CASE BrieF NO. 2019-0041


“The mere act of using government money to fund a project which is different from what the law states you have to spend it for does not fall under the definition of manifest partiality nor gross inexcusable negligence.


CASE: Jose T. Villarosa, Carlito T. Cajayon and Pablo I. Alvaro vs. The Honorable Ombudsman and Rolando C. Basilio [G.R. No. 221418, January 23, 2019]

PONENTE: Justice Diosdado M. Peralta

SUBJECT:

          A.       CRIMINAL LAW:

                   i.        Article 220 /Technical Malversation – Elements

          B.       REMEDIAL LAW:

                   i.        Preliminary investigation – Nature and purpose

                   ii.       Probable Cause, Defined

          C.       RA. NO. 3019 or The Anti Graft and Corrupt Practices Act:

                   i.        Elements of Section 3 (a), (e), (g) and (i) of R.A. No. 3019

                   ii.       Manifest partiality – defined

FACTS:        In September 2011, Rolando C. Basilio filed criminal and administrative complaints with the Ombudsman against petitioners Villarosa, Municipal Mayor; Alvaro, Municipal Accountant; and Cajayon, Municipal Treasurer; all of San Jose, Occidental Mindoro, for Malversation of Public Funds defined and penalized under Article 220 of the Revised Penal Code (RPC); violation of Section 3 (a), (e), (g) and (i) of R.A. No. 3019; violation of R.A. No. 8240; grave abuse of authority; grave misconduct; dishonesty; and conduct prejudicial to the best interest of the service.

Basilio alleged that petitioner Villarosa, together with petitioners Alvaro and Cajayon, approved the use of the municipality’s “Trust Fund” derived from tobacco excise taxes (Tobacco Fund) under R.A. No. 8240 to finance the regular operations of the municipality which were not within the purpose for which said fund was created.

In their counter-affidavits, petitioner Alvaro argued that his participation was ministerial in nature considering his lack of discretion in disallowing purchases that passed through the required procedure. He also claimed that the use of the Tobacco Fund did not constitute a violation of any law and the absence of any prohibition in R.A. No. 8240 regarding the treatment of funds derived from the Tobacco Fund as part of the “General Fund,” the issue is already moot.

Petitioner Cajayon also claimed that his act was ministerial considering that he signed the disbursement vouchers after confirming that the supporting documents were complete, and the municipality had funds available.

For his defense, petitioner Villarosa asserted that the Tobacco Fund came from Rep. Villarosa as Occidental Mindoro’s congressional share in the Tobacco Fund, pursuant to R.A. No. 8240. According to petitioner Villarosa, given that the statute contained no prohibition for treating funds derived therefrom as part of the “General Fund,” there was no violation to speak of.

In its Joint Resolution, the Ombudsman found probable cause to indict petitioners for Technical Malversation and violation of Section 3 (e) of R.A. No. 3019.

Petitioners filed their motion for reconsideration, but it was denied by the Ombudsman.

Hence, petitioners filed a Petition for Certiorari under Rule 65 of the Rules of Court with the Supreme Court.

ISSUES:

A.       Whether or not the Ombudsman acted with grave abuse of discretion when it      found probable cause to indict the petitioners for the crime of Technical   Malversation.

          a.       What is the purpose of preliminary investigation conducted by the                                Ombudsman.

          b.       Define probable cause.

          c.       What are the elements of Technical Malversation?

B.       Whether there is probable cause to charge petitioners with violation of Section 3          (e) of R.A. No. 3019.

          a.       What are the elements of violation of Section 3 (e) of R.A. No. 3019?

          b.       Define “manifest partiality”.



RULING:

Brief discussion of the nature and function of the office of the Ombudsman

Both the Constitutionand R.A. No. 6770 or The Ombudsman Act of 1989, give the Ombudsman wide latitude to act on criminal complaints against public officials and government employees. As 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.

This Court’s consistent policy has been to maintain non-interference in the determination by the Ombudsman of the existence of probable cause. Since the Ombudsman is armed with the power to investigate, it is 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.

This policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the Ombudsman, but upon practicality as well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the courts, in much the same way that courts will be swamped with petitions if they had to review the exercise of discretion on the part of public prosecutors each time prosecutors decide to file an information or dismiss a complaint by a private complainant.

Nonetheless, this Court is not precluded from reviewing the Ombudsman’s action when there is a charge of grave abuse of discretion. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman’s exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined by law.

A.       There is no grave abuse of discretion on the part of the Ombudsman when it found probable cause to indict petitioners of the crime of Technical Malversation.

For the present petition to prosper, petitioners must show that the Ombudsman conducted the preliminary investigation in such a way that amounted to a virtual refusal to perform a duty mandated by law, which petitioners have failed to do. “A preliminary investigation is only for the determination of probable cause.”Probable cause is “the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation. Being based merely on opinion and reasonable belief, it does not import absolute certainty.Probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable belief. Probable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.

In finding probable cause for the crime of Technical Malversation, the Ombudsman ruled, thus:

Respondents were public officers who received from Occidental Mindoro’s Congressional Representative a portion of the province’s share in the revenue from the tobacco excise tax for proper administration. Pursuant to RA 8240, the local government unit’s share in the proceeds should be used solely for cooperative, livelihood and/or agro­ industrial projects that enhance the quality of agricultural products, develop alternative farming systems, or enable tobacco farmers to manage and own post-harvest enterprises like cigarette manufacturing and by­product utilization. The clear intention to limit the use of such proceeds to the above-mentioned specific purposes.

Notwithstanding the mandate of the law and the circular, respondents applied the fund to the purchase of vehicles, Christmas lights, meals and snacks of newly-elected Barangay Captains and SK Chairpersons, medicines, and gravel and sand. They also used said fund for the maintenance of a PNP vehicle and other service vehicle, for bus rentals, and various other municipal activities.

No genius is required to discern the disparity between the Legislature’s declared policy and respondents’ actual expenditures. The former unequivocally intended the revenue from the tax on tobacco products to benefit local farmers through projects aimed at maximizing agricultural production and tobacco-product utilization. The latter, on the other hand, unabashedly spent a significant portion of said fund for local officials, religious groups, and community matters.

 Article 220 of the RPC reads as follows:

ARTICLE 220. Illegal Use of Public Funds or Property. – Any public officer who shall apply any public fund or property under his administration to any public use other than [that] for which such fund or property were by appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-­half to the total of the sum misapplied, if by reason of such misapplication, any [damage] or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

The crime of Technical Malversation has three (3) elements, namely: (a) that the offender is an accountable public officer; (b) that he applies public funds or property under his administration to some public use; and (c) that the public use for which such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.

Clearly, from the findings of the Ombudsman, the elements of the crime are present in this case. It must be remembered that owing to the nature of a preliminary investigation and its purpose, all of the foregoing elements need not be definitively established for it is enough that their presence becomes reasonably apparent. This is because probable cause – the determinative matter in a preliminary investigation – implies mere probability of guilt; thus, a finding based on more than bare suspicion, but less than evidence that would justify a conviction, would suffice.

A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and, definitely, not on evidence establishing absolute certainty of guilt [Sen. Estrada v. Office of the Ombudsman, et al., 751 Phil. 821, 868 (2015)].

The Ombudsman’s finding of Technical Malversation prevails over their bare allegations of grave abuse of discretion. Accordingly, this Court must defer to the exercise of discretion of the Ombudsman, in the absence of actual grave abuse of discretion on the part of the same.

B.       There is no probable cause to charge petitioners with violation of Section 3 (e) of R.A. No. 3019.

Section 3 (e) of R.A. No. 3019 reads:

Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

The elements of Section 3 (e), R.A. No. 3019 are as follows:

(1) the offender is a public officer;
(2) the act was done in the discharge of the public officer’s official, administrative or judicial injunctions;
(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.

For an act to be considered as exhibiting “manifest partiality,” there must be a showing of a clear, notorious or plain inclination or predilection to favor one side rather than the other [People v. The Hon. Sandiganbayan (4th Div.) et al., 642 Phil. 640, 651 (2010)].

“Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are.” “Gross negligence has been so defined as negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally with a conscious indifference to consequences in so far as other persons may be affected. It is the omission of that care which even inattentive and thoughtless men never fail to take on their own property.”

In this case, the finding of the Ombudsman falls short of that quantum of proof necessary to establish the fact that petitioners acted with manifest partiality or there was a failure to show that there was a clear, notorious or plain inclination or predilection on the part of the petitioners to favor one side rather than the other. Contrary to the view of the Ombudsman, the mere act of using government money to fund a project which is different from what the law states you have to spend it for does not fall under the definition of manifest partiality nor gross inexcusable negligence. It must always be remembered that manifest partiality and gross inexcusable negligence are not elements in the crime of Technical Malversation and simply alleging one or both modes would not suffice to establish probable cause for violation of Section 3 (e) of R.A. No. 3019, for it is well-settled that allegation does not amount to proof. Nor can we deduce any or all of the modes from mere speculation or hypothesis since good faith on the part of petitioners as with any other person is presumed [Sistoza v. Desierto, 437 Phil. 117, 132 (2002)]. The facts themselves must demonstrate evident bad faith which connotes not only bad judgment, but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will.

Related CASE BrieFs:
a)       Sen. Estrada v. Office of the Ombudsman, et al., 751 Phil. 821 (2015)
b)       Sistoza v. Desierto, 437 Phil. 117, 132 (2000)
c)       People v. The Hon. Sandiganbayan et al., 642 Phil. 640 (2010)

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THINGS DECIDED:

A.       A preliminary investigation is only for the determination of probable cause.

B.       Probable cause is “the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation.

C.       The crime of Technical Malversation has three (3) elements, namely: (a) that the offender is an accountable public officer; (b) that he applies public funds or property under his administration to some public use; and (c) that the public use for which such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.

D.      The elements of Section 3 (e), R.A. No. 3019 are as follows:

(1) the offender is a public officer;

(2) the act was done in the discharge of the public officer’s official, administrative or judicial injunctions;

(3) the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and

(4) the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference.

E.       For an act to be considered as exhibiting “manifest partiality,” there must be a showing of a clear, notorious or plain inclination or predilection to favor one side rather than the other.

F.       The mere act of using government money to fund a project which is different from what the law states you have to spend it for does not fall under the definition of manifest partiality nor gross inexcusable negligence.

‘Stand by things decided’ ~ Stare Decisis


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