G.R. No. 135249 : January 16, 2004 - ATTY. ORLANDO SALVADOR for and in behalf of the PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS, Petitioner, v. HON. ANIANO DESIERTO, as Ombudsman, RAFAEL A. SISON, CESAR ZALAMEA, ALICIA Ll. REYES, ARISTON S. MARTINEZ, in their capacity as officials of the Development Bank of the Philippines, and JOSE O. COBARRUBIAS, ARMANDO V. LIM, CANDIDO P. SORIENTE, FRANCISCO G. GREGORIO, JUAN A. SISON, and ROLANDO LORENTE, Directors/Officers of Hotel Mirador, Inc., Respondents.
[G.R. No. 135249 : January 16, 2004]
ATTY. ORLANDO SALVADOR for and in behalf of the PRESIDENTIAL
AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS,
Petitioner, v. HON. ANIANO DESIERTO,
as Ombudsman, RAFAEL A. SISON, CESAR ZALAMEA, ALICIA Ll. REYES, ARISTON S.
MARTINEZ, in their capacity as officials of the Development Bank of the
Philippines, and JOSE O. COBARRUBIAS, ARMANDO V. LIM, CANDIDO P. SORIENTE,
FRANCISCO G. GREGORIO, JUAN A. SISON, and ROLANDO LORENTE, Directors/Officers
of Hotel Mirador, Inc., Respondents.
D E C I S I O N
Before us is a petition for certiorari1 filed by Atty. Orlando Salvador on behalf of the Presidential Ad Hoc
Fact-Finding Committee on Behest Loans, assailing the Resolution dated April 27, 19982 of then Ombudsman Aniano A. Desierto dismissing the complaint against
respondents in OMB-0-96-2539; and his Order dated June 29, 19983 denying petitioners motion for reconsideration.
From March 19,
1975 to April
22, 1977, Hotel Mirador, Inc. (Hotel Mirador) obtained three (3)
loans from the Development bank of the Philippines (DBP) amounting to a total of
P95,000,000.00, to finance the construction and development of its hotel
On October 8,
1992, then President Fidel V. Ramos issued Administrative Order No.
134 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans
(Committee) to inventory all behest loans, determine the parties responsible
therefore, and recommend the appropriate actions to be taken by the
government.In determining a behest
loan, he also issued Memorandum Order No. 615 dated November 9, 1992,
specifying the following criteria as a frame of reference:
It is under-collateralized;
Borrower corporation is undercapitalized;
Direct or indirect endorsement by high government officials, like
presence of marginal notes;
Stockholders, officers or agents of the borrower corporation are
identified as cronies;
Deviation of use of loan proceeds from the purpose intended;
Use of corporate layering;
Non-feasibility of the project for which financing is being sought;
Extra-ordinary speed in which the loan release is made.
Among the accounts acted upon by the Committee were the loans
obtained by Hotel Mirador from the DBP.Petitioner Atty. Orlando Salvador was then the PCGG consultant detailed
with the Committee.
Based on the criteria provided by Memorandum Order No. 61, the
Committee, through petitioner, found that the loans obtained by Hotel Mirador
from the DBP were behest loans.Thus,
petitioner filed with the Office of the Ombudsman a sworn complaint6 dated September 18, 1996 against the directors and officers of Hotel Mirador,
namely: Jose O. Cobarrubias, Armando V. Lim, Candido P. Soriente, Francisco G.
Gregorio, Juan A. Sison, and Rolando Lorente; and the DBP directors who
approved the loans, namely: Rafael A. Sison, Cesar Zalamea, Alicia Ll. Reyes,
and Ariston S. Martinez, for violation of Section 3 (e) and (g),
Act No. 3019, as amended, quoted as follows:
Sec. 3.Corrupt practices of public officers.
In addition to acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
x x x
(e) Causing any undue injury to any party, including the
Government, or giving 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.This provision shall apply
to officers and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions;
x x x
(g) Entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the same, whether or not
the public officer profited or will profit thereby.
The complaint, docketed as OMB-0-96-2539, alleges inter alia:
4.The evidence submitted
to us show that:
a) Hotel Mirador was registered with the SEC on November 5, 1974
with the following incorporators:
Armando V. Lim
Quintin Lee See
Jose O. Cobarrubias
Juan A. Sison
Manuel Q. Salintes
b) Hotel Mirador was granted by DBP a loan on March 19, 1975 in
the amount of P60 million under B/R 1206 for the following purposes:
Construction of hotel building
Purchase of machinery and equipment
Payment of interim obligation
c) The loan was without sufficient collateral and Hotel Mirador
itself had no sufficient capital to be entitled to the amount of the loan
considering that at the time the P60 million loan was granted the offered
existing collateral (land) amounts to P2,025,100.00 and the rest amounting to
P73 million represents assets to be acquired out of the loan and its paid-up
capital amounted P17 million only as of December 31, 1976.
d) Despite the foregoing facts, Hotel Mirador obtained additional
loans up to P35 million as shown below without sufficient capital to ensure not
only viability of its operations but its ability to repay all its loans.
On May 8, 1998, then Ombudsman Desierto issued the assailed
Resolution dated April 27, 1998 dismissing petitioners complaint on the
following grounds: (a) there is no sufficient evidence to prove that the loans
in question are behest loans considering that Hotel Mirador has sufficient
collateral for the loans and that the value of its properties and assets at the
time was P92,025,100.00; and (b) the crime has prescribed because the latest
transaction complained of occurred on April 22, 1977, thus, beyond the 15-year
prescriptive period provided by Section 11 of the same law.
Petitioner filed a motion for reconsideration but was
denied.Hence, this petition for certiorari.
Petitioner alleges that respondent Ombudsman gravely abused his
discretion in ruling that the complaint against respondent was barred by
prescription and that Hotel Mirador had sufficient assets at the time the DBP
loans were granted.Respondent further
alleges that the right of the Republic to recover behest loans may not be
barred by prescription because it is imprescriptible.7 Even assuming it can prescribe, the offense was discovered only in 1992 when
the Committee was created.Thus, the
complaint was seasonably filed on September 18, 1996.
In his comment, respondent Ombudsman claims that the crime has
prescribed and that the imprescriptibility clause applies only to recovery of
ill-gotten wealth, not to the prosecution of criminal actions.8 He insists that in dismissing petitioners complaint, he did not commit any
grave abuse of discretion.
The applicable laws on prescription of criminal offenses defined
and penalized under the Revised Penal Code are found in Articles 90 and 91 of
the same Code.For those penalized by
special laws, Act No. 3326, as amended,9 applies. Here, since R.A. 3019, the law alleged to have been violated, is a
special law, the applicable law in the computation of the prescriptive period
is Section 2 of Act No. 3326, as amended, which provides:
shall begin to run from the day of the commission of the violation of the law,
and if the same not be known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
The above provisions
are clear and need no interpretation. In Presidential Ad Hoc Committee vs. Hon.
Desierto, we held:10
it was well-nigh impossible for the State, the aggrieved party,
to have known the violations of R.A. No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials concerned
connived or conspired with the beneficiaries of the loans. Thus, we agree
with the COMMITTEE that the prescriptive period for the offenses with which
respondents in OMB-0-96-0968 were charged should be computed from the discovery of the commission thereof and
not from the day of such commission.
The assertion by the Ombudsman that the phrase if the same not be
known in Section 2 of Act No. 3326 does not mean lack of knowledge but that
the crime is not reasonably knowable is unacceptable, as it provides an
interpretation that defeats or negates the intent of the law, which is written
in a clear and unambiguous language and thus provides no room for interpretation
but only application.
We reiterated the above ruling in Presidential Ad Hoc Fact
Finding Committee on Behest Loans vs. Desierto,
In cases involving violations of R.A. No. 3019 committed prior to
the February 1986 Edsa Revolution that ousted President Ferdinand E. Marcos, we
ruled that the government as the aggrieved party could not have known of the
violations at the time the questioned transactions were made (PCGG vs. Desierto, G.R. No. 140232,
January 19, 2001, 349 SCRA 767; Domingo vs. Sandiganbayan, supra, Note 14; Presidential
Ad Hoc Fact Finding Committee on Behest Loans vs. Desierto, supra, Note
16) .Moreover, no person would have
dared to question the legality of those transactions.Thus, the counting of the prescriptive period
commenced from the dated of discovery of the offense in 1992 after an
exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans.
As to when the period of prescription was interrupted, the second
paragraph of Section 2, Act No. 3326, as amended, provides that prescription is interrupted when
proceedings are instituted against the guilty person.
Records show that the act complained of was discovered in
1992.The complaint was filed with the
Office of respondent Ombudsman on September 18, 1996, or four (4) years from the time of
discovery.Thus, the filing of the
complaint was well within the prescriptive period of 15 years.
on the issue of whether respondent Ombudsman committed grave
abuse of discretion in dismissing the complaint against respondents, let it be
stressed that the Ombudsman has discretion to determine whether a criminal
case, given its facts and circumstances, should be filed or not.It is basically his call.He may dismiss the complaint forthwith should
he find it to be insufficient in form or substance or he may proceed with the
investigation if, in his view, the complaint is in due and proper form and
In Espinosa vs. Office of the Ombudsman,
13 we held:
:The prosecution of offenses committed by public officers is vested
in the Office of the Ombudsman.To
insulate the Office from outside pressure and improper influence, the
Constitution as well as R.A. 6770 has endowed it with a wide latitude of
investigatory and prosecutory powers virtually free from legislative, executive
or judicial intervention.This Court
consistently refrains from interfering with the exercise of its powers, and
respects the initiative and independence inherent in the Ombudsman who beholden
to no one, acts as the champion of the people and the preserver of the
integrity of public service.
Indeed, we have consistently ruled that unless there are good and
compelling reasons, we cannot interfere in the Ombudsmans exercise of his
investigating and prosecutory powers.14
We have examined the records of the case and found no cogent
reason to deviate from that rule.The
original loan proposal of Hotel Mirador was the subject of an intensive study
as laid out in the DBP Memorandum dated March 11, 1975,15 Resolution No. 1275 dated April
7, 197616 and Memorandum dated March
29, 1977.17 There is no showing that the DBP Board of Directors did not exercise sound
business judgment in approving the loans of Hotel MIrador or that said approval
was contrary to acceptable banking practices obtaining at that time.In fact, complainant failed to point out
circumstances that would indicate the criminal design by either the officers of
the DBP or Hotel Mirador or a collusion between them to cause undue injury to
the government by giving unwarranted benefits to Hotel Mirador.
In sum, we cannot conclude that respondent Ombudsman committed
grave abuse of discretion.His
Resolution being assailed by petitioner is based on substantial evidence.We have consistently held that as long as
substantial evidence support the Ombudsmans ruling, his decision will not be
WHEREFORE, the instant
petition is DISMISSED.The challenged
Resolution dated April 27,
1998 and the Order dated June 29, 1998 of respondent Ombudsman in OMB-0-96-2539 are
Vitug, (Chairman), Corona,
and Carpio-Morales, JJ., concur.
1 Pursuant to Rule 65 of the 1997 Rules of Civil Procedure, as amended.
7 Article XI, Section 15 of the 1987 Constitution.
9 An Act to Establish Periods Of Prescription For Violations Penalized By
Special Acts And Municipal Ordinances And To Provide When Prescription Shall
Begin To Run.
10 Presidential Ad Hoc Committee vs.
Desierto, 375 Phil. 697 (1999).
11 G.R. No. 130817, August 22,
2001, 363 SCRA 489, 494.
13 G.R. No. 135775, October
19, 2000, 343 SCRA 744, 746.
18 Presidential Ad Hoc Fact-Finding
Committee on Behest Loans vs.
G.R. No. 135482, supra
at 729, citing Morong Water District vs. Office of the Deputy Ombudsman,
G.R. No. 116754, March 17, 2000, 328 SCRA 363 and Tan vs. Office of the Ombudsman,
G.R. Nos. 114332 & 114895, September
10, 1998, 295 SCRA 315.
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