ChanRobles Virtual law Library

Finally, investigation also disclosed that on April 22, 2002 Atty. Gil A. Valera traveled to Hongkong with his family without proper authority from the Office of the President in violation of Executive Order No. 298 (foreign travel of government personnel) dated May 19, 1995, thus, he committed an administrative offense of Grave Misconduct.

The criminal aspect of the complaint which was docketed as OMB-C-C-03-0547-J was later consolidated with a related criminal case, OMB-C-C-02-0568-I, earlier filed by Atty. Adolfo A. Casanero against petitioner and a certain Antonio Lorenzana of Steel Asia Manufacturing Corporation.

On 12 November 2003, Ombudsman Simeon V. Marcelo issued a memorandum ^[6] cralaw inhibiting himself from the subject criminal cases and in the administrative counterpart thereof and directing the Special Prosecutor to act in his (Ombudsman's) stead and place.

In an Order dated 14 June 2004, the Special Prosecutor likewise inhibited himself from the case to obviate suspicions of partiality after the petitioner filed alleged harassment charges against him. The case was next assigned to the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (OMB-MOLEO), headed by Mr. Orlando C. Casimiro.

Preliminary investigation was conducted in both OMB-C-C-03-0547-J and OMB-C-C-02-0568-I in which petitioner, as ordered by the public respondent, filed his counter-affidavits. The preliminary investigations culminated in a Joint Resolution dated August 23, 2004, [7] wherein the public respondent, through OMB-MOLEO, found the existence of probable cause that petitioner committed various violations of penal laws, to wit:

WHEREFORE, probable cause having been established, let corresponding Informations be filed with the Sandiganbayan against Respondents DEPUTY COMMISSIONER GIL A. VALERA, ANTONIO M. LORENZANA and ARIEL N. MANONGDO as follows:

1.����� DEPUTY COMMISSIONER GIL A. VALERA- Violation of Sec. 3604 of the Tariff and Customs Code of the Philippines;

2.����� DEPUTY COMMISSIONER GIL A. VALERA and ANTONIO M. LORENZANA- Violation of section 3 (e) and (g) of the Anti-Graft and Corrupt Practices Act (R.A. 3019);

3.����� DEPUTY COMMISSIONER GIL A. VALERA and ARIEL N. MANONGDO- Violation of Section 3 (d) of the Anti-Graft and Corrupt Practices Act (R.A. 3019) and Section 7, subparagraph (b) (3) of the Code of Conduct and Ethical Standards (R.A. 6713).

SO RESOLVED.

With no motion for reconsideration forthcoming after the period therefor had expired on November 9, 2004, the public respondent proceeded to file with the Sandiganbayan the corresponding criminal informations against petitioner. The same were docketed as Criminal Cases No. 28054, 28055, 28056 and 28057.

Atty. Valera is now before us via the present recourse alleging that the Office of the Ombudsman gravely abused its discretion when it issued the challenged Joint Resolution in utter disregard of its own internal rules and regulations; when it failed to consider the existing circumstances surrounding the facts of the Ombudsman cases against him which would warrant the dismissal thereof; and when it refused to consider his valid and compelling defenses.

Atty. Valera claims that public respondent's whimsical and arbitrary exercise of jurisdiction effectively denied him due process of law for the following reasons: there was undue delay in the conduct of investigation; the parties therein were not required to submit any position paper; and no preliminary investigation was conducted, thus, the affidavits submitted by the complainants were not identified by their respective affiants. Further, he insists that the Joint Resolution was not supported by sufficient evidence to establish probable cause.

Stripped to the core, the only issue left for our resolution is whether or not respondent Office of the Ombudsman committed grave abuse of discretion in rendering the assailed Joint Resolution of August 23, 2004.

This Court has almost always adopted, quite aptly, a policy of non-interference in the exercise of the Ombudsman's constitutionally mandated powers. ^[8] cralaw This rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they were compelled to review the exercise of discretion on the part of the fiscals, or prosecuting attorneys, each time they decide to file an information in court or dismiss a complaint by a private complainant. ^[9] cralaw

True, jurisprudence now holds that where the findings of the Ombudsman on the existence of probable cause in criminal cases are tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the aggrieved party may file a petition for certiorari with this Court under Rule 65. [10] cralaw But for certiorari to lie, it must be shown, however, that the public respondent acted with grave abuse of discretion, or more specifically, that it exercised its power arbitrarily or despotically by reason of passion or personal hostility; and 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. Petitioner failed in this respect.

Petitioner insists that the Ombudsman should have conducted a preliminary investigation "proper" after he has filed his counter-affidavits.

Section 4, Rule II of Administrative Order No. 07 of the Office of the Ombudsman, otherwise known as the "Rules of Procedure of the Office of the Ombudsman," ^[11] cralaw is eluminating. It reads:

SEC. 4. Procedure. - The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions:

a)����� If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b)����� After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.

c)����� If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.

xxx��� xxx������ xxx

f)������ If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.

Clearly, the Ombudsman has discretion to determine whether a clarificatory hearing is still necessary. The Ombudsman does not have to conduct a hearing in order to satisfy the requirements of a preliminary investigation. As in the case at bar, the directive to file counter-affidavit and other controverting evidence already constitutes preliminary investigation.

The Court cannot interfere with the Ombudsman's discretion in determining the adequacy or inadequacy of the evidence before him. The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper. The occasion is not for the full and exhaustive display of the parties' evidence but for the presentation of such evidence only as may engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof. ^[12] cralaw

As aptly pointed out by the Ombudsman in his comment, it is axiomatic that the remedy of a person against whom an information has been filed in court after preliminary investigation is to face trial.

The criminal proceedings are in fact underway before the Sandiganbayan, a collegiate court fully competent to make a judicial determination of probable cause and regularity of the preceding preliminary investigation.

All told, petitioner is absolutely bereft of cause to obligate this Court, there being absolute absence of any grave abuse that may be imputed on the Ombudsman. Grave abuse of discretion is an act that is despotic, arbitrary or capricious, ^[13] cralaw or when an act is executed whimsically, capriciously or arbitrarily out of malice, ill-will or personal bias. ^[14] cralaw None of those conditions and attributes characterized the preliminary investigation and findings of probable cause against the petitioner.

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt. ^[15] cralaw Here, the Ombudsman believes that it has an airtight case against the petitioner, such that it is supremely confident it will secure petitioner's conviction for the crime charged. As earlier stressed, we are not inclined to interfere on the adequacy or inadequacy of the evidence before him.

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO
Clerk of Court