Olivarez vs. Sandiganbayan

The Ombudsman may, upon review of the investigating prosecutor's findings of fact, arrive at a contrary conclusion and direct the filing or maintenance of an information without conducting another preliminary investigation; such action does not constitute grave abuse of discretion. A preliminary investigation is inquisitorial and determines only probable cause, not guilt, and the Ombudsman's factual findings, being supported by substantial evidence, are conclusive and not reviewable by certiorari absent grave abuse of discretion.

Baclaran Credit Cooperative, Inc. (BCCI), a cooperative operating in Baclaran, Parañaque, sought to operate a night manufacturer's fair during the Christmas fiesta celebration. The Sangguniang Bayan of Parañaque passed Resolution No. 744, Series of 1992, authorizing BCCI to set up the fair for sixty days from November 11, 1992 to February 15, 1993 over a portion of the service road of Roxas Boulevard, and petitioner Mayor Pablo R. Olivarez approved that resolution on October 6, 1992. Section 444(b)(3)(iv) and (v) of the Local Government Code of 1991 (Republic Act No. 7160) expressly authorizes municipal mayors to issue permits and licenses for the holding of activities for any charitable or welfare purpose, and Section 3(e) of Republic Act No. 3019 penalizes a public officer who causes undue injury to any party, including the Government, through manifest partiality, evident bad faith, or gross inexcusable negligence.

Baclaran Credit Cooperative, Inc. (BCCI), a cooperative based in Baclaran, Parañaque, sought to operate a night manufacturer's fair during the Christmas fiesta celebration. On October 6, 1992, petitioner Mayor Pablo R. Olivarez approved Sangguniang Bayan Resolution No. 744, Series of 1992, which authorized BCCI to set up the fair for sixty days from November 11, 1992 to February 15, 1993 on a portion of the service road of Roxas Boulevard from the corner of Opena to Rivera Streets. On October 29, 1992, Councilor Winnie Esplana wrote Arch. Vita of the Parañaque Engineering Department in connection with the project. On November 13, 1992, BCCI General Manager Steve Espina sent four letters to petitioner, Arch. Vita, Municipal Health Officer Dr. Oscar de Leon, and Municipal Treasurer Silvestre de Leon, requesting assistance for the issuance of a mayor's permit. Ten days later, on November 23, 1992, petitioner issued an Executive Order granting a group of Baclaran-based organizations and associations of vendors the holding of a "Christmas Agro-Industrial Fair sa Baclaran" from November 28, 1992 to February 28, 1993, using certain portions of the national and local roads and streets in Baclaran for fund raising. On November 24, 1992, BCCI counsel Atty. Renato Dilag formally demanded implementation of Resolution No. 744, and on November 27, 1992 petitioner replied that the non-implementation was due to BCCI's failure to apply for the appropriate permit and license to operate the fair, which was one of the conditions of the authorization.

On December 15, 1992, BCCI, through board member Roger de Leon, charged petitioner with violation of the Anti-Graft and Corrupt Practices Act, attaching the Esplana letter, the four Espina letters, the Dilag demand letter, and petitioner's reply. In his counter-affidavit dated March 12, 1993, petitioner asserted that the charge under Section 3(f) of R.A. No. 3019 had no legal and factual basis because the cooperative that actually started operation never applied for a mayor's permit, as evidenced by his reply to Atty. Dilag and the affidavit dated March 11, 1993 of Business Permit and License Office Officer-in-Charge Mrs. Elenita T. Paracale, and because the four Espina letters requesting assistance were not filed with the municipal office concerned. In its Reply Affidavit dated April 1, 1993, BCCI denied conducting actual operations and claimed that it had merely commenced soliciting participants and would-be sponsors; it alleged that it exerted all possible efforts to secure the necessary permit but that petitioner simply refused to issue the same unless it gave him money. BCCI attached to its reply a copy of petitioner's November 23, 1992 Executive Order granting the Baclaran-based vendors' associations the holding of the Christmas fair.

Graft Investigation Officer III Rogelio A. Ringpis conducted the preliminary investigation and, on September 22, 1993, recommended petitioner's prosecution for violation of Section 3(f) of R.A. No. 3019. The recommendation was later modified, and on February 16, 1994 an Information for violation of Section 3(e) of R.A. No. 3019 was filed with the Sandiganbayan, docketed as Criminal Case No. 20226, alleging that petitioner, with manifest partiality and evident bad faith, without valid reason refused to issue a mayor's permit to BCCI and instead issued an executive order granting an unknown or unidentified group of Baclaran-based vendors' associations the privilege to operate a night fair, causing undue injury to BCCI.

After reinvestigation was ordered and twice conducted, the investigating prosecutors recommended the withdrawal or dismissal of the case for insufficiency of evidence, but their recommendations were reversed by the special prosecutors and approved by the Ombudsman. The Sandiganbayan found sufficient probable cause to hold petitioner for trial and denied his motions seeking a re-examination of that finding. The Court, upon its own scrutiny of the pleadings and documentary evidence, likewise found probable cause to warrant the filing of charges for violation of Section 3(e) of R.A. No. 3019, noting petitioner's inconsistent positions on the exclusivity of BCCI's authority to operate, the disparity in treatment between BCCI and the unidentified vendors' associations, and petitioner's failure to act on BCCI's letter-application despite his authority over the municipal offices concerned.

• Validity of the Marginal Notes: Petitioner contended that the marginal notes dated February 9, 1994 and December 9, 1994 issued by Special Prosecutor Aniano Desierto and Deputy Special Prosecutor Jose de G. Ferrer were null and void because they were issued without the benefit of a new preliminary investigation and their findings were not based on the facts and evidence presented.
• Grave Abuse of Discretion by the Ombudsman: Petitioner assailed the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve or disapprove the same through a mere marginal note, without conducting another preliminary investigation.
• Grave Abuse of Discretion by the Sandiganbayan: Petitioner faulted the Sandiganbayan for allegedly refusing, in grave abuse of discretion, to review the Ombudsman's finding of probable cause, considering that the Ombudsman did not comply with the guidelines set forth by the court in the conduct of the reinvestigation.
• Shift in Theory: Petitioner averred that the government prosecutors engaged in a fishing expedition when they changed theories from "evident bad faith" to "manifest partiality," and only after the Sandiganbayan had issued a resolution declaring that the original finding of bad faith was unwarranted.
• Insufficiency of Evidence: Petitioner maintained that the reinvestigation was null and void because the respondent prosecutors failed to consider all the evidence presented in his defense, and that BCCI was not issued a mayor's permit by reason of its failure to apply therefor and to comply with the conditions set forth in Sangguniang Bayan Resolution No. 744.

• Marginal Notes and Reinvestigation: Whether the marginal notes issued by the special prosecutors, approving or disapproving the investigating prosecutors' recommendations without a new preliminary investigation, were null and void for having been issued without factual and evidentiary basis.
• Ombudsman's Discretionary Power: Whether the Ombudsman gravely abused his discretion in reversing the recommendations of the investigating prosecutors and directing the prosecution to proceed under the existing information.
• Review by the Sandiganbayan: Whether the Sandiganbayan gravely abused its discretion in refusing to review the Ombudsman's finding of probable cause against petitioner.
• Existence of Probable Cause: Whether probable cause exists to hold petitioner liable for violation of Section 3(e) of Republic Act No. 3019.

• Marginal Notes and Reinvestigation: No. The mere fact that the order to file the information was contained in a marginal note does not suffice to impute arbitrariness or caprice, absent a clear showing of grave abuse of discretion, and since what is involved is merely a review of the investigating prosecutor's conclusions on the same findings of fact, another preliminary investigation is no longer necessary.
• Ombudsman's Discretionary Power: No. The Ombudsman's conformity to the special prosecutors' action is an exercise of his powers under the constitutional mandate, and the courts should not interfere in such exercise.
• Review by the Sandiganbayan: No. The Ombudsman's findings of fact are supported by substantial evidence and are essentially factual in nature, and the petition assailing them raises questions of fact not cognizable in an application for the extraordinary writ of certiorari.
• Existence of Probable Cause: Yes. There is enough evidence to warrant the filing of a formal charge against petitioner for violation of Section 3(e) of Republic Act No. 3019, probable cause being a reasonable ground of presumption that a matter is or may be well founded and not requiring absolute certainty.

• Marginal Notes and Reinvestigation: The mere fact that the order to file the information was contained in a marginal note is not sufficient to impute arbitrariness or caprice on the part of the special prosecutors, absent a clear showing that they gravely abused their discretion in disapproving the recommendation to dismiss or withdraw the case. The marginal notes were not tainted with vindictiveness or arbitrariness; the public respondents disapproved the recommendation because they sincerely believed that sufficient evidence existed to indict the accused. What was actually involved was a situation in which, on the basis of the same findings of fact of the investigating prosecutors, the special prosecutors were of the opinion that petitioner was probably guilty of the offense charged. Since it was merely a review of the conclusions arrived at by the investigating prosecutor, another or a new preliminary investigation was no longer necessary. The Court relied on Cruz, Jr. vs. People, et al., which held that the Ombudsman is not conducting anew another investigation but is merely determining the propriety and correctness of the recommendation given by the investigating prosecutor, and that it is discretionary upon the Ombudsman whether to rely mainly on the findings of fact of the investigating prosecutor, as he can very well make his own findings of fact. Section 4, Rule 112 of the Rules of Court, quoted in Cruz, provides that where the investigating assistant fiscal recommends dismissal but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that probable cause exists, the latter may by himself file the corresponding information without conducting another preliminary investigation. With more reason may the Ombudsman not be faulted in arriving at a conclusion different from that of the investigating prosecutor on the basis of the same set of facts. The alleged shift in theory from "evident bad faith" to "manifest partiality" failed to present a sufficient indicium of grave abuse of discretion, because manifest partiality, evident bad faith, and gross inexcusable negligence are but elements of the offense defined in and punishable under Section 3(e) of Republic Act No. 3019; the presence or absence of the elements of the crime is evidentiary in nature and is a matter of defense best passed upon after a full-blown trial on the merits. A preliminary investigation is essentially inquisitorial, is not a trial of the case on the merits, and has no purpose except to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof; it is not the occasion for the full and exhaustive display of the parties' evidence. Consequently, petitioner's asseveration that the reinvestigation was null and void because the respondent prosecutors failed to consider all the evidence presented in his defense had no leg to stand on, since the records showed that all the documentary evidence, including the additional documents submitted during the reinvestigation, were thoroughly examined and fully evaluated in the determination of probable cause.

• Ombudsman's Discretionary Power: The Ombudsman's conformity to the action of the special prosecutors is but an exercise of his powers based upon constitutional mandate, and the courts should not interfere in such exercise. The rule rests not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well; otherwise, the functions of the courts would be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.

• Review by the Sandiganbayan: Considering that the findings of fact by the Office of the Ombudsman are supported by substantial evidence, the same should be considered conclusive. Furthermore, the Ombudsman's findings are essentially factual in nature. In assailing those findings on the contention that the Ombudsman committed grave abuse of discretion in holding that petitioner is liable for the offense charged, the petition clearly raised questions of fact, its arguments being anchored on the propriety of or error in the Ombudsman's appreciation of the facts. The Court is not a trier of facts, more so in an application for the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, since only questions of lack or excess of jurisdiction or grave abuse of discretion are authorized. No grave abuse of discretion was committed by the respondents that would warrant the granting of the writ, especially where the circumstances attending the recourse were strongly suggestive of dilatory purposes.

• Existence of Probable Cause: Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so; it does not mean "actual and positive cause" nor import absolute certainty, and a finding thereof does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged, precisely because there is a trial for the reception of evidence of the prosecution in support of the charge. Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony, and a conclusion can be arrived at only when the case has already proceeded on sufficient proof; the court should not be guided by the rule that the accused must be shown guilty beyond reasonable doubt, but rather by whether there is sufficient evidence which inclines the mind to believe, without necessarily leaving room for doubt, that the accused is guilty. Petitioner's main defense — that BCCI was not issued a permit because of its failure to apply and to comply with the conditions of Resolution No. 744 — had several flaws. First, the purported absence of an application was more apparent than real; petitioner took inconsistent positions on the exclusivity of BCCI's authority to operate, categorizing and determining such exclusivity depending on whether it suited his purpose, which sufficed to cast doubt on the real motive behind the non-issuance of the permit. Second, while the avowed purpose of the executive order granting a permit to the Baclaran-based vendors' associations may have been noble, it paled in contrast to the bad faith or manifest partiality apparent in the refusal to grant a permit to BCCI; petitioner could not plausibly demonstrate how issuing a permit to BCCI would adversely affect public interest, especially since the Sangguniang Bayan had passed a resolution, which he himself approved, expressly allowing BCCI to hold the night fair. Petitioner's suspected partiality was gleaned from his issuance of a permit to the unidentified vendors' associations by the mere expedient of an executive order, whereas so many requirements were imposed on BCCI, and from his failure to show, in apparent disregard of BCCI's right to equal protection, that BCCI and the unidentified associations were not similarly situated. Third, petitioner's submission that no permit could be issued because BCCI never filed an application with the Business Permit and Licensing Office was begging the question, since it was not denied that on November 13, 1992 BCCI, through its general manager, wrote petitioner requesting a permit to operate, which he rejected outright; as mayor, the officials referred to were under his authority and he was not without recourse to take appropriate action on the letter-application, or at least to refer it to the licensing department, which he refused to do. Finally, as municipal mayor, petitioner was expressly authorized and had the power to issue permits and licenses for the holding of activities for any charitable or welfare purpose pursuant to Section 444(b)(3)(iv) and (v) of the Local Government Code of 1991, and thus could not feign total lack of authority to act on BCCI's letter-application.

• Ombudsman's power to reverse the investigating prosecutor's recommendation — The Ombudsman may, upon review, arrive at a conclusion different from that of the investigating prosecutor on the basis of the same set of facts, and may rely mainly on the investigating prosecutor's findings of fact or make his own findings of fact. Because such action is merely a review of the conclusions reached by the investigating prosecutor, another or a new preliminary investigation is no longer necessary. In this case, the special prosecutors' disapproval of the investigating prosecutors' recommendations to dismiss or withdraw, and the Ombudsman's conformity thereto, were sustained as a valid exercise of the Ombudsman's investigatory and prosecutory powers under the Constitution.

• Non-interference with the Ombudsman's investigatory and prosecutory powers — The courts should not interfere with the Ombudsman's exercise of his powers, a rule grounded not only on respect for the constitutional mandate of the Office of the Ombudsman but also on practicality, lest the courts be swamped by innumerable petitions assailing the dismissal of investigatory proceedings or the filing of informations. The Court applied this doctrine in declining to annul the challenged resolutions and in refusing to substitute its judgment for that of the Ombudsman on the existence of probable cause.

• Probable cause — Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded; it is such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. It does not mean "actual and positive cause" nor does it import absolute certainty, and a finding thereof does not require an inquiry into whether there is sufficient evidence to procure a conviction; it is enough that it is believed that the act or omission complained of constitutes the offense charged. The Court applied this standard in finding that probable cause existed to charge petitioner under Section 3(e) of R.A. No. 3019.

• Preliminary investigation is inquisitorial, not a trial on the merits — A preliminary investigation is essentially inquisitorial and is often the only means of discovering the persons who may be seasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy. It is not the occasion for the full and exhaustive display of the parties' evidence, but only for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.

• Elements of Section 3(e), R.A. No. 3019, are evidentiary matters for trial — Manifest partiality, evident bad faith, and gross inexcusable negligence are but elements of the offense defined in and punishable under Section 3(e) of Republic Act No. 3019. The presence or absence of these elements is evidentiary in nature and is a matter of defense, the truth of which can best be passed upon after a full-blown trial on the merits; the issue of whether there was bad faith or manifest partiality should be determined not in the preliminary investigation but during the trial proper.

• Conclusiveness of the Ombudsman's factual findings — Findings of fact by the Office of the Ombudsman, when supported by substantial evidence, are conclusive and should not be disturbed. Because such findings are essentially factual in nature, a petition assailing them on the ground of grave abuse of discretion raises questions of fact that are not cognizable in an application for the extraordinary writ of certiorari, which entertains only questions of lack or excess of jurisdiction or grave abuse of discretion.

• "The mere fact that the order to file the information against petitioner was contained in a marginal note is not sufficient to impute arbitrariness or caprice on the part of respondent special prosecutors, absent a clear showing that they gravely abused their discretion in disapproving the recommendation of the investigating prosecutors to dismiss or withdraw the case against petitioner." — This passage states the ratio decidendi on the validity of the marginal notes, establishing that the form in which the Ombudsman's approval is embodied does not, by itself, amount to grave abuse of discretion.

• "What is actually involved here is a situation wherein, on the bases of the same findings of fact of the investigating prosecutors, respondent special prosecutors were of the opinion that, contrary to the former's recommendation, petitioner is probably guilty of the offense charged. Obviously, therefore, since it is merely a review of the conclusions arrived at by the investigating prosecutor, another or a new preliminary investigation is no longer necessary." — This is the controlling formulation of the rule that a reviewing superior may reverse a subordinate prosecutor's recommendation on the same findings of fact without conducting another preliminary investigation.

• "It must here be stressed that a preliminary investigation is essentially inquisitorial, and it is often the only means of discovering the persons who may be seasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy." — This passage defines the nature and limited office of a preliminary investigation, a doctrine frequently invoked to reject attempts to litigate the merits of a criminal charge at the investigatory stage.

• "Probable cause, as explained in the aforecited case of Pilapil, is — . . . a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean 'actual and positive cause' nor does it import absolute certainty." — This is the canonical definition of probable cause adopted by the Court, quoted from Pilapil vs. Sandiganbayan, and applied to sustain the finding that petitioner was probably guilty of the offense charged.

• Cruz, Jr. vs. People, et al., G.R. No. 110436, June 27, 1994, 233 SCRA 439 — Controlling precedent. The Court adopted its holding that the Ombudsman is not conducting anew another investigation but is merely determining the propriety and correctness of the investigating prosecutor's recommendation, and that it is discretionary upon the Ombudsman whether to rely mainly on the findings of fact of the investigating prosecutor or to make his own findings of fact. The Court also quoted Section 4, Rule 112 of the Rules of Court as cited in Cruz, and relied on the case for the rule that the Court is not a trier of facts in a petition for certiorari.

• Pilapil vs. Sandiganbayan, et al., G.R. No. 101978, April 7, 1993, 221 SCRA 349 — Source of the Court's definition of probable cause as a reasonable ground of presumption that a matter is, or may be, well founded, not amounting to "actual and positive cause" and not importing absolute certainty. The Court applied this standard in finding probable cause to charge petitioner under Section 3(e) of R.A. No. 3019.

• Ocampo IV vs. The Hon. Ombudsman, et al., G.R. Nos. 103446-47, August 30, 1993, 225 SCRA 725 — Cited for the rule that the courts should not interfere with the Ombudsman's exercise of his investigatory and prosecutory powers, a rule based on respect for the constitutional mandate of the Office of the Ombudsman and on considerations of practicality.

• Section 3(e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) — Defines the offense charged against petitioner, penalizing a public officer who causes undue injury to any party, including the Government, or gives any private party any unwarranted benefits, advantage, or preference in the discharge of his official, administrative, or judicial functions through manifest partiality, evident bad faith, or gross inexcusable negligence. The Court held that manifest partiality, evident bad faith, and gross inexcusable negligence are elements of the offense whose presence or absence is evidentiary in nature and best determined at trial, and found probable cause to charge petitioner thereunder.

• Section 3(f), Republic Act No. 3019 — The original charge recommended by Graft Investigation Officer Ringpis, which penalizes a public officer who neglects or refuses, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. The charge was later modified to Section 3(e), and the Court noted that petitioner could not be held liable under either provision on the basis of his own defense.

• Section 444(b)(3)(iv) and (v), Republic Act No. 7160 (Local Government Code of 1991) — Expressly authorizes and empowers a municipal mayor to issue permits and licenses for the holding of activities for any charitable or welfare purpose. The Court relied on this provision in holding that petitioner, as municipal mayor, could not feign total lack of authority to act on BCCI's letter-application for a mayor's permit.

• Section 4, Rule 112, Rules of Court — Provides that where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. Quoted in Cruz, Jr. vs. People and invoked by the Court to support the conclusion that no new preliminary investigation was required before the Ombudsman directed the prosecution to proceed under the existing information.

Puno, Mendoza and Francisco, JJ., concur. Narvasa, C.J., J., is on leave.