Interminable prosecution

This case is a clear example of our imperfect justice system. While there is nothing inherently wrong with the principle and procedure applied, it highlights the risk that government officials undergo while in office particularly in being subjected to constant exposure of prosecution for an offense that has been previously dismissed by the investigating prosecutor.

The government official here served in the Department of Transportation and Communications (DOTC) as Assistant Secretary (ASEC) by virtue of which he also served as a member of its Pre-qualifications, Bids and Awards Committee (PBAC) headed by a DOTC Undersecretary and two other members. The alleged offense is violation of Section 3 (j) of the Anti-Graft Law which punishes the act of “knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage”.

The case arose when PBAC pre-qualified a consortium of companies (PAIRCARGO later incorporated as PIATCO) in the construction of the NAIA III. The PBAC pre-qualified the consortium when the PBAC Chairman certified that, based on the audited financial statements of all the member companies, the total financial capability of all the member companies of the consortium would be acceptable and could provide the minimum equity for the project consisting of 30% of the project cost or at least P2,755,095,000 as set forth in the BOT Law and its implementing rules in relation to the PBAC bulletin and other laws or rules.

As expected, the losing party (AEDC) filed a civil action before the Regional Trial Court of Pasay City for the declaration of nullity of the proceedings and for disqualification of the Consortium. On April 30, 1999 however this case was dismissed upon the parties’ joint motion with a mutual quitclaim and waiver.

Subsequently however certain “interested parties” also filed complaints before the Ombudsman against the PBAC Chairman and members including the ASEC for violation of said Section of the Anti-Graft Law (OMB Case Nos. 0-01-0135 and 0-01-0785). In a joint resolution dated Oct. 2, 2002, the said complaints were also dismissed by the Ombudsman.

But on May 5, 2003, the Supreme Court in the Agan cases (G.R. 155001, 155547 & 155661), noted that the total net worth of the Consortium after considering only the maximum amounts that may be validly invested by each of its members is only P558,384,871.55 which clearly falls short of the prescribed minimum equity investment required for the project. Apparently, the PBAC failed to consider that the Consortium member bank (Security Bank) can only invest not exceeding 15% of its net worth under the General Banking Act (R.A. 337).

Hence on Sept. 16, 2004 the Ombudsman after reviewing and re-evaluating the charges against the PBAC head and its members found probable cause to indict them in Court including the ASEC for violation of Section 3(j) of the Anti-Graft Law.

The ASEC questioned this action of the Ombudsman as a grave abuse of discretion. He contended the case should be barred by the prior Joint resolution of the Ombudsman (October 2, 2002) which twice found no sufficient basis to indict him for similar offense. He said that repeated investigations are oppressive since he would be made to suffer interminable prosecution if resolutions dismissing complaints would perpetually be subject to reopening at any time and by any party. He added that the Agan cases cannot be a supervening event or evidence per se to warrant a reinvestigation on the same set of facts and circumstances. Was he correct?

No. The Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. New matters or evidence are not prerequisites for a reinvestigation, which is simply a chance for the prosecutor or the Office of the Ombudsman to review and re-evaluate its findings and the evidence already submitted.

The prior joint resolution does not bar the Ombudsman from reopening the case. Bar by prior judgment or res judicata is a doctrine of civil law and thus has no bearing on the criminal proceeding. But even if the doctrine were to be expanded to contemplate “res judicata in prison grey” or the criminal law concept of double jeopardy, it is still inapplicable in this case to bar the reinvestigation conducted by the Ombudsman. For the dismissal of a case during the preliminary investigation does not constitute double jeopardy, preliminary investigation not being part of the trial.

AEDC is not also barred from filing a criminal complaint after the dismissal of its civil case based on compromise. Criminal liability is not subject to compromise. A criminal act is committed against the People and the offended party may not waive or extinguish the criminal liability that the law imposes upon its commission (Trinidad vs. Ombudsman et. al. G.R. 166038, December 4, 2007).

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