Velasco vs. Casaclang

The Ombudsman and his Deputies have the power and authority to conduct preliminary investigation of cases cognizable by the Sandiganbayan and may motu proprio determine the offense charged, and a motion to quash in such preliminary investigation is not allowed except for lack of jurisdiction. The Special Prosecutor's former exclusive authority under P.D. 1630 was abrogated by the 1987 Constitution and not retained in R.A. 6770.

Petitioner Laura Z. Velasco was one of the persons charged in OMB Case No. 0-90-0296, which arose from the COA audit of the AFP Logistics Command's procurement of meat cans, while respondent Manuel Casaclang acted as Deputy Ombudsman for AFP. The dispute concerns the preliminary investigative authority of the Office of the Ombudsman over offenses cognizable by the Sandiganbayan under R.A. 3019, as governed by the 1987 Constitution, R.A. 6770, P.D. 1630, and Administrative Order No. 07. The COA audit examiners' findings and the subsequent Joint Affidavit-Complaint provided the factual backdrop for the Ombudsman's preliminary investigation.

By virtue of Assignment Order No. 89-846 dated June 5, 1989 of the Commission on Audit, COA Audit Examiners Priscilla G. Cruz and Virginia G. Pantoja conducted a special audit of selected transactions of the Armed Forces of the Philippines Logistics Command covering the period from January 1988 to May 1989. In their Memorandum Report dated March 13, 1990 to the Chairman of the Commission on Audit, they reported that the procurement of 28,432 pieces of meat can (stainless steel) amounting to P3,502,432 was of doubtful validity. The transaction cycle from preparation of purchase orders to acceptance of delivered items was completed in just one day, December 29, 1988, and the three winning bidders had common incorporators. While stainless cans were for distribution to CAFGU at P126 per unit, previous orders of P5 million were for aluminum cans at P89 per can intended for regular military units, resulting in additional CAFGU expense of more than P1 million.

The audit detailed the bidding and procurement. The approved Procurement Directive No. QM-0156-88 was issued for the purchase of 28,432 pieces of Meat Can, Austenitic Steel (Stainless Steel), local manufacture and brand new for the use of CAFGU. On December 27, 1988, public bidding was held at Camp Aguinaldo with nine participating bidders. The sequence of events cast doubt on the propriety of the claim: on December 21, 1988, the bids were opened; on December 27, 1988, the Bidder Tender Sheets were submitted by the participating bidders; the stamped date showed that the bids were opened six days before the submission of the bids. The result showed four suppliers had the same lowest bid of P126 per unit, so the required 28,432 pieces were divided between the four winning bidders at P895,608 per supplier. The transaction cycle from procurement to payment processing was completed on December 29, 1988, the last working day of the year; purchase orders, sales invoices, inspection reports, and vouchers were all dated December 29, 1988, while payments were all made on April 28, 1989.

SEC confirmation revealed that the three winning suppliers—Pinky's Mfg. Inc., Mark Roche Int., Inc., and Mitrick Int. Marketing Inc.—had common incorporators. Pinky's Mfg. Inc., registered April 18, 1985, had a capital of P8,000,000 and listed Laura Velasco, Susan V. Dayot, Natahaniel Velasco, Felicidad Zaguirre, and Clarita Robianes as incorporators. Mark Roche Int., Inc., registered May 11, 1988, had a capital of P1,000,000 and listed Laura Velasco, Eduardo Dayot, Susan V. Dayot, Elizabeth L. Velasco, and Clarita Robianes. Mitrick Int. Marketing Inc., registered August 23, 1988, was a partnership with a capital of P500,000 and listed Elizabeth Mucson and Susan Dayot. The fourth meat can supplier, Michelle-V Mfg. and Trading, was not registered with the SEC. Tabulation also showed that Mitrick's capital was only P500,000 while the purchase order issued to it amounted to P895,800.

Although the data showed that the procurement was urgently needed, records showed that 24,640 meat cans were issued to various Military Support Points only on May 9, 1989, or four months after delivery, belying its urgency. Analysis also showed that two more purchase orders were issued to Trojan Manufacturing and Marketing Inc. for the procurement of 51,568 and 7,485 meat cans on October 7, 1988 and December 16, 1987, respectively. Both purchase orders were for aluminum meat cans with AFP marking at P89 per unit, totaling P4,589,552 and P666,165, respectively. The provision of stainless meat cans for CAFGU instead of aluminum meat cans intended for regular military service units resulted in additional expenses of P1,051,984, computed as a price difference of P37 multiplied by 28,432 units.

On May 6, 1993, the same audit examiners filed with the Office of the Ombudsman a Joint Affidavit-Complaint deploring the transactions as anomalous and highly irregular. On May 27, 1993, respondent Deputy Ombudsman for the Military issued an Order in OMB Case No. 0-90-0296, entitled Commission on Audit, et al. vs. BGen. Buenaventura Tabo, et al., directing the respondents to file their counter-affidavits within ten days and warning that failure to do so would be construed as a waiver of the right to be heard and the preliminary investigation would proceed. On June 6, 1993, petitioner Laura Velasco presented a motion to direct the complainants to particularize the offenses charged. On June 17, 1993, the Deputy Ombudsman, without a word from the COA, issued an Order stating that petitioner was being charged with a violation of Section 3, subparagraphs (e) and (g) of R.A. 3019. On June 25, 1993, petitioner interposed a Motion to Quash, theorizing that the complaint and its annexes did not charge an offense. On June 29, 1993, without any opposition from COA, the Deputy Ombudsman denied the Motion to Quash, reasoning that Administrative Order No. 07, Section 4(d) does not allow such a motion. After her unopposed Motion for Reconsideration was denied on July 13, 1993, petitioner filed the present Petition for Certiorari and Prohibition, contending that the Deputy Ombudsman acted without or in excess of jurisdiction or with grave abuse of discretion in holding that she was charged under Section 3(e) and (g) of R.A. 3019 and in denying the Motion to Quash, and that she had no plain, speedy, and adequate remedy in the ordinary course of law except the petition.

• Authority to Conduct Preliminary Investigation: Petitioner questioned the authority of respondent Deputy Ombudsman to conduct preliminary investigation, arguing that under Section 11, paragraph (4), subparagraph (a) of R.A. 6770, the Office of the Special Prosecutor is vested with the power and authority to conduct preliminary investigation and to prosecute criminal cases falling within the jurisdiction of the Sandiganbayan, and that Section 17 of P.D. 1630 provides that the Office of Tanodbayan (now Office of the Special Prosecutor) has the exclusive authority to conduct preliminary investigation in all cases cognizable by the Sandiganbayan.
• Determination of the Offense: Petitioner contended that respondent Ombudsman acted without or in excess of jurisdiction or with grave abuse of discretion in holding that petitioner is charged under Section 3(e) and (g) of R.A. 3019.
• Motion to Quash: Petitioner theorized that the complaint and its annexes did not charge an offense and interposed a Motion to Quash; she also moved to direct the complainants to particularize the offenses charged.
• Grave Abuse of Discretion: Petitioner attacked the June 29, 1993 and July 13, 1993 Orders for having been issued with grave abuse of discretion.
• No Plain, Speedy, and Adequate Remedy: Petitioner maintained that she had no plain, speedy, and adequate remedy in the ordinary course of law except the present Petition.

• Motion to Quash: In denying petitioner's Motion to Quash, respondent Deputy Ombudsman reasoned that Administrative Order No. 07, Section 4(d) of the Ombudsman does not allow such a motion.

• Authority to Conduct Preliminary Investigation: Whether the Deputy Ombudsman has the power and authority to conduct preliminary investigation of cases cognizable by the Sandiganbayan, or whether that authority is exclusively vested in the Office of the Special Prosecutor under R.A. 6770 and P.D. 1630.
• Authority to Determine the Offense Charged: Whether the Deputy Ombudsman may, on his own initiative, determine the offense or offenses charged in the Joint Affidavit-Complaint and its annexes.
• Denial of the Motion to Quash: Whether the Deputy Ombudsman committed grave abuse of discretion in denying petitioner's Motion to Quash and Motion for Reconsideration.
• Sufficiency of Basis for Preliminary Investigation: Whether there was sufficient basis to conduct preliminary investigation against petitioner for violation of Section 3(e) and (g) of R.A. 3019.
• Plain, Speedy, and Adequate Remedy: Whether petitioner lacked a plain, speedy, and adequate remedy in the ordinary course of law other than the petition for certiorari and prohibition.

• Authority to Conduct Preliminary Investigation: Yes. The Ombudsman and his Deputies are "other officers authorized by law" under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, and R.A. 6770 vests the Office of the Ombudsman with primary jurisdiction over cases cognizable by the Sandiganbayan; the Special Prosecutor's former exclusive authority under P.D. 1630 was abrogated by the 1987 Constitution and not retained in R.A. 6770.
• Authority to Determine the Offense Charged: Yes. The Deputy Ombudsman may motu proprio determine the offense or offenses to charge on the basis of the evidence before him, as part of the broad investigative powers of the Ombudsman under R.A. 6770.
• Denial of the Motion to Quash: No. Administrative Order No. 07, Section 4(d) disallows a motion to dismiss or quash except for lack of jurisdiction, and no lack of jurisdiction was shown; the denial was in accordance with the applicable rules.
• Sufficiency of Basis for Preliminary Investigation: Yes. The Joint Affidavit-Complaint dated May 6, 1993, together with the COA auditors' Memorandum Report and findings, laid sufficient basis for the preliminary investigation against petitioner.
• Plain, Speedy, and Adequate Remedy: No. Petitioner had a plain, speedy, and adequate remedy by filing a counter-affidavit, which could have raised the quashal of the complaint and her defenses.

• Authority to Conduct Preliminary Investigation: Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, allows preliminary investigation by provincial or city fiscals and their assistants, judges of the Municipal Trial Courts and Municipal Circuit Trial Courts, national and regional state prosecutors, and "such other officers as may be authorized by law." Section 15(1) of R.A. 6770 vests the Office of the Ombudsman with the power to investigate and prosecute on its own or on complaint any act or omission of any public officer or employee, office, or agency, and gives it primary jurisdiction over cases cognizable by the Sandiganbayan, including the authority to take over at any stage from any investigatory agency of the Government. The Ombudsman and his Deputies are therefore "other officers authorized by law" to conduct preliminary investigation. In Enrique Zaldivar vs. Sandiganbayan, the Court ruled that under the 1987 Constitution the Ombudsman is charged with the duty to investigate, while the Tanodbayan (now Office of the Special Prosecutor) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman; that right was lost effective February 2, 1987. Section 17 of P.D. 1630, which gave the Tanodbayan exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, was deemed abrogated by Section 7, Article XI of the 1987 Constitution, and E.O. 244 limited the Special Prosecutor to powers presently exercised by the Tanodbayan except those conferred on the Office of the Ombudsman. R.A. 6770, Section 11(4)(c), placed the Special Prosecutor under the supervision and control and upon the authority of the Ombudsman. Because the exclusive authority under P.D. 1630 was not included in R.A. 6770, the exclusive authority of the Special Prosecutor to conduct preliminary investigation became a thing of the past, and the Office of the Ombudsman has the power to investigate and conduct preliminary investigation. Administrative Order No. 07, Section 3, likewise allows Ombudsman Investigators, Special Prosecuting Officers, Deputized Prosecutors, Investigating Officials authorized by law, and lawyers in government service designated by the Ombudsman to conduct preliminary investigation. The respondent Deputy Ombudsman thus had the power and authority to conduct the preliminary investigation.
• Authority to Determine the Offense Charged: The Deputy Ombudsman is authorized and competent to look into and find out motu proprio the nature of the accusation embodied in the Joint Affidavit-Complaint endorsed to him for the indictment of petitioner and her co-respondents under R.A. 3019. Under Section 15(10) of R.A. 6770, the powers, functions, and duties of the Ombudsman may be delegated to his Deputies to ensure the effective exercise of his powers. Embraced in the broad powers of the Ombudsman is the discretionary power to define, supervise, and control the methodology and procedure his office may adopt in connection with its investigative power. Accordingly, the respondent Deputy Ombudsman has the authority to decide what offense or offenses to charge on the basis of the evidence before him. The determination of the existence or absence of a sustainable basis and ground for holding the respondent for trial is within the primary jurisdiction of the Ombudsman, and absent grave abuse of discretion, his action is not subject to judicial review.
• Denial of the Motion to Quash: Section 4(d) of Administrative Order No. 07 provides that no motion to dismiss shall be allowed except for lack of jurisdiction. Section 3, Rule 112 of the 1985 Rules on Criminal Procedure, as amended, prescribes the procedure for preliminary investigation: within ten days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue or issue a subpoena to the respondent; the respondent shall submit counter-affidavits and other supporting documents within ten days from receipt; thereafter the investigation shall be deemed concluded and the investigating officer shall resolve the case within ten days; and upon the evidence adduced, the investigating officer shall determine whether there is sufficient ground to hold the respondent for trial. The respondent Deputy Ombudsman denied the Motion to Quash and the Motion for Reconsideration according to these applicable provisions. No absence of jurisdiction was perceived. Petitioner was ordered to submit her counter-affidavit within ten days from service of the subpoena. Section 12, Article XI of the 1987 Constitution directs the Ombudsman and his Deputies to act promptly on complaints filed in any form or manner against public officials or employees, and the form or manner of the complaint should not deter action with dispatch and a sense of urgency. Notwithstanding several proddings and warnings, petitioner preoccupied herself with the filing of a motion to quash in lieu of her counter-affidavit, so the respondent Deputy Ombudsman had no alternative but to declare the waiver of petitioner's right to be heard and to preliminary investigation. The denial therefore did not constitute grave abuse of discretion.
• Sufficiency of Basis for Preliminary Investigation: Section 1, Rule 112 of the 1985 Rules on Criminal Procedure, as amended, defines preliminary investigation as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof and should be held for trial. The respondent Deputy Ombudsman has direct supervision and control over the preliminary investigation conducted by him, and absent any grave abuse of discretion tainting it, his action is not subject to judicial review. The propriety of endowing the Ombudsman with wide latitude of ministerial and discretionary powers emanates from his constitutional duty and function to protect the people from inefficiency, red tape, mismanagement, fraud, and corruption in the government. Taking into account the same Affidavit-Complaint dated May 6, 1993, together with the auditors' Memorandum Report and findings sent to him by the Commission on Audit, the respondent Deputy Ombudsman cannot be faulted for conducting the requisite preliminary investigation against petitioner and the other respondents in OMB Case No. 0-90-0296. Sufficient basis therefor was duly laid.
• Plain, Speedy, and Adequate Remedy: Petitioner had a plain, speedy, and adequate remedy by the simple expedient of sending in her counter-affidavit. A counter-affidavit would have been a plain, speedy, and adequate remedy because petitioner could have sought in that pleading the quashal of the complaint against her and could have stated therein her theory and protestation of innocence. Such an approach would have been a more expeditious and effective remedy, since within ten days from submission of petitioner's counter-affidavit, the respondent Deputy Ombudsman would have been duty bound to determine whether or not there is sufficient ground to hold petitioner for trial. The petition for certiorari and prohibition was therefore not the only available remedy.

• Ombudsman's authority to conduct preliminary investigation — The Ombudsman and his Deputies are "other officers authorized by law" under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, and have primary jurisdiction over cases cognizable by the Sandiganbayan under R.A. 6770. The Special Prosecutor's former exclusive authority under P.D. 1630 was abrogated by Section 7, Article XI of the 1987 Constitution and was not retained in R.A. 6770; the Special Prosecutor acts under the supervision, control, and authority of the Ombudsman. In this case, the Deputy Ombudsman was held to have authority to conduct the preliminary investigation against petitioner.
• Ombudsman's authority to determine the offense motu proprio — The Ombudsman and his Deputies may, on their own initiative, determine the offense or offenses to charge based on the evidence before them. This authority is part of the Ombudsman's broad investigative powers, which include the discretionary power to define, supervise, and control the methodology and procedure of the office, and which may be delegated to the Deputies under Section 15(10) of R.A. 6770. The Court applied this principle to uphold the Deputy Ombudsman's Order stating that petitioner was charged under Section 3(e) and (g) of R.A. 3019.
• No motion to dismiss or quash in Ombudsman preliminary investigation except for lack of jurisdiction — Administrative Order No. 07, Section 4(d) provides that no motion to dismiss shall be allowed except for lack of jurisdiction. The proper remedy for a respondent in a preliminary investigation is to file a counter-affidavit, where the respondent may seek quashal and present defenses. The Court applied this rule to hold that the denial of petitioner's Motion to Quash and Motion for Reconsideration was not grave abuse of discretion.
• Grave abuse of discretion and judicial review of Ombudsman action — The Ombudsman has wide latitude of ministerial and discretionary powers, and the determination of the existence or absence of a sustainable basis for holding a respondent for trial is within his primary jurisdiction. Absent grave abuse of discretion, his action in preliminary investigation is not subject to judicial review. The Court found no grave abuse of discretion in the assailed Orders.
• Prompt action on complaints — Section 12, Article XI of the 1987 Constitution requires the Ombudsman and his Deputies to act promptly on complaints filed in any form or manner against public officials or employees. The form or manner of the complaint should not deter action with dispatch and a sense of urgency. The Court cited this constitutional prescript in explaining the Deputy Ombudsman's handling of the case.

• "The Ombudsman and his Deputies are, within legal contemplation, "other officers authorized by law" to conduct preliminary investigation." — This states the core ruling that the Ombudsman and his Deputies are among the officers authorized by law to conduct preliminary investigation.
• "Unmistakably, the exclusive authority of the Office of the Tanodbayan (now Office of the Special Prosecutor) under P.D. No. 1630 to conduct preliminary investigation was not included in Section 11, subparagraph 4 (a) of R.A. No. 6770. Consequently, the irresistible conclusion that can be drawn unerringly from the aforementioned statutory amendments is that the exclusive authority of the Office of Special Prosecutor to conduct preliminary investigation has become a thing of the past, and the Office of the Ombudsman has the power to investigate and to conduct preliminary investigation." — This is the ratio decidendi on the abrogation of the Special Prosecutor's exclusive authority and the transfer of preliminary investigative power to the Ombudsman.
• "Comformably, the respondent Deputy Ombudsman has the authority to decide what offense or offenses to charge on the basis of the evidence before him." — This defines the Deputy Ombudsman's authority to determine motu proprio the offense to charge based on the evidence.
• "What is more, petitioner had a plain, speedy and adequate remedy by the simple expedient of sending in her counter-affidavit." — This explains why the petition was dismissed for lack of merit and why petitioner's remedy was to file a counter-affidavit.

• Enrique Zaldivar vs. Sandiganbayan, 160 SCRA 843 [1988] — The Court cited this as controlling authority that under the 1987 Constitution the Ombudsman is charged with the duty to investigate, and the Tanodbayan (now Special Prosecutor) lost authority to conduct preliminary investigations and direct the filing of criminal cases with the Sandiganbayan except upon orders of the Ombudsman effective February 2, 1987.
• Republic vs. Sandiganbayan, 200 SCRA 667 [1991] — Cited in support of the Ombudsman's primary jurisdiction and the principle that the determination of the existence or absence of a sustainable basis for holding a respondent for trial is within the Ombudsman's primary jurisdiction.
• Chief Supt. Romeo Acop, et al. vs. The Office of the Ombudsman, et al., G.R. No. 120422, and P/Chief Supt. Panfilo M. Lacson, et al. vs. BGen. Manuel B. Casaclang, et al., G.R. No. 120428, September 27, 1995, 248 SCRA 566 [1995] — Cited in the same footnote as additional authority on the Ombudsman's authority. The text does not elaborate their specific role.

• Section 2, Rule 112, 1985 Rules of Criminal Procedure, as amended — Enumerates the officers who may conduct preliminary investigation, including "such other officers as may be authorized by law"; the Court used this to hold that the Ombudsman and his Deputies are authorized to conduct preliminary investigation.
• Section 15(1), R.A. 6770 (Ombudsman Act) — Vests the Office of the Ombudsman with the power to investigate and prosecute on its own or on complaint any act or omission of any public officer or employee, office, or agency, and gives it primary jurisdiction over cases cognizable by the Sandiganbayan, including authority to take over at any stage from any investigatory agency.
• Section 15(10), R.A. 6770 — Allows the powers, functions, and duties of the Ombudsman to be delegated to his Deputies; cited to support the Deputy Ombudsman's authority to determine the offense charged.
• Section 11(4)(c), R.A. 6770 — Provides that the Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan.
• Section 18, R.A. 6770 — Provides that the Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise of its powers, functions, and duties; cited as corollary to its investigative power.
• Section 7, Article XI, 1987 Constitution — Provides that the existing Tanodbayan shall be known as the Office of the Special Prosecutor and shall continue to exercise its powers except those conferred on the Office of the Ombudsman; used to hold that P.D. 1630's exclusive authority was abrogated.
• Section 13, Article XI, 1987 Constitution — Sets out the powers, functions, and duties of the Office of the Ombudsman, including the power to investigate and to promulgate rules of procedure.
• Section 13(7), Article XI, 1987 Constitution — Cited as the source of the Ombudsman's constitutional duty and function to protect the people from inefficiency, red tape, mismanagement, fraud, and corruption in the government, justifying wide latitude of ministerial and discretionary powers.
• Section 12, Article XI, 1987 Constitution — Directs the Ombudsman and his Deputies to act promptly on complaints filed in any form or manner against public officials or employees; cited to justify the Deputy Ombudsman's prompt action and disallowance of the motion to quash.
• Section 17, P.D. 1630 — Provided that the Office of Tanodbayan (now Office of the Special Prosecutor) had exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan; deemed abrogated by the 1987 Constitution. The law took effect on July 18, 1979.
• Section 2, E.O. 244 — Provides that the Office of the Special Prosecutor shall exercise powers presently exercised by the Tanodbayan except those conferred on the Office of the Ombudsman under the Constitution.
• Section 4(d), Administrative Order No. 07 — Provides that no motion to dismiss shall be allowed except for lack of jurisdiction; basis for denying petitioner's Motion to Quash.
• Section 3, Rule 112, 1985 Rules of Criminal Procedure, as amended — Prescribes the procedure for preliminary investigation, including the respondent's submission of counter-affidavit within ten days and the investigating officer's determination of whether there is sufficient ground to hold the respondent for trial.
• Section 1, Rule 112, 1985 Rules on Criminal Procedure, as amended — Defines preliminary investigation as an inquiry to determine whether there is sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty and should be held for trial.
• Section 3, subparagraphs (e) and (g), R.A. 3019 — The Anti-Graft and Corrupt Practices Act provisions under which petitioner was charged; the Court upheld the Deputy Ombudsman's authority to determine that these were the offenses charged.

Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez and Quisumbing, JJ., concur. Regalado, J., is on leave.