SECOND DIVISION
[G.R. No. 136082. May 12, 2000]
FRANKLIN P. BAUTISTA, petitioner, vs. SANDIGANBAYAN (Third Division),
OFFICE OF THE OMBUDSMAN and PEOPLE OF THE PHILIPPINES,
respondents.
DECISION
BELLOSILLO, J.: lex
This petition seeks to set aside the 13 March 1998 Resolution of the Sandiganbayan[1]
denying petitioner's Motion to Quash Crim. Case No. 24276 and its 9 October 1998
Resolution denying reconsideration. The petition also prays for the issuance of a writ of
preliminary injunction and/or temporary restraining order to restrain and enjoin public
respondents from proceeding in any manner with Crim. Case No. 24276 during the
pendency of the petition. Jksm
An anonymous, unverified and unsigned letter-complaint dated 20 November 1996 allegedly
prepared by the Contractors Association of Davao del Sur and the Good Government
Employees[2] of Davao del Sur initiated this case. It was filed with the Office of the
Ombudsman for Mindanao charging petitioner Franklin P. Bautista, incumbent mayor of the
Municipality of Malita, Davao del Sur, for violation of Sec. 3, par. (e), of RA 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act.[3] The letter-
complaint alleged, among others, that petitioner caused the hiring of one hundred and
ninety-two (192) casual employees in the municipal government for political considerations
and that the payment of their honoraria and salaries was charged to the peace and order
fund despite meager savings of the municipality.[4]
Acting on the letter-complaint, Graft Investigation Officer II (GIO II) Corazon A. Arancon
issued on 16 January 1997 an Order directing respondent Franklin P. Bautista, petitioner
herein, to submit his counter-affidavit.[5] In his counter-affidavit of 26 February 1997
petitioner, answering the charges against him, claimed that the complaint, which was
unsigned, was fictitious and fabricated as shown by the affidavits of Enrique Ponce De Leon,
President of the Contractor's Association of Davao del Sur;[6] Rogelio E. Llanos, Governor for
Davao del Sur;[7] Eduardo M. Masiwel Vice Mayor of Malita, Davao del Sur;[8] Engineer
Antonio P. Cayoca, Department of Public Works and Highways, 2nd District, Davao del Sur;
[9]
Juanito A. Itorralba, Assistant Provincial Treasurer of Davao del Sur;[10] Juan L. de
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Guzman and Felipe D. Macalinao,[11] both teachers, therein attached, which disclaimed any
knowledge of the institution of the complaint nor cause of its filing. He further argued that the
hiring of the one hundred ninety-two (192) casuals and the payment of their honoraria and
wages did not justify the filing of any charge against him.
After due consideration, GIO II Arancon in his Resolution dated 27 May 1997 found a prima
facie case for violation of Sec. 3, par. (e), of RA 3019, as amended, against petitioner and
forwarded the resolution to the Ombudsman for approval. Chief
On 3 October 1997 the Ombudsman approved the resolution. Thereafter, an Information for
violation of Sec. 3, par. (e), of RA 3019, as amended, was filed against petitioner before the
Sandiganbayan, docketed as Crim. Case No. 24276,[12] which read -
That sometime in 1995 or sometime prior thereto, in the Municipality of Malita,
Davao del Sur, and within the jurisdiction of this Honorable Court, the above-
named accused, a high ranking public officer, being the Mayor, Municipality of
Malita, Davao del Sur, while in the performance of his official functions, taking
advantage of his position and committing the offense in relation to his office,
with manifest partiality, did then and there willfully, unlawfully and criminally
caused the hiring of some one hundred ninety-two (192) casual employees in
flagrant disregard of Secs. 288 and 289 of the Government Accounting and
Auditing Manual (GAAM), the honoraria and salaries of whom were charged to
the peace and order fund and to the project component and other services
activity fund, respectively and which represented 72.5% of the total personnel
services expenditures, thereby giving unwarranted benefits, advantage and
preference to the said casuals, causing undue injury to the Municipality of
Malita.
On 13 November 1997 petitioner filed a Motion to Quash the Information anchored on the
ground that the acts charged therein did not constitute the offense indicated in Sec. 3, par.
(e), of RA 3019, as amended, and that more than one (1) offense was charged in the
Information. After the filing of the opposition, the Sandiganbayan denied on 13 March 1998
the Motion to Quash stating that all essential elements of the crime charged were sufficiently
alleged in the Information which charged only one offense. On 13 April 1998 petitioner filed a
motion for reconsideration but on 9 October 1998 his motion was denied.
Petitioner assails in this petition the denial of his Motion to Quash despite failure of the
Ombudsman to properly establish a cause of action. He asserts that there was no legal basis
for the Ombudsman to conduct a preliminary investigation in Case No. CPL-MIN-96-180,
much less file the Information in Crim. Case No. 24276, as the Ombudsman failed to direct
the complainants to reduce their evidence into affidavits before requiring him to submit his
counter-affidavit. Petitioner invokes Sec. 4, Rule II, of the Rules of Procedure of the
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Ombudsman which requires that for purposes of conducting a preliminary investigation the
complainant must submit his affidavit and those of his witnesses before respondent can be
required to submit his counter-affidavit and other supporting documents.[13] Conformably with
such rule, the Ombudsman should have first required the Contractor's Association of Davao
del Sur and the Good Government Employees of Davao del Sur to submit their respective
affidavits before requiring him as respondent to submit his counter-affidavit, especially since
the letter-complaint was unsigned and unverified; hence, there was no valid cause of action
against petitioner. Esmsc
Petitioner cites Olivas v. Office of the Ombudsman[14] where the Court declared that in
preliminary investigation of cases it is incumbent upon the complainants to submit their
evidence in affidavit form and it is only after such submission that respondent may be
required to explain and submit his counter-affidavit, also under oath.
This issue has long been laid to rest in Olivas where the Court explained that while reports
and even raw information obtained from anonymous letters may justify the initiation of an
investigation, this stage of the preliminary investigation can be held only after sufficient
evidence, derived from submitted affidavits from the complainants and his witnesses, shall
have been duly gathered and evaluated, and only thereafter can the respondent be required
to submit his affidavits and other documents to explain, also under oath.[15] It is from such
affidavits and counter-affidavits that the Ombudsman can determine whether there is a
probable cause for bringing the case to court.
However, despite its wisdom, we must rule that the principle enunciated in Olivas has no
bearing in the instant petition. What was assailed therein was the order of the Ombudsman
compelling petitioner Olivas to file his counter-affidavit in answer to the charges against him,
he having refused to do so since the order was not accompanied by a single affidavit from
the complainants as mandated by law; while in the instant case, petitioner Bautista had
already filed his counter-affidavit before the Ombudsman and only questioned the latters
failure to require the complainants to submit affidavits prior to the submission of his own
counter-affidavit after the preliminary investigation had ended and an Information already
filed before the Sandiganbayan. The issue therefore of requiring the complainants to submit
their affidavits before respondent can be obliged to submit his counter-affidavit is moot and
academic in light of Bautistas submission of his counter-affidavit despite absence of the
complainants affidavits.
Criminal Case No. 24276 before the Sandiganbayan stemmed from the letter allegedly sent
by the Contractors Association of Davao del Sur and the Good Government Employees of
Davao del Sur addressed to the Office of the Ombudsman for Mindanao. It may be true that
GIO II Arancon in his Order of 16 January 1997 directed herein petitioner to submit his
counter-affidavit thereto without requiring the complainants to submit theirs which were
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significantly necessary because of the unverified, unsigned and anonymous nature of their
letter. However, despite the Ombudsman's noncompliance with the affidavit requirement,
petitioner filed his counter-affidavit on 26 February 1997 and answered the charges against
him. Hence, having submitted himself to the jurisdiction of the Ombudsman and having
allowed the proceedings to go on until the preliminary investigation was terminated and the
Information filed at the Sandiganbayan, petitioner is deemed to have waived whatever right
he may otherwise have to assail the manner in which the preliminary investigation was
conducted. Consequently, petitioner is likewise estopped from questioning the validity of the
Information filed before the Sandiganbayan. Esmmis
Petitioner likewise avers that the Sandiganbayan gravely abused its discretion in denying his
Motion to Quash the Information as there were at least two (2) offenses charged - the giving
of unwarranted benefits, advantage and preference to the casual employees in question, and
causing undue injury to the Municipality of Malita. Petitioner invokes Santiago v.
Garchitorena[16] where it was held that there were two (2) ways of violating Sec. 3, par. (e), of
RA 3019, namely, (a) by causing undue injury to any party, including the Government, and
(b) by giving any private party any unwarranted benefit, advantage or preference, and as
such, he argues that each constitutes two (2) distinct offenses that should be charged in
separate informations.
Indeed, Sec. 3, par. (e), RA 3019, as amended, provides as one of its elements that the
public officer should have acted by causing any undue injury to any party, including the
government, or by giving any private party unwarranted benefits, advantage or preference in
the discharge of his functions.[17] The use of the disjunctive term "or" connotes that either act
qualifies as a violation of Sec. 3, par. (e), or as aptly held in Santiago, as two (2) different
modes of committing the offense. This does not however indicate that each mode constitutes
a distinct offense, but rather, that an accused may be charged under either mode or under
both.
In Santiago petitioner therein assailed the failure of respondent to include the phrase
"causing of undue injury to any party, including the Government" in the amended
informations filed against her. Refuting the claim, the Court cited the minute resolution in Uy
v. Sandiganbayan[18] and clarified that the "act of giving any private party any unwarranted
benefit, advantage or preference" is not an indispensable element of the offense of "causing
any undue injury to any party," although there maybe instances where both elements concur.
Thus, in Pareo v. Sandiganbayan[19] the information charged the public officers with "willfully
and unlawfully causing undue injury to the Government and giving unwarranted benefits to
Tanduay Distillery, Inc." by failing to verify and act on the validity and/or veracity of the claim
for tax credit filed by the corporation before the BIR. Es-mso
In Pilapil v. Sandiganbayan[20] petitioner Pilapil was only charged with having "willfully caused
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undue injury to the Municipality of Tigaon, Camarines Sur, when he failed to deliver the
ambulance received by him on behalf of the municipality in a Deed of Donation executed by
the Philippine Charity Sweepstakes Office in its favor, to the prejudice and damage of the
municipal government."
Likewise, in Diaz v. Sandiganbayan[21] the PCGG Commissioners as public officers were
charged only with having given Enrique Razon, Jr., a stockholder or officer of the
sequestered corporation Metro Port, unwarranted benefits and/or advantage by the approval
of his loan application for P5,000,000.00 belonging to the same sequestered corporation.
By analogy, Gallego v. Sandiganbayan[22] finds application in the instant case. There,
petitioners claimed that the Information charged the accused with three (3) distinct offenses,
to wit: (a) the giving of "unwarranted" benefits through manifest partiality; (b) the giving of
"unwarranted" benefits through evident bad faith; and, (c) the giving of "unwarranted"
benefits through gross inexcusable negligence while in the discharge of their official and/or
administrative functions; and thus moved for the quashal of the Information. The
Sandiganbayan denied the motion to quash and held that the phrases "manifest partiality,"
"evident bad faith" and "gross inexcusable negligence" merely described the different modes
by which the offense penalized in Sec. 3, par. (e), of RA 3019, as amended, could be
committed, and the use of all these phrases in the same Information did not mean that the
indictment charged three (3) distinct offenses.
In the instant case, the Information against petitioner read in part -
x x x unlawfully and criminally caused the hiring of some one hundred ninety-
two (192) casual employees in flagrant disregard of Secs. 288 and 289 of the
Government Accounting and Auditing Manual (GAAM), the honoraria and
salaries of whom were charged to the peace and order fund and to the project
component and other services activity fund, respectively, and which
represented 72.5%, of the total personnel services expenditures, thereby giving
unwarranted benefits, advantage and preference to the said casuals, causing
undue injury to the Municipality of Malita. Ms-esm
The use of the phrase "causing undue injury" therein can either be interpreted as another
mode of violating the statute, in addition to the giving of unwarranted benefits, advantage
and preference to the casuals, or as a consequence of the act of giving unwarranted
benefits, advantage and preference. Specifically, for hiring some one hundred and ninety-two
(192) casuals and the charging of their honoraria and salaries to the peace and order fund,
petitioner gave them unwarranted benefits, advantage and preference and caused undue
injury to the Municipality of Malita; or thereby caused undue injury to the Municipality of
Malita. In either case, the Information will not suffer any defect, as it is clear that petitioner is
charged with violation of Sec. 3, par. (e), of RA 3019, as amended, with either mode of
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commission obtaining or with both manners of violation concurring.
Finally, petitioner finds exception in the term "private party" as used in Sec. 3, par. (e), of RA
3019, as amended, and argues that the casuals alleged to have been appointed by him and
thus recipients of unwarranted benefits could not qualify as private parties since they are in
actuality public officers within the contemplation of Sec. 2, par. (b), of RA 3019, as amended.
Citing Philnabank Employees Association v. Auditor General,[23] petitioner points out that "the
employees of a government corporation, regardless of the latter's functions, are government
employees and, therefore, they are not 'private party or entity;"' and as such, one of the
elements constituting the offense under Sec. 3, par. (e), of RA 3019, as amended, is missing
thus warranting the dismissal of the Information. E-xsm
The term "private party" or "private person" may be used to refer to persons other than those
holding public office.[24] However, petitioner is charged with causing the hiring of some one
hundred ninety-two (192) casual employees, and the consequent awarding of their honoraria
and salaries taken from the peace and order fund of the municipality. The reckoning period is
before the casual employees' incumbency when they were still private individuals, and
hence, their current positions do not affect the sufficiency of the Information.
WHEREFORE, the petition is DISMISSED. The Resolution of the Sandiganbayan of 13
March 1998 denying petitioner Franklin P. Bautista's Motion to Quash in Crim. Case No.
24276 and its Resolution of 9 October 1998 denying reconsideration are AFFIRMED.
Consequently, public respondents Sandiganbayan (Third Division) and the Office of the
Ombudsman are directed to proceed with the hearing and trial of Crim. Case No. 24276
against petitioner until terminated.
SO ORDERED. Ky-le
Mendoza, Quisumbing, and Buena, JJ., concur.
De Leon, Jr., J., on leave.
[1] Resolution of the Sandiganbayan, Third Division, with Justice Cipriano A. Del Rosario as Chairman and Justice German
G. Lee, Jr. and Justice Teresita Leonardo De Castro as Members.
[2] The Good Government Employees were listed in the letter as follows: Provincial Treasurers Office Field Personnel,
Provincial Accountants Office (Field Personnel), Provincial Auditors Field Personnel, DPWH Second Engineering District of
Davao del Sur, Malita Treasurer/Accounting Personnel, and the Sangguniang Bayan of Malita.
[3] Rollo, p. 25.
[4] The unsigned letter accused petitioner Franklin P. Bautista of the following offenses: (a) per audit report prepared by
Auditor Rodolfo de Vera, signed and approved by Provincial Auditor Mariano Kintanar, the honorarium paid to 192 casual
employees which amounted to P5,438,735.80 could have been avoided had the agency properly planned, regulated and
controlled its personnel requirement; and, (b) illegal disbursements and fictitious and overpriced payment of supplies and
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secondhand spare parts.
[5] Docketed as Case No. CPL-MIN-96-180 in the Office of the Ombudsman, Mindanao, and Case No. OMB-3-96-2900 in
the Office of Ombudsman, Manila.
[6] Rollo, p. 33.
[7] Id., p. 34.
[8] Id., p. 35.
[9] Id., p. 36.
[10] Id.. p. 37.
[11] Id., p. 38.
[12] GIO II Corazon A. Arancon prepared and signed the Information against petitioner Bautista as early as 26 May 1997 or
even before the issuance of the resolution.
[13] 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 Sec. 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, direct 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.
[14] G.R. No. 102420, 20 December 1994, 239 SCRA 283.
[15] Ibid.
[16] G.R. No. 109266, 2 December 1993.
[17] The elements of Sec. 3 (e) of R.A. 3019 are as follows: (a) the offender is a public officer; (b) the act was done in the
discharge of the public officers official, administrative or judicial functions; (c) the act was done through manifest partiality,
evident bad faith or gross inexcusable negligence; and, (d) the public officer caused any undue injury to any party, including
the Government, or gave any private party any unwarranted benefits, advantage or preference.
[18] G.R. No. 100334, 5 December 1991.
[19] G.R. Nos. 107119-20 and 108037-38, 17 April 1996, 256 SCRA 242.
[20] G.R. No. 101978, 7 April 1993, 221 SCRA 349.
[21] G.R. Nos. 101202 and 102554, 8 March 1993, 219 SCRA 675.
[22] G.R. No. 57841, 30 July 1982, 115 SCRA 793.
[23] G.R. No. 30137, 25 June 1973, 51 SCRA 315.
[24] Blacks Law Dictionary, p. 1196.
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