Republic of the Philippines The Court ruled that Paircargo Consortium, PIATCO’s predecessor-in-
SUPREME COURT interest, was not a qualified bidder as it failed to meet the financial
Manila
THIRD DIVISION
G.R. No. 172602 April 13, 2007
HENRY T. GO, Petitioner,
vs.
THE FIFTH DIVISION, SANDIGANBAYAN and THE OFFICE OF THE
SPECIAL PROSECUTOR, OFFICE OF THE
OMBUDSMAN, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for certiorari under Rules 65 of the Rules of
Court filed by Henry T. Go seeking to nullify the Resolution dated
December 6, 2005 of the Sandiganbayan in Criminal Case No. 28092,
entitled People of the Philippines vs. Vicente C. Rivera, Jr. and Henry T.
Go, which denied his motion to quash. Likewise sought to be nullified is
the Sandiganbayan Resolution of March 24, 2006 denying petitioner Go’s
motion for reconsideration.
The factual and procedural antecedents of the case are as follows:
On May 5, 2003, this Court rendered the Decision in Agan, Jr. v. Philippine
International Air Terminals Co., Inc. (PIATCO),1 declaring as null and void
the 1997 Concession Agreement, the Amended and Restated Concession
Agreement (ARCA), and the Supplemental Contracts entered into between
the Government, through the Department of Transportation and
Communications (DOTC) and the Manila International Airport Authority
(MIAA), and PIATCO.
By the aforementioned contracts (collectively known as the PIATCO
contracts), the Government awarded in favor of PIATCO the project for the
development of the Ninoy Aquino International Airport Passenger Terminal
III (NAIA IPT III) under a build-operate-and-transfer (BOT) scheme
pursuant to Republic Act (RA) No. 6957 as amended by RA 7718 (BOT
Law).2
capability requirement under the BOT Law. Moreover, the PIATCO
contracts were declared null and void for being contrary to public policy.
The penultimate paragraph of the Court’s Decision states thus:
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO,
the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that
the 1997 Concession Agreement contains material and substantial
amendments, which amendments had the effect of converting the 1997
Concession Agreement into an entirely different agreement from the
contract bidded upon, the 1997 Concession Agreement is similarly null and
void for being contrary to public policy. The provisions under Section
4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession
Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA,
which constitute a direct government guarantee expressly prohibited by,
among others, the BOT Law and its Implementing Rules and Regulations
are also null and void. The Supplements, being accessory contracts to the
ARCA, are likewise null and void.3
Subsequently, an affidavit-complaint, later amended, was filed with the
Office of the Ombudsman by Ma. Cecilia L. Pesayco, Corporate Secretary
of Asia’s Emerging Dragon Corporation (AEDC), charging several persons
in connection with the NAIA IPT III project. The AEDC was the original
proponent thereof which, however, lost to PIATCO when it failed to match
the latter’s bid price.
After conducting a preliminary investigation thereon, the Office of the
Ombudsman filed with the Sandiganbayan the Information dated January
13, 2005 charging Vicente C. Rivera, as then DOTC Secretary, and
petitioner Go, as Chairman and President of PIATCO, with violation of
Section 3(g)4 of RA 3019, also known as the Anti-Graft and Corrupt
Practices Act. The case was docketed as Criminal Case No. 28092,
entitled People of the Philippines vs. Vicente C. Rivera, Jr. and Henry T.
Go. The Information reads:
INFORMATION
The undersigned Graft Investigation and Prosecution Officer II, Office of
the Deputy Ombudsman for Luzon, accuses VICENTE C. RIVERA, JR.
and HENRY T. GO with Violation of Sec. 3 (g), R.A. No. 3019 committed
as follows:
On or about November 26, 1998, or sometime prior or subsequent thereto,
in Quezon City, Philippines and within the jurisdiction of this Honorable
Court, the accused VICENTE C. RIVERA, JR., Secretary of the
Department of Transportation and Communications (DOTC), committing
the offense in relation to his office and taking advantage of the same, in
conspiracy with accused HENRY T. GO, Chairman and President of the
Philippine International Air Terminals, Co., Inc. (PIATCO), did then and
there, willfully, unlawfully and feloniously enter into an Amended and
Restated Concession Agreement (ARCA), after the project for the
construction of the Ninoy Aquino International Passenger Terminal III
(NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which
ARCA substantially amended the draft Concession Agreement covering
the construction of the NAIA IPT III under Republic Act 6957 as amended
by Republic Act 7718 (BOT Law) providing that the government shall
assume the liabilities of PIATCO in the event of the latter’s default
specifically Article IV, Section 4.04 (c) in relation to Article I, Section 1.06
of the ARCA which term is more beneficial to PIATCO and in violation of
the BOT law, and manifestly and grossly disadvantageous to the
government of the Republic of the Philippines.
CONTRARY TO LAW.5
On February 11, 2005, petitioner Go posted a cash bond for his provisional
liberty.
On February 15, 2005, the Sandiganbayan issued a Hold Departure Order
against Rivera and petitioner Go.
On March 28, 2005, petitioner Go was arraigned and entered a plea of "not
guilty."
On May 26, 2005, Rivera filed a Motion for Judicial Determination (or Re-
Determination) of Probable Cause and Motion to Dismiss. The
Sandiganbayan gave petitioner Go a period of ten (10) days within which
to file a comment thereon.
On June 20, 2005, petitioner Go filed his Comment with Motion to Quash.
Adopting the view advanced by Rivera, petitioner Go harped on the alleged
"missing documents," including Pesayco’s amended affidavit-complaint
and those others that were mentioned in the resolution of the Office of the
Deputy Ombudsman finding probable cause against Rivera and petitioner
Go, but which were not allegedly in the records. Petitioner Go maintained
that apart from the bare allegations contained in Pesayco’s affidavit-
complaint, there was no supporting evidence for the finding of the
existence of probable cause against him and Rivera. Petitioner Go further
alleged that he could not be charged under Section 3(g) of RA 3019
because he is not a public officer and neither is he capacitated to enter into
a contract or transaction on behalf of the government. At least one of the
important elements of the crime under Section 3(g) of RA 3019 is not
allegedly present in his case.
On June 21, 2005, petitioner Go filed a Manifestation with Motion to
Substitute the Comment with Motion to Quash, which the prosecution,
through the Office of the Ombudsman, opposed.
On December 6, 2005, the Sandiganbayan issued the assailed Resolution
denying Rivera’s Motion for Judicial Determination (Re-Determination) of
Probable Cause and Motion to Dismiss and petitioner Go’s Motion to
Quash.
The Sandiganbayan ruled that, contrary to the prosecution’s submission, it
could still entertain petitioner Go’s Motion to Quash even after his
arraignment considering that it was based on the ground that the facts
charged do not constitute an offense. Nonetheless, the Sandiganbayan
denied petitioner Go’s Motion to Quash holding that, contrary to his claim,
the allegations in the Information actually make out the offense charged.
More particularly, the allegations that accused Rivera, as DOTC Secretary,
in conspiracy with petitioner Go, entered into the ARCA with petitioner
Go/PIATCO, which agreement was manifestly and grossly
disadvantageous to the government, are constitutive of the elements of the
offense charged as defined under Section 3(g) of RA 3019.
The Sandiganbayan explained that petitioner Go’s contentions that he is
not a public officer, he did not conspire with Rivera in the execution of the
ARCA and, in any case, the said agreement cannot be said to be
manifestly and grossly disadvantageous to the government, could not be
properly considered for the purpose of quashing the Information on the
ground relied upon by him. According to the Sandiganbayan, these matters
raised by petitioner Go have to be proved during trial.
The decretal portion of the assailed Sandiganbayan Resolution reads:
WHEREFORE, in light of the foregoing, the "Motion for Determination (Re-
Determination) of Probable Cause and Motion to Dismiss" and the "Motion
to Quash," filed by accused Vicente C. Rivera, Jr. and Henry T. Go,
respectively, are hereby DENIED.
SO ORDERED.6
Petitioner Go filed a motion for reconsideration thereof but it was denied
by the Sandiganbayan in the Resolution dated March 24, 2006.
Petitioner Go now seeks recourse to the Court and, in support of his
petitioner, alleges that:
A.
The Honorable Sandiganbayan committed grave abuse of discretion
amounting to lack or excess of jurisdiction in not ruling that Section 3(g)
does not embrace a private person within its proviso.
B.
The Honorable Sandiganbayan committed grave abuse of discretion
amounting to lack or excess of jurisdiction in not ruling that there is no
probable cause to hold petitioner for trial.7
Petitioner Go contends that Section 3(g) of RA 3019, by its text, cannot be
extended or even enlarged by implication or intendment to bring within its
limited scope private persons. The said provision of law allegedly punishes
only public officers as it penalizes the act of "entering, on behalf of the
government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or
will profit thereby." As a private person, he could not allegedly enter into a
contract "on behalf of the government," there being no showing of any
agency relations or special authority for him to act for and on behalf of the
government.
Citing several cases,8 petitioner Go enumerates the following elements of
Section 3(g) of RA 3019:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the
government; and
(3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.
He also cites Marcos v. Sandiganbayan9 where the Court acquitted then
First Lady Imelda R. Marcos of the charge of violation of Section 3(g) of
RA 3019 as it found that she did not sign the subject Lease Agreement,
entered into between the Light Railway Transit Authority (LRTA) and
Philippine General Hospital Foundation, Inc. (PGHFI), as a public officer,
but in her capacity as Chairman of the PGHFI, a private entity. As such,
the Court held that the first element of the offense charged, i.e., that the
accused is a public officer, was wanting.
Petitioner Go claims that, in the same manner, the first element of the
offense charged against him is absent because he is not a public officer
who is authorized by law to bind the government through the act of
"entering into a contract." He also points out that, similar to his case, in
Marcos, the Information also alleged that the former First Lady conspired
with a public officer, then Minister Jose P. Dans of the Ministry of
Transportation and Communications, in entering into a contract.
Nonetheless, the Court therein dismissed the allegation of conspiracy.
Petitioner Go maintains that by any of its definition,10 he cannot be
considered a "public officer." Further, only a public officer can enter into a
contract in representation of the government. He stresses that the first
element of the offense, i.e., that the accused is a public officer, is an
essential ingredient of the crime under Section 3(g) of RA 3019. He likens
it to the crime of parricide where the essential element is the relationship
of the offender to the victim and, citing a criminal law book author, a
stranger who cooperates in the execution of the offense is not allegedly
guilty of this crime. The stranger is allegedly either liable for homicide or
murder but never by "conspiracy to commit parricide."11
By parity of reasoning, according to petitioner Go, the first essential
element of the crime penalized under Section 3(g) of RA 3019 is that the
offender must be a public officer. Since he is not a public officer, one of the
essential elements of the offense is lacking; hence, there is no other
recourse but to quash the Information.
Section 9 of RA 3019 was also cited which reads:
SEC. 9. Penalties for violation. –
(a) Any public officer or private person committing any of the unlawful acts
or omissions enumerated in Sections 3, 4, 5, and 6 of this Act shall be
punished with imprisonment for not less than six years and one month or
fifteen years, perpetual disqualification from public office, and confiscation
or forfeiture in favor of the Government of any prohibited interest and
unexplained wealth manifestly out of proportion to his salary and other
lawful income.
xxx
Petitioner Go posits that had it been the intention of the lawmakers to
penalize private persons who supposedly "conspired" with public officers
in violation of Sections 3, 4, 5 and 6 of RA 3019, it could have easily used
the conjunctive "and," not "or," between the terms "public officer" and
"private person" in Section 9 thereof.
Petitioner Go takes exception to the Sandiganbayan’s pronouncement that
even as a private individual he is not excluded from the coverage of Section
3(g) of RA 3019 because he is not being accused singly but as someone
who conspired with a public officer in violating the said law. According to
petitioner Go, this proposition applies only to Section 3(e)12 of RA 3019,
the elements of which include that "the accused are public officers or
private persons charged in conspiracy with them."13 He stresses that,
unlike Section 3(e) of RA 3019, Section 3(g) thereof penalizes only public
officers as the operative phrase in the latter provision is "on behalf of the
government."
Petitioner Go vigorously asserts that there is no basis for the finding of
probable cause against him for violation of Section 3(g) of RA 3019. In
particular, he insists that the allegation of conspiracy between Rivera and
himself is not supported by any evidence. He makes an issue out of those
documents that were mentioned in the resolution of the Deputy
Ombudsman finding probable cause against him but were not in the
records of the Sandiganbayan. His mere signing of the ARCA does not
allegedly establish culpability for violation of RA 3019. Further, he faults
the Sandiganbayan for invoking the doctrine of non-interference by the
courts in the determination by the Ombudsman of the existence of probable
cause. It is petitioner Go’s view that the Sandiganbayan should have
ordered the quashal of the Information for palpable want of probable cause
coupled with the absence of material documents.
The petition is bereft of merit.
For clarity, Section 3(g) of RA 3019 is quoted below anew:
SEC. 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
(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
As earlier mentioned, the elements of this offense are as follows:
(1) that the accused is a public officer;
(2) that he entered into a contract or transaction on behalf of the
government; and
(3) that such contract or transaction is grossly and manifestly
disadvantageous to the government.14
Contrary to the contention of petitioner Go, however, the fact that he is not
a public officer does not necessarily take him out of the ambit of Section
3(g) of RA 3019. Petitioner Go’s simplistic syllogism, i.e., he is not a public
officer ergo he cannot be charged with violation of Section 3(g) of RA 3019,
goes against the letter and spirit of the avowed policy of RA 3019 as
embodied in Section 1 thereof:
SEC. 1. Statement of policy. - It is the policy of the Philippine Government,
in line with the principle that a public office is a public trust, to repress
certain acts of public officers and private persons alike which constitute
graft or corrupt practices or which may lead thereto.
As early as in 1970, through the erudite Justice J.B.L. Reyes in Luciano v.
Estrella,15 the Court had ascertained the scope of Section 3(g) of RA 3019
as applying to both public officers and private persons:
x x x [T]he act treated thereunder [referring to Section 3(g) of RA 3019]
partakes the nature of malum prohibitum; it is the commission of that act
as defined by law, not the character or effect thereof, that determines
whether or not the provision has been violated. And this construction would
be in consonance with the announced purpose for which Republic Act 3019
was enacted, which is the repression of certain acts of public officers and
private persons constituting graft or corrupt practices act or which may lead
thereto.16
Like in the present case, the Information in the said case charged both
public officers and private persons with violation of Section 3(g) of RA
3019.
Section 9 of RA 3019 buttresses the conclusion that the anti-graft law’s
application extends to both public officers and private persons. The said
provision, quoted earlier, provides in part that:
SEC. 9. (a) Any public officer or private person committing any of the
unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act
shall be punished with imprisonment for not less than six years and one
month nor more than fifteen years, perpetual disqualification from public
office, and confiscation or forfeiture in favor of the Government of any
prohibited interest and unexplained wealth manifestly out of proportion to
his salary and other lawful income.
xxx
The fact that one of the elements of Section 3(g) of RA 3019 is "that the
accused is a public officer" does not necessarily preclude its application to
private persons who, like petitioner Go, are being charged with conspiring
with public officers in the commission of the offense thereunder.
The case of Singian, Jr. v. Sandiganbayan17 is instructive. In the said case,
Gregorio Singian, Jr., a private person who was then Executive Vice-
President of Integrated Shoe, Inc. (ISI), together with some officers of the
Philippine National Bank (PNB), was charged with violation of Section 3(e)
and (g) of RA 3019 in connection with the loan accommodations that the
said bank extended to ISI which were characterized as behest loans.
A total of eighteen Informations were filed against Singian and his co-
accused by the Office of the Ombudsman before the Sandiganbayan
corresponding to the nine loan accommodations granted to ISI. Each loan
was subject of two Informations alleging violations of both Section 3(e) and
(g), respectively. In other words, nine Informations charged Singian and
his co-accused with violation of Section 3(e) of RA 3019 and the other nine
charged them with violation of paragraph (g) of the same provision.
Singian filed with the Sandiganbayan a motion for re-determination of
existence of probable cause but the same was dismissed. He then filed
with the Court a petition for certiorari but it was likewise dismissed as the
Court held that the Ombudsman and the Sandiganbayan had not
committed grave abuse of discretion when they respectively found
probable cause against Singian for violations of both paragraphs (e) and
(g) of Section 3 of RA 3019.
Singian thus illustrates that private persons, like petitioner Go, when
conspiring with public officers, may be indicted and, if found guilty, held
liable for violation of Section 3(g) of RA 3019. Another case, Domingo v.
Sandiganbayan,18 may likewise be applied to this case by analogy.
In the said case, Diosdado Garcia, proprietor of D.T. Garcia Construction
Supply, together with Jaime Domingo, then municipal mayor of San
Manuel, Isabela, was charged with Section 3(h) of RA 3019 as it appeared
that he was used by Domingo as a dummy to cover up his business
transaction with the municipality. Section 3(h) of the anti-graft law reads:
SEC.3. Corrupt practices of public officers. – x x x
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes or
takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having an interest.
The elements of this offense are: (1) that the accused is a public officer;
(2) he has a direct or indirect financial or pecuniary interest in any business,
contract, or transaction; (3) he either: (a) intervenes or takes part in his
official capacity in connection with such interest, or (b) is prohibited from
having such interest by the Constitution or by law.19
Despite the first element mentioned above, the Court affirmed the
conviction of Garcia, a private individual, as well as that of Domingo, who
was then a municipal mayor, for violation of Section 3(h) of RA 3019. In so
holding, the Court established that Domingo and Garcia acted in
conspiracy with one another in the commission of the offense. Domingo
thus also serves to debunk petitioner Go’s theory that where an offense
has as one of its elements that the accused is a public officer, it necessarily
excludes private persons from the scope of such offense.
The precept that could be drawn from Luciano, Singian and Domingo, and
which is applicable to the present case, is that private persons, when acting
in conspiracy with public officers, may be indicted and, if found guilty, held
liable for the pertinent offenses under Section 3 of RA 3019, including (g)
and (h) thereof. This is in consonance with the avowed policy of the anti-
graft law to repress certain acts of public officers and private persons alike
constituting graft or corrupt practices act or which may lead thereto.
Reliance by petitioner Go on Marcos v. Sandiganbayan20 is not quite
appropriate. To recall, upon her motion for reconsideration, the Court
therein acquitted former First Lady Imelda Marcos of the charge of violation
of Section 3(g) of RA 3019 in its Resolution dated October 6, 1998. Her
acquittal was based on the finding that she signed the subject lease
agreement as a private person, not as a public officer. As such, the first
element, i.e., that the accused is a public officer was wanting.
Petitioner Go, however, failed to put the Court’s ruling in Marcos in its
proper factual backdrop. The acquittal of the former First Lady should be
taken in the context of the Court’s Decision dated January 29, 1998, in
Dans, Jr. v. People,21 which the former First Lady sought to reconsider and,
finding merit in her motion, gave rise to the Court’s Resolution in Marcos.
In Dans, the Information filed against the former First Lady and Jose P.
Dans, Jr., then Minister of Transportation and Communications, for
violation of Section 3(g) of RA 3019, alleged that they were both public
officers and, conspiring with each other, entered into the subject lease
agreement covering the LRTA property with the PGHFI, a private entity,
under terms and conditions manifestly and grossly disadvantageous to the
government.
The Court in its original decision affirmed the former First Lady’s conviction
for violation of Section 3(g) of RA 3019 but acquitted her co-accused,
Dans, Jr., of the said offense. As stated earlier, upon the former First
Lady’s motion for reconsideration, the Court reversed her conviction in its
Resolution in Marcos.
It can be gleaned from the entire context of Marcos and Dans that the
reversal of the former First Lady’s conviction was based on the fact that it
was later held that she signed the subject lease agreement as a private
person, not a public officer. However, this acquittal should also be taken in
conjunction with the fact that the public officer with whom she had
supposedly conspired, her co-accused Dans, had earlier been acquitted.
In other words, the element that the accused is a public officer, was totally
wanting in the former First Lady’s case because Dans, the public officer
with whom she had allegedly conspired in committing Section 3(g) of RA
3019, had already been acquitted. Obviously, the former First Lady could
not be convicted, on her own as a private person, of the said offense.
In contrast, petitioner Go cannot rightfully assert the total absence of the
first element in his case because he is not being charged alone but in
conspiracy with Rivera, undoubtedly a public officer by virtue of his then
being the DOTC Secretary. The case against both of them is still pending
before the Sandiganbayan. The facts attendant in petitioner Go’s case are,
therefore, not exactly on all fours as those of the former First Lady’s case
as to warrant the application of the Marcos ruling in his case.
Anent the allegation of conspiracy, it is posited by the dissenting opinion
that the Information is infirm as far as petitioner Go is concerned because
it failed to mention with specificity his participation in the planning and
preparation of the alleged conspiracy. It opines that "aside from the
sweeping allegation of conspiracy, the Information failed to mention any
act as to how petitioner had taken part in the planning and preparation of
the alleged conspiracy. Mere allegation of conspiracy in the Information
does not necessarily mean that the criminal acts recited therein also
pertain to petitioner." While it concedes that the Sandiganbayan may
exercise jurisdiction over private individuals, it submits that it may do so
only "upon Information alleging with specificity the precise violations of the
private individual." By way of conclusion, the dissenting opinion cites
Sistoza v. Desierto22 where the Court stated that a signature appearing on
a document is not enough to sustain a finding of conspiracy among officials
and employees charged with defrauding the government.
These asseverations, however, are unpersuasive. It is well established that
the presence or absence of the elements of the crime is evidentiary in
nature and is a matter of defense that may be passed upon after a full-
blown trial on the merits.23 In the same manner, the absence (or presence)
of any conspiracy among the accused is evidentiary in nature and is a
matter of defense, the truth of which can be best passed upon after a full-
blown trial on the merits.24
Following these truisms, the specific acts of petitioner Go in the alleged
conspiracy with Rivera in violating Section 3(g) of RA 3019 as well as the
details on how petitioner Go had taken part in the planning and preparation
of the alleged conspiracy need not be set forth in the Information as these
are evidentiary matters and, as such, are to be shown and proved during
the trial on the merits. Indeed, it bears stressing that "[t]o establish to his office and taking advantage
conspiracy, direct proof of an agreement concerning the commission of a of the same, in conspiracy with
felony and the decision to commit it is not necessary. It may be inferred accused HENRY T. GO,
from the acts of the accused before, during or after the commission of the Chairman and President of
crime which, when taken together, would be enough to reveal a community Philippine International Air
of criminal design, as the proof of conspiracy is frequently made by Terminals, Co., xxx"
evidence of a chain of circumstances. Once established, all the
conspirators are criminally liable as co-principals regardless of the degree 2. He entered into a "[T]he accused VICENTE C.
of participation of each of them, for in contemplation of the law the act of contract or transaction RIVERA, JR., xxx in conspiracy
one is the act of all."25 in behalf of the with accused HENRY T. GO xxx
government did then and there, willfully &
In this connection, for purposes of the Information, it is sufficient that the unlawfully and feloniously
requirements of Section 8, Rule 110 of the Rules of Court are complied entered into an Amended and
with: Restated Concession Agreement
(ARCA), after the project for the
SEC. 8. Designation of the offense. – The complaint or information shall construction of the Ninoy Aquino
state the designation of the offense given by the statute, aver the acts or International Airport International
omissions constituting the offense, and specify its qualifying and Passenger Terminal III (NAIA IPT
aggravating circumstances. If there is no designation of the offense, III) was awarded to Paircargo
reference shall be made to the section or subsection of the statute Consortium/PIATCO x x x
punishing it. 3. The contract or "xxx which ARCA substantially
transaction is grossly amended the draft Concession
An accused, like petitioner Go, may file a motion to quash the Information and manifestly Agreement covering the
under Section 3(a) of Rule 117 on the grounds that the facts charged do disadvantageous to construction of the NAIA IPT III
not constitute an offense. In such a case, the fundamental test in the government under Republic Act 6957, as
determining the sufficiency of the material averments of an Information is amended by Republic Act 7718
whether or not the facts alleged therein, which are hypothetically admitted, (BOT Law) providing that the
would establish the essential elements of the crime defined by law. government shall assume the
Evidence aliunde or matters extrinsic of the Information are not to be liabilities of PIATCO in the event
considered.26 of the latter’s default specifically
Article IV, Section 4.04 (c) in
As correctly outlined by the Office of the Ombudsman, the facts alleged in relation to Article I, Section 1.06
the Information, if admitted hypothetically, establish all the elements of of the ARCA which terms are
Section 3(g) of RA 3019 vis-à-vis petitioner Go: more beneficial to PIATCO and in
violation of the BOT Law and
ELEMENTS ALLEGATIONS manifestly grossly
disadvantageous to the
1a\^/phi 1.net

government of the Republic of

1. The offender is a [T]he accused VICENTE C.
public officer RIVERA, JR., Secretary of
Department of Transportation
and Communications (DOTC),
committing the offense in relation
the Philippines."27
Finally, in the assailed Resolution dated March 24, 2006, the
Sandiganbayan ratiocinated thus:
The rule is that the determination of probable cause during the preliminary
investigation is a function that belongs to the public prosecutor, the Office
of the Ombudsman in this case. Such official is vested with authority to
determine whether or not a criminal case must be filed in court and the
concomitant function of determining as well the persons to be prosecuted.
Also, it must not be lost sight of that the correctness of the exercise of such
function is a matter that the trial court itself does not and may not be
compelled to pass upon, consistent with the policy of non-interference by
the courts in the determination by the Ombudsman of the existence of
probable cause.
on the Sandiganbayan when it held that there exists probable cause
against petitioner Go.
ACCORDINGLY, the petition is DISMISSED for lack of merit. The assailed
Resolutions dated December 6, 2005 and March 24, 2006 of the
Sandiganbayan in Criminal Case No. 28092 are AFFIRMED in toto.
SO ORDERED.

Accordingly, upon the foregoing premises, we believe and so hold that any
and all questions relating to the finding of probable cause by the Office of
the Ombudsman should be addressed to the said office itself, then to the
Court of Appeals and, ultimately, to the Supreme Court.

On the matter of the judicial determination of probable cause, we stand by

our finding that the same exists in this case, the said finding we arrived at
upon a personal determination thereof which we did for the purpose of and
before the issuance of the warrant of arrest. While it may indeed be true
1awphi1.nét

that the documents mentioned by accused-movant as being absent in the

records are missing, we nevertheless had for our perusal other documents
assiduously listed down by accused Rivera in his motion, including the
information, which we found to constitute sufficient basis for our
determination of the existence of probable cause. It must be emphasized
that such determination is separate and distinct from that made by the
Office of the Ombudsman and which we did independently therefrom.28

The determination of probable cause during a preliminary investigation is

a function of the government prosecutor, which in this case is the
Ombudsman. As a rule, courts do not interfere in the Ombudsman’s
exercise of discretion in determining probable cause, unless there are
compelling reasons.29 Mindful of this salutary rule, the Sandiganbayan
nonetheless made its own determination on the basis of the records that
were before it. It concluded that there was sufficient evidence in the records
for the finding of the existence of probable cause against petitioner Go.

Grave abuse of discretion implies a capricious and whimsical exercise of

judgment tantamount to lack or excess of jurisdiction. The exercise of
power must have been done in an arbitrary or a despotic manner by reason
of passion or personal hostility. It must have been so patent and gross as
to amount to an evasion of positive duty or a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.30 Clearly, in the light
of the foregoing disquisition, grave abuse of discretion cannot be imputed