FIRST DIVISION
[G.R. No. 232544. July 6, 2021.]
GREGORIO T. IPONG, petitioner,vs. OFFICE OF THE OMBUDSMAN, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJuly 6, 2021which reads as follows:
"G.R. No. 232544 (Gregorio T. Ipong,Petitioner,v. Office of the Ombudsman,Respondent.) — This Petition 1 for Certiorari under Rule 65 of the Rules of Court assails the Resolution 2 dated 27 September 2016 and Joint Order dated 21 April 2017 by the Office of the Ombudsman (OMB) in OMB-C-C-15-0220, which found probable cause against petitioner Gregorio T. Ipong (petitioner), together with Esperanza I. Cabral (Cabral), Mateo G. Montaño (Montaño) Leonila M. Hayahay (Hayahay), and Roberto M. Solon (Solon), 3 for two (2) counts of Violation of Section 3 (e) 4 of Republic Act No. (RA) 3019, 5 Malversation of public funds and Malversation through falsification of public documents.
Antecedents
Petitioner, then member of the House of Representatives from the 2nd District of North Cotabato, was allotted Priority Development Assistance Fund (PDAF) in the amount of Php9,400,000.00 for the year 2007. 6 The said amount was intended to finance his Integrated Social Development Project (KALAHI-CIDSS) in his district. 7
On 12 January 2007, the Department of Budget and Management (DBM) issued SARO No. ROCS-07-00537 to the Department of Social Welfare Development (DSWD) covering the amount of Php9,400,000.00. In a letter dated 09 February 2007, petitioner informed Cabral, then DSWD Secretary, that he is endorsing ECOSOC, a Non-Government Organization (NGO), as conduit of his office in implementing KALAHI-CIDSS project, funded by his PDAF. 8
The DBM issued Notice of Cash Allocation (NCA) No. 335825-0 to cover the cash requirements of DSWD for the KALAHI-CIDSS project on 12 February 2007. Thereafter, the DSWD transferred the funds to ECOSOC in two (2) tranches: the first tranche, in the amount of Php2,820,000.00; and the second tranche, in the amount of Php6,580,000.00. After the release of the entire fund, petitioner finally executed on 09 April 2007 a Memorandum of Agreement (MOA) with DSWD, represented by Secretary Cabral, and ECOSOC, represented by Solon, for the implementation of the KALAHI-CIDSS project. 9
Upon investigation, the Field Investigation Office (FIO) found that the disbursement of funds by DSWD to ECOSOC was not in accordance with COA Circular No. 2007-001 and GPPB Resolution No. 12-2007. The FIO also questioned the legitimacy of ECOSOC as there was no credible proof that the project funded and financed by SARO No. ROCS-07-00537 was ever implemented. 10 Hence, the complaint 11 charging petitioner, among others, with Violation of Article 217 of the Revised Penal Code (RPC), Section 3 (e) of RA 3019 and RA 9184. 12
Resolution of the Ombudsman
On 27 September 2016, the OMB found probable cause, indicting petitioner, among others, with two (2) counts of Violation of Sec. 3 (e) of RA 3019 and Malversation of Public Funds and Malversation through Falsification of Public Documents. The dispositive portion of the resolution stated, thus:
WHEREFORE, this Office, through the undersigned:
(a) FINDS PROBABLE CAUSE to indict the following respondents for conspiring in the commission of the following:
[VIOLATION OF SECTION 3 (E) OF RA 3019 — 2 counts]
i Gregorio T. Ipong, Esperanza I. Cabral, Mateo G. Montaño, Leonila M. Hayahay, and Roberto M. Solon, acting in conspiracy with one another, for VIOLATION OF SECTION 3 (E) OF RA 3019 in relation to the fund releases amounting to at least PHP2,820,000.00 drawn from Ipong's PDAF under SARO No. ROCS-07-00537 and coursed through the Department of Social Welfare and Development (DSWD) as reflected in Disbursement Voucher (DV) No. 07033189;
ii Gregorio T. Ipong, Esperanza I. Cabral, Mateo G. Montaño, Leonila M. Hayahay, and Roberto M. Solon, acting in conspiracy with one another, for VIOLATION OF SECTION 3 (E) OF RA 3019 in relation to the fund releases amounting to at least Php6,580,000.00 drawn from Ipong's PDAF under SARO No. ROCS-07-00537 and coursed through the Department of Social Welfare and Development (DSWD) as reflected in Disbursement Voucher (DV) No. 07034020;
[MALVERSATION OF PUBLIC FUNDS — 1 count]
i Gregorio T. Ipong, Esperanza I. Cabral, Mateo G. Montaño, Leonila M. Hayahay, and Roberto M. Solon, acting in conspiracy with one another, for MALVERSATION in relation to the fund releases amounting to at least PHP2,820,000.00 drawn from Ipong's PDAF under SARO No. ROCS-07-00537 and coursed through the Department of Social Welfare and Development (DSWD) as reflected in Disbursement Voucher (DV) No. 07033189;
[MALVERSATION THROUGH FALSIFICATION OF PUBLIC DOCUMENTS — 1 count]
ii Gregorio T. Ipong, I. Cabral, Mateo G. Montaño, Leonila M. Hayahay, and Roberto M. Solon, acting in conspiracy with one another, for MALVERSATION THROUGH FALSIFICATION OF PUBLIC DOCUMENTS in relation to the fund releases amounting to at least Php6,580,000.00 drawn from Ipong's PDAF under SARO No. ROCS-07-00537 and coursed through the Department of Social Welfare and Development (DSWD) as reflected in Disbursement Voucher (DV) No. 07034020;
xxx xxx xxx."
SO ORDERED.13
Petitioner sought reconsideration, which was denied in an Order dated 21 April 2017. 14 Hence, this Petition.
Issues
The issues raised for resolution are whether or not the OMB committed grave abuse of discretion in its finding of probable cause for the crimes charged.
Ruling of the Court
Petitioner contends that the OMB gravely abused its discretion when it found probable cause to indict him of the charges lodged against him. Petitioner argues that the OMB failed to establish all the elements of violation of Section 3 (e) of RA 3019, 15 specifically as to manifest partiality, considering that he is not responsible for the accreditation of ECOSOC. Hand picking the NGOs are the only means provided at the time the ECOSOC was selected, as the bidding requirement under COA Circular No. 2007-001, as well as the IRR of RA 9184, was not in existence then. 16 He likewise insists that he did not cause any undue injury on the part of the government as he merely recommended ECOSOC. It was the DSWD which actually implemented the project and was responsible to monitor compliance with the terms of the project implementation by ECOSOC. 17
Anent the charge for Malversation, petitioner asserts that he did not have custody and control over the PDAF. He merely endorsed ECOSOC and had no participation in the alleged premature transfer of funds to the latter. 18 Conspiracy was also not established considering he was not part of the implementation and monitoring of the projects. 19 Similarly, petitioner ascribes grave abuse of discretion on the part of the OMB despite denial of due process. He also imputes that the OMB showed bias when it perfunctorily admitted and gave credence to the findings of the FIO, the said office being a part of the OMB itself.
We are not persuaded.
Time and again, the Court has consistently refrained from interfering with the discretion of the Ombudsman to determine the existence of probable cause and to decide whether or not an Information should be filed. 20 The Ombudsman's finding of probable cause, or lack of it, is entitled to great respect absent a showing of grave abuse of discretion. 21 Nevertheless, this Court is not precluded from reviewing the Ombudsman's action when there is a charge of grave abuse of discretion. 22
The OMB found probable cause against petitioner and his co-respondents for two (2) counts of Violation of Section 3 (e) of RA 3019 based on the following elements:
a. Petitioner and his co-repondents were all public officers at the time material to the charges;
b. Petitioner and his co-respondents were manifestly partial to ECOSOC, represented by Solon. Petitioner endorsed ECOSOC to implement his projects without the benefit of a public bidding and without having been authorized by an appropriation law or ordinance as legally mandated. The IRR of RA 9184 states that an NGO may be contracted only when so authorized by an appropriation law or ordinance. National Budget Circular (NBC) No. 476, 23 as amended by NBC NO. 479, provides that PDAF allocations should be directly released only to the government agencies identified in the project menu of the pertinent General Appropriations Act (GAA). The GAAs in effect at the time material to the charges, however, did not authorize the direct release of funds to NGOs, let alone the direct contracting of NGOs to implement government projects. 24
c. Petitioner and his co-respondents repeatedly failed to follow the requirements of RA 9184 as well as its IRR, GPPB Regulations and NBC, thereby showing that unwarranted benefit, advantage or preference was extended to ECOCOC, represented by Solon. The PDAF-related transactions likewise caused undue injury to the Government in the amount of Php9,400,000.00 as the projects supposedly funded by petitioner's PDAF were ghost or inexistent. 25
Upon the other hand, the OMB found probable cause to indict petitioner and his co-respondents for Malversation of public funds based on the following elements: a.) petitioner and his co-respondents are public officers, b.) petitioner had custody and control of the PDAF share allocated to him by the appropriations statute, c.) petitioner received the PDAF allocations and over which he has effective control by reason of his office, d.) petitioner and his co-respondents acted in conspiracy to misappropriate the public funds drawn from petitioner's funds. 26 The foregoing elements pertain to the irregular disbursement of the first tranche of PDAF amounting to Php2,820,000.00.
Probable cause for Malversation through Falsification of Public Document was also established with regard to the second tranche of PDAF amounting to Php6,580,000.00. Petitioner and his co-respondents, including Solon, participated in the preparation and submission of falsified liquidation reports and documents to facilitate to release of the funds for the second tranche. The falsification of the said documents thus became the means to commit the crime of Malversation. 27
Conspiracy was also established. The OMB found cohesion and interconnection in the separate acts of petitioner and his co-respondents which were deemed indispensable to the success of their scheme to repeatedly divert substantial funds from the PDAF. 28 Based on the assessment of the OMB, there is sufficient reason to believe that RA 3019 was violated and Malversation has been committed, and that petitioner and his co-respondents are probably guilty thereof.
It must be emphasized that petitioner's arguments that the OMB failed to establish the elements of the charges against him as well as the conspiracy between him and his co-respondents are evidentiary in nature and are matters of defense, the truth of which can be best passed upon after a full-blown trial on the merits. 29 Moreover, these are centered on the OMB's appreciation of facts which is not proper in a petition for certiorari, as the same admits only of questions of grave abuse of discretion amounting to lack or excess of jurisdiction. 30
Likewise, petitioner cannot successfully invoke that he was deprived due process when he, together with his co-respondents, were given the opportunity to file their respective counter-affidavits to refute the allegations in the complaint. The essence of due process in administrative proceedings is the opportunity to explain one's side or to seek reconsideration of the action or ruling complained of. 31 There was no denial of due process as well when the OMB adopted the resolution of the FIO. The prerogative as to whether or not a complaint may be given due course belongs exclusively to the Office of the Ombudsman through its assigned investigation officer. 32
Notably, the Ombudsman's finding of probable cause does not touch on the issue of guilt or innocence of petitioner. It is not the function of the Ombudsman to rule on such issue. 33 In determining the existence of probable cause, the Ombudsman weighed the evidence presented together with the counter-affidavits of petitioner and his co-respondents and ascertained if there was enough reason to believe that a crime has been committed and that petitioner and his co-respondents are probably guilty thereof. Viewed in this light, We find that the Ombudsman did not gravely abuse its discretion in finding probable cause to indict petitioner and his co-respondents with (2) counts of Violation of Sec. 3 (e) of RA 3019 and Malversation of Public Funds and Malversation through falsification of public documents.
Case law has it that the determination of probable cause against those in public office during a preliminary investigation is a function that belongs to the Office of the Ombudsman. The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his call. He may dismiss the complaint forthwith should he find it to be insufficient in form or substance, or he may proceed with the investigation if, in his view, the complaint is in due and proper form and substance. We have consistently refrained from interfering with the constitutionally mandated investigatory and prosecutorial powers of the Ombudsman. Thus, if the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings, unless the exercise of such discretionary powers is tainted by grave abuse of discretion. 34
WHEREFORE, the petition is DISMISSED. Accordingly, the assailed Resolution dated 27 September 2016 and Joint Order dated 21 April 2017 of the Office of the Ombudsman in OMB-C-C-15-0220 are hereby AFFIRMED.
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. 3-27.
2.Id. at 28-57. Penned by Graft Investigation & Prosecution Officer III Joseph L. Licuden and reviewed by Graft Investigation & Prosecution Officer II Anna Francesca M. Limbo, recommending approval of Graft Investigation and Prosecution Officer IV M.A. Cristian Uy of the Office of the Ombudsman, Quezon City.
3. Collectively referred to as private respondents.
4. Section 3. Corrupt practices of public officers. — In addition to acts or omission 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: 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 function through manifest impartiality, evident bad faith or gross inexcusable negligence. x x x.
5. Entitled "Anti-Graft and Corrupt Practices Act," approved on 17 August 1960.
6.Rollo, p. 7.
7.Id. at 30.
8.Id. at 7.
9.Id. at 30-31.
10.Id. at. 11.
11.Id. at 66-85.
12. Entitled "An Act Providing for the Modernization, Standardization and Regulation of the Procurement Activities of the Government and for other Purposes," approved on 10 January 2003.
13.Id. at 56-57.
14.Id. at 61-65.
15. 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:
xxx xxx xxx
(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.
16.Rollo, pp. 15-16.
17.Id.
18.Id. at 19-21.
19.Id. at 22.
20.Reyes v. Ombudsman, 783 Phil. 304 (2016), G.R. Nos. 212593-94, 213163-78, 213540-41, 213542-43, 215880-94 & 213475-76, 15 March 2016 [Per J. Perlas-Bernabe].
21.Ganaden v. Ombudsman, 665 Phil. 224 (2011), G.R. Nos. 169359-61, 01 June 2011 [Per J. Villarama, Jr.].
22.Supra at note 20.
23. Entitled "Re: Guidelines on the Release of Funds Chargeable Against the Priority Development Assistance Fund for the Second Semester of FY 2001 and thereafter," dated 07 November 2001.
24.Rollo, pp. 41-42.
25.Id. at 42, 45.
26.Id. at 46-49.
27.Id. at 50.
28.Id. at 51-52.
29.Supra at note 21.
30.Kalalo v. Office of the Ombudsman, 633 Phil. 160 (2010), G.R. No. 158189, 23 April 2010 [Per J. Peralta].
31.Ferrer v. Office of the Ombudsman, 583 Phil. 50 (2008), G.R. No. 129036, 06 August 2008 [Per J. Nachura].
32.Id.
33.Supra at note 21.
34.Public Attorney's Office v. Office of the Ombudsman, 821 Phil. 286 (2017), G.R. No. 197613, 22 November 2017 [Per J. Caguioa], citing Presidential Commission on Good Government v. Desierto, 563 Phil. 517, 525-526 (2007), G.R. No. 139296, 23 November 2007 [Per J. Nachura].