willing to testify against the respondents. The Ombudsman stated:

On the alleged use of secret codes for sensitive communications as precautionary measure to avoid disclosure of the identities and participation of Marcos/Disini, in the absence of the testimonies of Ketterer and/or Hull who never signified their willingness to testify against respondents, how will prosecution prove that the persons referred to in said coded communications are Marcos/Disini?

In the same vein, the telexes (Annexes G, K, and N) do not divulge the identities of the sender and the addressee.²³ (emphasis supplied)

Fourth. The ponente further states that corroborative proof of the negotiations for commissions and the actual payment thereof was also provided by the Affidavit of Hull:²⁴cräläwvirtualibräry

18. I understand the first payment of $250,000 to Disini was made through an advance from Westinghouse, because Burns & Roe had not done enough work on the project to generate this amount. The first check for $250,000 was cut by the Treasurer of the Burns & Roe and made out to a Disini bank account in Switzerland. I was asked to carry this check with me on a trip I was planning to make to Europe.When my tripwas cancelled,the payment to Disini was made through a wire transfer. I am not certain how many payments were made to Disini in all, but I believe that at least two payments of $250,000were made.²⁵cräläwvirtualibräry

70. Once the arrangement between Burns & Roe and Disini was formalized in April 1974, we began to discuss with Disini the mechanism for the transfer of the SSR payments to him from Burns & Roe. Disini insisted that the funds be secretly conveyed to a bank account in Switzerland. Starting with my May 16, 1974 telex to Disini, we worked on the details of the transfer (Exhibit 22).²⁶cräläwvirtualibräry

Again, Hulls statements in paragraph 18 are based on conjectures and speculations, as clearly indicated by his words, I understand the first payment..., I am not certain how many payments were made, and I believe that at least two payments.

Paragraph 70 simply shows that Burns & Roe officials began to discuss with Disini the mechanism for the transfer of the SSR payments to him from Burns & Roe. This is still part of the alleged SSR negotiation between Burns & Roe and Disini. But, to repeat, this alone does not prove the charge against Disini that he bribed Marcos in connection with the PNPP project.

Fifth. I cannot also agree with the ponentes statement that the Ombudsman wantonly disregarded the Affidavits of Manahan and Hull, who both categorically confirmed that Disini had actually received commission payments from Westinghouse and Burns & Roe.

Manahan declared:

16. Exhibit 9 (Document 00727) is a one-page tabulation of nuclear power plant commission, typed in Mr. Disinis stationery. Although I was HGIs chief financial officer, I was not informed of the details of the arrangement under which HGI rec[e]ived commissions from Westinghouse Electric Corporation (Westinghouse) in connection with the Philippine Nuclear Power Plant (PNPP). Anything that related to PNPP was treated as secret by Mr. Disinis personal finance officer. The Westinghouse commission payments were never received by HGI in the Philippines, and my understanding is that they were paid directly into foreign bank accounts. The funds from the commissions never entered HGIs treasury.

17. The only payments received by HGI in the Philippines relating to PNPP were a number of checks amounting to millions of pesos that were remitted by Power Contractors, Inc. (PCI), the civil construction contractor for the job, in the nature of dividends. HGI was 40% owner of PCI and shared in whatever profits PCI realized from its role on the plants construction.²⁷cräläwvirtualibräry

Manahan himself admitted in paragraph 16 that he has no personal knowledge about the commission payments since he was not informed about it. In fact, he categorically stated that he does not know anything that related to PNPP because it was treated as secret. Considering that no competent witness could testify on Exhibit 9 (Document 00727) and on other documentary proofs of the alleged commissions, the Ombudsman properly found that the said documents remain to be mere scraps of paper.²⁸cräläwvirtualibräry

What Manahan was certain, though, was that (t)he Westinghouse commission payments were never received by HGI in the Philippines and never entered HGIs treasury.

Manahans statement in paragraph 17 that (t)he only payments received by HGI in the Philippines relating to PNPP were a number of checks amounting to millions of pesos, does not certainly refer to the alleged SSR commission payments. He clarified that the said checks were in the nature of dividends remitted by Power Contractors, Inc. Said dividends were in pesos, as distinguished from the alleged SSR commissions from Westinghouse or Burns & Roe which were in dollars. Besides, no documentary proof of such payments in checks were mentioned by Manahan to confirm his statement.

Sixth. Contrary to the ponentes contention, the Ombudsman correctly found that the evidence of the PCGG failed to substantiate its claim that Herdis Management and Investment Corporation (HMIC) and Herdis Group, Inc. (HGI), which are corporations owned or headed by Disini, were organized mainly to benefit from the PNPP project. There is likewise no proof that former President Marcos had business interests in the said corporations, such that any commission paid to them would redound to the late Presidents benefit.

In fact, Hull himself declared that Westinghouse and Burns & Roe refused to give Disini commission payments, thus:

86. Another demand coming from Disini was that we pay additional commissions to Asia Industries, Inc., which had been acquired by Disini. Disini was essentially asking for a $200,000 gratuity to be paid to Asia Industries, Inc. for services rendered. We did not feel it was fair or necessary for us to pay this additional commission.

87. Our strategy in response to these new demands was to delay giving a direct answer to Disini until the prime contract was signed, in order to avoid antagonizing Vergara and Disini. We would, however, promise to give Asia Industries, Inc. a commission of % of the total contract price of any additional work that Burns & Roe was awarded. This strategy was summarized in my handwritten notes on a March 20, 1975 telex we received from Ketterer, a copy of which is included as Exhibit 32 hereto.

88. Disini was not pleased with the deferral in receiving his commission payments. As the signing of the prime contract into 1976, I began to exchange increasingly terse telexes with Rodolfo (Jake) Jacob, one of Disinis subordinates, regarding the shipments (commission payments). The mechanics of the payments had been easily worked out: we would issue Citicorp bank drafts in dollars in favor of Technosphere, and would send them by registered mail to Mr. Disinis designated contact in Switzerland (Mr. Rene Pasche in Lausanne). However, the initial shipment continued to be postponed, since it was due only when Westinghouse received acknowledgment from NPC that the contract commencement date had occurred. Disini pressed us, nonetheless, for payment of his commissions. On April 19, 1976, I telexed Disini and indicated that neither Westinghouse nor Burns & Roe had any funds to initiate the scheduled payments until the first letter of credit making funds available to Westinghouse was opened. I emphasized to Disini that Burns & Roes subcontract with Westinghouse had made full provision for a schedule of commission payment to Disini, but the schedule could only be implemented upon activation of the prime contract.

89. Disini took matters up directly with Mr. Roe. Exhibit 33 hereto contains a copy of an April 26, 1976 telex from Disini to Mr. Roe, in which Disini quoted from my previous exchanges with Jacob on the schedule of commission payments. Disini demanded that Burns & Roe make the initial commission payment during April 1976, either by actually issuing a bank draft of by giving Disini a promissory note. Exhibit 33 also includes Mr. Roes April 28, 1976 response telex to Disini. In his response, Mr. Roe reaffirmed our position that we could not pay the Phase II commissions to Disini until the prime contract officially commenced. Mr. Roe also declined to issue a promissory note, since it would leave Burns & Roe open to liability for the note without recourse if the contract was terminated without having officially commenced. Mr. Roe ended his telex to Disini as follows (Exhibit 33):

It is complicated, confusing and unfortunate to all parties that delay in project implementation thru opening of true LC has delayed shipments by both PC [Westinghouse] and ourselves. We have discussed this situation at highest levels of prime contractor and have no other course of action open to us.²⁹ (emphasis supplied)

But the following admission by Hull has completely shattered PCGGs charges against Disini:

19. I was informed that Disini received many millions of dollars in connection with this project. It is inconceivable that an amount in the millions of dollars would not have been shared with President Marcos. In those days, Marcos received a share in virtually every major profitable enterprise in the Philippines. My understanding was that Marcos gave Disini the hunting license on the PNPP project that is, the authorization to strike deals generating the largest possible commissions. Disini struck these deals, for the benefit of himself and Marcos, with Westinghouse and Burns & Roe.³⁰cräläwvirtualibräry

It is crystal-clear that Hulls statements on the multi-million dollar commission payments allegedly received by Disini, who in turn, shared them with Marcos, are glaringly hearsay, wild conjectures and surmises. Hull stated that he was merely informed that Disini received many millions of dollars in connection with this (PNPP) project. His suspicion that such huge amount of money must have been shared with President Marcos aroseoutof his thinking that In those days, Marcos received a share in virtually every major profitable enterprise in the Philippines. Hull further surmised: My understanding was that Marcos gave Disini the hunting license on the PNPP project that is, the authorization to strike deals generating the largest possible commissions. Disini struck these deals for the benefit of himself and Marcos, with Westinghouse and Burns & Roe.

Hulls suspicion, no matter how strong, remains a suspicion. It is no proof at all; it cannot take the place of evidence. As has been eloquently said, The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.³¹ Thus, as correctly found by the Ombudsman:

"Of significance, too, is the lack of sufficient supporting evidence to substantiate the claim that the Power Contractors, Inc., a consortium was actually organized by Disini to participate in the Philippine Nuclear Power Project.

"Neither were documents presented to prove that Marcos indeed had a business interest in the said Power Contractors, Inc. or that the ECCO-Asia was actually a subsidiary of Meralco which was allegedly controlled by Marcos thru Benjamin Romualdez.

"While the efforts of the PCGG in filing this complaint is commendable, however, the host of evidence gathered to substantiate the same leaves much to be desired.³² (emphasis supplied)

In this regard, I find appropriate to quote the Ombudsmans statement in his comment on the instant petition:

1. History will inevitably pass its judgment on whether the administration of the late President Ferdinand E. Marcos was actually a poor excuse for a family-run kleptocracy; but in this jurisdiction, conjectures, inferences and historical judgments may not take the place of evidence as basis of indictments for very serious crimes.

x x x

7. With the April 29, 1997 Resolution,³³ petitioner was therefore placed on notice that the evidence it presented was unquestionably insufficient. At that point, it could have presented appreciable evidence to bolster its case, with emphasis on those points which weakened the case.

8. Petitioner, in its Motion for Reconsideration, lamely responded to the need for evidence by submitting the written statement of Angelo V. Manahan and a copy of Samuel P. Hulls statement made in another forum which, however, essentially only contain expressions of their belief/opinion(s) that Herminio Disini received/accepted commissions in connection with the nuclear power plant project.

9. Predictably, the motion for reconsideration was likewise denied as the evidence fell short of establishing sufficient proof regarding the alleged payment of commissions to respondent Hermini Disini.

10. Thus, despite ample opportunity to shore up with evidence its very serious allegations, petitioner did not reconfigure its poor state of evidence.

In regard to the need for supporting evidence, it must be emphasized that the Office of the Ombudsman, while acting as a quasi-judicial officer in the conduct of the preliminary investigation, could not have assumed petitioners responsibility of procuring and submitting the necessary evidence. Fundamental due process bars the Office of the Ombudsman from simultaneously discharging the distinct functions of conducting fact-finding/case-building and preliminary investigation in a singular criminal case. After all, petitioner is the specialized agency particularly mandated and equipped to perform the function of case-building in cases of the given nature.³⁴cräläwvirtualibräry

The ponente faults the Ombudsman for merely taking each piece of evidence or sentence in a long affidavit singly or independently, and not considering the totality of the evidence presented by the PCGG to arrive at the conclusion that there was no sufficient ground to engender a well-founded belief that a crime has been committed.³⁵cräläwvirtualibräry

I submit, however, that it is the duty of the Ombudsman or any investigating officer to winnow out the facts from hearsay, precisely because the affiant, normally a layman, may include both facts and hearsay in his affidavit. As shown earlier, the affidavits of Hull and Manahan are riddled with hearsay, conjectures, suspicions and surmises. Also, the host of other supporting documents were prepared by other persons named in the two affidavits. The matters allegedly showing Disinis culpability, as narrated in Hulls and Manahans affidavits, were merely relayed to them by these other persons. It must be stressed that only facts, not hearsay, are admissible in evidence to establish probable cause. As the recent case of Sales vs. Sandiganbayan, et al. (supra) teaches, since a preliminary investigation is designed to screen cases for trial, only evidence (not hearsay, suspicions, conjectures or surmises) may be considered.

The ponente also opines that a finding of probable cause does not require an inquiry into whether there is sufficient evidence to secure a conviction.³⁶ I disagree. Again, this Court, in Sales (supra), held that 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 been called a judicial inquiry. It is a judicial proceeding.

The ponente further stresses that (s)hould the appropriate information(s) be filed, nothing should prevent the ombudsman from presenting other pieces of evidence to buttress the prosecutions case and to prove beyond reasonable doubt the offense(s) charged.³⁷cräläwvirtualibräry

This is precisely what Salonga vs. Cruz Pao³⁸ proscribes. In said case, this Court En Banc declared in no uncertain terms that when there is no prima facie case against a person sought to be charged with a crime, the judge or fiscal, therefore, SHOULD NOT GO ON WITH THE PROSECUTION IN THE HOPE THAT SOME CREDIBLE EVIDENCE MIGHT LATER TURN UP DURING TRIAL, for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so (Mercado vs. Court of First Instance of Rizal, 116 SCRA 93). This En Banc ruling, which has been reiterated in a number of cases, cannot be disregarded by a ruling of any Division of this Court. To do so is to violate the Constitution.

Parenthetically, the ponencia mentions the Decision dated September 19, 1991 of the District Judge of New Jersey, USA involving the civil action brought by the Republic of the Philippines and the National Power Corporation against Westinghouse and Burns & Roe. The said Decision denied the motion for summary judgment filed by the defendants therein, on the ground that there was sufficient evidence of bribery. The ponencia states that (i)t behooves therespondent ombudsman to review the facts carefully and to let the ax fall where it should.³⁹ Suffice it to state that the said case is civil in nature involving the Republic and Westinghouse and Burns & Roe. Disini is not even a party therein. That case, therefore, has no bearing to the instant petition.

In sum, I find that the dismissal by the Ombudsman of the complaint against Disini for lack of probable cause is far from being whimsical or capricious. His findings in his assailed Resolution and Order are clearly based on substantial evidence. Section 27 of Republic Act No. 6770 (the Ombudsman Act of 1989) provides that the (f)indings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive,⁴⁰ and its decision will not be overturned.⁴¹

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Endnotes:

[1 Odin Security Agency Inc. vs. Sandiganbayan, et al., G.R. No. 135912, September 17, 2001, citing Cruz, Jr. vs. People, 233 SCRA 439 (1994) and Commission on Audit vs. Tanodbayan, et al., 199 SCRA 622 (1991).

[2 233 SCRA 439, 459 (1994).

[3 In a Resolution dated October 7, 1996, this Court denied with finality PCGGs motion for reconsideration. On October 25, 1996, the dismissal of the PCGG petition became final and executory.

[4 Ponencia, at 44.

[5 Id., at 45.

[6 Then Director for International Operations of Burns & Roe.

[7 Then Vice President for Finance of Herdis Management and Investment Corporation (HMIC), and later the Executive Vice President and Chief Operating Officer of Herdis Group, Inc. (HGI).

[8 Annex B of Complainants Motion for Reconsideration; rollo, at 59-68.

[9 Ponencia, at 20.

[10 Supplemental Affidavit of Samuel P. Hull, Jr., rollo, at 79-122.

[11 Ponencia, at 20-21.

[12 Id., at 22.

[13 G.R. No. 143802, November 16, 2001.

[14 Annex B, Complainants Motion for Reconsideration, at 5-6; id., at 63-64.

[15 Section 36, Rule 130, Revised Rules on Evidence; Regalado, Remedial Law Compendium, Vol. Two, seventh revised edition, at 603.

[16 Id.

[17 Annex B, Complainants Motion for Reconsideration, at 4; rollo, at 62.

[18 Ponencia, at 24-25.

[19 Id., at 13.

[20 Annex A, Complainants Motion for Reconsideration, at 3-4; id., at 49-50.

[21 Rollo, at 308.

[22 Supplemental Affidavit of Samuel P. Hull, Jr., at 17-18; rollo, at 95-96.

[23 Rollo, at 309.

[24 Ponencia, at 31.

[25 Annex B, Complainants Motion for Reconsideration, at 7-8; rollo, at 65-66.

[26 Supplemental Affidavit of Samuel P. Hull, Jr., at 33; rollo, at 111.

[27 Annex A, Complainants Motion for Reconsideration, at 7; rollo, at 53.

[28 Rollo, at 309.

[29 Supplemental Affidavit of Samuel P. Hull, Jr., at 42-44; rollo, at 120-122.

[30 Annex A, Complainants Motion for Reconsideration, at 8; rollo, at 66.

[31 1 Moore on Facts, 61-63; cited in Francisco, V.J., VII The Revised Rules of Court, Part II, Rules 131-134, at 570; People vs. Ganan, Jr., 265 SCRA 260, 290 (1996).

[32 Rollo, at 309.

[33 This is the assailed Resolution dismissing PCGGs complaint against Disini, which was approved by then Ombudsman Aniano A. Desierto on May 31, 1997.

[34 Rollo, at 685, 687-688.

[35 Ponencia, at 41.

[36 Id., at 43.

[37 Id., at 49.

[38 134 SCRA 438, 462 (1985).

[39 Ponencia, at 49-50.

[40 Morong Water District vs. Office of the Deputy Ombudsman, 328 SCRA 363, 369 (2000).

[41 Presidential Ad Hoc Fact-Finding Committee on Behest Loans vs. Desierto (En Banc), 362 SCRA 721, 729 (2001), citing Morong Water District vs. Office of the Deputy Ombudsman, supra; Tan vs. Office of the Ombudsman, 295 SCRA 315, 323 (1998).