G.R. No. 130191 April 27, 1998
RODRIGO R. DUTERTE and BENJAMIN C. DE GUZMAN, Petitioners, vs. THE HONORABLE SANDIGANBAYAN, Respondent.
The right to a preliminary investigation is not a mere formal right; it is a substantive right. To deny the accused of such right would be to deprive him of due process.
In this special civil action for certiorari with preliminary injunction, petitioners seek to set aside the Order of the Sandiganbayan dated 27 June 1997 denying the Motion to Quash the information filed against them for violating Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft And Corrupt Practices Act. Petitioners similarly impugn the Resolution of the Sandiganbayan dated 5 August 1997 which denied their Motion for Reconsideration thereof.
Pertinent to this case are the following facts:
In 1990, the Davao City Local Automation Project was launched by the city government of Davao. The goal of said project was to make Davao City a leading center for computer systems and technology development. It also aimed to provide consultancy and training services and to assist all local government units in Mindanao set up their respective computer systems.
To implement the project, a Computerization Program Committee, composed of the following was formed:
The Committee's duty was to "conduct a thorough study of the different computers in the market, taking into account the quality and acceptability of the products, the reputation and track record of the manufacturers and/or their Philippine distributors, the availability of the replacement parts and accessories in the Philippines, the availability of service centers in the country that can undertake preventive maintenance of the computer hardwares to ensure a long and uninterrupted use and, last but not the least, the capability of the manufacturers and/or Philippine distributors to design and put into place the computer system - complete with the flow of paperwork, forms to be used and personnel required." 2
Following these guidelines, the Committee recommended the acquisition of Goldstar computers manufactured by Goldstar Information and Communication, Ltd., South Korea and exclusively distributed in the Philippines by Systems Plus, Inc. (SPI).
After obtaining prior clearance from COA Auditor Kintanar, the Committee proceeded to negotiate with SPI, represented by its President Rodolfo V. Jao and Executive Vice President Manuel T. Asis, for the acquisition and installation of the computer hardware and the training of personnel for the Electronic Data-Processing Center. The total contract cost amounted to P11,056,810.00.
On 5 November 1990, the City Council (Sangguniang Panlungsod) of Davao unanimously passed Resolution No. 1402 and Ordinance No. 173 approving the proposed contract for computerization between Davao City and SPI. The Sanggunian, likewise, authorized the City Mayor (petitioner Duterte) to sign the said contract for and in behalf of Davao City. 3
On the same day, the Sanggunian issued Resolution No. 1403 and Ordinance No. 174, the General Fund Supplemental Budget No. 07 for CY 1990 appropriating P3,000,000.00 for the city's computerization project.
Given the go-signal, the contract was duly signed by the parties thereto and on 8 November 1990, petitioner City Administrator de Guzman released to SPI PNB Check No. 65521 in the amount of P1,748,521.58 as downpayment.
On 27 November 1990, the Office of the Ombudsman-Mindanao received a letter-complaint from a "concerned citizen," stating that "some city officials are going to make a killing" in the transaction. 4 The complaint was docketed as OMB-MIN-90-0425. However, no action was taken thereon. 5
Thereafter, sometime in February 1991, a complaint docketed as Civil Case No. 20,550-91, was instituted before the Regional Trial Court of Davao City, Branch 12 by Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw Foundation, Inc. against the petitioners, the City Council, various city officials and SPI for the judicial declaration of nullity of the aforestated resolutions and ordinances and the computer contract executed pursuant thereto.
On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a proposal to petitioner Duterte for the cancellation of the computerization contract.
Consequently, on 8 April 1991, the Sanggunian issued Resolution No. 449 and Ordinance No. 53 accepting Goldstar's offer to cancel the computerization contract provided the latter return the advance payment of P1,748,521.58 to the City Treasurer's Office within a period of one month. Petitioner Duterte, as city mayor, was thus authorized to take the proper steps for the mutual cancellation of the said contract and to sign all documents relevant thereto. 6
Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in behalf of Davao City, and SPI mutually rescinded the contract and the downpayment was duly refunded.
In the meantime, a Special Audit Team of the Commission on Audit was tasked to conduct an audit of the Davao City Local Automation Project to determine if said contract conformed to government laws and regulations.
On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 91-05 recommending rescission of the subject contract. A copy of the report was sent to petitioner Duterte by COA Chairman Eufemio C. Domingo on 7 June 1991. In the latter's transmittal letter, Chairman Domingo summarized the findings of the special audit team, thus:
The city government, intent on pursuing its computerization plan, decided to follow the audit team's recommendation and sought the assistance of the National Computer Center (NCC). After conducting the necessary studies, the NCC recommended the acquisition of Philips computers in the amount of P15,792,150.00. Davao City complied with the NCC's advice and hence, was finally able to obtain the needed computers.
Subsequently, on 1 August 1991, the Anti-Craft League-Davao City Chapter, through one Miguel C. Enriquez, filed an unverified complaint with the Ombudsman-Mindanao against petitioners, the City Treasurer, City Auditor, the whole city government of Davao and SPI. The League alleged that the respondents, in entering into the computerization contract, violated R.A. No. 3019 (Anti-Graft and Corrupt Practices Act), PD No. 1445 (Government Auditing Code of the Philippines), COA circulars and regulations, the Revised Penal Code and other pertinent penal laws. The case was docketed as OMB-3-91-1768. 8
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of the Office of the Ombudsman sent a letter 9 to COA Chairman Domingo requesting the Special Audit Team to submit their joint affidavit to substantiate the complaint in compliance with Section 4, par. (a) of the Rules of Procedure of the Office of the Ombudsman (A.O. No. 07).
On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil Case No. 20,550-91. The dispositive portion reads, thus:
On 12 November 1991, Graft Investigator Manriquez issued an order in OMB-3-91-1768 directing petitioners, Jorge Silvosa (City Treasurer), Mariano Kintanar (City Auditor) and Manuel T. Asis of SPI to:
On 4 December 1991, the Ombudsman received the affidavits of the Special Audit Team but failed to furnish petitioners copies thereof.
On 18 February 1992, petitioners submitted a manifestation adopting the comments filed by their co-respondents Jorge Silvosa and Mariano Kintanar dated 25 November 1991 and 17 January 1992, respectively.
Four years after, or on 22 February 1996, petitioners received a copy of a Memorandum prepared by Special Prosecution Officer I, Lemuel M. De Guzman dated 8 February 1996 addressed to Ombudsman Aniano A. Desierto regarding OMB-MIN-90-0425 and OMB-3-91-1768. Prosecutor De Guzman recommended that the charges of malversation, violation of Sec. 3(e), R.A. No. 3019 and Art. 177, Revised Penal Code against petitioners and their co-respondents be dismissed. He opined that any issue pertaining to unwarranted benefits or injury to the government and malversation were rendered moot and academic by the mutual rescission of the subject contract before the COA submitted its findings (SAR No. 91-05) or before the disbursement was disallowed. However, Prosecutor De Guzman recommended that petitioners be charged under Sec. 3(g) of R.A. No. 3019 "for having entered into a contract manifestly and grossly disadvantageous to the government, the elements of profit, unwarranted benefits or loss to government being immaterial." 12
Accordingly, the following information dated 8 February 1996 was filed against petitioners before the Sandiganbayan (docketed as Criminal Case No. 23193):
On 27 February 1996, petitioners filed a motion for reconsideration and on 29 March 1996, a Supplemental Motion for Reconsideration on the following grounds:
On 19 March 1996, the Ombudsman issued a Resolution denying petitioners' motion for reconsideration.
On 18 June 1997, petitioners filed a Motion to Quash which was denied by the Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan ruled:
On 15 July 1997, petitioners moved for reconsideration of the above order but the same was denied by the Sandiganbayan for lack of merit in its Resolution dated 5 August 1997. 15
Hence, the present recourse.
Petitioners allege that:
On 4 September 1997, the Court issued a Temporary Restraining Order enjoining the Sandiganbayan from further proceeding with Criminal Case No. 23193.
The Court finds the petition meritorious.
We have judiciously studied the case records and we find that the preliminary investigation of the charges against petitioners has been conducted not in the manner laid down in Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners were merely directed to submit a point-by-point comment under oath on the allegations in Civil Case No. 20,550-91 and on SAR No. 91-05. The said order was not accompanied by a single affidavit of any person charging petitioners of any offense as required by law. 17 They were just required to comment upon the allegations in Civil Case No. 20,550-91 of the Regional Trial Court of Davao City which had earlier been dismissed and on the COA Special Audit Report. Petitioners had no inkling that they were being subjected to a preliminary investigation as in fact there was no indication in the order that a preliminary investigation was being conducted. If Graft Investigator Manriquez had intended merely to adopt the allegations of the plaintiffs in the civil case or the Special Audit Report (whose recommendation for the cancellation of the contract in question had been complied with) as his bases for criminal prosecution, then the procedure was plainly anomalous and highly irregular. As a consequence, petitioners' constitutional right to due process was violated.
Sections (2) and (4), Rule II of Administrative Order No. 07 (Rules of Procedure of the Office of the Ombudsman) provide:
In what passes off as application of the foregoing rules, all that petitioners were asked to do was merely to file their comment upon every allegation of the complaint in Civil Case No. 20,550-91 in the Regional Trial Court (RTC) and on the COA Special Audit Report. The comment referred to in Section 2(b) Rule II, of A.O. No. 07 is not part of or is equivalent to the preliminary investigation contemplated in Sec. 4, Rule II, of the same Administrative Order. A plain reading of Sec. 2 would convey the idea that upon evaluation of the complaint, the investigating officer may recommend its outright dismissal for palpable want of merit; otherwise, or if the complaint appears to have some merit, the investigator may recommend action under any of those enumerated from (b) to (f), that is, the investigator may recommend that the complaint be: referred to respondent for comment, or endorsed to the proper government office or agency which has jurisdiction over the case; or forwarded to the appropriate office or official for fact-finding investigation; or referred for administrative adjudication; or subjected to preliminary investigation. Now, if the investigator opts to recommend the filing of a comment by the respondent, it is presumably because he needs more facts and information for further evaluation of the merits of the complaint. That being done, the investigating officer shall again recommend any one of the actions enumerated in Section 2, which include the conduct of a preliminary investigation.
A preliminary investigation, on the other hand, takes on an adversarial quality and an entirely different procedure comes into play. This must be so because the purpose of a preliminary investigation or a previous inquiry of some kind, before an accused person is placed on trial, is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expenses and anxiety of public trial. 18 It is also intended to protect the state from having to conduct useless and expensive trials. 19 While the right is statutory rather than constitutional in its fundament, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. 20
Note that in preliminary investigation, if the complaint is unverified or based only on official reports (which is the situation obtaining in the case at bar), the complainant is required to submit affidavits to substantiate the complaint. The investigating officer, thereafter, shall issue an order, to which copies of the complaint-affidavit are attached, requiring the respondent to submit his counter-affidavits. In the preliminary investigation, what the respondent is required to file is a counter-affidavit, not a comment. It is only when the respondent fails to file a counter-affidavit may the investigating officer consider the respondent's comment as the answer to the complaint. Against the foregoing backdrop, there was a palpable non-observance by the Office of the Ombudsman of the fundamental requirements of preliminary investigation.
Apparently, in the case at bar, the investigating officer considered the filing of petitioner's comment as a substantial compliance with the requirements of a preliminary investigation. Initially, Graft Investigator Manriquez directed the members of the Special Audit Team on 9 October 1991 to submit their affidavits relative to SAR No. 91-05. However, on 12 November 1991, before the affidavits were submitted, Manriquez required petitioners to submit their respective comments on the complaint in the civil case and on Special Audit Report (SAR) 91-05. Even when the required affidavits were filed by the audit team on 4 December 1991, petitioners were still not furnished copies thereof. The Ombudsman contends that failure to provide petitioners the complaint-affidavits is immaterial since petitioners were well aware of the existence of the civil complaint and SAR No. 91-05. We find the Ombudsman's reasoning flawed. The civil complaint and the COA Special Audit Report are not equivalent to the complaint-affidavits required by the rules. Moreover, long before petitioners were directed to file their comments, the civil complaint (Civil Case No. 20,550-91) was rendered moot and academic and, accordingly, dismissed following the mutual cancellation of the computerization contract. In SAR No. 91-05, on the other hand, petitioners were merely advised to rescind the subject contract - which was accomplished even before the audit report came out. In light of these circumstances, the Court cannot blame petitioners for being unaware of the proceedings conducted against them.
In Olivas vs. Office of the Ombudsman, 21 this Court, speaking through Justice Vicente V. Mendoza, emphasized that it is mandatory requirement for the complainant to submit his affidavit and those of his witnesses before the respondent can be compelled to submit his counter-affidavits and other supporting documents. Thus:
Compounding the deprivation of petitioners of their right to a preliminary investigation was the undue and unreasonable delay in the termination of the irregularly conducted preliminary investigation. Petitioners' manifestation adopting the comments of their co-respondents was filed on 18 February 1992. However, it was only on 22 February 1996 or four (4) years later, that petitioners received a memorandum dated 8 February 1996 submitted by Special Prosecutor Officer I Lemuel M. De Guzman recommending the filing of information against them for violation of Sec. 3(g) of R.A. No. 3019 (Anti-Graft and Corrupt Practices Act). The inordinate delay in the conduct of the "preliminary investigation" infringed upon their constitutionally guaranteed right to a speedy disposition of their case. 22 In Tatad vs. Sandiganbayan, 23 we held that an undue delay of close to three (3) years in the termination of the preliminary investigation in the light of the circumstances obtaining in that case warranted the dismissal of the case:
In the recent case of Angchangco, Jr. v. Ombudsman, 24 the Court upheld Angchangco's right to the speedy disposition of his case. Angchangco was a sheriff in the Regional Trial Court of Agusan del Norte and Butuan City. In 1990 criminal complaints were filed against him which remained pending before the Ombudsman even after his retirement in 1994. The Court thus ruled:
We are not persuaded by the Ombudsman's argument that the Tatad ruling does not apply to the present case which is not politically motivated unlike the former, pointing out the following findings of the Court in the Tatad decision:
The Ombudsman endeavored to distinguish the present suit from the Angchangco case by arguing that in the latter, Angchangco filed several motions for early resolution, implying that in the case at bar petitioners were not as vigilant in asserting or protecting their rights.
We disagree. The constitutional right to speedy disposition of cases does not come into play only when political considerations are involved. The Constitution makes no such distinction. While political motivation in Tatad may have been a factor in the undue delay in the termination of the preliminary investigation therein to justify the invocation of their right to speedy disposition of cases, the particular facts of each case must be taken into consideration in the grant of the relief sought. In the Tatad case, we are reminded:
In Alviso vs. Sandiganbayan, 28 the Court observed that the concept of speedy disposition of cases "is a relative term and must necessarily be a flexible concept" and that the factors that may be considered and balanced are the "length of the delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay."
Petitioners in this case, however, could not have urged the speedy resolution of their case because they were completely unaware that the investigation against them was still on-going. Peculiar to this case, we reiterate, is the fact that petitioners were merely asked to comment, and not file counter-affidavits which is the proper procedure to follow in a preliminary investigation. After giving their explanation and after four long years of being in the dark, petitioners, naturally, had reason to assume that the charges against them had already been dismissed.
On the other hand, the Office of the Ombudsman failed to present any plausible, special or even novel reason which could justify the four-year delay in terminating its investigation. Its excuse for the delay - the many layers of review that the case had to undergo and the meticulous scrutiny it had to entail - has lost its novelty and is no longer appealing, as was the invocation in the Tatad case. The incident before us does not involve complicated factual and legal issues, specially in view of the fact that the subject computerization contract had been mutually cancelled by the parties thereto even before the Anti-Graft League filed its complaint.
The Office of the Ombudsman capitalizes on petitioners' three motions for extension of time to file comment which it imputed for the delay. However, the delay was not caused by the motions for extension. The delay occurred after petitioners filed their comment. Between 1992 to 1996, petitioners were under no obligation to make any move because there was no preliminary investigation within the contemplation of Section 4, Rule II of A.O. No. 07 to speak of in the first place.
Finally, under the facts of the case, there is no basis in law or in fact to charge petitioners for violation of Sec. 3(g) of R.A. No. 3019. To establish probable cause against the offender for violation of Sec. 3(g), the following elements must be present: (1) the offender is a public officer; (2) he entered into a contract or transaction in behalf of the government; and (3) the contract or transaction is grossly and manifestly disadvantageous to the government. The second element of the crime - that the accused public officers entered into a contract in behalf of the government - is absent. The computerization contract was rescinded on 6 May 1991 before SAR No. 91-05 came out on 31 May 1991 and before the Anti-Graft League filed its complaint with the Ombudsman on 1 August 1991. Hence, at that time the Anti-Graft League instituted their complaint and the Ombudsman issued its Order on 12 November 1991, there was no longer any contract to speak of. The contract, after 6 May 1991 became in contemplation of law, non-existent, as if no contract was ever executed.
WHEREFORE, premises considered, the petition is GRANTED and Criminal Case No. 23193 is hereby DISMISSED. The temporary restraining order issued on 4 September 1997 is made PERMANENT.
Narvasa, C.J., Romero and Purisima, JJ., concur.
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