Tejano, Jr. vs. Ombudsman

An officer who participated in the initial preliminary investigation and recommended the filing of an information is disqualified from reviewing the same case on reinvestigation; his failure to recuse constitutes grave abuse of discretion, and the subsequent resolution of a motion for reconsideration by a different reviewing officer does not cure the violation of due process.

Petitioner Cayetano A. Tejano, Jr. was Vice President and Branch Manager of the Philippine National Bank (PNB) Cebu City Branch. The criminal case against him arose from an alleged irregular withdrawal of P2.2 million in PNB funds involving the savings account of V&G Better Homes Subdivision (V&G). The Office of the Ombudsman conducted the preliminary investigation, and the Office of the Special Prosecutor handled the reinvestigation. Aniano A. Desierto participated in the initial preliminary investigation as Special Prosecutor, concurring in the recommendation to file the information, and later, as Ombudsman, disapproved the recommendation to dismiss the case during reinvestigation—a sequence that placed him in the position of reviewing his own earlier determination.

The case originated from a report dated October 15, 1992 by PNB Resident Auditor Alexander A. Tan, who investigated an alleged unfunded withdrawal of P2.2 million by V&G Better Homes Subdivision (V&G) from its savings account at PNB Cebu City Branch. According to the report, on the morning of July 17, 1992, Bank Executive Officer Emilio Montesa handed a note to Cashier Jane Rita Jecong instructing her to include P2.2 million at P1,000.00 denomination in her cash requisition for the day from Central Bank–Cebu. On July 20, 1992, Cashier III Juanito Mata, upon the instruction of petitioner Cayetano A. Tejano, Jr. (Vice President and Branch Manager of PNB Cebu), took the P2.2 million from Jecong and delivered it to Tejano. At about noontime of the same day, Mata handed Jecong a pre-signed withdrawal slip against V&G's savings account for the same amount, to replace the cash withdrawn and to serve as cash-on-hand at the end of the day's transaction. The withdrawal slip, approved by Tejano, was postdated July 21, 1992, although as of July 20, 1992, V&G's account held only P33,436.78.

In the afternoon of July 20, 1992, the amount of P2,336,563.32—consisting of P2,200,000.00 in cash, P100,000.00 in check, and P36,563.22 in withdrawal slip—was received by Teller Mary Ann Aznar as payment for V&G's loan, for which PNB Official Receipt No. 952981E was issued. The transaction was recognized as an increase in the branch's cash-on-hand and a decrease in V&G's loan account. The PNB Cebu Credit Committee had approved the loan at 23%, lower than the 26% interest rate on its first renewal and 27% on its second renewal. The loan proceeds were credited to V&G's account on July 21, 1992, the same day the withdrawal slip was taken by Montesa from Jecong and given to Teller Irene Abellanosa, who, upon Montesa's instruction, debited V&G's account and validated the withdrawal slip although no actual cash withdrawal was made.

The report implicated Tejano, Montesa, Jecong, and V&G's Juana dela Cruz and Vicente dela Cruz. The Office of the Deputy Ombudsman for the Visayas ordered them to file counter-affidavits on December 22, 1992. Graft Investigation Officer Edgardo Canton, in a resolution dated March 29, 1993, recommended the filing of information for violation of Section 3(e) of Republic Act No. 3019 against Tejano and the dela Cruz spouses; the case against Montesa and Jecong was dismissed for lack of evidence. The resolution was approved by Deputy Ombudsman Arturo Mojica and Ombudsman Conrado Vasquez, and thereafter referred to Special Prosecutor III Orlando Ines, who affirmed it in a memorandum dated October 25, 1994. Deputy Special Prosecutor Jose Ferrer recommended approval, Special Prosecutor Aniano Desierto concurred, and Ombudsman Vasquez concurred on November 11, 1994. On November 24, 1994, the information was filed before the Sandiganbayan and docketed as Criminal Case No. 21654.

Petitioner sought reinvestigation, which the Sandiganbayan granted on December 12, 1994. The reinvestigation was assigned to Special Prosecution Officer III Jesus Micael, who, convinced that no probable cause existed, recommended dismissal of the case in a memorandum dated November 3, 1999, approved by Deputy Special Prosecutor Robert Kallos and concurred in by Special Prosecutor Leonardo Tamayo. On December 10, 1999, Ombudsman Desierto—who had earlier concurred in the filing of the information as Special Prosecutor—disapproved the recommendation with the marginal note to "assign the case to another prosecutor to prosecute the case aggressively." Petitioner's motion for reconsideration was not initially resolved on the merits; Special Prosecution Officer III Joselito Ferrer filed a motion to set the case for arraignment, alleging that the motion for reconsideration was a prohibited second motion under the Ombudsman Act of 1989. After the Sandiganbayan directed the Ombudsman to resolve the motion, Special Prosecutor Ferrer recommended denial in a memorandum dated June 9, 2003, which Ombudsman Simeon Marcelo approved on July 14, 2003. Petitioner then filed the instant petition for certiorari.

• Partiality of Ombudsman Desierto: Petitioner attributed partiality to Ombudsman Desierto for having participated in the reinvestigation of the case despite having earlier participated in the initial preliminary investigation as Special Prosecutor, where he concurred in the recommendation to file the information before the Sandiganbayan.
• Grave Abuse of Discretion: Petitioner argued that the Office of the Ombudsman committed grave abuse of discretion in disapproving the November 3, 1999 recommendation for dismissal without any cogent or verifiable reason amounting to lack of jurisdiction, and that the Office of the Special Prosecutor did not determine the existence of probable cause in a resolution denying the motion for reconsideration.
• Persecution, Not Prosecution: Petitioner contended that the case filed against the accused was a clear case of persecution rather than prosecution contemplated under RA 3019, RA 1374, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code.
• Jurisdiction: Petitioner questioned whether the Ombudsman had jurisdiction over the case.

• Prohibited Second Motion: Respondent argued, through Special Prosecution Officer III Joselito Ferrer, that petitioner's motion for reconsideration was not given due course because it was a second motion prohibited under the Ombudsman Act of 1989, and that the results of the reinvestigation had already been submitted to the Sandiganbayan before the motion for reconsideration was received.

• Grave Abuse of Discretion — Disapproval of Dismissal: Whether the Office of the Ombudsman committed grave abuse of discretion in disapproving the recommendation for dismissal of the case against all accused without any cogent or verifiable reason amounting to lack of jurisdiction.
• Persecution vs. Prosecution: Whether the case filed against the accused constitutes a clear case of persecution and not prosecution under RA 3019, RA 1374, and the Revised Penal Code.
• Jurisdiction: Whether the Ombudsman has jurisdiction over the case.
• Disqualification of Reviewing Officer (raised sua sponte): Whether Ombudsman Desierto committed grave abuse of discretion in disapproving the November 3, 1999 memorandum recommending dismissal, where he had earlier participated in the preliminary investigation recommending the filing of the information.

• Disqualification of Reviewing Officer: Yes. Ombudsman Desierto committed grave abuse of discretion by participating in the review of the reinvestigation of a case he had earlier decided as Special Prosecutor, violating the due process rule that the reviewing officer must not be the same person whose decision is under review.
• Grave Abuse of Discretion — Disapproval of Dismissal: Yes, on the ground of disqualification. The disapproval was set aside as having been issued with grave abuse of discretion amounting to lack of jurisdiction.
• Persecution vs. Prosecution: Not reached. The Court deemed it unnecessary to discuss the remaining issues raised by petitioner in light of the conclusion on the disqualification issue.
• Jurisdiction: Not reached. Deemed unnecessary to discuss.

• Disqualification of Reviewing Officer: The Court applied the established rule that the officer who reviews a case on appeal should not be the same person whose decision is under review. Ombudsman Desierto, as then Special Prosecutor, had concurred in the recommendation to file the information, thereby indicating that he was already convinced from that moment that probable cause existed to indict the accused. It would be a farfetched possibility that in a subsequent review of the same case, he would reverse his earlier finding. Due process dictates that one called upon to resolve a dispute may not review his own decision on appeal. The Court relied on Zambales Chromite Mining Co. vs. Court of Appeals, which explained that for a review not to be a farce, the reviewing officer must be other than the officer whose decision is under review; otherwise the decision would inevitably be a biased view. Cojuangco, Jr. vs. PCGG was cited for the proposition that the same rule applies to an investigating officer conducting a preliminary investigation. Desierto should have delegated the review to his Deputies pursuant to Section 15(10) of RA 6770. The fact that the motion for reconsideration was denied by a different Ombudsman (Marcelo) did not cure the infirmity, because, as held in Singson vs. NLRC, the right to an impartial review starts from the time the appeal is filed, and the denial of that right is not an innocuous error but negates the right to due process.
• Grave Abuse of Discretion — Disapproval of Dismissal: The grave abuse of discretion was established through the disqualification of Ombudsman Desierto. Grave abuse of discretion is defined as capricious and whimsical exercise of judgment equivalent to excess or lack of jurisdiction, so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. Desierto's act of reviewing a case he had earlier decided constituted precisely such abuse.
• Persecution vs. Prosecution: With the conclusion that the disapproval was issued with grave abuse of discretion, the Court deemed it unnecessary to address the remaining issues.
• Jurisdiction: Deemed unnecessary to discuss in light of the ruling on the disqualification issue.

• Disqualification of Reviewing Officer — The officer who reviews a case on appeal should not be the same person whose decision is under review. Due process dictates that one called upon to resolve a dispute may not review his decision on appeal. The rule applies not only to appellate tribunals but also to investigating officers conducting preliminary investigations. In this case, Ombudsman Desierto, who as Special Prosecutor had earlier concurred in the recommendation to file the information, was disqualified from reviewing the reinvestigation recommending dismissal. He should have delegated the review to his Deputies under Section 15(10) of RA 6770.
• Non-Curative Effect of Subsequent Review by a Different Officer — The infirmity of a review conducted by a disqualified officer is not cured by the fact that the motion for reconsideration was denied by a different reviewing officer who did not participate in the initial decision. The right to an impartial review starts from the time the appeal is filed, and its denial negates the right to due process. Applied in this case: Ombudsman Marcelo's denial of the motion for reconsideration did not cure the infirmity of Ombudsman Desierto's disapproval.
• Non-Interference with Ombudsman's Discretionary Powers — The Court will not interfere with the Ombudsman's exercise of constitutionally mandated investigatory and prosecutory powers, save in cases where there is a clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction. In this case, the exception applied because Desierto's disqualification constituted grave abuse of discretion.
• Grave Abuse of Discretion — Such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.

• "In order that the review of the decision of a subordinate officer might not turn out to be farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case." — This passage, quoted from Zambales Chromite Mining Co. vs. Court of Appeals, articulates the core rationale for the disqualification rule and is the ratio decidendi of the decision.
• "Due process dictates that one called upon to resolve a dispute may not review his decision on appeal." — This is the canonical formulation of the due process principle applied to reviewing officers, stated in the Court's own words.
• "The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. . . . The denial of petitioner's right to an impartial review of his appeal is not an innocuous error. It negated his right to due process." — Quoted from Singson vs. NLRC, this passage establishes that subsequent review by a different officer does not cure the initial violation of the right to impartial review.

• Zambales Chromite Mining Co. vs. Court of Appeals, G.R. No. L-49711, 07 November 1979, 94 SCRA 261 — Controlling precedent. The Secretary of Agriculture and Natural Resources's decision was set aside because he reviewed an appeal of his own earlier decision rendered while he was Director of Mines. The Court quoted its rationale as the basis for disqualifying Ombudsman Desierto.
• Singson vs. NLRC, G.R. No. 122389, 19 June 1997, 274 SCRA 358 — Followed. A NLRC decision was declared void because a commissioner who had earlier decided the case as a labor arbiter participated in the review. The Court relied on this case for the proposition that denial of the motion for reconsideration by different officers does not cure the infirmity.
• Government Service Insurance System vs. Court of Appeals, G.R. No. 128523, 28 September 1998, 296 SCRA 514 — Followed. Cited for the rule that the reviewing officer should not be the same person whose decision is under review, and that due process dictates one may not review his own decision on appeal.
• Cojuangco, Jr. vs. Presidential Commission on Good Government, G.R. Nos. 92319-20, 02 October 1990, 190 SCRA 226 — Followed. Cited for the proposition that the disqualification rule applies to investigating officers conducting preliminary investigations, and that a judge (or investigating officer) must not only be impartial but must also appear impartial.
• Loquias vs. Office of the Ombudsman, G.R. No. 139396, 15 August 2000, 338 SCRA 62 — Cited for the principle of non-interference with the Ombudsman's constitutionally mandated investigatory and prosecutory powers, except in cases of grave abuse of discretion.

• Section 3(e), Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) — Defines the offense of causing undue injury to any party or giving unwarranted benefit, advantage, or preference through manifest partiality, evident bad faith, or gross inexcusable negligence. This was the criminal charge filed against petitioner before the Sandiganbayan as Criminal Case No. 21654.
• Section 15(10), Republic Act No. 6770 (Ombudsman Act of 1989) — Empowers the Ombudsman to delegate to Deputies, investigators, or representatives such authority or duty as shall ensure the effective exercise or performance of the Ombudsman's powers, functions, and duties. The Court cited this provision to emphasize that Ombudsman Desierto should have delegated the review of the reinvestigation to his Deputies rather than personally participating.
• Section 13, Republic Act No. 6770 — Referenced by petitioner in relation to Section 3, Rule 112 of the Rules of Criminal Procedure, regarding the Ombudsman's duty to determine probable cause.
• Rule 65, Rules of Court — The procedural vehicle for the petition, under which certiorari is available when a tribunal or officer acts without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

Puno (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concurred.