Saludaga vs. Sandiganbayan

The two modes of violating Section 3(e) of R.A. No. 3019 — (a) causing undue injury to any party, including the Government, or (b) giving any private party unwarranted benefit, advantage, or preference — do not constitute two distinct offenses but are merely two different ways of committing the same offense, such that a re-filed information shifting from one mode to the other is neither a substituted information nor a substantial amendment requiring a new preliminary investigation.

Petitioners Quintin B. Saludaga and SPO2 Fiel E. Genio were, at the time material to the charge, the Municipal Mayor and a member of the Lavezares Police Force (PNP) in Lavezares, Northern Samar, respectively. They were charged under Section 3(e) of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act) in connection with the execution of pakyaw contracts for the construction of barangay day care centers in Barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar, awarded to one Olimpio Legua, a non-licensed contractor and non-accredited NGO, without competitive public bidding. The Local Government Code (R.A. No. 7160) and COA Circular No. 91-368 require public bidding for such contracts, forming the statutory backdrop against which the alleged violation was assessed.

Petitioners Quintin B. Saludaga, then Municipal Mayor of Lavezares, Northern Samar, and SPO2 Fiel E. Genio, a member of the Lavezares Police Force, were charged with violation of Section 3(e) of Republic Act No. 3019 in connection with the award of pakyaw contracts for the construction of barangay day care centers in Barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. The contracts, each in the amount of ₱48,500.00 for a total of ₱97,000.00, were awarded to Olimpio Legua, a non-licensed contractor and non-accredited NGO, without the benefit of competitive public bidding, in violation of Section 356 of the Local Government Code and COA Circular No. 91-368.

An Information dated September 13, 2000 was filed before the Sandiganbayan, docketed as Criminal Case No. 26319, charging both petitioners with violating Section 3(e) of R.A. No. 3019 by causing undue injury to the government through the non-competitive award of the contracts. The case was raffled to the Third Division. Petitioners filed a Motion to Quash, which the Third Division granted in a Resolution promulgated June 14, 2002, dismissing the information for failure of the prosecution to allege and prove the amount of actual damages caused the government, an essential element of the crime charged.

Thereafter, the Ombudsman issued a Memorandum dated July 1, 2003 directing the Office of the Special Prosecutor to study the possibility of amending and re-filing the information. The OSP re-filed an Information dated August 17, 2007 before the Fourth Division of the Sandiganbayan, docketed as Criminal Case No. SB-08 CRM 0263. The re-filed information charged the same offense — violation of Section 3(e) of R.A. No. 3019 — but shifted the mode of commission from causing undue injury to the government to giving unwarranted benefit to a private party, specifically Olimpio Legua, through evident bad faith and manifest partiality, by entering into the pakyaw contract without competitive public bidding.

Petitioners filed a Motion for Preliminary Investigation dated June 4, 2008, contending that the second information charged a different offense and constituted a substituted information requiring a new preliminary investigation, or at the very least contained substantial amendments that should have been preceded by a new preliminary investigation. They also claimed that newly discovered evidence, particularly the affidavit of COA Auditor Carlos G. Pornelos, mandated a re-examination of the finding of probable cause. The prosecution opposed the motion. On July 14, 2008, the Sandiganbayan Fourth Division denied the motion, finding that the re-filed information did not change the nature of the offense charged but merely modified the mode by which the accused committed the offense, and that no new allegations were made nor was the criminal liability of the accused upgraded. Petitioners' Motion for Reconsideration was denied in open court on August 13, 2008 during the scheduled arraignment, prompting the present petition.

• Substituted Information: Petitioners argued that the failure of the prosecution to conduct a new preliminary investigation before filing the second Information violated the law because the latter charged a different offense — violation of Section 3(e) by giving unwarranted benefit to private parties — thus constituting a substitution of the first Information.
• Substantial Amendment: Petitioners maintained that, assuming no substitution took place, there was at the very least a substantial amendment in the new information, and its submission should have been preceded by a new preliminary investigation.
• Newly Discovered Evidence: Petitioners claimed that newly discovered evidence, in particular the affidavit of COA Auditor Carlos G. Pornelos, mandated a re-examination of the finding of prima facie cause to file the case.

• No Substituted Information: Respondent countered that there was no substituted information in contemplation of law and jurisprudence that would require the conduct of another preliminary investigation.
• No Newly Discovered Evidence: Respondent argued that there was no newly-discovered evidence that would lead to a different determination should another preliminary investigation be conducted.

• Single Offense vs. Distinct Offenses: Whether the two ways of violating Section 3(e) of R.A. No. 3019 — (a) causing undue injury to any party, including the Government, or (b) giving any private party unwarranted benefit, advantage, or preference — constitute two distinct and separate offenses that would warrant a new or another preliminary investigation.
• Substituted or Substantially Amended Information: Whether the second Information constituted a substituted information or contained substantial amendments requiring the conduct of a new preliminary investigation.
• Newly Discovered Evidence: Whether newly discovered evidence mandates a re-examination of the finding of probable cause.

• Single Offense vs. Distinct Offenses: No. The two modes of violating Section 3(e) of R.A. No. 3019 do not constitute two distinct offenses but are merely two different ways of committing the same offense, the disjunctive "or" signifying that either act qualifies as a violation.
• Substituted or Substantially Amended Information: No. The re-filed information charged the same offense founded on the same transaction; only the mode of commission was modified, constituting neither a substitution nor a substantial amendment requiring a new preliminary investigation.
• Newly Discovered Evidence: No. The Pornelos affidavit was executed on November 29, 2000, existed prior to the re-filing of the case, and was among the documents considered during the original preliminary investigation, thus failing the requisites of newly discovered evidence under Section 2, Rule 121 of the Rules of Court.

• Single Offense vs. Distinct Offenses: Section 3(e) of R.A. No. 3019 provides that a public officer violates the provision by "causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference." The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3(e), or, as held in Santiago vs. Garchitorena, as two different modes of committing the offense. This does not indicate that each mode constitutes a distinct offense; rather, an accused may be charged under either mode or under both. The disjunctive "or" is a disjunctive term signifying disassociation and independence of one thing from the other things enumerated and should be construed in its ordinary sense. Because the re-filed information charged the same offense — violation of Section 3(e) — and only modified the mode of commission, there was no change in the nature of the offense charged.

• Substituted or Substantially Amended Information: Petitioners' reliance on Teehankee vs. Madayag, which held that substitution of information entails another preliminary investigation, was found inapplicable because there was no substitution — the nature of the offense charged remained the same. The principle in Villaflor vs. Vivar regarding the necessity of a new preliminary investigation was likewise unavailing, because the records showed that a full-blown preliminary investigation had been conducted in which both petitioners actively participated, such that their right to due process was not violated. Petitioners' reliance on Matalam vs. Sandiganbayan was also misplaced, because in Matalam the recital of facts constituting the offense was definitely altered — from illegal refusal to pay monetary claims to illegal dismissal — whereas here the information was founded on the same transaction and the evidentiary requirements for prosecution and defense remained the same. Moreover, the original information had already been dismissed via a Motion to Quash, leaving nothing to be amended. Under People vs. Lacson, a case may be revived by refiling the information for the same offense without need of a new preliminary investigation, and none of the circumstances requiring reinvestigation (recantation, death, or unavailability of witnesses; addition of new accused; upgrading of the charge or criminal liability) obtained here.

• Newly Discovered Evidence: Under Section 2, Rule 121 of the Rules of Court, newly discovered evidence requires that (a) the evidence was discovered after trial or investigation, (b) it could not have been discovered and produced with reasonable diligence, and (c) it is material, not merely cumulative, corroborative, or impeaching, and of such weight that it would probably change the judgment. The Pornelos affidavit, executed on November 29, 2000, was already in existence prior to the re-filing of the case and was among the documents considered during the preliminary investigation; it was the sole annex to petitioners' Supplement to Motion for Reinvestigation. It therefore could not be considered newly discovered. Furthermore, the determination of probable cause is within the exclusive province of the Office of the Ombudsman, and without good and compelling reasons, the Court cannot interfere in the exercise of its investigatory and prosecutory powers. The only ground for review is grave abuse of discretion, defined as capricious or whimsical exercise of judgment equivalent to lack of jurisdiction. No such arbitrariness, whim, or caprice was evident in the Sandiganbayan's refusal to order another preliminary investigation.

• Two Modes of Violating Section 3(e), R.A. No. 3019 — Section 3(e) of R.A. No. 3019 may be violated in two ways: (a) by causing undue injury to any party, including the Government, or (b) by giving any private party unwarranted benefit, advantage, or preference, through manifest partiality, evident bad faith, or gross inexcusable negligence. The disjunctive "or" signifies that either act qualifies as a violation, but the two modes do not constitute distinct offenses; an accused may be charged under either mode or under both should both concur. The Court applied this doctrine to hold that the re-filed information, which shifted from the "undue injury" mode to the "unwarranted benefit" mode, charged the same offense and thus did not require a new preliminary investigation.

• Substituted Information vs. Amended Information — A substituted information is one that charges an offense different from that in the original information, requiring a new preliminary investigation and a fresh plea from the accused. A substantial amendment is one that alters the recital of facts constituting the offense charged or upgrades the criminal liability of the accused, also requiring a new preliminary investigation. A modification in the mode of committing the same offense, founded on the same transaction, does not constitute substitution or substantial amendment. The Court found that the re-filed information merely modified the mode of commission without changing the nature of the offense or the underlying transaction.

• Requisites of Newly Discovered Evidence (Section 2, Rule 121, Rules of Court) — Newly discovered evidence requires: (a) the evidence was discovered after trial or investigation; (b) such evidence could not have been discovered and produced at the trial with reasonable diligence; and (c) it is material, not merely cumulative, corroborative, or impeaching, and of such weight that, if admitted, it would probably change the judgment. Evidence already in existence prior to re-filing and previously considered during preliminary investigation cannot qualify as newly discovered.

• Ombudsman's Exclusive Power to Determine Probable Cause — The determination of probable cause against public officers during a preliminary investigation belongs to the Office of the Ombudsman, who has the discretion to determine whether a criminal case should be filed or not. Without good and compelling reasons, the Court cannot interfere in the exercise of this power; the only ground for review is grave abuse of discretion amounting to lack or excess of jurisdiction.

• "The use of the disjunctive term 'or' connotes that either act qualifies as a violation of Section 3 paragraph (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." — This passage articulates the ratio decidendi that the two modes of violating Section 3(e) are not separate offenses but alternative ways of committing a single offense.

• "The re-filed information did not change the nature of the offense charged, but merely modified the mode by which accused committed the offense. The substance of such modification is not such as to necessitate the conduct of another preliminary investigation." — This is the Sandiganbayan's ratiocination as quoted and affirmed by the Supreme Court, encapsulating the distinction between modifying the mode of commission and changing the nature of the offense.

• "Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim and despotism." — This passage provides the canonical definition of grave abuse of discretion as the standard for judicial review of the Ombudsman's and Sandiganbayan's actions via certiorari under Rule 65.

• Santiago vs. Garchitorena, G.R. No. 109266, December 2, 1993 — Controlling authority for the proposition that the two acts under Section 3(e) of R.A. No. 3019 are two different modes of committing the offense, not two distinct offenses. Followed and applied.
• Teehankee vs. Madayag, G.R. No. 103102, March 6, 1992 — Cited by petitioners for the rule that substitution of information requires another preliminary investigation. Distinguished and found inapplicable because there was no substitution in the present case.
• Villaflor vs. Vivar, G.R. No. 134744, January 16, 2001 — Cited by petitioners for the principle that failure to conduct a new preliminary investigation violates the accused's rights. Distinguished because a full-blown preliminary investigation had already been conducted with petitioners' active participation.
• Matalam vs. Sandiganbayan, G.R. No. 165751, April 12, 2005 — Cited by petitioners for the proposition that a substantial amendment entitles the accused to another preliminary investigation. Distinguished because in Matalam the recital of facts constituting the offense was definitely altered, whereas here no substantial amendment occurred.
• People vs. Lacson, G.R. No. 149453, April 1, 2003 — Followed for the rule that a dismissed case may be revived by refiling the information for the same offense without need of a new preliminary investigation, absent circumstances such as recantation, death of witnesses, addition of new accused, or upgrading of the charge.
• Soriano vs. Marcelo, G.R. No. 160772, July 13, 2009 — Followed for the doctrine that the determination of probable cause is within the exclusive province of the Office of the Ombudsman, reviewable only for grave abuse of discretion.
• Talaga, Jr. vs. Sandiganbayan, G.R. No. 169888, November 11, 2008 — Cited as the most recent authority confirming that there are two modes of committing the offense under Section 3(e) without each mode constituting a distinct offense.

• Section 3(e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) — Defines the offense charged: causing undue injury to any party, including the Government, or giving any private party unwarranted benefit, advantage, or preference, through manifest partiality, evident bad faith, or gross inexcusable negligence. The disjunctive "or" was construed as signifying two alternative modes of committing a single offense, not two distinct offenses.
• Section 356, Republic Act No. 7160 (Local Government Code) — Requires competitive public bidding for contracts such as the pakyaw contracts at issue; its violation formed the factual basis of the charge.
• Section 2, Rule 121, Rules of Court — Sets the requisites for newly discovered evidence: (a) discovered after trial or investigation, (b) could not have been discovered and produced with reasonable diligence, and (c) material and of such weight as would probably change the judgment. Applied to reject petitioners' claim that the Pornelos affidavit was newly discovered.
• Rule 65, 1997 Rules of Civil Procedure — Governs the special civil action for certiorari, the remedy invoked by petitioners. Applied to test whether the Sandiganbayan committed grave abuse of discretion amounting to lack or excess of jurisdiction.

Renato C. Corona (Chairperson), Presbitero J. Velasco, Jr., Antonio Eduardo B. Nachura, and Diosdado M. Peralta concurred with the decision. No separate concurring opinions were written.