Kalalo vs. Office of the Ombudsman

The Ombudsman's determination of whether probable cause exists to warrant the filing of a criminal information is a matter committed to its sound discretion, and its dismissal of a complaint for lack of probable cause will not be disturbed by certiorari absent a clear showing that the questioned acts were done in a capricious and whimsical exercise of judgment amounting to lack or excess of jurisdiction; the findings on which that determination rests are essentially factual and are not reviewable by certiorari.

Petitioner Roberto B. Kalalo was an employee of Pablo Borbon Memorial Institute of Technology (PBMIT), now Batangas State University, and served as Secretary of its Board of Trustees. The respondents were officials and personnel of the same institution: Dr. Ernesto M. De Chavez, President; Dr. Virginia M. Baes, Executive Vice-President; Dr. Rolando L. Lontok, Sr., Vice-President for Academic Affairs; Dr. Porfirio C. Ligaya, Vice-President for Extension Campus Operations; Professor Maximo C. Panganiban, Dean and Campus Administrator for Districts 1 and 2; Dr. Amador M. Lualhati, University Secretary; and Marcelo L. Agustin, Researcher in the Office of the BSU President. The dispute implicated the statutory prohibitions on falsification of public documents and on the corrupt practices penalized by Sections 3(a) and (e) of Republic Act No. 3019, as well as the constitutional investigatory and prosecutory powers lodged in the Office of the Ombudsman.

Petitioner Roberto B. Kalalo was an employee of Pablo Borbon Memorial Institute of Technology (PBMIT), now Batangas State University, and held the position of Secretary of its Board of Trustees. In that capacity he filed a Complaint Affidavit with the Office of the Ombudsman against the school's President, Dr. Ernesto M. De Chavez, and several other officials and personnel of the institution, namely Dr. Virginia M. Baes, Dr. Rolando L. Lontok, Sr., Dr. Porfirio C. Ligaya, Professor Maximo C. Panganiban, Dr. Amador M. Lualhati, and Marcelo L. Agustin, a Researcher in the Office of the BSU President. The complaint charged the respondents with falsification of public documents and with violations of Sections 3(a) and (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act.

The controversy traced back to the 129th General Meeting of the Board of Trustees of the PBMIT/BSU held on January 21, 1997. In March 2001, petitioner, who was then the Board Secretary, claimed that he found on his table a final print of the Minutes of that General Meeting, which had been forwarded by respondent Agustin upon the order of respondent De Chavez so that petitioner could certify as to its correctness. The length of time that had elapsed before the copy was given to him, together with other inconsistencies he perceived in the document, aroused petitioner's suspicion. After conducting his own investigation, he questioned three resolutions which, according to him, had been inserted by De Chavez: (a) Resolution No. 6, s. 1997, ratifying the referendum dated August 4, 1996 approving the adjustment of charges or fees on admission and testing fee, transcript of records, certification, honorable dismissal, diploma, fine for late enrollees, library card, and second copy of diploma; (b) Resolution No. 25, authorizing the President of PBMIT/BSU to deposit all income of the college with government depositary banks in the form of savings, time, money placement and other deposit accounts, and to open a PBMIT testing, admission and placement office account; and (c) Resolution No. 26, approving the construction contracts entered into by PBMIT with C.S. Rayos Construction and General Services for the construction of the DOST/FNRI/PBMIT Regional Nutrition and Food Administration and Training Center and the Physical Education and Multi-Purpose Playground, at contract prices of ₱2,693,642.90 and ₱968,283.63, respectively. Petitioner asserted that the authentic minutes consisted of eight pages while the falsified version consisted of nine, and concluded that Resolution Nos. 25 and 26 were mere intercalations in the minutes of the annual meeting.

Petitioner further claimed that the respondents' deviation from the usual procedure for signing and approving the minutes was highly suspicious. According to him, the practice was for respondent De Chavez, in his capacity as Vice-Chairman, to sign the minutes only after petitioner, as Board Secretary, had attested to them; instead, De Chavez submitted to petitioner a copy of the minutes with his signature already affixed. Petitioner thereupon refused to sign the minutes. Notwithstanding that refusal, Resolution No. 25 was still implemented.

Respondents answered with a Joint Counter-Affidavit denying petitioner's allegations. They maintained that it was ministerial on the part of respondent De Chavez to sign the minutes prepared by petitioner himself in his capacity as Board Secretary. Petitioner reiterated and stood by his allegations in his Complainant's Reply to the Joint Counter-Affidavit dated April 1, 2002.

In dismissing the complaint, the Office of the Deputy Ombudsman for Luzon found that petitioner had issued certifications as to the correctness of the very resolutions he later impugned — Resolution Nos. 6, s. 1997, 25 and 26 — and that these certifications not only disputed his claim but cast serious doubt on the merit of the complaint. The Ombudsman observed that the minutes of the 129th Regular Meeting were approved during the 130th Regular Meeting held on November 7, 1997, so that petitioner, as Board Secretary, could easily have detected the alleged insertions, especially since Board Resolution Nos. 25 and 26 were the last mentioned as having been approved; it found it convenient for petitioner to blame respondent Agustin when it was his own duty to certify the correctness of the minutes. More telling still, petitioner again certified as correct the excerpts of the minutes pertaining to Resolution No. 6, s. 1997; the Ombudsman concluded that while a single mistake might be acceptable, committing the same twice was no longer an honest mistake, and that this finding precluded any further discussion that the letter dated August 14, 1996 of respondent De Chavez to the then PBMIT Board of Trustees was conclusive proof that the increase in fees was limited only to the admission and testing fees.

• Misapprehension of Facts: Petitioner argued that the Office of the Ombudsman gravely abused its discretion amounting to lack and/or excess of jurisdiction in seriously misappreciating the facts and issues of the case, contending that the Ombudsman grievously erred in finding that he had issued certifications as to the correctness of Resolution Nos. 6, s. 1997, 25 and 26 when he had positively asserted that the same were signed by mistake or out of sheer inadvertence.
• Absence of Factual and Legal Bases: Petitioner maintained that the Ombudsman gravely abused its discretion in issuing the assailed Resolution and Order without factual and legal bases, emphasizing his own findings of falsification, his claim that the signature on the questioned Minutes was forged, and his assertion that what he inadvertently signed were the excerpts and not the Minutes.
• Failure to Find Probable Cause: Petitioner contended that the Ombudsman gravely abused its discretion in not finding probable cause against both private respondents.
• Improper Representation by the Solicitor General: Petitioner raised as an incidental issue in his Memorandum that the Solicitor General cannot act as counsel of the private respondents in the instant criminal case.

• Denial and Ministerial Signing: Respondents filed a Joint Counter-Affidavit denying petitioner's allegations and stating that it was ministerial on the part of respondent De Chavez to sign the minutes prepared by petitioner himself in his capacity as Board Secretary.

• Grave Abuse of Discretion in the Finding of No Probable Cause: Whether the Office of the Ombudsman gravely abused its discretion amounting to lack and/or excess of jurisdiction in dismissing the complaint and in not finding probable cause against the private respondents.
• Propriety of Certiorari over Factual Findings: Whether a petition for certiorari under Rule 65 may be availed of to assail the Ombudsman's findings, which are essentially factual in nature.
• Authority of the Office of the Solicitor General: Whether the Solicitor General may act as counsel for the Office of the Ombudsman in the proceedings.

• Grave Abuse of Discretion in the Finding of No Probable Cause: No. No clear showing of manifest error or grave abuse of discretion was made, the Ombudsman having acted within the discretion conferred upon it to determine whether reasonable ground exists to believe that a crime has been committed and that the accused is probably guilty thereof.
• Propriety of Certiorari over Factual Findings: No. Certiorari admits only of questions of grave abuse of discretion amounting to lack or excess of jurisdiction and never of questions of fact, and petitioner's arguments centered on the Ombudsman's appreciation of facts.
• Authority of the Office of the Solicitor General: Yes. The Office of the Solicitor General represents the public respondent Office of the Ombudsman, an instrumentality of the government, pursuant to Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987.

• Grave Abuse of Discretion in the Finding of No Probable Cause: The Court began from the settled standard that, for grave abuse of discretion to prosper as a ground for certiorari, it must first be demonstrated that the lower court or tribunal exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility, and that the abuse must be patent and gross as to amount to an evasion or a unilateral refusal to perform the duty enjoined or to act in contemplation of law; excess of jurisdiction, in turn, signifies that the court, board or office has jurisdiction over the case but has transcended the same or acted without authority. As a general rule, courts do not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, and thereafter to file the corresponding information with the appropriate courts. The Ombudsman has discretion to determine whether a criminal case, given its facts and circumstances, should be filed or not; he may dismiss the complaint forthwith if he finds it insufficient in form and substance, or proceed with the investigation if in his view the complaint is in due and proper form and substance. Probable cause for purposes of filing a criminal information consists of such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondents are probably guilty thereof, and its determination lies within the discretion of the prosecuting officers after conducting a preliminary investigation upon complaint of an offended party. It demands more than bare suspicion but requires less than evidence which would justify conviction, resting on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Unless it is shown that the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion, the Court will not interfere in the findings of probable cause determined by the Ombudsman. Reviewing the Ombudsman's Order dated October 8, 2002, the Court found nothing indicating an absence of factual or legal bases. The Ombudsman had acknowledged that the purpose of a preliminary investigation is to determine the existence of probable cause, but had also invoked the rationale of securing the innocent against hasty, malicious and oppressive prosecution and protecting him from the trouble, expense and anxiety of a public trial. With the questioned minutes bearing the signature of the complainant, the evidence tended to tilt in favor of dismissal, particularly since the complainant's signature was never alleged to have been falsified even as he claimed to have signed through inadvertence. His assertion of oversight was hardly impressive: the minutes of the 129th Regular Meeting were approved during the 130th Regular Meeting held on November 7, 1997, and as Board Secretary he could easily have detected the alleged insertions, especially since Board Resolution Nos. 25 and 26 were the last mentioned as having been approved; it was therefore convenient for him to blame respondent Agustin when it was his duty to certify the correctness of the minutes. More telling was his second certification of the excerpts of the minutes pertaining to Resolution No. 6, s. 1997; a single mistake might be acceptable, but committing the same twice was no longer an honest mistake. This finding, the Court held, precluded any further discussion that the letter dated August 14, 1996 of respondent De Chavez to the then PBMIT Board of Trustees was conclusive proof that the increase in fees was limited only to the admission and testing fees.
• Propriety of Certiorari over Factual Findings: The Court emphasized that it is not sound practice to depart from the policy of non-interference in the Ombudsman's exercise of discretion to determine whether or not to file an information against an accused. It cannot pass upon the sufficiency or insufficiency of evidence to determine the existence of probable cause, a rule based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but also on practicality, since otherwise the Court would be clogged with an innumerable list of cases assailing investigatory proceedings conducted by that office. The findings of the Ombudsman are essentially factual in nature; consequently, when petitioner assailed those findings on the guise that grave abuse of discretion had been committed, questions of fact were inevitably raised. A petition for certiorari admits only of questions of grave abuse of discretion amounting to lack or excess of jurisdiction and never of questions of fact, and petitioner had centered his arguments on the Ombudsman's appreciation of facts.
• Authority of the Office of the Solicitor General: Petitioner's incidental contention that the Solicitor General could not act as counsel for the private respondents was disposed of on the ground that the Office of the Solicitor General represents the public respondent, the Office of the Ombudsman, upon which his petition revolved. The Office of the Ombudsman is an instrumentality of the government and, as mandated by law, the Office of the Solicitor General has authority to represent it. Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987 imposes upon the Office of the Solicitor General the duty to appear as counsel for the Government, its agencies and instrumentalities, and its officials and agents before the Supreme Court, the Court of Appeals, and all other courts and tribunals in any litigation, proceeding, investigation or matter requiring the services of a lawyer. The mandatory character of that duty was underscored in Gonzales vs. Chavez, where the Court held that the intent of the lawmaker was to give the Solicitor General the unequivocal mandate to appear for the government in legal proceedings, the term "shall" being invariably employed from Act No. 136 (1901) to Executive Order No. 292 (1987), and that there can be no other logical interpretation of Section 35 of the Administrative Code than that it is mandatory upon the Office of the Solicitor General to represent the Government of the Philippines, its agencies and instrumentalities, and its officials and agents.

• Grave Abuse of Discretion as a Ground for Certiorari — For grave abuse of discretion to prosper as a ground for certiorari, it must first be demonstrated that the lower court or tribunal exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility, and the abuse must be patent and gross as to amount to an evasion of or a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough; excess of jurisdiction signifies that the court, board or office has jurisdiction over the case but has transcended the same or acted without authority. The Court applied this standard and found no clear showing of manifest error or grave abuse of discretion on the part of the Office of the Ombudsman.
• Non-Interference with the Ombudsman's Determination of Probable Cause — Courts do not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, and thereafter to file the corresponding information. The Ombudsman may dismiss the complaint forthwith if he finds it insufficient in form and substance, or proceed with the investigation if in his view the complaint is in due and proper form and substance. Unless the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion, the Court will not interfere in the Ombudsman's findings of probable cause.
• Probable Cause for the Filing of a Criminal Information — Probable cause consists of such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the respondents are probably guilty thereof; it is meant as such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. The average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge and relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused; it demands more than bare suspicion but requires less than evidence which would justify conviction.
• Rationale of Preliminary Investigation — The purpose of a preliminary investigation is to determine the existence of probable cause, but it equally serves to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial. The Court relied on this dual rationale in upholding the Ombudsman's dismissal of the complaint.
• Certiorari Is Confined to Grave Abuse of Discretion, Not Questions of Fact — A petition for certiorari admits only of questions of grave abuse of discretion amounting to lack or excess of jurisdiction and never of questions of fact. Because the findings of the Ombudsman are essentially factual in nature, an attack on those findings under the guise of grave abuse of discretion inevitably raises questions of fact that are beyond the scope of the writ.
• Mandatory Authority of the Office of the Solicitor General — Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987 imposes upon the Office of the Solicitor General the duty to represent the Government of the Philippines, its agencies and instrumentalities, and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The intent of the lawmaker, gathered from the term "shall" invariably employed from Act No. 136 (1901) to Executive Order No. 292 (1987), is to give the Solicitor General the unequivocal mandate to appear for the government in legal proceedings. The Office of the Ombudsman, being an instrumentality of the government, is properly represented by the Office of the Solicitor General.

• "For grave abuse of discretion to prosper as a ground for certiorari, it must first be demonstrated that the lower court or tribunal has exercised its power in an arbitrary and despotic manner, by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough. Excess of jurisdiction signifies that the court, board or office, has jurisdiction over the case but has transcended the same or acted without authority." — Quoted from Sarigumba vs. Sandiganbayan, this passage supplies the controlling formulation of grave abuse of discretion and excess of jurisdiction that the Court applied in rejecting petitioner's assigned errors.
• "Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction." — This is the Court's canonical restatement of the probable-cause standard governing the Ombudsman's determination of whether a criminal information should be filed.
• "It is not sound practice to depart from the policy of non-interference in the Ombudsman's exercise of discretion to determine whether or not to file information against an accused." — The passage states the policy foundation for the Court's refusal to review the sufficiency or insufficiency of the evidence before the Ombudsman, resting on respect for the investigatory and prosecutory powers granted by the Constitution and on practicality.
• "A single mistake may be acceptable but to commit the same twice is no longer a case of honest mistake." — Drawn from the Ombudsman's Order and adopted by the Court, this observation explains why petitioner's claim that he signed the questioned minutes and excerpts through mere inadvertence failed to establish probable cause.

• Sarigumba vs. Sandiganbayan, G.R. Nos. 154239-41, February 16, 2005, 451 SCRA 533 — Controlling precedent supplying the standard for grave abuse of discretion and excess of jurisdiction as grounds for certiorari, quoted at length and applied to defeat the petition.
• Duterte vs. Sandiganbayan, 289 SCRA 721 — Cited for the rationale of a preliminary investigation, namely, to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of a crime and from the trouble, expense and anxiety of a public trial.
• Principio vs. Barrientos, G.R. No. 167025, December 19, 2005, 478 SCRA 639 — Cited for the general rule that courts do not interfere with the discretion of the Ombudsman to determine whether reasonable ground exists to believe that a crime has been committed and that the accused is probably guilty thereof.
• Presidential Ad-Hoc Fact Finding Committee on Behest Loans vs. Desierto, G.R. No. 137777, October 2, 2001, 366 SCRA 428 — Cited, together with Espinosa vs. Office of the Ombudsman and Blanco vs. Sandiganbayan, for the Ombudsman's discretion to determine whether a criminal case should be filed or dismissed, and for his authority to dismiss a complaint forthwith or proceed with the investigation.
• Advincula vs. Court of Appeals, G.R. No. 131144, October 18, 2000, 343 SCRA 583 — Cited for the definition of probable cause for purposes of filing a criminal information and for the rule that its determination lies within the discretion of the prosecuting officers after preliminary investigation.
• Okabe vs. Gutierrez, 473 Phil. 758 (2004) — Cited for the formulation that probable cause demands more than bare suspicion but requires less than evidence which would justify conviction.
• Galario vs. Ombudsman, G.R. No. 166797, July 10, 2007, 527 SCRA 190 — Cited for the rule that absent a capricious and whimsical exercise of judgment evidencing grave abuse of discretion, the Court will not interfere in the Ombudsman's findings of probable cause, and for the policy against departing from non-interference.
• Cooperative Development Authority vs. DOLEFIL Agrarian Reform Beneficiaries Cooperative, Inc., et al., 432 Phil. 290 (2002) — Cited as instructive on the jurisdiction of the Office of the Solicitor General, quoted for Section 35(1), Chapter 12, Title III, Book IV of the Administrative Code of 1987.
• Gonzales vs. Chavez, G.R. No. 97351, February 4, 1992, 205 SCRA 816 — Cited to emphasize the mandatory character of the Office of the Solicitor General's duty to appear for the government, its agencies and instrumentalities, and its officials and agents.

• Sections 3(a) and (e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) — The penal provisions under which petitioner charged the respondents with corrupt practices, alongside falsification of public documents; the complaint grounded on these provisions was dismissed by the Ombudsman for lack of probable cause, a dismissal the Court sustained.
• Section 35(1), Chapter 12, Title III, Book IV, Administrative Code of 1987 — Provides that the Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities, and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers, and shall represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings. The provision was applied to hold that the Office of the Solicitor General properly appeared for the public respondent Office of the Ombudsman, an instrumentality of the government.
• Rule 65, Rules of Court — The procedural vehicle for the petition, which the Court construed as confined to questions of grave abuse of discretion amounting to lack or excess of jurisdiction and as admitting no questions of fact.
• Section 13, Article VIII, 1987 Constitution — Invoked in the Chief Justice's certification that the conclusions in the Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

• Renato C. Corona (Associate Justice, Chairperson)
• Presbitero J. Velasco, Jr. (Associate Justice)
• Roberto A. Abad (Associate Justice)
• Jose Catral Mendoza (Associate Justice)