Republic of the Philippines

SUPREME COURT
Baguio City
THIRD DIVISION

G.R. No. 130191 April 27, 1998
RODRIGO R. DUTERTE an !EN"AMIN C. DE GU#MAN, petitioners,
s!
T$E $ONORA!%E SANDIGAN!A&AN, respon"ent!

'APUNAN, J.:
The right to a preli#inary inestigation is not a #ere for#al right$ it is a substantie
right! To "eny the accuse" of such right %oul" be to "eprie hi# of "ue process!
In this special ciil action for certiorari %ith preli#inary in&unction, petitioners see' to
set asi"e the Or"er of the San"iganbayan "ate" () *une +,,) "enying the -otion to
.uash the infor#ation file" against the# for iolating Sec! /0g1 of R!2! No! /3+,,
other%ise 'no%n as the 2nti45raft 2n" Corrupt Practices 2ct! Petitioners si#ilarly
i#pugn the Resolution of the San"iganbayan "ate" 6 2ugust +,,) %hich "enie"
their -otion for Reconsi"eration thereof!
Pertinent to this case are the follo%ing facts7
In +,,3, the Daao City 8ocal 2uto#ation Pro&ect %as launche" by the city
goern#ent of Daao! The goal of sai" pro&ect %as to #a'e Daao City a lea"ing
center for co#puter syste#s an" technology "eelop#ent! It also ai#e" to proi"e
consultancy an" training serices an" to assist all local goern#ent units in
-in"anao set up their respectie co#puter syste#s!
To i#ple#ent the pro&ect, a Co#puteri9ation Progra# Co##ittee, co#pose" of the
follo%ing %as for#e"7
Chair#an 7 2tty! Ben&a#in C! "e 5u9#an, City 2"#inistrator
-e#bers 7 -r! *orge Silosa, 2cting City Treasurer
2tty! Victorino 2"incula, City Councilor
-r! 2le:is 2l#en"ras, City Councilor
2tty! Onofre ;rancisco, City 8egal Officer
-r! Rufino 2#brocio, *r!, Chief of Internal Control Office
2tty! -ariano <intanar, CO2 Resi"ent 2u"itor! 1
The Co##ittee=s "uty %as to >con"uct a thorough stu"y of the "ifferent co#puters in
the #ar'et, ta'ing into account the ?uality an" acceptability of the pro"ucts, the
reputation an" trac' recor" of the #anufacturers an"@or their Philippine "istributors,
the aailability of the replace#ent parts an" accessories in the Philippines, the
aailability of serice centers in the country that can un"erta'e preentie
#aintenance of the co#puter har"%ares to ensure a long an" uninterrupte" use an",
last but not the least, the capability of the #anufacturers an"@or Philippine "istributors
to "esign an" put into place the co#puter syste# A co#plete %ith the flo% of
paper%or', for#s to be use" an" personnel re?uire"!>
2
;ollo%ing these gui"elines, the Co##ittee reco##en"e" the ac?uisition of 5ol"star
co#puters #anufacture" by 5ol"star Infor#ation an" Co##unication, 8t"!, South
<orea an" e:clusiely "istribute" in the Philippines by Syste#s Plus, Inc! 0SPI1!
2fter obtaining prior clearance fro# CO2 2u"itor <intanar, the Co##ittee procee"e"
to negotiate %ith SPI, represente" by its Presi"ent Ro"olfo V! *ao an" B:ecutie Vice
Presi"ent -anuel T! 2sis, for the ac?uisition an" installation of the co#puter
har"%are an" the training of personnel for the Blectronic Data4Processing Center!
The total contract cost a#ounte" to P++,36C,D+3!33!
On 6 Noe#ber +,,3, the City Council 0Sangguniang Panlungso"1 of Daao
unani#ously passe" Resolution No! +E3( an" Or"inance No! +)/ approing the
propose" contract for co#puteri9ation bet%een Daao City an" SPI! The
Sanggunian, li'e%ise, authori9e" the City -ayor 0petitioner Duterte1 to sign the sai"
contract for an" in behalf of Daao City!
3
On the sa#e "ay, the Sanggunian issue" Resolution No! +E3/ an" Or"inance No!
+)E, the 5eneral ;un" Supple#ental Bu"get No! 3) for CF +,,3 appropriating
P/,333,333!33 for the city=s co#puteri9ation pro&ect!
5ien the go4signal, the contract %as "uly signe" by the parties thereto an" on D
Noe#ber +,,3, petitioner City 2"#inistrator "e 5u9#an release" to SPI PNB
Chec' No! C66(+ in the a#ount of P+,)ED,6(+!6D as "o%npay#ent!
1
On () Noe#ber +,,3, the Office of the O#bu"s#an4-in"anao receie" a letter4
co#plaint fro# a >concerne" citi9en,> stating that >so#e city officials are going to
#a'e a 'illing> in the transaction!
(
The co#plaint %as "oc'ete" as O-B4-IN4,34
3E(6! Ho%eer, no action %as ta'en thereon!
)
Thereafter, so#eti#e in ;ebruary +,,+, a co#plaint "oc'ete" as Ciil Case No!
(3,6634,+, %as institute" before the Regional Trial Court of Daao City, Branch +( by
Dean Pilar Braga, Hospicio C! Conanan, *r! an" <orsung Daba% ;oun"ation, Inc!
against the petitioners, the City Council, arious city officials an" SPI for the &u"icial
"eclaration of nullity of the aforestate" resolutions an" or"inances an" the co#puter
contract e:ecute" pursuant thereto!
On (( ;ebruary +,,+, 5ol"star, through its agent, -r! S!F! 8ee sent a proposal to
petitioner Duterte for the cancellation of the co#puteri9ation contract!
Conse?uently, on D 2pril +,,+, the Sanggunian issue" Resolution No! EE, an"
Or"inance No! 6/ accepting 5ol"star=s offer to cancel the co#puteri9ation contract
proi"e" the latter return the a"ance pay#ent of P+,)ED,6(+!6D to the City
Treasurer=s Office %ithin a perio" of one #onth! Petitioner Duterte, as city #ayor,
%as thus authori9e" to ta'e the proper steps for the #utual cancellation of the sai"
contract an" to sign all "ocu#ents releant thereto!
*
Pursuant to the aforestate" authority, on C -ay +,,+, petitioner Duterte, in behalf of
Daao City, an" SPI #utually rescin"e" the contract an" the "o%npay#ent %as "uly
refun"e"!
In the #eanti#e, a Special 2u"it Tea# of the Co##ission on 2u"it %as tas'e" to
con"uct an au"it of the Daao City 8ocal 2uto#ation Pro&ect to "eter#ine if sai"
contract confor#e" to goern#ent la%s an" regulations!
On /+ -ay +,,+, the tea# sub#itte" its Special 2u"it Report 0S2R1 No! ,+436
reco##en"ing rescission of the sub&ect contract! 2 copy of the report %as sent to
petitioner Duterte by CO2 Chair#an Bufe#io C! Do#ingo on ) *une +,,+! In the
latter=s trans#ittal letter, Chair#an Do#ingo su##ari9e" the fin"ings of the special
au"it tea#, thus7
+! The a%ar" of the contract for the >Daao City 8ocal 2uto#ation Pro&ect>
to Syste#s Plus, Inc!, for P++,C6C,D+3 %as "one thru negotiate" contract
rather than thru co#petitie public bi""ing in iolation of Sections ( an" D of
PD 6(C! -oreoer, there %as no sufficient appropriation for this particular
contract in iolation of Sec! D6 of PD +EE6!
(! 2"ance pay#ent of P+!)- %as #a"e to Syste#s Plus, Inc! coering
+6G of the contract cost of P++!C- in iolation of Sec! E6 of PD E)) an"
Sec! DD of PD +EE6!
/! The cost of co#puter har"%are an" accessories un"er contract %ith
>Syste#s Plus, Inc! 0SPI1> "iffere" fro# the tea#=s canass by as #uch as
+(33G or a total of P+!D-!
E! The City ha" no Infor#ation Syste#s Plan 0ISP1 prior to the a%ar" of the
contract to SPI in "irect iolation of -alacaHang -e#o! Or"er No! (D) an"
NCC -e#o! Circular D,4+ "ate" *une ((, +,D,! This o#ission resulte" in
un"ue "isa"antage to the City 5oern#ent!
6! To re#e"y the foregoing "eficiencies, the tea# reco##en"s that the
contract %ith Syste#s Plus, Inc! be rescin"e" in ie% of the ?uestionable
ali"ity "ue to insufficient fun"ing! ;urther, the proisions of NCC4-C D,4+
"ate" *une ((, +,D, regar"ing procure#ent an"@or installation of co#puter
har"%are@syste# shoul" be strictly a"here" to! 7
The city goern#ent, intent on pursuing its co#puteri9ation plan, "eci"e" to follo%
the au"it tea#=s reco##en"ation an" sought the assistance of the National
Co#puter Center 0NCC1! 2fter con"ucting the necessary stu"ies, the NCC
reco##en"e" the ac?uisition of Philips co#puters in the a#ount of P+6,),(,+63!33!
Daao City co#plie" %ith the NCC=s a"ice an" hence, %as finally able to obtain the
nee"e" co#puters!
Subse?uently, on + 2ugust +,,+, the 2nti4Craft 8eague4Daao City Chapter, through
one -iguel C! Bnri?ue9, file" an unerifie" co#plaint %ith the O#bu"s#an4
-in"anao against petitioners, the City Treasurer, City 2u"itor, the %hole city
goern#ent of Daao an" SPI! The 8eague allege" that the respon"ents, in entering
into the co#puteri9ation contract, iolate" R!2! No! /3+, 02nti45raft an" Corrupt
Practices 2ct1, PD No! +EE6 05oern#ent 2u"iting Co"e of the Philippines1, CO2
circulars an" regulations, the Reise" Penal Co"e an" other pertinent penal la%s!
The case %as "oc'ete" as O-B4/4,+4+)CD!
8
On , October +,,+, 5raft Inestigation Officer 05IO1 Pepito 2! -anri?ue9 of the
Office of the O#bu"s#an sent a letter
9
to CO2 Chair#an Do#ingo re?uesting the
Special 2u"it Tea# to sub#it their &oint affi"ait to substantiate the co#plaint in
co#pliance %ith Section E, par! 0a1 of the Rules of Proce"ure of the Office of the
O#bu"s#an 02!O! No! 3)1!
On +E October +,,+, *u"ge Paul T! 2rcangel, issue" an Or"er "is#issing Ciil Case
No! (3,6634,+! The "ispositie portion rea"s, thus7
IHBRB;ORB, in ie% of all the foregoing, this case is hereby "is#isse" on
the groun" of pre#aturity an" that it has beco#e #oot an" aca"e#ic %ith
the #utual cancellation of the contract! The other clai#s of the parties are
hereby "enie"! No pronounce#ent as to costs!
SO ORDBRBD! 10
2
On +( Noe#ber +,,+, 5raft Inestigator -anri?ue9 issue" an or"er in O-B4/4,+4
+)CD "irecting petitioners, *orge Silosa 0City Treasurer1, -ariano <intanar 0City
2u"itor1 an" -anuel T! 2sis of SPI to7
! ! ! file in ten 0+31 "ays 0+1 their respectie erifie" point4by4point co##ent
un"er oath upon eery allegation of the co#plaint in Ciil Case No! (3,6634
,+ in the Regional Trial Court 0RTC1, Branch +(, Daao City >Dean Pilar C!
Braga, et al! s! Hon! Ro"rigo Duterte,> for *u"icial Declaration of Nullity
an" Illegality of City Council of Daao Resolutions an" Or"inances, an" the
Co#puter Contract e:ecute" Pursuant Thereto, for Recoery of Su# of
-oney, Professional ;ees an" Costs A %ith In&unctie Relief, inclu"ing the
Issuance of a Restraining Or"er an"@or a Irit of Preli#inary Prohibitory
In&unction in %hich they file" a #otion to "is#iss, not an ans%er an" 0(1 the
respectie co##ents, also un"er oath, on the Special 2u"it Report No! ,+4
36, a copy of %hich is attache"! 11
On E Dece#ber +,,+, the O#bu"s#an receie" the affi"aits of the Special 2u"it
Tea# but faile" to furnish petitioners copies thereof!
On +D ;ebruary +,,(, petitioners sub#itte" a #anifestation a"opting the co##ents
file" by their co4respon"ents *orge Silosa an" -ariano <intanar "ate" (6
Noe#ber +,,+ an" +) *anuary +,,(, respectiely!
;our years after, or on (( ;ebruary +,,C, petitioners receie" a copy of a
-e#oran"u# prepare" by Special Prosecution Officer I, 8e#uel -! De 5u9#an
"ate" D ;ebruary +,,C a""resse" to O#bu"s#an 2niano 2! Desierto regar"ing
O-B4-IN4,343E(6 an" O-B4/4,+4+)CD! Prosecutor De 5u9#an reco##en"e" that
the charges of #alersation, iolation of Sec! /0e1, R!2! No! /3+, an" 2rt! +)),
Reise" Penal Co"e against petitioners an" their co4respon"ents be "is#isse"! He
opine" that any issue pertaining to un%arrante" benefits or in&ury to the goern#ent
an" #alersation %ere ren"ere" #oot an" aca"e#ic by the #utual rescission of the
sub&ect contract before the CO2 sub#itte" its fin"ings 0S2R No! ,+4361 or before the
"isburse#ent %as "isallo%e"! Ho%eer, Prosecutor De 5u9#an reco##en"e" that
petitioners be charge" un"er Sec! /0g1 of R!2! No! /3+, >for haing entere" into a
contract #anifestly an" grossly "isa"antageous to the goern#ent, the ele#ents of
profit, un%arrante" benefits or loss to goern#ent being i##aterial!>
12
2ccor"ingly, the follo%ing infor#ation "ate" D ;ebruary +,,C %as file" against
petitioners before the San"iganbayan 0"oc'ete" as Cri#inal Case No! (/+,/17
That on or about Noe#ber 6, +,,3, in the City of Daao, Philippines, an"
%ithin the &uris"iction of this Honorable Court, the aboe4na#e" accuse",
both public officers, accuse" Ro"rigo R! Duterte being then the City -ayor
an" accuse" Ben&a#in C! De 5u9#an being then the City 2"#inistrator of
Daao City, co##itting the cri#e herein charge" in relation to, %hile in the
perfor#ance an" ta'ing a"antage of their official functions, an" conspiring
an" confe"erating %ith each other, "i" then an" there %illfully, unla%fully
an" cri#inally enter into a negotiate" contract for the purchase of co#puter
har"%are an" accessories %ith the Syste#s Plus, Incorporate" for an" in
consi"eration of the a#ount of PBSOS7 B8BVBN -I88ION SIJ HKNDRBD
;I;TF4SIJ THOKS2ND BI5HT HKNDRBD TBN 0P++,C6C,D+3!331, %hich
contract is #anifestly an" grossly "isa"antageous to the goern#ent, sai"
accuse" 'no%ing fully4%ell that the sai" ac?uisition cost has been
oerprice" by as #uch as t%ele hun"re" 0+(33G1 percent an" %ithout
sub&ecting sai" ac?uisition to the re?uire" public bi""ing!
CONTR2RF TO 82I! 13
On () ;ebruary +,,C, petitioners file" a #otion for reconsi"eration an" on (, -arch
+,,C, a Supple#ental -otion for Reconsi"eration on the follo%ing groun"s7
+! Petitioners %ere "eprie" of their right to a preli#inary inestigation, "ue
process an" the spee"y "isposition of their case$
(! Petitioner Duterte acte" in goo" faith an" %as clothe" %ith authority to
enter into the sub&ect contract$
/! There is no contract #anifestly an" grossly "isa"antageous to the
goern#ent since the sub&ect contract has been "uly rescin"e"!
On +, -arch +,,C, the O#bu"s#an issue" a Resolution "enying petitioners= #otion
for reconsi"eration!
On +D *une +,,), petitioners file" a -otion to .uash %hich %as "enie" by the
San"iganbayan in its Or"er "ate" () *une +,,)! The San"iganbayan rule"7
It appears, ho%eer, that the accuse" %ere able to file #otions for the
reconsi"eration of the Resolution authori9ing the filing of the Infor#ation
herein %ith the O#bu"s#an in -anila! This %oul" #ean, therefore, that
%hateer "ecision %hich #ight hae occurre" %ith respect to the
preli#inary inestigation %oul" hae been re#e"ie" by the #otion for
reconsi"eration in the sense that %hateer the accuse" ha" to say in their
behalf, they %ere able to "o in that #otion for reconsi"eration!
Consi"ering the "enial thereof by the Office of the O#bu"s#an, the Court
"oes not beliee itself e#po%ere" to authori9e a reinestigation on the
groun" of an ina"e?uacy of the basic preli#inary inestigation nor %ith
respect to a "ispute as to the proper appreciation by the prosecution of the
ei"ence at that ti#e!
3
In ie% hereof, upon further representation by 2tty! -e"ial"ea that he
represents not only -ayor Duterte but City 2"#inistrator "e 5u9#an as
%ell, upon his co##it#ent, the arraign#ent hereof is no% set for *uly (6,
+,,) at D733 o=cloc' in the #orning! 1(
On +6 *uly +,,), petitioners #oe" for reconsi"eration of the aboe or"er but the
sa#e %as "enie" by the San"iganbayan for lac' of #erit in its Resolution "ate" 6
2ugust +,,)!
1)
Hence, the present recourse!
Petitioners allege that7
THB HONOR2B8B S2NDI52NB2F2N CO--ITTBD 5R2VB 2BKSB O;
DISCRBTION 2-OKNTIN5 TO 82C< OR BJCBSS O; *KRISDICTION IN
DBNFIN5 PBTITIONBRS= -OTION TO .K2SH 2ND -OTION ;OR
RBCONSIDBR2TION, CONSIDBRIN5 TH2T7
2
0+1 PBTITIONBRS IBRB B;;BCTIVB8F DBPRIVBD O;
THBIR RI5HT TO 2 PRB8I-IN2RF INVBSTI52TION
PKRSK2NT TO SBC! E, RK8B II O; 2D-INISTR2TIVB
ORDBR NO! 3) 0RK8BS O; PROCBDKRB O; THB
O;;ICB O; THB O-BKDS-2N1$ 2ND
0(1 2SSK-IN5 TH2T 2 PRB8I-IN2RF INVBSTI52TION
I2S PROPBR8F CONDKCTBD, THBRB I2S 2N
INORDIN2TB DB82F IN TBR-IN2TIN5 THB S2-B
THBRBBF DBPRIVIN5 THB- O; THBIR RI5HT TO
DKB PROCBSS 2ND SPBBDF DISPOSITION O; THB
C2SB!
B
THBRB IS NO SK;;ICIBNT B2SIS, IN ;2CT 2ND IN 82I, TO CH2R5B
PBTITIONBRS DKTBRTB 2ND DB 5KL-2N O; VIO82TIN5 SBC! / 051
O; R!2! /3+, IN TH2T7
0+1 PBTITIONBR DKTBRTB 2CTBD IN 5OOD ;2ITH
2ND I2S C8OTHBD IITH ;K88 8B528 2KTHORITF
;RO- THB CITF COKNCI8 TO BNTBR INTO 2
CONTR2CT IITH SFSTB-S P8KS, INC!$
0(1 THBRB IS NO CONTR2CT -2NI;BST8F 2ND
5ROSS8F DIS2DV2NT25BOKS TO THB
5OVBRN-BNT TO SPB2< O; 2S THB S2-B H2S
BBBN RBSCINDBD 2ND NO D2-25B I2S
SK;;BRBD BF THB CITF 5OVBRN-BNT$
0/1 2SSK-IN5 TH2T THB CONTR2CT I2S NOT
RBSCINDBD, THB S2-B C2NNOT BB CONSIDBRBD
2S -2NI;BST8F 2ND 5ROSS8F DIS2DV2NT25BOKS
TO THB 5OVBRN-BNT! 1*
On E Septe#ber +,,), the Court issue" a Te#porary Restraining Or"er en&oining the
San"iganbayan fro# further procee"ing %ith Cri#inal Case No! (/+,/!
The Court fin"s the petition #eritorious!
I
Ie hae &u"iciously stu"ie" the case recor"s an" %e fin" that the preli#inary
inestigation of the charges against petitioners has been con"ucte" not in the
#anner lai" "o%n in 2"#inistratie Or"er No! 3)!
In the +( Noe#ber +,,+ Or"er of 5raft Inestigator -anri?ue9, petitioners %ere
#erely "irecte" to sub#it a point4by4point co##ent un"er oath on the allegations in
Ciil Case No! (3,6634,+ an" on S2R No! ,+436! The sai" or"er %as not
acco#panie" by a single affi"ait of any person charging petitioners of any offense
as re?uire" by la%!
17
They %ere &ust re?uire" to co##ent upon the allegations in
Ciil Case No! (3,6634,+ of the Regional Trial Court of Daao City %hich ha" earlier
been "is#isse" an" on the CO2 Special 2u"it Report! Petitioners ha" no in'ling that
they %ere being sub&ecte" to a preli#inary inestigation as in fact there %as no
in"ication in the or"er that a preli#inary inestigation %as being con"ucte"! If 5raft
Inestigator -anri?ue9 ha" inten"e" #erely to a"opt the allegations of the plaintiffs
in the ciil case or the Special 2u"it Report 0%hose reco##en"ation for the
cancellation of the contract in ?uestion ha" been co#plie" %ith1 as his bases for
cri#inal prosecution, then the proce"ure %as plainly ano#alous an" highly irregular!
2s a conse?uence, petitioners= constitutional right to "ue process %as iolate"!
Sections 0(1 an" 0E1, Rule II of 2"#inistratie Or"er No! 3) 0Rules of Proce"ure of
the Office of the O#bu"s#an1 proi"e7
Sec! (! Evaluation! A Kpon ealuating the co#plaint, the inestigating
officer shall reco##en" %hether or not it #ay be7
a1 "is#isse" outright for %ant of palpable #erit$
4
b1 referre" to respon"ent for co##ent$
c1 en"orse" to the proper goern#ent office or agency %hich has
&uris"iction oer the case$
"1 for%ar"e" to the appropriate office or official for fact4fin"ing inestigation$
e1 referre" for a"#inistratie a"&u"ication$ or
f1 sub&ecte" to a preli#inary inestigation
::: ::: :::
Sec! E! Procedure! A The preli#inary inestigation of cases falling un"er
the &uris"iction of the San"iganbayan an" Regional Trial Courts shall be
con"ucte" in the #anner prescribe" in Section /, Rule ++( of the Rules of
Court, sub&ect to the follo%ing proisions7
a1 If the co#plaint is not un"er oath or is base" only on official reports, the
inestigating officer shall re?uire the co#plainant or supporting %itnesses to
e:ecute affi"aits to substantiate the co#plaints!
b1 2fter such affi"aits hae been secure", the inestigating officer shall
issue an or"er, attaching thereto a copy of the affi"aits an" other
supporting "ocu#ents, "irecting the respon"ent to sub#it, %ithin ten 0+31
"ays fro# receipt thereof, his counter4affi"aits an" controerting ei"ence
%ith proof of serice thereof on the co#plainant! The co#plainant #ay file
reply affi"aits %ithin ten 0+31 "ays after serice of the counter4affi"aits!
c1 If the respon"ent "oes not file a counter4affi"ait, the inestigating officer
#ay consi"er the co##ent file" by hi#, if any, as his ans%er to the
co#plaint! In any eent, the respon"ent shall hae access to the ei"ence
on recor"!
"1 No #otion to "is#iss shall be allo%e" e:cept for lac' of &uris"iction!
Neither #ay a #otion for a bill of particulars be entertaine"! If respon"ent
"esires any #atter in the co#plainant=s affi"ait to be clarifie", the
particulari9ation thereof #ay be "one at the ti#e of clarificatory ?uestioning
in the #anner proi"e" in paragraph 0f1 of this section!
e1 If the respon"ent cannot be sere" %ith the or"er #entione" in
paragraph C hereof, or haing been sere", "oes not co#ply there%ith, the
co#plaint shall be "ee#e" sub#itte" for resolution on the basis of the
ei"ence on recor"!
f1 If, after the filing of the re?uisite affi"aits an" their supporting ei"ences,
there are facts #aterial to the case %hich the inestigating officer #ay nee"
to be clarifie" on, he #ay con"uct a clarificatory hearing "uring %hich the
parties shall be affor"e" the opportunity to be present but %ithout the right
to e:a#ine or cross4e:a#ine the %itness being ?uestione"! Ihere the
appearance of the parties or %itnesses is i#practicable, the clarificatory
?uestioning #ay be con"ucte" in %riting, %hereby the ?uestions "esire" to
be as'e" by the inestigating officer or a party shall be re"uce" into %riting
an" sere" on the %itness concerne" %ho shall be re?uire" to ans%er the
sa#e in %riting an" un"er oath!
g1 Kpon the ter#ination of the preli#inary inestigation, the inestigating
officer shall for%ar" the recor"s of the case together %ith his resolution to
the "esignate" authorities for their appropriate action thereon!
No infor#ation #ay be file" an" no co#plaint #ay be "is#isse" %ithout the
%ritten authority or approal of the O#bu"s#an in cases falling %ithin the
&uris"iction of the San"iganbayan, or the proper Deputy O#bu"s#an in all
other cases!
In %hat passes off as application of the foregoing rules, all that petitioners %ere
as'e" to "o %as #erely to file their co##ent upon eery allegation of the co#plaint
in Ciil Case No! (3,6634,+ in the Regional Trial Court 0RTC1 an" on the CO2
Special 2u"it Report! The co##ent referre" to in Section (0b1 Rule II, of 2!O! No! 3)
is not part of or is e?uialent to the preli#inary inestigation conte#plate" in Sec! E,
Rule II, of the sa#e 2"#inistratie Or"er! 2 plain rea"ing of Sec! ( %oul" coney the
i"ea that upon ealuation of the co#plaint, the inestigating officer #ay reco##en"
its outright "is#issal for palpable %ant of #erit$ other%ise, or if the co#plaint appears
to hae so#e #erit, the inestigator #ay reco##en" action un"er any of those
enu#erate" fro# 0b1 to 0f1, that is, the inestigator #ay reco##en" that the
co#plaint be7 referre" to respon"ent for co##ent, or en"orse" to the proper
goern#ent office or agency %hich has &uris"iction oer the case$ or for%ar"e" to the
appropriate office or official for fact4fin"ing inestigation$ or referre" for a"#inistratie
a"&u"ication$ or sub&ecte" to preli#inary inestigation! No%, if the inestigator opts to
reco##en" the filing of a co##ent by the respon"ent, it is presu#ably because he
nee"s #ore facts an" infor#ation for further ealuation of the #erits of the co#plaint!
That being "one, the inestigating officer shall again reco##en" any one of the
actions enu#erate" in Section (, %hich inclu"e the con"uct of a preli#inary
inestigation!
2 preli#inary inestigation, on the other han", ta'es on an a"ersarial ?uality an" an
entirely "ifferent proce"ure co#es into play! This #ust be so because the purpose of
a preli#inary inestigation or a preious in?uiry of so#e 'in", before an accuse"
person is place" on trial, is to secure the innocent against hasty, #alicious an"
oppressie prosecution, an" to protect hi# fro# an open an" public accusation of a
cri#e, fro# the trouble, e:penses an" an:iety of public trial!
18
It is also inten"e" to
protect the state fro# haing to con"uct useless an" e:pensie trials!
19
Ihile the
5
right is statutory rather than constitutional in its fun"a#ent, it is a co#ponent part of
"ue process in cri#inal &ustice! The right to hae a preli#inary inestigation
con"ucte" before being boun" oer to trial for a cri#inal offense an" hence for#ally
at ris' of incarceration or so#e other penalty, is not a #ere for#al or technical right$ it
is a substantie right! To "eny the accuse"=s clai# to a preli#inary inestigation
%oul" be to "eprie hi# of the full #easure of his right to "ue process!
20
Note that in preli#inary inestigation, if the co#plaint is unerifie" or base" only on
official reports 0%hich is the situation obtaining in the case at bar1, the co#plainant is
re?uire" to sub#it affi"aits to substantiate the co#plaint! The inestigating officer,
thereafter, shall issue an or"er, to %hich copies of the co#plaint4affi"ait are
attache", re?uiring the respon"ent to sub#it his counter4affi"aits! In the preli#inary
inestigation, %hat the respon"ent is re?uire" to file is a counter4affi"ait, not a
co##ent! It is only %hen the respon"ent fails to file a counter4affi"ait #ay the
inestigating officer consi"er the respon"ent=s co##ent as the ans%er to the
co#plaint! 2gainst the foregoing bac'"rop, there %as a palpable non4obserance by
the Office of the O#bu"s#an of the fun"a#ental re?uire#ents of preli#inary
inestigation!
2pparently, in the case at bar, the inestigating officer consi"ere" the filing of
petitioner=s co##ent as a substantial co#pliance %ith the re?uire#ents of a
preli#inary inestigation! Initially, 5raft Inestigator -anri?ue9 "irecte" the #e#bers
of the Special 2u"it Tea# on , October +,,+ to sub#it their affi"aits relatie to S2R
No! ,+436! Ho%eer, on +( Noe#ber +,,+, before the affi"aits %ere sub#itte",
-anri?ue9 re?uire" petitioners to sub#it their respectie co##ents on the co#plaint
in the ciil case an" on Special 2u"it Report 0S2R1 ,+436! Ben %hen the re?uire"
affi"aits %ere file" by the au"it tea# on E Dece#ber +,,+, petitioners %ere still not
furnishe" copies thereof! The O#bu"s#an conten"s that failure to proi"e
petitioners the co#plaint4affi"aits is i##aterial since petitioners %ere %ell a%are of
the e:istence of the ciil co#plaint an" S2R No! ,+436! Ie fin" the O#bu"s#an=s
reasoning fla%e"! The ciil co#plaint an" the CO2 Special 2u"it Report are not
e?uialent to the co#plaint4affi"aits re?uire" by the rules! -oreoer, long before
petitioners %ere "irecte" to file their co##ents, the ciil co#plaint 0Ciil Case No!
(3,6634,+1 %as ren"ere" #oot an" aca"e#ic an", accor"ingly, "is#isse" follo%ing
the #utual cancellation of the co#puteri9ation contract! In S2R No! ,+436, on the
other han", petitioners %ere #erely a"ise" to rescin" the sub&ect contract A %hich
%as acco#plishe" een before the au"it report ca#e out! In light of these
circu#stances, the Court cannot bla#e petitioners for being una%are of the
procee"ings con"ucte" against the#!
In Olivas vs! Office of the Ombudsman,
21
this Court, spea'ing through *ustice
Vicente V! -en"o9a, e#phasi9e" that it is #an"atory re?uire#ent for the
co#plainant to sub#it his affi"ait an" those of his %itnesses before the respon"ent
can be co#pelle" to sub#it his counter4affi"aits an" other supporting "ocu#ents!
Thus7
Ben in inestigations loo'ing to the prosecution of a party, Rule I, M / can
only apply to the general cri#inal inestigation, %hich in the case at bar %as
alrea"y con"ucte" by the PC55! But after the O#bu"s#an an" his
"eputies hae gathere" ei"ence an" their inestigation has cease" to be a
general e:ploratory one an" they "eci"e to bring the action against a party,
their procee"ings beco#e a"ersary an" Rule II E0a1 then applies! This
#eans that before the respon"ent can be re?uire" to sub#it counter4
affi"aits an" other supporting "ocu#ents, the co#plaint #ust sub#it his
affi"ait an" those of his %itnesses! This is true not only of prosecutions of
graft cases un"er Rep! 2ct No! /3+, but also of actions for the recoery of
une:plaine" %ealth un"er Rep! 2ct No! +/),, because M ( of this latter la%
re?uires that before a petition is file" there #ust be a >preious in?uiry
si#ilar to preli#inary inestigation in cri#inal cases!>
In"ee", since a preli#inary inestigation is "esigne" to screen cases for
trial, only ei"ence #ay be consi"ere"! Ihile reports an" een ra%
infor#ation #ay &ustify the initiation of an inestigation, the stage of
preli#inary inestigation can be hel" only after sufficient ei"ence has been
gathere" an" ealuate" %arranting the eentual prosecution of the case in
court! 2s this Court hel" in Cojuangco, Jr! v! PCGG7
2lthough such a preli#inary inestigation is not a trial an"
is not inten"e" to usurp the function of the trial court, it is
not a casual affair! The officer con"ucting the sa#e
inestigates or in?uires into the facts concerning the
co##ission of the cri#e %ith the en" in ie% of
"eter#ining %hether or not an infor#ation #ay be
prepare" against the accuse"! In"ee", a preli#inary
inestigation is in effect a realistic &u"icial appraisal of the
#erits of the case! Sufficient proof of the guilt of the
accuse" #ust be a""uce" so that %hen the case is trie",
the trial court #ay not be boun" as a #atter of la% to
or"er an ac?uittal! 2 preli#inary inestigation has then
been calle" a &u"icial in?uiry! It is a &u"icial procee"ing! 2n
act beco#es &u"icial %hen there is opportunity to be
hear" an" for the pro"uction an" %eighing of ei"ence,
an" a "ecision is ren"ere" thereof!
II
Co#poun"ing the "epriation of petitioners of their right to a preli#inary inestigation
%as the un"ue an" unreasonable "elay in the ter#ination of the irregularly
con"ucte" preli#inary inestigation! Petitioners= #anifestation a"opting the
co##ents of their co4respon"ents %as file" on +D ;ebruary +,,(! Ho%eer, it %as
only on (( ;ebruary +,,C or four 0E1 years later, that petitioners receie" a
#e#oran"u# "ate" D ;ebruary +,,C sub#itte" by Special Prosecutor Officer I
8e#uel -! De 5u9#an reco##en"ing the filing of infor#ation against the# for
6
iolation of Sec! /0g1 of R!2! No! /3+, 02nti45raft an" Corrupt Practices 2ct1! The
inor"inate "elay in the con"uct of the >preli#inary inestigation> infringe" upon their
constitutionally guarantee" right to a spee"y "isposition of their case!
22
In Tatad vs!
Sandiganbayan,
23
%e hel" that an un"ue "elay of close to three 0/1 years in the
ter#ination of the preli#inary inestigation in the light of the circu#stances obtaining
in that case %arrante" the "is#issal of the case7
Ie fin" the long "elay in the ter#ination of the preli#inary inestigation by
the Tano"bayan in the instant case to be iolatie of the constitutional right
of the accuse" to "ue process! Substantial a"herence to the re?uire#ents
of the la% goerning the con"uct of preli#inary inestigation, inclu"ing
substantial co#pliance %ith the ti#e li#itation prescribe" by the la% for the
resolution of the case by the prosecutor, is part of the proce"ural "ue
process constitutionally guarantee" by the fun"a#ental la%! Not only un"er
the broa" u#brella of the "ue process clause, but un"er the constitutional
guarantee of >spee"y "isposition> of cases as e#bo"ie" in Section +C of the
Bill of Rights 0both in the +,)/ an" +,D) Constitution1, the inor"inate "elay
is iolatie of the petitioner=s constitutional rights! 2 "elay of close to three
0/1 years can not be "ee#e" reasonable or &ustifiable in the light of the
circu#stances obtaining in the case at bar! Ie are not i#presse" by the
atte#pt of the San"iganbayan to saniti9e the long "elay by in"ulging in the
speculatie assu#ption that >the "elay #ay be "ue to a painsta'ing an"
grueling scrutiny by the Tano"bayan as to %hether the ei"ence presente"
"uring the preli#inary inestigation #erite" prosecution of a for#er high4
ran'ing goern#ent official!> In the first place, such a state#ent suggests a
"ouble stan"ar" of treat#ent, %hich #ust be e#phatically re&ecte"!
Secon"ly, three out of the fie charges against the petitioner %ere for his
allege" failure to file his s%orn state#ent of assets an" liabilities re?uire" by
Republic 2ct No! /3+,, %hich certainly "i" not inole co#plicate" legal an"
factual issues necessitating such >painsta'ing an" grueling scrutiny> as
%oul" &ustify a "elay of al#ost three years in ter#inating the preli#inary
inestigation! The other t%o charges relating to allege" bribery an" allege"
giing of un%arrante" benefits to a relatie, %hile presenting #ore
substantial legal an" factual issues, certainly "o not %arrant or &ustify the
perio" of three years, %hich it too' the Tano"bayan to resole the case!
It has been suggeste" that the long "elay in ter#inating the preli#inary
inestigation shoul" not be "ee#e" fatal, for een the co#plete absence of
a preli#inary inestigation "oes not %arrant "is#issal of the infor#ation!
True A but the absence of a preli#inary inestigation can be correcte" by
giing the accuse" such inestigation! But an un"ue "elay in the con"uct of
the preli#inary inestigation can not be correcte", for until no%, #an has
not yet inente" a "eice for setting bac' ti#e!
In the recent case of Angchangco, Jr! vs! Ombudsman,
2(
the Court uphel"
2ngchangco=s right to the spee"y "isposition of his case! 2ngchangco %as a sheriff
in the Regional Trial Court of 2gusan "el Norte an" Butuan City! In +,,3 cri#inal
co#plaints %ere file" against hi# %hich re#aine" pen"ing before the O#bu"s#an
een after his retire#ent in +,,E! The Court thus rule"7
Here, the Office of the O#bu"s#an, "ue to its failure to resole the cri#inal
charges against petitioner for #ore than si: years, has transgresse" on the
constitutional right of petitioner to "ue process an" to a spee"y "isposition
of the cases against hi#, as %ell as the O#bu"s#an=s o%n constitutional
"uty to act pro#ptly on co#plaints file" before it! ;or all these past C years,
petitioner has re#aine" un"er a clou", an" since his retire#ent in
Septe#ber +,,E, he has been "eprie" of the fruits of his retire#ent after
sering the goern#ent for oer E( years all because of the inaction of
respon"ent O#bu"s#an! If %e %ait any longer, it #ay be too late for
petitioner to receie his retire#ent benefits, not to spea' of clearing his
na#e! This is a case of plain in&ustice %hich calls for the issuance of the %rit
praye" for! 2)
Ie are not persua"e" by the O#bu"s#an=s argu#ent that the Tata" ruling "oes not
apply to the present case %hich is not politically #otiate" unli'e the for#er, pointing
out the follo%ing fin"ings of the Court in the Tata" "ecision7
2 painsta'ing reie% of the facts can not but leae the i#pression that
political #otiations playe" a ital role in actiating an" propelling the
prosecutorial process in this case! ;irstly, the co#plaint ca#e to life, as it
%ere, only after petitioner Tata" ha" a falling out %ith Presi"ent -arcos!
Secon"ly, "eparting fro# establishe" proce"ures prescribe" by la% for
preli#inary inestigation, %hich re?uire the sub#ission of affi"aits an"
counter4affi"aits by the co#plainant an" the respon"ent an" their
%itnesses, the Tano"bayan referre" the co#plaint to the Presi"ential
Security Co##an" for fact4fin"ing inestigation an" report!
Ie fin" such blatant "eparture fro# the establishe" proce"ure as a
"ubious, but reealing atte#pt to inole an office "irectly un"er the
Presi"ent in the prosecutorial process, len"ing cre"ence to the suspicion
that the prosecution %as politically #otiate"! Ie cannot e#phasi9e too
strongly that prosecutors shoul" not allo%, an" shoul" aoi", giing the
i#pression that their noble office is being use" or prostitute", %ittingly or
un%ittingly, for political en"s, or other purposes alien to, or subersie of,
the basic an" fun"a#ental ob&ectie obsering the interest of &ustice
eenhan"e"ly, %ithout fear or faor to any an" all litigants ali'e %hether rich
or poor, %ea' or strong, po%erless or #ighty! Only by strict a"herence to the
establishe" proce"ure #ay be public=s perception of the i#partiality of the
prosecutor be enhance"! 2*
The O#bu"s#an en"eaore" to "istinguish the present suit fro# the 2ngchangco
case by arguing that in the latter, 2ngchangco file" seeral #otions for early
resolution, i#plying that in the case at bar petitioners %ere not as igilant in asserting
or protecting their rights!
7
Ie "isagree! The constitutional right to spee"y "isposition of cases "oes not co#e
into play only %hen political consi"erations are inole"! The Constitution #a'es no
such "istinction! Ihile political #otiation in Tata" #ay hae been a factor in the
un"ue "elay in the ter#ination of the preli#inary inestigation therein to &ustify the
inocation of their right to spee"y "isposition of cases, the particular facts of each
case #ust be ta'en into consi"eration in the grant of the relief sought! In the Tata"
case, %e are re#in"e"7
In a nu#ber of cases, this Court has not hesitate" to grant the so4calle"
>ra"ical relief> an" to spare the accuse" fro# un"ergoing the rigors an"
e:pense of a full4blo%n trial %here it is clear that he has been "eprie" of
"ue process of la% or other constitutionally guarantee" rights! Of course, it
goes %ithout saying that in the application of the "octrine enunciate" in
those cases, particular regar" #ust be ta'en of the facts an" circu#stances
peculiar to its case! 27
In Alviso vs! Sandiganbayan,
28
the Court obsere" that the concept of spee"y
"isposition of cases >is a relatie ter# an" #ust necessarily be a fle:ible concept>
an" that the factors that #ay be consi"ere" an" balance" are the >length of the
"elay, the assertion or failure to assert such right by the accuse", an" the pre&u"ice
cause" by the "elay!>
Petitioners in this case, ho%eer, coul" not hae urge" the spee"y resolution of their
case because they %ere co#pletely una%are that the inestigation against the# %as
still on4going! Peculiar to this case, %e reiterate, is the fact that petitioners %ere
#erely as'e" to co##ent, an" not file counter4affi"aits %hich is the proper
proce"ure to follo% in a preli#inary inestigation! 2fter giing their e:planation an"
after four long years of being in the "ar', petitioners, naturally, ha" reason to assu#e
that the charges against the# ha" alrea"y been "is#isse"!
On the other han", the Office of the O#bu"s#an faile" to present any plausible,
special or een noel reason %hich coul" &ustify the four4year "elay in ter#inating its
inestigation! Its e:cuse for the "elay A the #any layers of reie% that the case ha"
to un"ergo an" the #eticulous scrutiny it ha" to entail A has lost its noelty an" is
no longer appealing, as %as the inocation in the Tata" case! The inci"ent before us
"oes not inole co#plicate" factual an" legal issues, specially in ie% of the fact
that the sub&ect co#puteri9ation contract ha" been #utually cancelle" by the parties
thereto een before the 2nti45raft 8eague file" its co#plaint!
The Office of the O#bu"s#an capitali9es on petitioners= three #otions for e:tension
of ti#e to file co##ent %hich it i#pute" for the "elay! Ho%eer, the "elay %as not
cause" by the #otions for e:tension! The "elay occurre" after petitioners file" their
co##ent! Bet%een +,,( to +,,C, petitioners %ere un"er no obligation to #a'e any
#oe because there %as no preli#inary inestigation %ithin the conte#plation of
Section E, Rule II of 2!O! No! 3) to spea' of in the first place!
III
;inally, un"er the facts of the case, there is no basis in la% or in fact to charge
petitioners for iolation of Sec! /0g1 of R!2! No! /3+,! To establish probable cause
against the offen"er for iolation of Sec! /0g1, the follo%ing ele#ents #ust be
present7 0+1 the offen"er is a public officer$ 0(1 he entere" into a contract or
transaction in behalf of the goern#ent$ an" 0/1 the contract or transaction is grossly
an" #anifestly "isa"antageous to the goern#ent! The secon" ele#ent of the cri#e
A that the accuse" public officers entere" into a contract in behalf of the goern#ent
A is absent! The co#puteri9ation contract %as rescin"e" on !ay "##" before S2R
No! ,+436 ca#e out on /+ -ay +,,+ an" before the 2nti45raft 8eague file" its
co#plaint %ith the O#bu"s#an on + 2ugust +,,+! Hence, at that ti#e the 2nti45raft
8eague institute" their co#plaint an" the O#bu"s#an issue" its Or"er on +(
Noe#ber +,,+, there %as no longer any contract to spea' of! The contract, after C
-ay +,,+ beca#e in conte#plation of la%, non4e:istent, as if no contract %as eer
e:ecute"!
IHBRB;ORB, pre#ises consi"ere", the petition is 5R2NTBD an" Cri#inal Case
No! (/+,/ is hereby DIS-ISSBD! The te#porary restraining or"er issue" on E
Septe#ber +,,) is #a"e PBR-2NBNT!
SO ORDBRBD!
8