SECOND DIVISION
G.R. No. 136082 May 12, 2000
FRANKLIN P. BAUTISTA, petitioner,
vs.
SANDIGANBAYAN (Third Division), OFFICE OF THE OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:
This petition seeks to set aside the 13 March 1998 Resolution of the Sandiganbayan 1 denying petitioner's Motion to Quash Crim. Case No. 24276 and its 9 October 1998 Resolution denying reconsideration. The petition also prays for the issuance of a writ of preliminary injunction and/or temporary restraining order to restrain and enjoin public respondents from proceeding in any manner with Crim. Case No. 24276 during the pendency of the petition.
An anonymous, unverified and unsigned letter-complaint dated 20 November 1996 allegedly prepared by the Contractors Association of Davao del Sur and the Good Government Employees 2 of Davao del Sur initiated this case. It was filed with the Office of the Ombudsman for Mindanao charging petitioner Franklin P. Bautista, incumbent mayor of the Municipality of Malita, Davao del Sur, for violation of Sec. 3, par. (e), of RA 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. 3 The letter-complaint alleged, among others, that petitioner caused the hiring of one hundred and ninety-two (192) casual employees in the municipal government for political considerations and that the payment of their honoraria and salaries was charged to the peace and order fund despite meager savings of the municipality. 4
Acting on the letter-complaint, Graft Investigation Officer II (GIO II) Corazon A. Arancon issued on 16 January 1997 an Order directing respondent Franklin P. Bautista, petitioner herein, to submit his counter-affidavit. 5 In his counter-affidavit of 26 February 1997 petitioner, answering the charges against him, claimed that the complaint, which was unsigned, was fictitious and fabricated as shown by the affidavits of Enrique Ponce De Leon, President of the Contractor's Association of Davao del Sur; 6 Rogelio E. Llanos, Governor for Davao del Sur; 7 Eduardo M. Masiwel Vice Mayor of Malita, Davao del Sur; 8 Engineer Antonio P. Cayoca, Department of Public Works and Highways, 2nd District, Davao del Sur; 9 Juanito A. Itorralba, Assistant Provincial Treasurer of Davao del Sur; 10 Juan L. de Guzman and Felipe D. Macalinao, 11 both teachers, therein attached, which disclaimed any knowledge of the institution of the complaint nor cause of its filing. He further argued that the hiring of the one hundred ninety-two (192) casuals and the payment of their honoraria and wages did not justify the filing of any charge against him.
After due consideration, GIO II Arancon in his Resolution dated 27 May 1997 found a prima facie case for violation of Sec. 3, par. (e), of RA 3019, as amended, against petitioner and forwarded the resolution to the Ombudsman for approval.
On 3 October 1997 the Ombudsman approved the resolution. Thereafter, an Information for violation of Sec. 3, par. (e), of RA 3019, as amended, was filed against petitioner before the Sandiganbayan, docketed as Crim. Case No. 24276, 12 which read —
That sometime in 1995 or sometime prior thereto, in the Municipality of Malita, Davao del Sur, and within the jurisdiction of this Honorable Court, the above-named accused, a high ranking public officer, being the Mayor, Municipality of Malita, Davao del Sur, while in the performance of his official functions, taking advantage of his position and committing the offense in relation to his office, with manifest partiality, did then and there willfully, unlawfully and criminally caused the hiring of some one hundred ninety-two (192) casual employees in flagrant disregard of Secs. 288 and 289 of the Government Accounting and Auditing Manual (GAAM), the honoraria and salaries of whom were charged to the peace and order fund and to the project component and other services activity fund, respectively and which represented 72.5% of the total personnel services expenditures, thereby giving unwarranted benefits, advantage and preference to the said casuals, causing undue injury to the Municipality of Malita.
On 13 November 1997 petitioner filed a Motion to Quash the Information anchored on the ground that the acts charged therein did not constitute the offense indicated in Sec. 3, par. (e), of RA 3019, as amended, and that more than one (1) offense was charged in the Information. After the filing of the opposition, the Sandiganbayan denied on 13 March 1998 the Motion to Quash stating that all essential elements of the crime charged were sufficiently alleged in the Information which charged only one offense. On 13 April 1998 petitioner filed a motion for reconsideration but on 9 October 1998 his motion was denied.
Petitioner assails in this petition the denial of his Motion to Quash despite failure of the Ombudsman to properly establish a cause of action. He asserts that there was no legal basis for the Ombudsman to conduct a preliminary investigation in Case No. CPL-MIN-96-180, much less file the Information in Crim. Case No. 24276, as the Ombudsman failed to direct the complainants to reduce their evidence into affidavits before requiring him to submit his counter-affidavit. Petitioner invokes Sec. 4, Rule II, of the Rules of Procedure of the Ombudsman which requires that for purposes of conducting a preliminary investigation the complainant must submit his affidavit and those of his witnesses before respondent can be required to submit his counter-affidavit and other supporting documents. 1 Conformably with such rule, the Ombudsman should have first required the Contractor's Association of Davao del Sur and the Good Government Employees of Davao del Sur to submit their respective affidavits before requiring him as respondent to submit his counter-affidavit, especially since the letter-complaint was unsigned and unverified; hence, there was no valid cause of action against petitioner.
Petitioner cites Olivas v. Office of the Ombudsman 14 where the Court declared that in preliminary investigation of cases it is incumbent upon the complainants to submit their evidence in affidavit form and it is only after such submission that respondent may be required to explain and submit his counter-affidavit, also under oath.
This issue has long been laid to rest in Olivas where the Court explained that while reports and even raw information obtained from anonymous letters may justify the initiation of an investigation, this stage of the preliminary investigation can be held only after sufficient evidence, derived from submitted affidavits from the complainants and his witnesses, shall have been duly gathered and evaluated, and only thereafter can the respondent be required to submit his affidavits and other documents to explain, also under oath. 15 It is from such affidavits and counter-affidavits that the Ombudsman can determine whether there is a probable cause for bringing the case to court.
However, despite its wisdom, we must rule that the principle enunciated in Olivas has no bearing in the instant petition. What was assailed therein was the order of the Ombudsman compelling petitioner Olivas to file his counter-affidavit in answer to the charges against him, he having refused to do so since the order was not accompanied by a single affidavit from the complainants as mandated by law; while in the instant case, petitioner Bautista had already filed his counter-affidavit before the Ombudsman and only questioned the latter's failure to require the complainants to submit affidavits prior to the submission of his own counter-affidavit after the preliminary investigation had ended and an Information already filed before the Sandiganbayan. The issue therefore of requiring the complainants to submit their affidavits before respondent can be obliged to submit his counter-affidavit is moot and academic in light of Bautista's submission of his counter-affidavit despite absence of the complainants' affidavits.
Criminal Case No. 24276 before the Sandiganbayan stemmed from the letter allegedly sent by the Contractors' Association of Davao del Sur and the Good Government Employees of Davao del Sur addressed to the Office of the Ombudsman for Mindanao. It may be true that GIO II Arancon in his Order of 16 January 1997 directed herein petitioner to submit his counter-affidavit thereto without requiring the complainants to submit theirs which were significantly necessary because of the unverified, unsigned and anonymous nature of their letter. However, despite the Ombudsman's noncompliance with the affidavit requirement, petitioner filed his counter-affidavit on 26 February 1997 and answered the charges against him. Hence, having submitted himself to the jurisdiction of the Ombudsman and having allowed the proceedings to go on until the preliminary investigation was terminated and the Information filed at the Sandiganbayan, petitioner is deemed to have waived whatever right he may otherwise have to assail the manner in which the preliminary investigation was conducted. Consequently, petitioner is likewise estopped from questioning the validity of the Information filed before the Sandiganbayan.
Petitioner likewise avers that the Sandiganbayan gravely abused its discretion in denying his Motion to Quash the Information as there were at least two (2) offenses charged — the giving of unwarranted benefits, advantage and preference to the casual employees in question, and causing undue injury to the Municipality of Malita. Petitioner invokes Santiago v. Garchitorena 16 where it was held that there were two (2) ways of violating Sec. 3, par. (e), of RA 3019, namely, (a) by causing undue injury to any party, including the Government, and (b) by giving any private party any unwarranted benefit, advantage or preference, and as such, he argues that each constitutes two (2) distinct offenses that should be charged in separate informations.
Indeed, Sec. 3, par. (e), RA 3019, as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his
functions. 17 The use of the disjunctive term "or" connotes that either act qualifies as a violation of Sec. 3, par. (e), or as aptly held in Santiago, as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.
In Santiago petitioner therein assailed the failure of respondent to include the phrase "causing of undue injury to any party, including the Government" in the amended informations filed against her. Refuting the claim, the Court cited the minute resolution in Uy v. Sandiganbayan 18 and clarified that the "act of giving any private party any unwarranted benefit, advantage or preference" is not an indispensable element of the offense of "causing any undue injury to any party," although there maybe instances where both elements concur. Thus, in Pareño v. Sandiganbayan 19 the information charged the public officers with "willfully and unlawfully causing undue injury to the Government and giving unwarranted benefits to Tanduay Distillery, Inc." by failing to verify and act on the validity and/or veracity of the claim for tax credit filed by the corporation before the BIR.
In Pilapil v. Sandiganbayan 20 petitioner Pilapil was only charged with having "willfully caused undue injury to the Municipality of Tigaon, Camarines Sur, when he failed to deliver the ambulance received by him on behalf of the municipality in a Deed of Donation executed by the Philippine Charity Sweepstakes Office in its favor, to the prejudice and damage of the municipal government."
Likewise, in Diaz v. Sandiganbayan 21 the PCGG Commissioners as public officers were charged only with having given Enrique Razon, Jr., a stockholder or officer of the sequestered corporation Metro Port, unwarranted benefits and/or advantage by the approval of his loan application for P5,000,000.00 belonging to the same sequestered corporation.
By analogy, Gallego v. Sandiganbayan 22 finds application in the instant case. There, petitioners claimed that the Information charged the accused with three (3) distinct offenses, to wit: (a) the giving of "unwarranted" benefits through manifest partiality; (b) the giving of "unwarranted" benefits through evident bad faith; and, (c) the giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official and/or administrative functions; and thus moved for the quashal of the Information. The Sandiganbayan denied the motion to quash and held that the phrases "manifest partiality," "evident bad faith" and "gross inexcusable negligence" merely described the different modes by which the offense penalized in Sec. 3, par. (e), of RA 3019, as amended, could be committed, and the use of all these phrases in the same Information did not mean that the indictment charged three (3) distinct offenses.
In the instant case, the Information against petitioner read in part —
. . . unlawfully and criminally caused the hiring of some one hundred ninety-two (192) casual employees in flagrant disregard of Secs. 288 and 289 of the Government Accounting and Auditing Manual (GAAM), the honoraria and salaries of whom were charged to the peace and order fund and to the project component and other services activity fund, respectively, and which represented 72.5%, of the total personnel services expenditures, thereby giving unwarranted benefits, advantage and preference to the said casuals, causing undue injury to the Municipality of Malita.
The use of the phrase "causing undue injury" therein can either be interpreted as another mode of violating the statute, in addition to the giving of unwarranted benefits, advantage and preference to the casuals, or as a consequence of the act of giving unwarranted benefits, advantage and preference. Specifically, for hiring some one hundred and ninety-two (192) casuals and the charging of their honoraria and salaries to the peace and order fund, petitioner gave them unwarranted benefits, advantage and preference and caused undue injury to the Municipality of Malita; or thereby caused undue injury to the Municipality of Malita. In either case, the Information will not suffer any defect, as it is clear that petitioner is charged with violation of Sec. 3, par. (e), of RA 3019, as amended, with either mode of commission obtaining or with both manners of violation concurring.
Finally, petitioner finds exception in the term "private party" as used in Sec. 3, par. (e), of RA 3019, as amended, and argues that the casuals alleged to have been appointed by him and thus recipients of unwarranted benefits could not qualify as private parties since they are in actuality public officers within the contemplation of Sec. 2, par. (b), of RA 3019, as amended. Citing Philnabank Employees Association v. Auditor General, 2 petitioner points out that "the employees of a government corporation, regardless of the latter's functions, are government employees and, therefore, they are not "private party or entity;" and as such, one of the elements constituting the offense under Sec. 3, par. (e), of RA 3019, as amended, is missing thus warranting the dismissal of the Information.
The term "private party" or "private person" may be used to refer to persons other than those holding public office. 24 However, petitioner is charged with causing the hiring of some one hundred ninety-two (192) casual employees, and the consequent awarding of their honoraria and salaries taken from the peace and order fund of the municipality. The reckoning period is before the casual employees' incumbency when they were still private individuals, and hence, their current positions do not affect the sufficiency of the Information.
WHEREFORE, the petition is DISMISSED. The Resolution of the Sandiganbayan of 13 March 1998 denying petitioner Franklin P. Bautista's Motion to Quash in Crim. Case No. 24276 and its Resolution of 9 October 1998 denying reconsideration are AFFIRMED. Consequently, public respondents Sandiganbayan (Third Division) and the Office of the Ombudsman are directed to proceed with the hearing and trial of Crim. Case No. 24276 against petitioner until terminated.
SO ORDERED.
Mendoza, Quisumbing and Buena, JJ., concur.
De Leon, Jr., J., is on leave.
Footnotes
1 Resolution of the Sandiganbayan, Third Division, with Justice Cipriano A. Del Rosario as Chairman and Justice German G. Lee, Jr. and Justice Teresita Leonardo De Castro as Members.
2 The Good Government Employees were listed in the letter as follows: Provincial Treasurer's Office Field Personnel, Provincial Accountant's Office (Field Personnel), Provincial Auditor's Field Personnel, DPWH Second Engineering District of Davao del Sur, Malita Treasurer/Accounting Personnel, and the Sangguniang Bayan of Malita.
3 Rollo, p. 25.
4 The unsigned letter accused petitioner Franklin P. Bautista of the following offenses: (a) per audit report prepared by Auditor Rodolfo de Vera, signed and approved by Provincial Auditor Mariano Kintanar, the honorarium paid to 192 casual employees which amounted to P5,438,735.80 could have been avoided had the agency properly planned, regulated and controlled its personnel requirement; and, (b) illegal disbursements and fictitious and overpriced payment of supplies and secondhand spare parts.
5 Docketed as Case No. CPL-MIN-96-180 in the Office of the Ombudsman, Mindanao, and Case No. OMB-3-96-2900 in the Office of Ombudsman, Manila.
6 Rollo, p. 33.
7 Id., p. 34.
8 Id., p. 35.
9 Id., p. 36.
10 Id.. p. 37.
11 Id., p. 38.
12 GIO II Corazon A. Arancon prepared and signed the Information against petitioner Bautista as early as 26 May 1997 or even before the issuance of the resolution.
13 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 Sec. 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, direct 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.
14 G.R. No. 102420, 20 December 1994, 239 SCRA 283.
15 Ibid.
16 G.R. No. 109266, 2 December 1993.
17 The elements of Sec. 3 (e) of R.A. 3019 are as follows: (a) the offender is a public officer; (b) the act was done in the discharge of the public officer’s official, administrative or judicial functions; (c) the act was done through manifest partiality, evident bad faith or gross inexcusable negligence; and, (d) the public officer caused any undue injury to any party, including the Government, or gave any private party any unwarranted benefits, advantage or preference.
18 G.R. No. 100334, 5 December 1991.
19 G.R. Nos. 107119-20 and 108037-38, 17 April 1996, 256 SCRA 242.
20 G.R. No. 101978, 7 April 1993, 221 SCRA 349.
21 G.R. Nos. 101202 and 102554, 8 March 1993, 219 SCRA 675.
22 G.R. No. 57841, 30 July 1982, 115 SCRA 793.
23 G.R. No. 30137, 25 June 1973, 51 SCRA 315.
24 Black's Law Dictionary, p. 1196.
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