FERRER V. OMBUDSMAN (ADMINISTRATIVE)

FIRST. Under Rule II, Section 2 of Admin Order No. 07 (Rules of Procedure of the Office of the Ombudsman), the investigating officer, upon evaluation of the complaint, shall recommend whether it may be:

1. dismissed outright for want of palpable merit;
2. referred to respondent for comment;
3. endorsed to the proper government office or agency which has jurisdiction over the case;
4. forwarded to the appropriate office or official for fact-finding investigation;
5. referred for administrative adjudication; or
6. subjected to a preliminary investigation.

Therefore, 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, who in this case was GIO Gruta. Concurring with the recommendation of Gio Ginez-Jabalde to dismiss the complaint, similarly approved by then Ombudsman Desierto, does not necessarily indicate that Gio Gruta did not exercise her independent judgment in this case in concluding that the complaint lodged by petitioner lacks merit. To conduct a preliminary investigation when deemed unnecessary as the same issues being raised had already been resolved would be superfluous.

As regards petitioner's allegation of denial of his right to due process, it should be remembered that the essence of due process in administrative proceedings is an opportunity to explain one's side or to seek reconsideration of the action or ruling complained of. Deprivation of due process cannot be successfully invoked where a party was given an opportunity to be heard on his motion for reconsideration.

SECOND. Petitioner posits that the Office of the Ombudsman erred in ruling that it had no jurisdiction to investigate charges of violation of RA 5487 (Private Security Agency Law) for purposes of determining the probable criminal liability of respondents who were officials of NFA. This is erroneous.

The jurisdiction of the Office of the Ombudsman to investigate and prosecute criminal cases pertains to violations of RA 3019, RA 1379, RA 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and such other offenses committed by public officers and employees in relation to office.

On the other hand, in RA 5487, it is the Philippine National Police that exercises general supervision over the operation of all private detective and watchman security guard agencies. It has the exclusive authority to regulate and to issue the required licenses to operate security and protective agencies. In this case, in the absence of a declaration form the PNP that a violation of the said law was committed by Metroguard and DASIA, the act of the NFA officials in awarding the security service contracts to the said agencies after a showing that their bids were the most advantageous to the government is presumed to be valid.

Verily, the Court has almost always adopted and quite aptly, a POLICY OF NON-INTERFERENCE in the exercise of the Ombudsman's constitutionally mandated powers. The Ombudsman has the power to dismiss a complaint outright without going through a preliminary investigation. To insulate the Office of the Ombudsman from outside pressure and improper influence, the Constitution as well as RA 6770, saw it fit to endow that office with a wide latitude of investigatory and prosecutory powers, virtually free from legislative, executive, or judicial intervention. If the Ombudsman, using professional judgment, finds the case dismissible, the Court shall respect such findings unless tainted with grave abuse of discretion. The Ombudsman has discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. It is basically his judgment call.

GRAVE ABUSE OF DISCRETION is an evasion of a positive duty or virtual refusal to perform a duty enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law and evidence but on caprice, whim, and despotism, No such circumstance obtains in this case.

PRESIDENTIAL AD HOC V. DESIERTO (CONSTITUTIONAL, ADMINISTRATIVE)

An EX POST FACTO law has been defined as one:

1. which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action;
2. which aggravates a crime or makes it greater than it was when committed;
3. which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed;
4. which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant;
5. which assumes to regulate civil rights and remedies only, but in effect imposes a penalty or deprivation of a right which when exercised was lawful; or
6. which deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

The constitutional proscription of ex post facto laws is aimed against the retrospectivity of penal laws. Penal laws are acts of the legislature which prohibit certain acts ad establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.

AO No. 13 does not mete out a penalty for the act of granting behest loans. It merely creates the Presidential Ad Hoc Fact-Finding Committee on Behest Loans and provides the frame of reference in determining the existence of behest loans. Not being penal laws, AO No 13 and Memo Order No. 61 cannot be characterized as ex post facto laws.

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 is empowered to determine, in the exercise of his discretion, whether probable cause exists and to charge the person believed to have committed the crime as defined by law. As a rule, courts should not interfere with the Ombudsman's investigatory power, exercised through the Ombudsman Prosecutors, and the authority to determine the presence or absence of probable cause, except when the finding is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.

For one to have violated Section 3(e) of RA 3019, the following elements must be established:

1. the accused must be a public officer discharging administrative, judicial, or official functions;
2. he must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and
3. he must have caused undue injury to any party, including the government or given any private party unwarranted benefits, advantage, or preference, in the discharge of his functions.

Evidently, mere bad faith or partiality and negligence per se are not enough for one to be held liable under the law. It is required that the act constitutive of bad faith or partiality must, in the first place, be evident or manifest, while the negligent deed should be both gross and inexcusable. Further, it is necessary to show that any or all of these modalities resulted in undue injury to a specified party.

On the other hand, to be listed under Section 3(g), there must be a showing that private respondents entered into a grossly disadvantageous contract on behalf of the government.

Petitioner did not satisfy either criterion.

GALERO V. CA AND OMBUDSMAN (ADMINISTRATIVE)

The powers, functions, and duties of the Ombudsman are set forth in Section 15(3) of RA 6770 otherwise known as the Ombudsman Act of 1989, which substantially restates Section 13(3), Article XI of the 1987 Constitution, thus:

Section 15. Powers, Functions, Duties - The Office of the Ombudsman shall have the following powers, functions, and duties:

x x x x

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act; Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer.

The restrictive interpretation of the word "recommend" had long been rejected by this Court for being inconsistent with the wisdom and spirit behind the creation of the Office of the Ombudsman. Instead, to be faithful to the constitutional objective, the word has been construed to mean that the implementation of the Ombudsman's order of dismissal, suspension, etc. is mandatory but shall be coursed through the proper officer.

We have already ruled that though the Constitution lays down the specific powers of the Ombudsman, it likewise allows the legislature to enact a law that would grant added powers to the Ombudsman. To be sure, the provisions of RA 6770 taken together, reveal the manifest intent of the lawmakers to bestow the Office of the Ombudsman full administrative disciplinary authority. Specifically, it is given the authority to receive complaints, conduct investigations, hold hearing in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and necessarily, impose said penalty. Clearly, the Office of the Ombudsman was given teeth to render this constitutional body not merely functional but also effective.