Soriano vs. Ombudsman

A public prosecutor's erroneous referral of a preliminary investigation to the DOJ does not amount to a violation of Section 3(e) of R.A. No. 3019 absent proof of undue injury and malice, and the Ombudsman's dismissal of the complaint for lack of probable cause is not tainted with grave abuse of discretion.

Soriano was the complainant in I.S. No. 01F-22547, a falsification case he filed against Bangko Sentral ng Pilipinas Bank Examiner Mely Palad, while Garcia was the Manila City Prosecutor who approved the re-opening of that investigation. The present petition is related to Hilario Soriano vs. Ombudsman Simeon V. Marcelo (G.R. No. 163017), which the SC decided on June 18, 2008 and which concerned the propriety of that re-opening. The Ombudsman's authority to investigate and prosecute public officers rests on Sections 12 and 13, Article XI of the 1987 Constitution and R.A. No. 6770, the Ombudsman Act of 1989.

Soriano filed with the Office of the City Prosecutor of Manila an Affidavit-Complaint, docketed as I.S. No. 01F-22547, against Bangko Sentral ng Pilipinas Bank Examiner Mely Palad for falsification of public document and use of falsified document. Assistant City Prosecutor Celedonio P. Balasbas issued a Resolution dated August 27, 2001 recommending that Palad be charged in court for falsification of public document, and First Assistant City Prosecutor Leoncia R. Dimagiba recommended approval of that Resolution. Upon a Motion to Re-open filed by Palad, however, Dimagiba recommended the re-opening of I.S. No. 01F-22547, and Garcia approved that recommendation.

In an Indorsement dated August 5, 2002, Garcia forwarded the complete records of I.S. No. 01F-22547 to Chief State Prosecutor Jovencito R. Zuño of the Department of Justice, recommending that the preliminary investigation of the case be transferred to the DOJ. The Indorsement explained that Soriano had recently filed with the Office of the Ombudsman separate complaints against Garcia and Assistant City Prosecutor Balasbas, both then pending, and requested that a State Prosecutor be designated to conduct the preliminary investigation "in order to avoid any suspicion of partiality and bias against the Office of the City Prosecutor of Manila."

On September 5, 2002, Soriano filed with the Ombudsman an Affidavit-Complaint against Garcia for violation of Article 208 of the Revised Penal Code and Section 3(e) of R.A. No. 3019. He alleged that the August 5, 2002 Indorsement, issued more than fourteen months after he filed his complaint against Palad, was a unilateral endorsement by which Garcia managed to evade his statutory duty to act on the resolution of the complaint; that the refusal to perform those duties was malicious and was a form of retaliation for Soriano's having filed a complaint against him; and that the deliberate omission, evidently in bad faith, caused him undue injury because the resolution of his complaint was further delayed, in effect denying him justice.

The Ombudsman dismissed the complaint in an Order dated October 3, 2002 and denied Soriano's Motion for Reconsideration in an Order dated July 14, 2003, prompting him to file the present Petition for Certiorari under Rule 65. In dismissing the complaint, the Ombudsman found that the controversy against Palad was still pending and that Palad's guilt had not yet been pronounced, and that the referral of the dispute to the DOJ could not be construed as malicious since the same was called for under the circumstances in order not to invite doubts on Garcia's impartiality.

• Section 3(e) of R.A. No. 3019 Survives the Prematurity Objection: Petitioner argued that granting for the sake of argument that his complaint against Garcia for violation of Article 208 of the Revised Penal Code is premature, his other complaint against Garcia for violation of Section 3(e) of R.A. No. 3019 should have been sustained by the Ombudsman because Garcia committed a clear dereliction of duty in referring I.S. No. 01F-22547 to the DOJ.
• Impropriety of the Referral: Petitioner argued that the referral of the case was unilateral, for neither petitioner nor Palad sought such relief; that Investigating Prosecutor Liberato Cabaron did not recommend the referral; and that Garcia should have awaited Cabaron's recommendation for the latter was already in the process of conducting a preliminary investigation.
• Undue Injury from Delay: Petitioner argued that in referring the case to the DOJ instead, Garcia caused an unwarranted delay of the investigation, thereby inflicting upon petitioner a clear and ascertainable injury.

• Non-Interference with the Ombudsman's Plenary Power: The Solicitor General maintained that the Ombudsman's plenary power to conduct a preliminary investigation cannot be interfered with by the Court, especially when the validity of its finding of lack of probable cause is discernible from the records of the case.
• Discretion to Refer the Case: The Solicitor General maintained that it was well within the discretion of Garcia to refer the case to the DOJ after he was administratively charged by petitioner.

• Grave Abuse of Discretion: Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction in dismissing petitioner's complaint against Garcia.
• Undue Injury under Section 3(e) of R.A. No. 3019: Whether the delay in the resolution of I.S. No. 01F-22547 allegedly caused by Garcia's referral of the case to the DOJ constitutes undue injury within the meaning of Section 3(e) of R.A. No. 3019.
• Malice in the Erroneous Referral: Whether Garcia's erroneous referral of the case to the DOJ, without more, constitutes a violation of Section 3(e) of R.A. No. 3019.

• Grave Abuse of Discretion: No. Petitioner failed to establish that the Ombudsman exercised its power arbitrarily or despotically by reason of passion or personal hostility, or that its exercise was so patent and gross as to amount to an evasion of positive duty.
• Undue Injury under Section 3(e) of R.A. No. 3019: No. Undue injury is akin to actual damage and must be specified, quantified, and proven to the point of moral certainty; petitioner's bare assertion of delay, unsupported by evidence of actual loss, does not satisfy the element.
• Malice in the Erroneous Referral: No. Although Garcia's stated reason for referring the case was erroneous, absent evidence that he was motivated by malice or ill will, the referral did not place him in violation of Section 3(e) of R.A. No. 3019.

• Grave Abuse of Discretion: Sections 12 and 13, Article XI of the 1987 Constitution and R.A. No. 6770 endow the Ombudsman with plenary powers to investigate and prosecute public officers or employees for acts or omissions which appear to be illegal, unjust, improper or inefficient. That power is virtually free from legislative, executive or judicial intervention and is insulated from outside pressure and improper influence, so the SC generally adheres to a policy of non-interference in the Ombudsman's investigatory and prosecutorial powers. The exception is where the Ombudsman's findings on the existence of probable cause are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction; the aggrieved party may then file a petition for certiorari under Rule 65 upon a showing that the Ombudsman exercised its power arbitrarily or despotically by reason of passion or personal hostility, and that such exercise was so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform it or to act in contemplation of law. As in G.R. No. 163017, petitioner failed to establish that the Ombudsman committed grave abuse of discretion in dismissing his complaint against Garcia.

• Undue Injury under Section 3(e) of R.A. No. 3019: To justify an indictment under Section 3(e) of R.A. No. 3019, the following elements must be shown: (a) that the accused are public officers or private persons charged in conspiracy with them; (b) that said public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions; (c) that they caused undue injury to any party, whether the Government or a private party; (d) that such injury was caused by giving unwarranted benefits, advantage or preference to such parties; and (e) that the public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence. In Santos vs. People, the SC equated undue injury, in the context of Section 3(e), with the civil law concept of actual damage, and in Llorente vs. Sandiganbayan it elaborated that undue injury cannot be presumed even after a wrong or a violation of a right has been established, but must be proven as one of the elements of the crime, specified, quantified and proven to the point of moral certainty. Actual or compensatory damages is defined by Article 2199 of the Civil Code as adequate compensation only for such pecuniary loss suffered by a party as he has duly proved, and the rule in determining actual damages — that the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding specific facts that could afford some basis for measuring the damage — likewise governs the determination of undue injury. In Llorente, the Sandiganbayan's conviction was reversed because the complainant's testimony on the financial stress caused by the delay in the release of her salaries and allowances was inadequate and largely speculative, and the fact that the injury to her family was unspecified or unquantified did not satisfy the element of undue injury. Here, petitioner claims that the injury he suffered from Garcia's referral of the case to the DOJ is the resultant delay in the resolution of his complaint against Palad, but other than such assertion he failed to adduce evidence of the actual loss or damage he suffered by reason of the delay; while it is not necessary that a specific amount of damage be proven with absolute certainty, there must be some reasonable basis by which the court can measure it, and petitioner utterly failed to support his bare allegation of undue injury. Moreover, the fourth element is not alleged in the Affidavit-Complaint, which contains no statement that in referring the case to the DOJ, Garcia gave unwarranted benefit, advantage or preference to Palad; such omission of a basic element of the offense renders the Affidavit-Complaint all the more defective.

• Malice in the Erroneous Referral: In his Indorsement, Garcia explained that, in view of petitioner's filing of an administrative case against him before the Ombudsman, he was referring the case to the DOJ to avoid suspicion of partiality and bias. The SC found the reason given by Garcia "not completely acceptable": the mere filing of an administrative case is not a ground for disqualification or inhibition, and a contrary rule would encourage parties to file administrative cases against judges or prosecutors in the hope that the latter would recuse himself and refer their cases to friendlier fora. The reason cited by Garcia in referring the case was therefore erroneous. However, in the absence of evidence that Garcia was motivated by malice or ill will, his erroneous referral of the case does not put him in violation of Section 3(e) of R.A. No. 3019. Hence, the Ombudsman's dismissal of the complaint against Garcia did not constitute grave abuse of discretion.

• Undue injury under Section 3(e) of R.A. No. 3019 is akin to actual damage — Undue injury cannot be presumed even after a wrong or a violation of a right has been established; it must be proven as one of the elements of the crime, specified, quantified and proven to the point of moral certainty. As with actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork but must depend on competent proof and on the best evidence obtainable regarding specific facts that could afford some basis for measuring the damage. While a specific amount need not be proven with absolute certainty, there must be some reasonable basis by which the court can measure it. Applied here, Soriano's bare assertion that the referral delayed the resolution of his complaint against Palad, without any evidence of actual loss, failed to satisfy the element.
• Elements of Section 3(e) of R.A. No. 3019 — To justify an indictment under Section 3(e), the following must be shown:
  • The accused are public officers or private persons charged in conspiracy with them;
  • The public officers committed the prohibited acts during the performance of their official duties or in relation to their public positions;
  • They caused undue injury to any party, whether the Government or a private party;
  • Such injury was caused by giving unwarranted benefits, advantage or preference to such parties; and
  • The public officers acted with manifest partiality, evident bad faith or gross inexcusable negligence.
  • Grave abuse of discretion as the exception to non-interference with the Ombudsman's powers — The Ombudsman's investigatory and prosecutorial powers are plenary and generally insulated from legislative, executive or judicial intervention. Certiorari under Rule 65 lies only upon a showing that the Ombudsman exercised its power arbitrarily or despotically by reason of passion or personal hostility, and that such exercise was so patent and gross as to amount to an evasion of positive duty, or to a virtual refusal to perform it or to act in contemplation of law. Soriano failed to make that showing.
  • Filing of an administrative case is not a ground for disqualification or inhibition — A contrary rule would encourage parties to file administrative cases against judges or prosecutors in the hope that the latter would recuse himself and refer their cases to friendlier fora. Garcia's reliance on this reason for referring the case to the DOJ was therefore erroneous, although the error alone did not amount to malice or to a violation of Section 3(e).

• "In jurisprudence, 'undue injury' is consistently interpreted as 'actual damage.' Undue has been defined as 'more than necessary, not proper, [or] illegal;' and injury as 'any wrong or damage done to another, either in his person, rights, reputation or property[;that is, the] invasion of any legally protected interest of another.' Actual damage, in the context of these definitions, is akin to that in civil law." — The canonical formulation equating undue injury under Section 3(e) with actual damage, drawn from Llorente vs. Sandiganbayan and adopted by the SC in this case.
• "It naturally follows that the rule that should likewise be applied in determining undue injury is that in determining actual damages, the court cannot rely on mere assertions, speculations, conjectures or guesswork, but must depend on competent proof and on the best evidence obtainable regarding specific facts that could afford some basis for measuring compensatory or actual damage." — States the evidentiary standard Soriano failed to meet, since he offered only a bare assertion of delay.
• "While it is not necessary that a specific amount of the damage be proven with absolute certainty, there must be some reasonable basis by which the court can measure it." — Fixes the threshold for proving undue injury and explains why an unspecified claim of delay cannot sustain a Section 3(e) charge.
• "However, in the absence of evidence that Garcia was motivated by malice or ill will, his erroneous referral of the case does not put him in violation of Sec. 3(e) of R.A. No. 3019." — The ratio decidendi on the malice element: an erroneous but unexplained-by-malice act of a public officer does not amount to a corrupt practice.

• Llorente vs. Sandiganbayan, 350 Phil. 820 (1998) — Controlling precedent; the SC reversed a Sandiganbayan conviction because the complainant's testimony on the financial stress caused by delayed salaries was inadequate and largely speculative, and an unspecified or unquantified injury does not satisfy the element of undue injury.
• Santos vs. People, G.R. No. 161877, March 23, 2006, 485 SCRA 185 — Followed; equated undue injury under Section 3(e) with the civil law concept of actual damage.
• U.S. vs. Mendoza, 23 Phil. 194 — Cited in the Ombudsman's order and left undisturbed; holds that the crime committed by the law-violator must first be proved, failing which the officer charged with dereliction of duty under Article 208 is not liable.
• Suero vs. People, G.R. No. 156408, January 31, 2005, 450 SCRA 350 — Cited for the elements of Section 3(e) of R.A. No. 3019.
• Jimenez vs. Tolentino, Jr., G.R. No. 153578, January 28, 2005, 449 SCRA 487 — Cited for the policy of non-interference in the Ombudsman's investigatory and prosecutorial powers.
• Tejano vs. Ombudsman, G.R. No. 159190, June 30, 2005, 462 SCRA 560 — Cited for the grave abuse of discretion standard governing certiorari against Ombudsman findings of probable cause.
• G.Q. Garments, Inc. vs. Miranda, G.R. No. 161722, July 20, 2006, 495 SCRA 741 — Cited for the requirement of a reasonable basis by which the court can measure the damage claimed.
• Dumo vs. Espinas, G.R. No. 141962, January 25, 2006, 480 SCRA 53 — Cited for the rule that the mere filing of an administrative case is not a ground for disqualification or inhibition.

• Article 208, Revised Penal Code — Penalizes a public officer or officer of the law who, in dereliction of the duties of his office, maliciously refrains from instituting prosecution for the punishment of violators of the law or tolerates the commission of offenses. The Ombudsman dismissed this charge as premature because Palad's guilt had not yet been established.
• Section 3(e), R.A. No. 3019 — Penalizes causing any undue injury to any party, including the Government, or giving any private party unwarranted benefits, advantage or preference in the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence. The SC applied its elements and found the undue injury and unwarranted-benefit elements absent.
• Article 2199, Civil Code — Defines actual or compensatory damages as adequate compensation only for such pecuniary loss as has been duly proved; used by the SC to interpret and measure "undue injury."
• Sections 12 and 13, Article XI, 1987 Constitution — Vest the Ombudsman with investigatory and prosecutorial powers; the basis for the policy of judicial non-interference.
• R.A. No. 6770 (Ombudsman Act of 1989) — Statutory source of the Ombudsman's plenary power to investigate and prosecute public officers for illegal, unjust, improper or inefficient acts or omissions.
• Rule 65, Rules of Court — The vehicle for the petition; certiorari lies against Ombudsman probable-cause findings only when tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.