THIRD DIVISION
[ G.R. Nos. 234868-69. July 27, 2022 ]MARIO L. RELAMPAGOS v. OFFICE OF OMBUDSMAN +
MARIO L. RELAMPAGOS, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, RESPONDENT.
D E C I S I O N
MARIO L. RELAMPAGOS v. OFFICE OF OMBUDSMAN +
MARIO L. RELAMPAGOS, PETITIONER, VS. OFFICE OF THE OMBUDSMAN, RESPONDENT.
D E C I S I O N
INTING, J.:
Before the Court is a Petition for Certiorari[1] under Rule 65 of the Rules of Court seeking to annul and set aside the Joint Resolution[2] dated December 19, 2016 and the Joint Order[3] dated August 30, 2017 issued by the Office of the Ombudsman (Ombudsman) in: (a) OMB-C-C-13-0357 for Plunder; violation of Section 3(b), (e), (g), and (j), and Section 4 of Republic Act No. (RA) 3019;[4] violation of RA 6713;[5] and violation of Article 172 of the Revised Penal Code (RPC); and (b) OMB-C-C-14-0331 for Plunder; violation of Section 3(e) and (g) of RA 3019; violation of RA 9184;[6] and Malversation of Public Funds under Article 217 of the RPC.
The Joint Resolution found probable cause against several private individuals and public officers, including Mario L. Relampagos (petitioner), for two (2) counts of Plunder, ninety-seven (97) counts of Malversation of Public Funds through Falsification of Public Documents, and ninety-seven (97) counts of violation of Section 3(e) of RA 3019.[7] The Joint Order, on the other hand, affirmed the Joint Resolution with modification in that it dismissed the Plunder case but nonetheless, recommended the filing with the Sandiganbayan of Informations with regard to the ninety-seven (97) counts of malversation.[8]
The Antecedents
The cases stemmed from the criminal complaints for Plunder and violation of Section 3(b), (e), (g), and U) and Section 4 of RA 3019, RA 6713, and Article 172 of the RPC, which were filed with the National Bureau of Investigation (NBI) by Levito D. Baligod and Lourdes P. Benipayo (collectively, complainants) on October 3, 2013 and March 13, 2014[9] against several private individuals and public officers,[10] including petitioner.[11]
The charges were based on the alleged participation of respondents in the criminal complaint, including petitioner, in the anomalous use or illegal diversion of the amount of P900 Million from the Malampaya Fund. Such amount allocated by the Department of Budget and Management (DBM) to the Department of Agrarian Reform (DAR) used as conduits 12 non-governmental organizations (NGOs) established and controlled by Janet Lim Napoles (Napoles) that turned out to be non-existing entities.[12]
Following the rescue of Benhur K. Luy (Luy) and the filing of Serious Illegal Detention charges against Napoles and Reynald L. Lim, Luy's parents and siblings executed a Joint Sworn Statement dated March 8, 2013. The Joint Sworn Statement alleged that the reason for Luy's illegal detention was his role as the "lead employee" of the Janet Lim Napoles Group of Companies, owned by Napoles. Allegedly, Luy oversaw the implementation of several government-funded projects sourced from the Priority Development Assistance Fund allotments of various members of the Congress, the Malampaya Fund, and the Fertilizer Fund. The allegations were confirmed by Luy and corroborated by Merlina P. Sufias and Marina C. Sula (collectively, whistleblowers).[13]
The Nature of the Malampaya Fund
On October 8, 2009, then-Secretary of the DBM, Rolando Aureo G. Andaya, Jr. (DBM Sec. Andaya), submitted to the Office of the President a request for authority to use the Malampaya Fund for relief operations, rehabilitation, reconstruction, and other works and services in areas affected by the natural calamities.[14]
On October 13, 2009, then-President Gloria Macapagal Arroyo (Pres. Arroyo) issued Executive Order No. 848 authorizing the DBM to release funds from the Malampaya Fund to the implementing agencies (IAs) concerned, in whatever amount as may be necessary, and for purposes as may be authorized by the President of the Philippines.[15] Then-Executive Secretary Eduardo R. Ermita informed DBM Sec. Andaya of Pres. Arroyo's approval of his request.[16]
In a letter dated October 22, 2009, then-Undersecretary of the DAR, Narciso B. Nieto (DAR Usec. Nieto), submitted a request to DBM Sec. Andaya for the release of the amount of P900 Million to provide assistance to farmer-beneficiaries affected by typhoons Ondoy and Pepeng. The request was allegedly based on the 97 letter-requests made by the Mayors of various local government units (LGUs) addressed to the DAR.[17] Based on the 97 letter-requests, the requested amount of P900 Million was allegedly intended for various agricultural development projects.[18] However, only 28 of the 97 letter-requests were dated before the DAR's request for funds from the DBM.[19]
In a Memorandum dated November 17, 2009, DBM Budget and Management Bureau-E Director Nora C. Oliveros (Dir. Oliveros) informed DBM Sec. Andaya, through herein petitioner, who was thenDBM Undersecretary, that DAR Usec. Nieto's request—which bore a note from DBM Sec. Andaya, "Ok, automatic appro signed, RGA"—lacked the required supporting Philippine Agrarian Reform Council Resolution and Rehabilitation Plan, and that the release exceeded the DAR's original program for 2009.[20]
Despite Dir. Oliveros's Memorandum, DBM Sec. Andaya still approved DAR Usec. Nieto's request by issuing Special Allotment Release Order (SARO) No. E-09-08417 on November 19, 2009.[21] SARO No. E-09-08417 was issued for the release of the P900 Million allotment from the Malampaya Fund (SAGF-151) to the DAR, being the lead IA.[22] SARO No. E-09-08417 was specifically directed to the DAR's Fund 158 to provide support services to the agrarian reform communities and to help them recover from the losses/damages brought about by the two typhoons.[23]
On the same date, or on November 19, 2009, DBM Sec. Andaya wrote the Bureau of Treasury requesting that an adjustment to the deposited collections in the amount of P900 Million be made, i.e., transfer from SAGF-151 to the DAR's Fund 158 as the lead IA of the Comprehensive Agrarian Reform Program.[24]
On December 17, 2009, then-DAR Secretary Nasser C. Pangandaman (DAR Sec. Pangandaman) requested DBM Sec. Andaya to issue the Notice of Cash Allocation (NCA) to the DAR's Fund 158 in the amount of P900 Million. DAR Sec. Pangandaman declared that it was for the payment of the DAR's current due and demandable obligations because the total amount of the SARO had already been fully obligated as of the mentioned date.[25]
In a Memorandum dated December 21, 2009, Dir. Oliveros advised DBM Sec. Andaya, through petitioner, that DAR Sec. Pangandaman's request—which bears a marginal note made by DBM Sec. Andaya, "Ok, Signed RGA"—was not supported by the List of Due and Demandable Accounts Payable (LDDAP).[26] Despite the advice, petitioner, on the same date, issued, on behalf of DBM Sec. Andaya, NCA-BMB-E-09-0024816 to the Land Bank of the Philippines for the amount of P900 million. An Advice of NCA was likewise issued informing DAR Sec. Pangandaman that the amount had been credited to the DAR's Fund 158.[27]
On November 19, 2013,[28] the Court declared as unconstitutional the phrase "and for such other purposes as may be hereafter directed by the President"[29] in Section 8 of Presidential Decree No. 910[30] for being an undue delegation of legislative power. The Court decreed that the subject phrase does not provide a sufficient standard to adequately determine the limits of the President's authority as regards the purpose for which the Malampaya Fund may be used.[31]
The Ombudsman s Allegations
In its Comment,[32] the Ombudsman, through the Office of the Solicitor General (OSG), narrated that the NBI conducted an investigation coupled with a performance audit by the Special Audits Office (SAO) of the Commission on Audit (COA) in 2013. The investigation revealed the anomalous use of the P900 Million allocation from the Malampaya Fund to the DAR in 2009.[33]
The COA, through SAO Report No. 2013-01, found highly irregular the contracting and release of the DAR's P900 Million allocation from the Malampaya Fund as well as the procurement and purported implementation of the projects.[34]
The whistleblowers' statements submitted to the NBI likewise revealed that: (1) the 97 letter-requests for financial assistance allegedly from the LGUs were falsified; (2) the 12 NGOs selected to implement the projects were also found to be spurious; and (3) the transaction documents and reports, including the lists of alleged project beneficiaries, were also forged to conceal the diversion of the funds.[35] Allegedly, the scam was made possible through connivance with the public officials of the DAR and the DBM who received "kickbacks" or bribe money in exchange for facilitating the transactions involved.[36]
Thus, in a Letter-Complaint[37] dated October 3, 2013 (NBI Complaint) addressed to the Ombudsman, the NBI charged a number of public officers and employees of the DAR and the DBM, including petitioner, as well as several private individuals, with the offenses of plunder, falsification, and violations of RA 3019 and RA 6713.[38]
In sum, the NBI Complaint alleged that DBM Sec. Andaya and petitioner—by respectively issuing the SARO and signing the corresponding NCA, notwithstanding their knowledge of the lack of the required supporting documents—facilitated the release of the amount of P900 Million from the Malampaya Fund with undue haste, showing their complicity in the alleged illegal diversion and misuse of public funds.[39]
Petitioners Defense
In his Counter-Affidavit,[40] petitioner stated that the Memorandum dated November 17, 2009 of Dir. Oliveros with the attached SARO for the P900-million Malampaya Fund allotment did not pass through his office; and he did not sign it; he, however, signed the NCA in the absence of DBM Sec. Andaya following existing internal processes and in good faith based on DBM circular letters on matters of accounts payable and on the "OK" marginal note of DBM Sec. Andaya on DAR Sec. Pangandaman's request.[41]
Further, petitioner alleged that the LDDAP was not a requirement for the release of the NCA to the DAR to cover its current year accounts as compared to prior years' accounts payable because the DAR was not one of the pilot departments/agencies covered by DBM Circular Letters No. 2004-2 and 2005-2 dated January 26, 2004 and January 28, 2005, respectively. It was only under DBM Circular Letters No. 2013-16 and 2013-16A dated December 23, 2013 and February 6, 2014, respectively, that the DAR was covered by the LDDAP requirement for the release of NCAs.[42]
The Ombudsman's Ruling
On December 23, 2016, then-Ombudsman Conchita Carpio Morales (Ombudsman Carpio Morales) approved the assailed Joint Resolution[43] dated December 19, 2016 which found probable cause against petitioner and several other respondents in the original complaint, acting in conspiracy, for two (2) counts of Plunder, ninety-seven (97) counts of Malversation of Public Funds through Falsification of Public Documents, and ninety-seven (97) counts of violation of Section 3(e) of RA 3019.[44]
Thereafter, petitioner filed a Motion for Reconsideration[45] and a Supplemental Motion for Reconsideration.[46]
On September 5, 2017, Ombudsman Carpio Morales approved the assailed Joint Order[47] dated August 30, 2017 which dismissed the charges for Plunder against petitioner, among others, but maintained the finding of probable cause against him and his co-respondents in the original complaint for the other crimes. The Joint Order recommended the immediate filing of the corresponding criminal Informations before the Sandiganbayan.[48]
Hence, the instant petition ascribes grave abuse of discretion against the Ombudsman for issuing the assailed Joint Resolution and Joint Order.[49]
The Issue
The issue in the case is whether the Ombudsman gravely abused its discretion in declaring that there exists probable cause against petitioner.[50]
Our Ruling
Petitioner, through counsel, maintains that the Ombudsman gravely abused its discretion in not dismissing the cases outright for clear lack of probable cause based on the following grounds:
First. Well settled is the rule that the Court does not interfere with the Ombudsman's finding of probable cause as such determination is a factual matter best left to its expertise as an investigatory and prosecutory body.[52] "This policy of non-interference is grounded on the respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman."[53]
Notably, under the Constitution[54] and RA 6770,[55] the Ombudsman is given a "wide latitude to act on criminal complaints against public officials and government employees,"[56] and has the "sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused."[57]
The Court in Dichaves v. Office of the Ombudsman[58] explained the nature and the power of the Ombudsman as an independent constitutional body in this wise:
In the case, petitioner imputes grave abuse of discretion on the part of the Ombudsman for the simple reason that the Ombudsman did not dismiss outright the case against him despite the alleged lack of probable cause.
The Court has declared on numerous occasions that a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is sufficient reason to believe that the accused committed it.[63] Probable cause need not be based on clear and convincing evidence of guilt, or on evidence establishing absolute certainty of guilt.[64] The reason behind the finding of probable cause is to merely bring the accused to stand trial.[65]
It is worth stressing, for the guidance of petitioner, that the finding of probable cause against him is not a pronouncement of his guilt.[66]
Probable cause neither means "actual and positive cause" nor does it import absolute certainty.[67] Time and again, the Court explained that it is only based on opinion and reasonable belief, and does not require an inquiry as to whether there is sufficient evidence to procure a conviction.[68]
The Ombudsman's determination of probable cause does not rule on the issue of guilt or innocence of the accused.[69] The Ombudsman is tasked to evaluate the evidence presented by the prosecution and the accused, and from there, it will then determine if there is sufficient reason to believe that a crime has been committed and that the accused is probably guilty thereof.[70]
Second. The determination of probable cause is made with reference to the elements of the crime charged.[71] Considering, however, the nature and purpose of a preliminary investigation, the elements of the crime are not required to be definitively established.[72] It is enough that the elements are reasonably apparent.[73]
Petitioner, through counsel, argues that the elements of violation of Section 3(e) of RA 3019 and of Malversation of Public Funds through Falsification of Public Documents are wanting.[74]
The Court disagrees.
Whether the elements of the crime are present is already a matter of evidence and is best passed upon in a full-blown trial on the merits.[75] In a preliminary investigation, there is no full and exhaustive display of the prosecution's evidence.[76] To stress further, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better threshed out during trial."[77]
In the present case, the Court finds no grave abuse of discretion on the part of the Ombudsman in finding probable cause against petitioner for ninety-seven (97) counts each of Malversation of Public Funds through Falsification of Public Documents and violation of Section 3(e) of RA 3019. The evidence presented by the investigating officers during the preliminary investigation engenders a reasonable belief that petitioner is probably guilty of the crimes charged.[78]
In other words, it was not grave abuse of discretion when the Ombudsman found probable cause because, after having considered the parties' respective pleadings and arguments in this case, the Court finds that the Ombudsman "carefully laid out a probability of guilt based on substantial evidence."[79]
Last. The Court disagrees with the argument of petitioner, through counsel, that the allegation of conspiracy against him is baseless as it is merely based on speculation and is not proven by "direct evidence" or "proof" of overt acts indicating a common design.[80]
Well settled is the rule that "[t]he Court cannot interfere with the Ombudsman's discretion in determining the adequacy or inadequacy of the evidence before him."[81]
In Kara-an v. Ombudsman,[82] the Court held that the Ombudsman cannot be compelled to order the production of certain documents if, in the Ombudsman's judgment, these documents are not necessary to establish probable cause against the respondents.[83] "The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper."[84]
The Court notes the recent development of the cases filed against petitioner. As stated in the Ombudsman's Comment[85] on the petition, the corresponding Informations have already been filed before the Sandiganbayan, and the consolidated criminal cases entitled, "People v. Rolando Andaya, Jr., et al.," are docketed as SB-17-CRM-2202 to SB17-CRM-2395.[86] Moreover, on July 3, 2018, the Office of the Special Prosecutor of the Ombudsman, through a Letter,[87] informed the OSG that "[t]o date, accused Mario L. Relampagos remains at large and he has not yet been arraigned in the above-mentioned cases."[88] Likewise, in People v. Rodolfo G. Valencia et al. and People v. Rozanna Rufino B. Biazon, et al., the Sandiganbayan issued Resolutions on January 15, 2018 and declared petitioner a fugitive from justice for failing to return to the country following his permitted travel to the United States from December 2, 2017 to January 1, 2018.[89]
All told, the Court finds that there is no grave abuse of discretion on the part of the Ombudsman in finding probable cause against petitioner.
WHEREFORE, the petition is DISMISSED. Accordingly, the Joint Resolution dated December 19, 2016 and Joint Order dated August 30, 2017 issued by the Office of the Ombudsman in (a) OMB-C-C-13-0357 and (b) OMB-C-C-14-0331 are AFFIRMED.
SO ORDERED.
Leonen,* SAJ., Gaerlan, Dimaampao, and Singh, JJ., concur.
* Additional Member per Raffle dated June 28, 2022.
[1] Rollo, pp. 11-39.
[2] Id. at 43-176; signed by Acting Director and Chairperson Maricel M. Marcial-Oquendo, and Members: Graft Investigation & Prosecution Officer III Anjuli Larla A. Tan-Eneran, Graft Investigation & Prosecution Officer Voltaire B. Africa, and Graft Investigation & Prosecution Officer II Expedito O. Allado, Jr. via Office Order No. 616, Series of 2014; and approved by Ombudsman Conchita Carpio Morales on December 23, 2016.
[3] Id. at 177-211; signed by Acting Director and Chairperson Maricel M. Marcial-Oquendo, and Members: Acting Director Joefferson B. Toribio, Graft Investigation & Prosecution Officer III Anjuli Larla A. Tan-Eneran, Graft Investigation & Prosecution Officer Voltaire B. Africa, and Graft Investigation & Prosecution Officer II Expedito O. Allado, Jr. via Office Order No. 616, Series of 2014; and approved by Ombudsman Conchita Carpio Morales on September 5, 2017.
[4] Entitled, "Anti-Graft and Corrupt Practices Act," approved on August 17, 1960.
[5] Code of Conduct and Ethical Standards for Public Officials and Employees, approved on February 20, 1989.
[6] Government Procurement Reform Act, approved on January 10, 2003.
[7] Rollo, pp. 127-128 and 171.
[8] Id. at 206-207.
[9] Id. at 48-49.
[10] Gloria Macapagal-Arroyo, Former President of the Philippines; Eduardo R. Ermita, Former Executive Secretary; Rolando Aureo G. Andaya, Jr., Former DBM Secretary, Member House of Representatives; Nasser C. Pangandaman, Former DAR Secretary; Mario R. Relampagos, Undersecretary for Operations, DBM; Narciso B. Nieto, Former DAR Undersecretary; Rene E. Maglanque, Mayor, Candaba, Pampanga; Teresita L. Panlilio, Former Director, DAR-OIC Undersecretary; Dominadaor V. Sison, Jr., Former OIC-Dir., DAR; Ronald J. Venancio, Chief Administrative Officer, DAR; Angelita V. Cacananta, Former Chief Accountant, DAR; Nilda P. Baui, Cashier III, DAR; Janet Lim Napoles; Jo Christine L. Napoles; James Christopher L. Napoles; Reynald L. Lim; Ruby C. Tuason; Evelyn D. De Leon; Jesus Castillo; Lilian A. Espanol; Genivieve G. Uy; Ronald John Lim a.k.a. John Lim; Eulogio D. Rodriguez; Loma Ramirez; Ronald Francisco Lim; Simplicio M. Gumafelix; John Raymond S. De Asis; Rodrigo B. Galay; Alejandro G. Garro; Paguito G. Dinso, Jr.; Gerald B. Apuang; Napoleon N. Sibayan; Editha P. Talaboc; Delfin R. Agcaoili, Jr.; Mark S. Oliveros; Evelyn D. De Leon, Francis E. Palmones Jr., Sangguniang Panlungsod Member, Kidapawan City, North Cotabato; Edgar G. Valdez, Congressman; Rodolfo G. Plaza, Congressman; Erwin C. Dangwa, Chief of Staff, House of Representatives; Rene C. Villa; Cynthia B. Dequiña; Roselle King; William F. Limm; Hector Ang; Flordeliz E. Galido; Liza Maclang Ong; Corazon Dizon; Cecilia L. Caballero; Winnie/Ma. Winnie M. Villanueva; id. at 43-48.
[11] Id. at 48.
[12] Id. at 51-52.
[13] Id. at 56.
[14] Id. at 53.
[15] Id.
[16] Id.
[17] Id. at 54.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 54-55.
[25] Id. at 55.
[26] Id.
[27] Id.
[28] See Belgica v. Hon. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 582 (2013).
[29] Id. at 567.
[30] Entitled, "Creating an Energy Development Board, Defining its Powers and Functions, Providing Funds, therefor, and for other Purposes," approved on March 22, 1976.
[31] Belgica v. Hon. Exec. Sec. Ochoa, Jr., supra at 568-570.
[32] Rollo, pp. 364-399.
[33] Id. at 367.
[34] Id. at 368.
[35] Id.
[36] Id.
[37] Id. at 405-443.
[38] Id. at 368-369.
[39] Id. at 369.
[40] Id. at 212-221.
[41] Id. at 73, 213-214.
[42] Id. at 73-74, 214-215.
[43] Id. at 43-176.
[44] Id. at 127-173.
[45] Id. at 285-310.
[46] Id. at 317-318.
[47] Id. at 177-211.
[48] Id. at 206-207.
[49] Id. at 11-38
[50] Id. at 17.
[51] Id. at 17-18; emphasis in the original omitted.
[52] Jalandoni v. Office of the Ombudsman, G.R. Nos. 211751, 217212-80, 244467-535 & 245546-614, May 10, 2021.
[53] Id.
[54] Section 12, Article XI of the 1987 Constitution provides:
[56] Jalandoni v. Office of the Ombudsman, supra.
[57] Id.
[58] 802 Phil. 564 (2016).
[59] Id. at 589-590.
[60] Jalandoni v. Office of the Ombudsman, supra note 52.
[61] Id.
[62] Id.
[63] Galario v. Office of the Ombudsman (Mindanao), 554 Phil. 86, 101 (2007).
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Id.
[69] Jalandoni v. Office of the Ombudsman, supra note 52.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Rollo, pp. 20-22, 27-29.
[75] Jalandoni v. Office of the Ombudsman, supra note 52.
[76] Id.
[77] Id.
[78] See rollo, pp. 117-120.
[79] Jalandoni v. Office of the Ombudsman, supra note 52.
[80] Rollo, pp. 29-31.
[81] Kara-an v. Ombudsman, 476 Phil. 536, 550 (2004).
[82] Id.
[83] Id. at 549-550.
[84] Id. at 550.
[85] Rollo, pp. 364-399.
[86] Id. at 373.
[87] Id. at 453.
[88] Id.
[89] Id. at 450-452.
The Joint Resolution found probable cause against several private individuals and public officers, including Mario L. Relampagos (petitioner), for two (2) counts of Plunder, ninety-seven (97) counts of Malversation of Public Funds through Falsification of Public Documents, and ninety-seven (97) counts of violation of Section 3(e) of RA 3019.[7] The Joint Order, on the other hand, affirmed the Joint Resolution with modification in that it dismissed the Plunder case but nonetheless, recommended the filing with the Sandiganbayan of Informations with regard to the ninety-seven (97) counts of malversation.[8]
The cases stemmed from the criminal complaints for Plunder and violation of Section 3(b), (e), (g), and U) and Section 4 of RA 3019, RA 6713, and Article 172 of the RPC, which were filed with the National Bureau of Investigation (NBI) by Levito D. Baligod and Lourdes P. Benipayo (collectively, complainants) on October 3, 2013 and March 13, 2014[9] against several private individuals and public officers,[10] including petitioner.[11]
The charges were based on the alleged participation of respondents in the criminal complaint, including petitioner, in the anomalous use or illegal diversion of the amount of P900 Million from the Malampaya Fund. Such amount allocated by the Department of Budget and Management (DBM) to the Department of Agrarian Reform (DAR) used as conduits 12 non-governmental organizations (NGOs) established and controlled by Janet Lim Napoles (Napoles) that turned out to be non-existing entities.[12]
Following the rescue of Benhur K. Luy (Luy) and the filing of Serious Illegal Detention charges against Napoles and Reynald L. Lim, Luy's parents and siblings executed a Joint Sworn Statement dated March 8, 2013. The Joint Sworn Statement alleged that the reason for Luy's illegal detention was his role as the "lead employee" of the Janet Lim Napoles Group of Companies, owned by Napoles. Allegedly, Luy oversaw the implementation of several government-funded projects sourced from the Priority Development Assistance Fund allotments of various members of the Congress, the Malampaya Fund, and the Fertilizer Fund. The allegations were confirmed by Luy and corroborated by Merlina P. Sufias and Marina C. Sula (collectively, whistleblowers).[13]
On October 8, 2009, then-Secretary of the DBM, Rolando Aureo G. Andaya, Jr. (DBM Sec. Andaya), submitted to the Office of the President a request for authority to use the Malampaya Fund for relief operations, rehabilitation, reconstruction, and other works and services in areas affected by the natural calamities.[14]
On October 13, 2009, then-President Gloria Macapagal Arroyo (Pres. Arroyo) issued Executive Order No. 848 authorizing the DBM to release funds from the Malampaya Fund to the implementing agencies (IAs) concerned, in whatever amount as may be necessary, and for purposes as may be authorized by the President of the Philippines.[15] Then-Executive Secretary Eduardo R. Ermita informed DBM Sec. Andaya of Pres. Arroyo's approval of his request.[16]
In a letter dated October 22, 2009, then-Undersecretary of the DAR, Narciso B. Nieto (DAR Usec. Nieto), submitted a request to DBM Sec. Andaya for the release of the amount of P900 Million to provide assistance to farmer-beneficiaries affected by typhoons Ondoy and Pepeng. The request was allegedly based on the 97 letter-requests made by the Mayors of various local government units (LGUs) addressed to the DAR.[17] Based on the 97 letter-requests, the requested amount of P900 Million was allegedly intended for various agricultural development projects.[18] However, only 28 of the 97 letter-requests were dated before the DAR's request for funds from the DBM.[19]
In a Memorandum dated November 17, 2009, DBM Budget and Management Bureau-E Director Nora C. Oliveros (Dir. Oliveros) informed DBM Sec. Andaya, through herein petitioner, who was thenDBM Undersecretary, that DAR Usec. Nieto's request—which bore a note from DBM Sec. Andaya, "Ok, automatic appro signed, RGA"—lacked the required supporting Philippine Agrarian Reform Council Resolution and Rehabilitation Plan, and that the release exceeded the DAR's original program for 2009.[20]
Despite Dir. Oliveros's Memorandum, DBM Sec. Andaya still approved DAR Usec. Nieto's request by issuing Special Allotment Release Order (SARO) No. E-09-08417 on November 19, 2009.[21] SARO No. E-09-08417 was issued for the release of the P900 Million allotment from the Malampaya Fund (SAGF-151) to the DAR, being the lead IA.[22] SARO No. E-09-08417 was specifically directed to the DAR's Fund 158 to provide support services to the agrarian reform communities and to help them recover from the losses/damages brought about by the two typhoons.[23]
On the same date, or on November 19, 2009, DBM Sec. Andaya wrote the Bureau of Treasury requesting that an adjustment to the deposited collections in the amount of P900 Million be made, i.e., transfer from SAGF-151 to the DAR's Fund 158 as the lead IA of the Comprehensive Agrarian Reform Program.[24]
On December 17, 2009, then-DAR Secretary Nasser C. Pangandaman (DAR Sec. Pangandaman) requested DBM Sec. Andaya to issue the Notice of Cash Allocation (NCA) to the DAR's Fund 158 in the amount of P900 Million. DAR Sec. Pangandaman declared that it was for the payment of the DAR's current due and demandable obligations because the total amount of the SARO had already been fully obligated as of the mentioned date.[25]
In a Memorandum dated December 21, 2009, Dir. Oliveros advised DBM Sec. Andaya, through petitioner, that DAR Sec. Pangandaman's request—which bears a marginal note made by DBM Sec. Andaya, "Ok, Signed RGA"—was not supported by the List of Due and Demandable Accounts Payable (LDDAP).[26] Despite the advice, petitioner, on the same date, issued, on behalf of DBM Sec. Andaya, NCA-BMB-E-09-0024816 to the Land Bank of the Philippines for the amount of P900 million. An Advice of NCA was likewise issued informing DAR Sec. Pangandaman that the amount had been credited to the DAR's Fund 158.[27]
On November 19, 2013,[28] the Court declared as unconstitutional the phrase "and for such other purposes as may be hereafter directed by the President"[29] in Section 8 of Presidential Decree No. 910[30] for being an undue delegation of legislative power. The Court decreed that the subject phrase does not provide a sufficient standard to adequately determine the limits of the President's authority as regards the purpose for which the Malampaya Fund may be used.[31]
In its Comment,[32] the Ombudsman, through the Office of the Solicitor General (OSG), narrated that the NBI conducted an investigation coupled with a performance audit by the Special Audits Office (SAO) of the Commission on Audit (COA) in 2013. The investigation revealed the anomalous use of the P900 Million allocation from the Malampaya Fund to the DAR in 2009.[33]
The COA, through SAO Report No. 2013-01, found highly irregular the contracting and release of the DAR's P900 Million allocation from the Malampaya Fund as well as the procurement and purported implementation of the projects.[34]
The whistleblowers' statements submitted to the NBI likewise revealed that: (1) the 97 letter-requests for financial assistance allegedly from the LGUs were falsified; (2) the 12 NGOs selected to implement the projects were also found to be spurious; and (3) the transaction documents and reports, including the lists of alleged project beneficiaries, were also forged to conceal the diversion of the funds.[35] Allegedly, the scam was made possible through connivance with the public officials of the DAR and the DBM who received "kickbacks" or bribe money in exchange for facilitating the transactions involved.[36]
Thus, in a Letter-Complaint[37] dated October 3, 2013 (NBI Complaint) addressed to the Ombudsman, the NBI charged a number of public officers and employees of the DAR and the DBM, including petitioner, as well as several private individuals, with the offenses of plunder, falsification, and violations of RA 3019 and RA 6713.[38]
In sum, the NBI Complaint alleged that DBM Sec. Andaya and petitioner—by respectively issuing the SARO and signing the corresponding NCA, notwithstanding their knowledge of the lack of the required supporting documents—facilitated the release of the amount of P900 Million from the Malampaya Fund with undue haste, showing their complicity in the alleged illegal diversion and misuse of public funds.[39]
In his Counter-Affidavit,[40] petitioner stated that the Memorandum dated November 17, 2009 of Dir. Oliveros with the attached SARO for the P900-million Malampaya Fund allotment did not pass through his office; and he did not sign it; he, however, signed the NCA in the absence of DBM Sec. Andaya following existing internal processes and in good faith based on DBM circular letters on matters of accounts payable and on the "OK" marginal note of DBM Sec. Andaya on DAR Sec. Pangandaman's request.[41]
Further, petitioner alleged that the LDDAP was not a requirement for the release of the NCA to the DAR to cover its current year accounts as compared to prior years' accounts payable because the DAR was not one of the pilot departments/agencies covered by DBM Circular Letters No. 2004-2 and 2005-2 dated January 26, 2004 and January 28, 2005, respectively. It was only under DBM Circular Letters No. 2013-16 and 2013-16A dated December 23, 2013 and February 6, 2014, respectively, that the DAR was covered by the LDDAP requirement for the release of NCAs.[42]
On December 23, 2016, then-Ombudsman Conchita Carpio Morales (Ombudsman Carpio Morales) approved the assailed Joint Resolution[43] dated December 19, 2016 which found probable cause against petitioner and several other respondents in the original complaint, acting in conspiracy, for two (2) counts of Plunder, ninety-seven (97) counts of Malversation of Public Funds through Falsification of Public Documents, and ninety-seven (97) counts of violation of Section 3(e) of RA 3019.[44]
Thereafter, petitioner filed a Motion for Reconsideration[45] and a Supplemental Motion for Reconsideration.[46]
On September 5, 2017, Ombudsman Carpio Morales approved the assailed Joint Order[47] dated August 30, 2017 which dismissed the charges for Plunder against petitioner, among others, but maintained the finding of probable cause against him and his co-respondents in the original complaint for the other crimes. The Joint Order recommended the immediate filing of the corresponding criminal Informations before the Sandiganbayan.[48]
Hence, the instant petition ascribes grave abuse of discretion against the Ombudsman for issuing the assailed Joint Resolution and Joint Order.[49]
The issue in the case is whether the Ombudsman gravely abused its discretion in declaring that there exists probable cause against petitioner.[50]
Petitioner, through counsel, maintains that the Ombudsman gravely abused its discretion in not dismissing the cases outright for clear lack of probable cause based on the following grounds:
a. The evaluation, recommendation, and preparation of the SAROs/NCAs and other release documents are being done by the Technical Staff of the different Bureaus (Bureaus A to G). Petitioner had no participation whatsoever in the preparation of these documents. The DBM Office for Operations only gets to see the same if the DBM Secretary is absent and Petitioner signs them on behalf of the Secretary. In the case at bar, the November 17, 2009 Memorandum with the attached SARO never passed through Petitioner's office. He also did not sign said SARO.The Court disagrees.
b. The issuance of the NCA did not violate any law or regulation.
c. Not a single concrete or overt act on Petitioner's part is specifically alleged, much less supported by positive evidence on record. Signing the NCA is not the "concrete and overt acts before, during and after the commission of the crime charged indicative of a common design."[51]
First. Well settled is the rule that the Court does not interfere with the Ombudsman's finding of probable cause as such determination is a factual matter best left to its expertise as an investigatory and prosecutory body.[52] "This policy of non-interference is grounded on the respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman."[53]
Notably, under the Constitution[54] and RA 6770,[55] the Ombudsman is given a "wide latitude to act on criminal complaints against public officials and government employees,"[56] and has the "sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused."[57]
The Court in Dichaves v. Office of the Ombudsman[58] explained the nature and the power of the Ombudsman as an independent constitutional body in this wise:
An independent constitutional body, the Office of the Ombudsman is "beholden to no one, acts as the champion of the people[,] and [is] the preserver of the integrity of the public service." Thus, it has the sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused. This function is executive in nature.The Court, however, may exercise judicial scrutiny and review the Ombudsman's findings when there is a clear showing of grave abuse of discretion.[60] In such a case, it must be proven that the Ombudsman conducted the preliminary investigation in a manner that amounted to a virtual refusal to perform a positive duty under the law.[61] In other words, mere disagreement with the findings of the Ombudsman is not enough to say that the latter committed any grave abuse of discretion.[62]
The executive determination of probable cause is a highly factual matter. It requires probing into the "existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he [or she] was prosecuted."
The Office of the Ombudsman is armed with the power to investigate. It is, therefore, in a better position to assess the strengths or weaknesses of the evidence on hand needed to make a finding of probable cause. As this Court is not a trier of facts, we defer to the sound judgment of the Ombudsman.[59] (Emphasis in the original)
In the case, petitioner imputes grave abuse of discretion on the part of the Ombudsman for the simple reason that the Ombudsman did not dismiss outright the case against him despite the alleged lack of probable cause.
The Court has declared on numerous occasions that a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and there is sufficient reason to believe that the accused committed it.[63] Probable cause need not be based on clear and convincing evidence of guilt, or on evidence establishing absolute certainty of guilt.[64] The reason behind the finding of probable cause is to merely bring the accused to stand trial.[65]
It is worth stressing, for the guidance of petitioner, that the finding of probable cause against him is not a pronouncement of his guilt.[66]
Probable cause neither means "actual and positive cause" nor does it import absolute certainty.[67] Time and again, the Court explained that it is only based on opinion and reasonable belief, and does not require an inquiry as to whether there is sufficient evidence to procure a conviction.[68]
The Ombudsman's determination of probable cause does not rule on the issue of guilt or innocence of the accused.[69] The Ombudsman is tasked to evaluate the evidence presented by the prosecution and the accused, and from there, it will then determine if there is sufficient reason to believe that a crime has been committed and that the accused is probably guilty thereof.[70]
Second. The determination of probable cause is made with reference to the elements of the crime charged.[71] Considering, however, the nature and purpose of a preliminary investigation, the elements of the crime are not required to be definitively established.[72] It is enough that the elements are reasonably apparent.[73]
Petitioner, through counsel, argues that the elements of violation of Section 3(e) of RA 3019 and of Malversation of Public Funds through Falsification of Public Documents are wanting.[74]
The Court disagrees.
Whether the elements of the crime are present is already a matter of evidence and is best passed upon in a full-blown trial on the merits.[75] In a preliminary investigation, there is no full and exhaustive display of the prosecution's evidence.[76] To stress further, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better threshed out during trial."[77]
In the present case, the Court finds no grave abuse of discretion on the part of the Ombudsman in finding probable cause against petitioner for ninety-seven (97) counts each of Malversation of Public Funds through Falsification of Public Documents and violation of Section 3(e) of RA 3019. The evidence presented by the investigating officers during the preliminary investigation engenders a reasonable belief that petitioner is probably guilty of the crimes charged.[78]
In other words, it was not grave abuse of discretion when the Ombudsman found probable cause because, after having considered the parties' respective pleadings and arguments in this case, the Court finds that the Ombudsman "carefully laid out a probability of guilt based on substantial evidence."[79]
Last. The Court disagrees with the argument of petitioner, through counsel, that the allegation of conspiracy against him is baseless as it is merely based on speculation and is not proven by "direct evidence" or "proof" of overt acts indicating a common design.[80]
Well settled is the rule that "[t]he Court cannot interfere with the Ombudsman's discretion in determining the adequacy or inadequacy of the evidence before him."[81]
In Kara-an v. Ombudsman,[82] the Court held that the Ombudsman cannot be compelled to order the production of certain documents if, in the Ombudsman's judgment, these documents are not necessary to establish probable cause against the respondents.[83] "The investigation is advisedly called preliminary, as it is yet to be followed by the trial proper."[84]
The Court notes the recent development of the cases filed against petitioner. As stated in the Ombudsman's Comment[85] on the petition, the corresponding Informations have already been filed before the Sandiganbayan, and the consolidated criminal cases entitled, "People v. Rolando Andaya, Jr., et al.," are docketed as SB-17-CRM-2202 to SB17-CRM-2395.[86] Moreover, on July 3, 2018, the Office of the Special Prosecutor of the Ombudsman, through a Letter,[87] informed the OSG that "[t]o date, accused Mario L. Relampagos remains at large and he has not yet been arraigned in the above-mentioned cases."[88] Likewise, in People v. Rodolfo G. Valencia et al. and People v. Rozanna Rufino B. Biazon, et al., the Sandiganbayan issued Resolutions on January 15, 2018 and declared petitioner a fugitive from justice for failing to return to the country following his permitted travel to the United States from December 2, 2017 to January 1, 2018.[89]
All told, the Court finds that there is no grave abuse of discretion on the part of the Ombudsman in finding probable cause against petitioner.
WHEREFORE, the petition is DISMISSED. Accordingly, the Joint Resolution dated December 19, 2016 and Joint Order dated August 30, 2017 issued by the Office of the Ombudsman in (a) OMB-C-C-13-0357 and (b) OMB-C-C-14-0331 are AFFIRMED.
SO ORDERED.
Leonen,* SAJ., Gaerlan, Dimaampao, and Singh, JJ., concur.
* Additional Member per Raffle dated June 28, 2022.
[1] Rollo, pp. 11-39.
[2] Id. at 43-176; signed by Acting Director and Chairperson Maricel M. Marcial-Oquendo, and Members: Graft Investigation & Prosecution Officer III Anjuli Larla A. Tan-Eneran, Graft Investigation & Prosecution Officer Voltaire B. Africa, and Graft Investigation & Prosecution Officer II Expedito O. Allado, Jr. via Office Order No. 616, Series of 2014; and approved by Ombudsman Conchita Carpio Morales on December 23, 2016.
[3] Id. at 177-211; signed by Acting Director and Chairperson Maricel M. Marcial-Oquendo, and Members: Acting Director Joefferson B. Toribio, Graft Investigation & Prosecution Officer III Anjuli Larla A. Tan-Eneran, Graft Investigation & Prosecution Officer Voltaire B. Africa, and Graft Investigation & Prosecution Officer II Expedito O. Allado, Jr. via Office Order No. 616, Series of 2014; and approved by Ombudsman Conchita Carpio Morales on September 5, 2017.
[4] Entitled, "Anti-Graft and Corrupt Practices Act," approved on August 17, 1960.
[5] Code of Conduct and Ethical Standards for Public Officials and Employees, approved on February 20, 1989.
[6] Government Procurement Reform Act, approved on January 10, 2003.
[7] Rollo, pp. 127-128 and 171.
[8] Id. at 206-207.
[9] Id. at 48-49.
[10] Gloria Macapagal-Arroyo, Former President of the Philippines; Eduardo R. Ermita, Former Executive Secretary; Rolando Aureo G. Andaya, Jr., Former DBM Secretary, Member House of Representatives; Nasser C. Pangandaman, Former DAR Secretary; Mario R. Relampagos, Undersecretary for Operations, DBM; Narciso B. Nieto, Former DAR Undersecretary; Rene E. Maglanque, Mayor, Candaba, Pampanga; Teresita L. Panlilio, Former Director, DAR-OIC Undersecretary; Dominadaor V. Sison, Jr., Former OIC-Dir., DAR; Ronald J. Venancio, Chief Administrative Officer, DAR; Angelita V. Cacananta, Former Chief Accountant, DAR; Nilda P. Baui, Cashier III, DAR; Janet Lim Napoles; Jo Christine L. Napoles; James Christopher L. Napoles; Reynald L. Lim; Ruby C. Tuason; Evelyn D. De Leon; Jesus Castillo; Lilian A. Espanol; Genivieve G. Uy; Ronald John Lim a.k.a. John Lim; Eulogio D. Rodriguez; Loma Ramirez; Ronald Francisco Lim; Simplicio M. Gumafelix; John Raymond S. De Asis; Rodrigo B. Galay; Alejandro G. Garro; Paguito G. Dinso, Jr.; Gerald B. Apuang; Napoleon N. Sibayan; Editha P. Talaboc; Delfin R. Agcaoili, Jr.; Mark S. Oliveros; Evelyn D. De Leon, Francis E. Palmones Jr., Sangguniang Panlungsod Member, Kidapawan City, North Cotabato; Edgar G. Valdez, Congressman; Rodolfo G. Plaza, Congressman; Erwin C. Dangwa, Chief of Staff, House of Representatives; Rene C. Villa; Cynthia B. Dequiña; Roselle King; William F. Limm; Hector Ang; Flordeliz E. Galido; Liza Maclang Ong; Corazon Dizon; Cecilia L. Caballero; Winnie/Ma. Winnie M. Villanueva; id. at 43-48.
[11] Id. at 48.
[12] Id. at 51-52.
[13] Id. at 56.
[14] Id. at 53.
[15] Id.
[16] Id.
[17] Id. at 54.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 54-55.
[25] Id. at 55.
[26] Id.
[27] Id.
[28] See Belgica v. Hon. Exec. Sec. Ochoa, Jr., 721 Phil. 416, 582 (2013).
[29] Id. at 567.
[30] Entitled, "Creating an Energy Development Board, Defining its Powers and Functions, Providing Funds, therefor, and for other Purposes," approved on March 22, 1976.
[31] Belgica v. Hon. Exec. Sec. Ochoa, Jr., supra at 568-570.
[32] Rollo, pp. 364-399.
[33] Id. at 367.
[34] Id. at 368.
[35] Id.
[36] Id.
[37] Id. at 405-443.
[38] Id. at 368-369.
[39] Id. at 369.
[40] Id. at 212-221.
[41] Id. at 73, 213-214.
[42] Id. at 73-74, 214-215.
[43] Id. at 43-176.
[44] Id. at 127-173.
[45] Id. at 285-310.
[46] Id. at 317-318.
[47] Id. at 177-211.
[48] Id. at 206-207.
[49] Id. at 11-38
[50] Id. at 17.
[51] Id. at 17-18; emphasis in the original omitted.
[52] Jalandoni v. Office of the Ombudsman, G.R. Nos. 211751, 217212-80, 244467-535 & 245546-614, May 10, 2021.
[53] Id.
[54] Section 12, Article XI of the 1987 Constitution provides:
SECTION 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.[55] An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman, and for Other Purposes, approved on November 17, 1989.
[56] Jalandoni v. Office of the Ombudsman, supra.
[57] Id.
[58] 802 Phil. 564 (2016).
[59] Id. at 589-590.
[60] Jalandoni v. Office of the Ombudsman, supra note 52.
[61] Id.
[62] Id.
[63] Galario v. Office of the Ombudsman (Mindanao), 554 Phil. 86, 101 (2007).
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Id.
[69] Jalandoni v. Office of the Ombudsman, supra note 52.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Rollo, pp. 20-22, 27-29.
[75] Jalandoni v. Office of the Ombudsman, supra note 52.
[76] Id.
[77] Id.
[78] See rollo, pp. 117-120.
[79] Jalandoni v. Office of the Ombudsman, supra note 52.
[80] Rollo, pp. 29-31.
[81] Kara-an v. Ombudsman, 476 Phil. 536, 550 (2004).
[82] Id.
[83] Id. at 549-550.
[84] Id. at 550.
[85] Rollo, pp. 364-399.
[86] Id. at 373.
[87] Id. at 453.
[88] Id.
[89] Id. at 450-452.