DIGEST/ FLORES MAY L. OROSA/ QUARTO VS MARCELO (2011)

 

G.R. No. 169042               October 5, 2011

ERDITO QUARTO, Petitioner,
vs.
THE HONORABLE OMBUDSMAN SIMEON MARCELO, CHIEF SPECIAL PROSECUTOR DENNIS VILLA IGNACIO, LUISITO M. TABLAN, RAUL B. BORILLO, and LUIS A. GAYYA, Respondents.

 

FACTS:

The DPWH Secretary created a committee to investigate alleged anomalous transactions involving the repairs and/or purchase of spare parts of DPWH service vehicles with the DPWH Internal Audit Service to conduct the actual investigation. The DPWH-IAS discovered that from March to December 2001, several emergency repairs and/or purchase of spare parts of hundreds of DPWH service vehicles, which were approved and paid by the government, did not actually take place, resulting in government losses of approximately P143 million for this ten-month period alone. The committee then filed before the Office of the Ombudsman complaints charging the petitioner, the respondents, who are officials and employees of the DPWH, and other private individuals who purportedly benefitted from the anomalous transactions.

The Ombudsman filed with the Sandiganbayan several information charging the said DPWH officials and employees with plunder, estafa through falsification of official/commercial documents and violation of Section 3(e), RA No. 3019. On the other hand, the Ombudsman granted the respondents' request for immunity in exchange for their testimonies and cooperation in the prosecution of the cases filed.

 

ISSUE:

Whether Ombudsman erred in granting the request for immunity in exchange for testimonies and cooperation in the prosecution of the cases filed

RULING:

The petition is dismissed on two grounds first, the petitioner did not avail of the remedies available to him before filing this present petition; and, second, within the context of the Court’s policy of non-interference with the Ombudsman’s exercise of his investigatory and prosecutory powers, the petitioner failed to establish that the grant of immunity to the respondents was attended by grave abuse of discretion.

I. The petitioner did not exhaust remedies available in the ordinary course of law

As extraordinary writs, both Sections 1 (certiorari) and 3 (mandamus), Rule 65 of the Rules of Court require, as a pre-condition for these remedies, that there be no other plain, speedy and adequate remedy in the ordinary course of law. In the present case, the petitioner has not shown that he moved for a reconsideration of the assailed resolutions based substantially on the same grounds stated in this present petition. Neither did the petitioner file a motion for the inclusion of the respondents in the informations before filing the present petition. These are adequate remedies that the petitioner chose to forego; he bypassed these remedies and proceeded to seek recourse through the present petition.

Similarly, the petitioner has not shown that he filed the present petition with this Court within the sixty-day reglementary period from notice of the assailed Ombudsman’s resolutions. He did not do so, of course, since he initially and erroneously filed a certiorari petition with the Sandiganbayan. We remind the petitioner that the remedy from the Ombudsman’s orders or resolutions in criminal cases is to file a petition for certiorari under Rule 65 with this Court.

The petition likewise fails even on the merits.

II. The respondents’ exclusion in the informations is grounded on the Ombudsman’s grant of immunity

Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law upon the respondent. In matters involving the exercise of judgment and discretion, mandamus may only be resorted to, to compel the respondent to take action; it cannot be used to direct the manner or the particular way discretion is to be exercised.

In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no different from an ordinary prosecutor in determining who must be charged. He also enjoys the same latitude of discretion in determining what constitutes sufficient evidence to support a finding of probable cause (that must be established for the filing of an information in court) and the degree of participation of those involved or the lack thereof. His findings and conclusions on these matters are not ordinarily subject to review by the courts except when he gravely abuses his discretion, i.e., when his action amounts to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or when he acts outside the contemplation of law.

If, on the basis of the same evidence, the Ombudsman arbitrarily excludes from an indictment some individuals while impleading all others, the remedy of mandamus lies since he is duty-bound, as a rule, to include in the information all persons who appear responsible for the offense involved.

Citing the cases of Guiao v. Figueroa and Castro, Jr., et al. v. Castañeda and Liceralde, the petitioner argues for the inclusion of the respondents in the criminal informations, pointing out that the respondents accomplished the inspection reports that allegedly set in motion the documentary process in the repair of the DPWH vehicles; these reports led to the payment by the government and the consequent losses.

In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include in the information certain persons, whose participation in the commission of a crime clearly appears, and (ii) to follow the proper procedure for the discharge of these persons in order that they may be utilized as prosecution witnesses.

These cited cases, however, did not take place in the same setting as the present case as they were actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity "in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives." The pertinent provision – Section 17 of this law – provides:

Sec. 17. Immunities. – x x x.

Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. [emphasis ours]

To briefly outline the rationale for this provision, among the most important powers of the State is the power to compel testimony from its residents; this power enables the government to secure vital information necessary to carry out its myriad functions. This power though is not absolute. The constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The state’s power to compel testimony and the production of a person’s private books and papers run against a solid constitutional wall when the person under compulsion is himself sought to be penalized. In balancing between state interests and individual rights in this situation, the principles of free government favor the individual to whom the state must yield.

A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute. Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination (considered the fount from which all statutes granting immunity emanate) and the legitimate governmental interest in securing testimony. By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution. In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination.