SEN. JINGGOY ESTRADA v. OMBUDSMAN G.R. Nos. 212140-41 January 21, 2015
FACTS:
Sometime in November and December 2013, the Ombudsman served on Sen. Estrada two (2) criminal complaints for plunder, among others. Eighteen (18) of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between 9 December 2013 and 14 March 2014.
On 20 March 2014, Sen. Estrada filed his “Request to be Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings” (the “Request”). Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to examine the evidence submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).”
The Ombudsman denied Sen. Estrada’s Request, which is not the subject of the present certiorari case.
ISSUE:
WON petitioner Estrada was denied due process of law
HELD:
NO. The denial did not violate Sen. Estrada’s constitutional right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents.
The SC cited in its decision Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his co-respondents violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of the complaint and the supporting affidavits and documents at the time the order to submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied Sen. Estrada’s Request.
Second, it should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause, and “probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence.” Thus, the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence now required in preliminary investigation is such evidence sufficient to “engender a well-founded belief” as to the fact of the commission of a crime and the respondent’s probable guilt thereof. A preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. We are in accord with the state prosecutor’s findings in the case at bar that there exists prima facie evidence of petitioner’s involvement in the commission of the crime, it being sufficiently supported by the evidence presented and the facts obtaining therein.
Third, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused, we find no compelling justification for a strict application of the evidentiary rules.
Fourth, the quantum of evidence in preliminary investigations is not akin to those in administrative proceedings as laid down in the landmark doctrine of Ang Tibay. The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidence needed in a preliminary investigation to establish probable cause, or to establish the existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to “substantial evidence,” while the establishment of probable cause needs “only more than ‘bare suspicion,’ or ‘less than evidence which would justify . . . conviction’.” In the United States, from where we borrowed the concept of probable cause, the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt to substantial evidence of guilt.
Actually, the Ombudsman went beyond legal duty and even furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as well as the counter-affidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance the disposition of the motions for reconsideration because the Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on the part of the Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not applicable to preliminary investigations which are creations of statutory law giving rise to mere statutory rights. A law can abolish preliminary investigations without running afoul of the constitutional requirements of due process as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not comply and were never intended to comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS, so adjudicate. Ang Tibay, as amplified in GSIS, requires substantial evidence for a decision against the respondent in the administrative case.In preliminary investigations, only likelihood or probability of guilt is required. To apply Ang Tibay, as amplified in GSIS, to preliminary investigations will change the quantum of evidence required to establish probable cause. The respondent in an administrative case governed by Ang Tibay, as amplified in GSIS, has the right to an actual hearing and to cross-examine the witnesses against him. In preliminary investigations, the respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial and cannot be the fact-finder, investigator, and hearing officer at the same time. In preliminary investigations, the same public officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator and hearing officer may be under the control and supervision of the same public officer, like the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in preliminary investigations will render all past and present preliminary investigations invalid for violation of constitutional due process. This will mean remanding for reinvestigation all criminal cases now pending in all courts throughout the country. No preliminary investigation can proceed until a new law designates a public officer, outside of the prosecution service, to determine probable cause. Moreover, those serving sentences by final judgment would have to be released from prison because their conviction violated constitutional due process.
Thus, petition dismissed for being premature and it constitutes forum shopping.