Hondrade v. Office of the Ombudsman (Visayas)

FIRST DIVISION

[G.R. No. 226526. December 7, 2021.]

IAN H. HONDRADE, petitioner, vs.OFFICE OF THE OMBUDSMAN (VISAYAS), HUMPHREY M. LUMAWAG, AND ARMANDO B. DEGRACIA, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedDecember 7, 2021which reads as follows:

"G.R. No. 226526 (Ian H. Hondrade v. Office of the Ombudsman (Visayas), Humphrey M. Lumawag, and Armando B. Degracia). — For the Court's resolution is a Petition for Certiorari1 under Rule 65 of the Rules of Court assailing the October 17, 2011 2 and May 6, 2016 3 Orders of the Office of the Ombudsman-Cebu City and Ombudsman-Quezon City, respectively, (Ombudsman) in OMB-V-C-07-0066-B, finding probable cause against petitioner Ian H. Hondrade (Hondrade) for the crime of Perjury.

ANTECEDENTS

Humphrey M. Lumawag (Lumawag) and Armando B. Degracia (Degracia) occupied permanent positions as Utility Workers in the City Health Office, and Office of the City Mayor of Silay, Negros Occidental, respectively. Due to the disapproval of the 2004 Annual Budget by the Sangguniang Panlalawigan of Silay City, a temporary work detail was effected, which included Lumawag and Degracia as Garbage Collectors. The temporary work detail was extended until 2006. 4 Meantime in 2005, Hondrade was designated as Public Services Officer IV of the General Services Office (GSO) of Silay City. Hondrade oversaw the garbage collection services of the city, including the management of its equipment and personnel. 5

In 2006, Garbage Truck Drivers Jerome Roldan (Roldan), Rex Ian Duca (Duca), Rizaldy Valenzuela (Valenzuela) and Efraim Suarez (Suarez) informed Hondrade that Lumawag and Degracia failed to report for duty from October to December 2006. To corroborate their statements, Roldan, Duca, Valenzuela, and Suarez executed their respective affidavits before Notary Public Atty. Haydee M. Miravalles (Atty. Miravalles) on December 12, 2006. 6 After verification, the Personnel Office confirmed that Lumawag and Degracia's continued absences were unsupported with the corresponding approved leaves of absence. Thus, in conformity with Section 63, 7 Rule XVI of the Omnibus Rules on Leave, 8 the Personnel Office considered Lumawag and Degracia on absence without official leave, and further recommended that their names be dropped from the roll without prior notice. Accordingly, City Mayor Carlo V. Gamban issued Office Order No. 898, series of 2006, which dropped Lumawag and Degracia from the Rolls of Service effective December 29, 2006. 9

Lumawag and Degracia initiated a criminal complaint before the Ombudsman for violation of Section 3 (e) 10 of Republic Act (RA) No. 3019, 11 against Hondrade, among others, and Perjury and Falsification of Public Documents against Roldan, Duca, Valenzuela, and Suarez. Lumawag and Degracia averred that they were illegally dismissed by Hondrade. Contrary to the statements in the affidavits of their co-employees, Lumawag and Degracia reported for duty, and were included in the payroll for the months of October and November 2006. 12 In his defense, Hondrade maintained the legality of the dismissal, and submitted the affidavits of Roldan, Duca, Valenzuela, and Suarez. Meantime, Hondrade resigned from public office, and migrated to the United States of America. 13 On July 31, 2009, the Ombudsman dismissed the complaint filed against Hondrade for lack of probable cause. 14

Lumawag and Degracia moved for reconsideration, 15 and in a clarificatory hearing, they submitted Suarez and Valenzuela's affidavits of recantation which stated that they were coerced by Hondrade to sign the December 12, 2006 affidavits, lest they would lose their employment. 16 On October 17, 2011, the Ombudsman partly granted the motion, and found probable cause to indict Hondrade with Perjury. 17 The dispositive portion reads:

WHEREFORE, premises considered, complainants' Motion for Reconsideration is PARTLY GRANTED. The Resolution dated July 31, 2009 is hereby MODIFIED such that finding sufficient ground to engender a well-founded belief that respondent IAN HONDRADE is probably guilty of Perjury, let the corresponding Information be filed with the proper court.

SO ORDERED. 18

Hondrade sought reconsideration, but was denied on May 6, 2016. 19 Accordingly, he was charged with perjury before the Regional Trial Court of Silay City, Negros Occidental, in Criminal Case No. 10500. The Information 20 reads:

That on or about the 11th day of December 2006, and sometime prior or subsequent thereto, in Silay City, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, IAN H. HONDRADE, a public officer, being the Public Services Officer IV, General Services Office, Silay City, Province of Negros Occidental, with deliberate intent, did then and there willfully, unlawfully and feloniously make untruthful statements, under oath, upon a material matter, consisting of Affidavits executed by EFRAIM SUAREZ and RIZALDY VALENZUELA before a competent officer authorized to administer oath, the same being made for the eventual termination of HUMPHREY LUMAWAG, Utility Worker of Silay City[,] Province of Negros Occidental, from government service, by forcing EFRAIM SUAREZ and RIZALDY VALENZUELA to make it appear therein that said HUMPHREY LUMAWAG did not report for duty from 1 November 2006 to 12 December 2006, when in truth and in fact, as accused very well knew, that HUMPHREY LUMAWAG indeed reported for duty on said dates, an information vital and material to EFRAIM SUAREZ and RIZALDY VALENZUELA's Affidavits of 11 December 2006, thus, making untruthful and deliberate assertion of falsehood, to the detriment of public service and interest.

CONTRARY TO LAW. 21

Aggrieved, Hondrade comes to this Court via a Petition for Certiorari under Rule 65 of the Rules of Court claiming that the Ombudsman gravely abused its discretion in determining probable cause. Hondrade maintains that his right to due process was violated because the accusation of perjury in the initiatory complaint was not directed against him, but against Roldan, Duca, Valenzuela, and Suarez who executed the allegedly falsified affidavits. Moreover, the presence of Atty. Miravalles, before whom the December 12, 2006 affidavits were executed, negates the possibility that Hondrade employed threat or intimidation on the affiants. He insists that he had no power to hire or dismiss employees of the GSO. Lastly, he denies knowledge or participation in the commission of perjury and advances good faith and lack of malice or criminal intent. 22

On the other hand, the Ombudsman counters that no grave abuse of discretion was committed as there exists probable cause to indict Hondrade for Perjury. In their affidavits of recantation, Valenzuela and Suarez stated that sometime in December 2006, they were shown prepared affidavits containing false allegations before being led to the office of Atty. Miravalles where they were asked to affix their signatures. Valenzuela and Suarez felt compelled to sign the prepared affidavits because of fear that they would be terminated from their casual employment should they refuse. Further, Hondrade's arguments are evidentiary in nature which could be best threshed out in a full-blown trial. 23

In a Manifestation, 24 Lumawag and Degracia stated that they have decided to entrust the outcome of the petition to the Ombudsman, considering the transmittal of the Information to the Office of the City Prosecutor of Silay. The parties' manifestation was treated as their comment on the petition. 25 Hondrade then signifies that he will no longer file a reply. 26

RULING

We dismiss the petition.

Section 12, 27 Article XI 28 of the 1987 Constitution, 29 along with Section 15 30 of RA No. 6770 31 or "The Ombudsman Act of 1989," endow the Office of the Ombudsman with wide latitude to act on criminal complaints against public officials and government employees. The Court, as a general rule, will not review the Ombudsman's finding as to the existence or absence of probable cause, consistent with the policy of non-interference with the exercise of its constitutionally mandated powers. 32 The rule finds basis on practicality as well. The functions of the courts will otherwise be grievously hampered by innumerable petitions assailing the investigatory proceedings conducted by the Ombudsman with regard to complaints filed before it. 33 Thus, the Ombudsman has the sole power to determine whether there is probable cause to warrant the filing of a criminal case against an accused. 34 The only exception is when a proper petition for certiorari under Rule 65 is filed alleging that the Ombudsman acted with grave abuse of discretion amounting to lack or excess of jurisdiction. 35

"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[.]" It "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 or to act at all in contemplation of law — in order to exceptionally warrant judicial intervention." 36 In this case, Hondrade failed to demonstrate that the Ombudsman gravely abused its discretion in finding probable cause for perjury against him.

Under Article 183 of the Revised Penal Code (RPC), perjury is committed when the accused made a statement under oath, or executed an affidavit upon a material matter, before a competent officer, authorized to receive and administer oath, wherein he made a willful and deliberate assertion of a falsehood in said sworn statement or affidavit that is required by law. 37 Relative to this, subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely, and the witness suborned does testify or subscribe an affidavit under circumstances rendering him guilty of perjury. 38 Subornation of perjury is treated as perjury and the accused is punished under Article 183 in relation to Article 17, 39 as principal by inducement. 40

In this case, the Ombudsman has determined that there is enough reason to believe that perjury has been committed and that Hondrade is probably guilty of committing the crime. It found that Valenzuela and Suarez executed the December 12, 2006 affidavits stating that Lumawag did not report for duty from November 1 to December 12, 2006. The declaration that Lumawag was absent for 42 days, or at least 30 calendar days without official leave is material 41 since it is a cause for separation from service. 42 Also, it was not disputed that Valenzuela and Suarez affixed their signatures on their respective affidavits before Atty. Miravalles, a notary public authorized to administer oath. 43 Later, Valenzuela and Suarez' affidavits of recantation which categorically renounced their initial statements were presented before the Ombudsman. They admitted that they were fully aware of the falsities contained in their earlier affidavits but were forced to sign the prepared affidavits upon instruction of Hondrade, 44 fearing that they will be terminated from their casual employment. 45 The December 12, 2006 affidavits served a legal purpose as these led to the issuance of Office Order No. 898, Series of 2006, dated December 20, 2006, dropping them from the Rolls of Service. Likewise, Hondrade used Valenzuela and Suarez' December 12, 2006 affidavits as evidence during the preliminary investigation before the Ombudsman. 46 Evidently, there was sufficient basis for the Ombudsman's finding of probable cause for the crime of Perjury against Hondrade. 47

In the similar case of Paran v. Manguiat, 48 the Court held that the likelihood of falsehood is sufficient for purposes of filing of the Information for Perjury since probable cause need not be based on proof beyond reasonable doubt. It is enough that the pieces of evidence engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial, 49 as in this case.

Likewise, there is no merit in Hondrade's contention that he was deprived of due process because the initiatory complaint charged him of violation of Section 3 (e) of RA No. 3019 and not of Perjury. In Ponce Enrile v. Judge Salazar, 50 the Court sitting en banc, held that an Information may be filed charging an offense different from that alleged in the complaint. There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if such is warranted by the evidence developed during the preliminary investigation. 51 This policy was consistently applied in Avila, Sr. v. Sandiganbayan, 52Galario v. Office of the Ombudsman (Mindanao), 53Tigas v. Office of the Ombudsman, 54 and echoed in Sombero, Jr. v. Office of the Ombudsman. 55 In Sombero, Jr., the Court sustained petitioner and his co-accused's indictment for plunder, 56 although the initial complaint against them was for violation of Section 3 (e) of RA No. 3019. Indeed, the Ombudsman is given a wide margin of discretion in determining not only what will constitute sufficient evidence that will establish "probable cause" for the filing of an Information against a supposed offender, but the proper offense to be charged as well against said offender depending again on the evidence submitted by the parties during the preliminary investigation. 57

Absent a compelling reason to reverse the Ombudsman's factual findings and conclusion on the existence of probable cause for perjury against Hondrade, the petition must be dismissed.

In any case, Hondrade admits that an Information for perjury was already filed against him before the RTC of Silay City. In Crespo v. Judge Mogul, 58 the Court explained that the preliminary investigation conducted by the public prosecutor is terminated upon the filing of the Information in the proper court, which sets in motion the criminal case against the accused in court. Once the Information is filed and a warrant of arrest is issued, the trial court acquires jurisdiction over the case. 59 At this stage, any motion seeking the dismissal of the case, or any relief which determines the accused's guilt or innocence rests within the sound discretion of the court. 60 Considering that the RTC has already acquired jurisdiction over the case, a petition for certiorari questioning the conduct of the preliminary investigation ceases to be the "plain, speedy, and adequate remedy" provided by law and the case must proceed to trial. 61

FOR THESE REASONS, the petition is DISMISSED. The October 17, 2011 and May 6, 2016 Orders of the Office of the Ombudsman Cebu City and Ombudsman Quezon City, respectively, in OMB-V-C-07-0066-B are AFFIRMED. The Regional Trial Court of Silay City, Negros Occidental is DIRECTED to proceed with Criminal Case No. 10500.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 3-23.

2.Id. at 26-37. Penned by Graft Investigation and Prosecution Officer I Llorene Grace Razo-Ompod, reviewed by Assistant Ombudsman Virginia Palanca-Santiago, recommended for approval by Deputy Ombudsman for the Visayas Pelagio S. Apostol, and approved by Ombudsman Conchita Carpio-Morales.

3.Id. at 38-41. Penned by Graft Investigation and Prosecution Officer I Ilyn S. Manongtong, and approved by Ombudsman Conchita Carpio-Morales.

4.Id. at 44-45.

5.Id. at 6.

6.Id. at 54-57.

7.Effect of absences without approved leave. — An official or an employee who is continuously absent without approved leave for at least thirty (30) calendar days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. He shall, however, be informed, at his address appearing on his 201 files of his separation from the service, not later than five (5) days from its effectivity.

8. Civil Service Commission Memorandum Circular No. 41, s. 1998, re: Amendments to Rules I and XVI of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order 292), dated December 24, 1998.

9.Rollo, pp. 8-10.

10. SEC. 3. Corrupt practices of public officers. — x x x

(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.

11. Entitled "ANTI-GRAFT AND CORRUPT PRACTICES ACT," approved on August 17, 1960.

12.Rollo, pp. 46-47.

13.Id. at 10.

14.Id. at 43-53.

15.Id. at 27-29.

16.Id. at 33.

17.Id. at 26-37.

18.Id. at 36.

19.Id. at 38-41.

20.Id. at 109-111.

21.Id. at 109-110.

22.Id. at 3-21.

23.Id. at 68-74.

24.Id. at 103-105.

25.Id. at 113.

26.Id. at 121-122.

27. SEC. 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.

28. "ACCOUNTABILITY OF PUBLIC OFFICERS."

29. Ratified on February 2, 1987.

30. SEC. 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of [this] primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases[.]

xxx xxx xxx

31. Entitled "AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES," approved on November 17, 1989. RA No. 6770 took effect after 15 days following its publication in the Philippine Star, Malaya and Philippine Daily Inquirer on November 12, 1989, as well as in the Official Gazette, Vol. 85, No. 50, page 8010-1 on December 11, 1989.

32.Quiogue v. Estacio, Jr., G.R. No. 218530, January 13, 2021. See also Dichaves v. Ombudsman and Sandiganbayan, 802 Phil. 564 (2016); Casing v. Ombudsman, 687 Phil. 468 (2012); and Judge Angeles v. Ombudsman Gutierrez, 685 Phil. 183, 193 (2012).

33.Young v. Office of the Ombudsman, 278-A Phil. 728, 732 (1993).

34.Dichaves v. Office of the Ombudsman, 802 Phil. 564, 590 (2016); PCGG v. Hon. Desierto, 563 Phil. 517, 525 (2007); and Esquivel v. Hon. Ombudsman, 437 Phil. 702, 711 (2002).

35.Casing v. Hon. Ombudsman, 687 Phil. 468, 476 (2012). See also Estrada v. Office of the Ombudsman, G.R. Nos. 213473-74, July 31, 2018.

36. See Non v. Office of the Ombudsman, G.R. No. 239168, September 15, 2020, which enumerated the exceptions to the general rule of non-interference, and these are:

1. When necessary to afford adequate protection to the constitutional rights of the accused;

2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

3. When there is a prejudicial question which is sub judice;

4. When the acts of the officer are without or in excess of authority;

5. Where the prosecution is under an invalid law, ordinance or regulation;

6. When double jeopardy is clearly apparent;

7. Where the court has no jurisdiction over the offense;

8. Where it is a case of persecution rather than prosecution;

9. Where the charges are manifestly false and motivated by the lust for vengeance;

10. When there is clearly no prima facie case against the accused and motion to quash on that ground has been denied.

37. See Paran v. Manguiat, G.R. Nos. 200021-22, August 28, 2019; Ilusorio v. Bildner, 595 Phil. 869, 880 (2008).

38.People v. Reyes, 66 Phil. 365, 368 (1938); People v. Akmad, 53 Phil. 241, 245-246 (1929); United States v. Ballena, 18 Phil. 382, 384 (1911).

39.Principals. — The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

40. See People v. Reyes, supra note 38.

41. In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact x x x." See Acuña v. Deputy Ombudsman for Luzon, 490 Phil. 640, 651 (2005).

42. See Civil Service Memorandum Circular No. 41-98 on the Amendments to Rules I and XVI of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Specifically, Rule XVI, Section 63 states that "[a]n official or an employee who is continuously absent without approved leave for at least thirty (30) calendar days shall be considered on absence without official leave (AWOL) and shall be separated from the service or dropped from the rolls without prior notice. x x x."

xxx xxx xxx

43.Rollo, pp. 54-57.

44.Id. at 33.

45.Id. at 39-40.

46.Id. at 9-10.

47.Id. at 8-9.

48.Supra note 37.

49.Supra.

50. 264 Phil. 593 (1990).

51.Supra at 614.

52. 366 Phil. 698 (1999).

53. 554 Phil. 86 (2007).

54. 706 Phil. 503 (2013).

55. G.R. Nos. 237888 & 237904, July 28, 2020.

56.Supra. See also RA No. 7080 entitled "AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER," approved on July 12, 1991. RA No. 7080 took effect 15 days following its publication in Malaya on July 18, 1991, and the Official Gazette, Vol. 87, No. 37 page 5488 on September 23, 1991.

57.Sombero, Jr. v. Office of the Ombudsman, supra note 55.

58. 235 Phil. 465 (1987).

59.Supra at 474-475.

60.Debuque v. Nilson, G.R. No. 191718, May 10, 2021, citing Sec. De Lima v. Reyes, 776 Phil. 623 (2016); and Crespo v. Judge Mogul, supra note 58, at 476. See also Arroyo v. The Hon. Sandiganbayan Fifth Division, G.R. No. 210488, January 27, 2020.

61.Sec. De Lima v. Reyes, 776 Phil. 623, 652 (2016).