THIRD DIVISION

RODRIGO R. DUTERTE AND BENJAMIN C. DE GUZMAN,

Petitioners,
G. R. No. 130191
April 27, 1998
-versusTHE HONORABLE SANDIGANBAYAN,
Respondent.
DECISION
KAPUNAN, J :
The right to a preliminary investigation is not a mere formal right; it is a
substantive right. To deny the accused of such right would be to deprive him
of
due
process.
In this Special Civil action for Certiorari with Preliminary Injunction,
petitioners seek to set aside the Order of the Sandiganbayan dated 27 June
1997 denying the Motion to Quash the Information filed against them for
violating Sec. 3[g] of R.A. No. 3019, otherwise known as the Anti-Graft And
Corrupt Practices Act. Petitioners similarly impugn the Resolution of the
Sandiganbayan dated 5 August 1997 which denied their Motion for
Reconsideration
thereof.
Pertinent

to

this

case

are

the

following

facts:

In 1990, the Davao City Local Automation Project was launched by the city
government of Davao. The goal of said project was to make Davao City a
leading center for computer systems and technology development. It also
aimed to provide consultancy and training services and to assist all local
government units in Mindanao set up their respective computer systems.
To implement the project, a Computerization Program Committee composed
of the following was formed:
Chairman : Atty. Benjamin C. de Guzman, City Administrator
Members
:
Mr.
Jorge
Silvosa,
Acting
City
Treasurer

Atty.
Victorino
Advincula,
City
Councilor
Mr.
Alexis
Almendras,
City
Councilor
Atty.
Onofre
Francisco,
City
Legal
Officer
Mr.
Rufino
Ambrocio,
Jr.,
Chief
of
Internal
Control
Office
Atty. Mariano Kintanar, COA Resident Auditor. [1]
The Committee's duty was to "conduct a thorough study of the different
computers in the market, taking into account the quality and acceptability of
the products, the reputation and track record of the manufacturers and/or
their Philippine distributors, the availability of the replacement parts and
accessories in the Philippines, the availability of service centers in the
country that can undertake preventive maintenance of the computer
hardwares to ensure a long and uninterrupted use and, last but not the
least, the capability of the manufacturers and/or Philippine distributors to
design and put into place the computer system complete with the flow of
paperwork,
forms
to
be
used
and
personnel
required." [2]
Following these guidelines, the Committee recommended the acquisition of
Goldstar
computers
manufactured
by
Goldstar
Information
and
Communication, Ltd., South Korea and exclusively distributed in the
Philippines
by
Systems
Plus,
Inc.
[SPI].
After obtaining prior clearance from COA Auditor Kintanar, the Committee
proceeded to negotiate with SPI, represented by its President Rodolfo V. Jao
and Executive Vice President Manuel T. Asis, for the acquisition and
installation of the computer hardware and the training of personnel for the
Electronic Data Processing Center. The total contract cost amounted to
P11,656,810.00.
On 5 November 1990, the City Council [Sangguniang Panlungsod] of Davao
unanimously passed Resolution No. 1402 and Ordinance No. 173 approving
the proposed contract for computerization between Davao City and SPI. The
Sanggunian, likewise, authorized the City Mayor (petitioner Duterte) to sign
the
said
contract
for
and
in
behalf
of
Davao
City. [3]
On the same day, the Sanggunian issued Resolution No. 1403 and Ordinance
No. 174, the General Fund Supplemental Budget No. 07 for CY 1990
appropriating P3,000,000.00 for the city's computerization project.
Given the go-signal, the contract was duly signed by the parties thereto and
on 8 November 1990, petitioner City Administrator de Guzman released to
SPI PNB Check No. 65521 in the amount of P1,748,521.58 as
downpayment.

On 27 November 1990, the Office of the Ombudsman-Mindanao received a

letter-complaint from a "concerned citizen," stating that "some city officials
are going to make a killing" in the transaction. [4] The complaint was
docketed as OMB-MIN-90-0425. However, no action was taken thereon. [5]
Thereafter, sometime in February 1991, a complaint docketed as Civil Case
No. 20,550-91, was instituted before the Regional Trial Court of Davao City,
Branch 12 by Dean Pilar Braga, Hospicio C. Conanan, Jr. and Korsung Dabaw
Foundation, Inc. against the petitioners, the City Council, various city
officials and SPI for the judicial declaration of nullity of the aforestated
resolutions and ordinances and the computer contract executed pursuant
thereto.
On 22 February 1991, Goldstar, through its agent, Mr. S.Y. Lee sent a
proposal to petitioner Duterte for the cancellation of the computerization
contract.
Consequently, on 8 April 1991, the Sanggunian issued Resolution No. 449
and Ordinance No. 53 accepting Goldstar's offer to cancel the
computerization contract provided the latter return the advance payment of
P1,748,521.58 to the City Treasurer's Office within a period of one month.
Petitioner Duterte, as City Mayor, was thus authorized to take the proper
steps for the mutual cancellation of the said contract and to sign all
documents
relevant
thereto.[6]
Pursuant to the aforestated authority, on 6 May 1991, petitioner Duterte, in
behalf of Davao City, and SPI mutually rescinded the contract and the
downpayment
was
duly
refunded.
In the meantime, a Special Audit Team of the Commission on Audit was
tasked to conduct an audit of the Davao City Local Automation Project to
determine if said contract conformed to government laws and regulations.
On 31 May 1991, the team submitted its Special Audit Report (SAR) No. 9105 recommending rescission of the subject contract. A copy of the report
was sent to petitioner Duterte by COA Chairman Eufemio C. Domingo on 7
June 1991. In the latter's transmittal letter, Chairman Domingo summarized
the findings of the special audit team, thus:
1. The award of the contract for the "Davao City Local Automation Project" to
Systems Plus, Inc., for P11,656,810 was done thru negotiated contract
rather than thru competitive public bidding in violation of Sections 2 and 8 of
PD 526. Moreover, there was no sufficient appropriation for this particular
contract
in
violation
of
Sec.
85
of
PD
1445.

2. Advance payment of P1.7M was made to Systems Plus, Inc. covering 15%
of the contract cost of P11.6M in violation of Sec. 45 of PD 477 and Sec. 88
of
PD
1445.
3. The cost of computer hardware and accessories under contract with
"Systems Plus, Inc. (SPI)" differed from the team's canvass by as much as
1200%
or
a
total
of
P1.8M.
4. The City had no Information Systems Plan (ISP) prior to the award of the
contract to SPI in direct violation of Malacaang Memo. Order No. 287 and
NCC Memo. Circular 89-1 dated June 22, 1989. This omission resulted in
undue
disadvantage
to
the
City
Government.
5. To remedy the foregoing deficiencies, the team recommends that the
contract with Systems Plus, Inc. be rescinded in view of the questionable
validity due to insufficient funding. Further, the provisions of NCC-MC 89-1
dated June 22, 1989 regarding procurement and/or installation of computer
hardware/system should be strictly adhered to. [7]
The City Government, intent on pursuing its computerization plan, decided
to follow the audit team's recommendation and sought the assistance of the
National Computer Center [NCC]. After conducting the necessary studies,
the NCC recommended the acquisition of Philips computers in the amount of
P15,792,150.00. Davao City complied with the NCC's advice and hence, was
finally
able
to
obtain
the
needed
computers.
Subsequently, on 1 August 1991, the Anti-Graft League-Davao City Chapter,
through one, Miguel C. Enriquez, filed an unverified Complaint with the
Ombudsman-Mindanao against petitioners, the City Treasurer, City Auditor,
the whole City Government of Davao and SPI. The League alleged that the
respondents, in entering into the computerization contract, violated R.A. No.
3019 [Anti-Graft and Corrupt Practices Act], P. D. No. 1445 [Government
Auditing Code of the Philippines], COA circulars and regulations, the Revised
Penal Code and other pertinent penal laws. The case was docketed as OMB391-1768. [8]
On 9 October 1991, Graft Investigation Officer (GIO) Pepito A. Manriquez of
the Office of the Ombudsman sent a letter 9 to COA Chairman Domingo
requesting the Special Audit Team to submit their joint affidavit to
substantiate the Complaint in compliance with Section 4, par. [a] of the
Rules of Procedure of the Office of the Ombudsman [A. O. No. 07].

On 14 October 1991, Judge Paul T. Arcangel, issued an Order dismissing Civil

Case No. 20,550-91. The dispositive portion reads, thus:
"WHEREFORE, in view of all the foregoing, this case is hereby dismissed on
the ground of prematurity and that it has become moot and academic with
the mutual cancellation of the contract. The other claims of the parties are
hereby
denied.
No
pronouncement
as
to
costs.
"SO ORDERED."

[10]

On 12 November 1991, Graft Investigator Manriquez issued an Order in

OMB-3-91-1768 directing petitioners, Jorge Silvosa [City Treasurer], Mariano
Kintanar [City Auditor] and Manuel T. Asis of SPI to:
"file in ten (10) days (1) their respective verified point-by-point comment
under oath upon every allegation of the complaint in Civil Case No. 20,55091 in the Regional Trial Court [RTC], Branch 12, Davao City "Dean Pilar C.
Braga, et al. vs. Hon. Rodrigo Duterte," for Judicial Declaration of Nullity and
Illegality of City Council of Davao Resolutions and Ordinances, and the
Computer Contract executed Pursuant Thereto, for Recovery of Sum of
Money, Professional Fees and Costs with Injunctive Relief, including the
Issuance of a Restraining Order and/or a Writ of Preliminary Prohibitory
Injunction in which they filed a motion to dismiss, not an answer and (2) the
respective comments, also under oath, on the Special Audit Report No. 9105, a copy of which is attached." [11]
On 4 December 1991, the Ombudsman received the affidavits of the Special
Audit
Team
but
failed
to
furnish
petitioners
copies
thereof.
On 18 February 1992, petitioners submitted a Manifestation adopting the
Comments filed by their co-respondents Jorge Silvosa and Mariano Kintanar
dated 25 November 1991 and 17 January 1992, respectively.
Four years after, or on 22 February 1996, petitioners received a copy of a
Memorandum prepared by Special Prosecution Officer I, Lemuel M. De
Guzman dated 8 February 1996 addressed to Ombudsman Aniano A.
Desierto regarding OMB-MIN-90-0425 and OMB-3-91-1768. Prosecutor De
Guzman recommended that the charges of malversation, violation of Sec.
3[e], R.A. No. 3019 and Art. 177, Revised Penal Code against petitioners and
their co-respondents be dismissed. He opined that any issue pertaining to
unwarranted benefits or injury to the government and malversation were
rendered moot and academic by the mutual rescission of the subject
contract before the COA submitted its findings [SAR No. 91-05] or before the
disbursement
was
disallowed.
However, Prosecutor
De
Guzman
recommended that petitioners be charged under Sec. 3[g] of R.A No. 3019

"for having entered into a contract manifestly and grossly disadvantageous

to the government, the elements of profit, unwarranted benefits or loss to
government
being
immaterial." [12]
Accordingly, the following Information dated 8 February 1996 was filed
against petitioners before the Sandiganbayan [docketed as Criminal Case
No. 23193]:
"That on or about November 5, 1990, in the City of Davao, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
both public officers, accused Rodrigo R. Duterte being then the City Mayor
and accused Benjamin C. De Guzman being then the City Administrator of
Davao City, committing the crime herein charged in relation to, while in the
performance and taking advantage of their official functions, and conspiring
and confederating with each other, did then and there willfully, unlawfully
and criminally enter into a negotiated contract for the purchase of computer
hardware and accessories with the Systems Plus, Incorporated for and in
consideration of the amount of Pesos: Eleven Million Six Hundred Fifty-Six
Thousand Eight Hundred Ten [P11,656,810.00], which contract is manifestly
and grossly disadvantageous to the government, said accused knowing fullywell that the said acquisition cost has been overpriced by as much as twelve
hundred [1200%] percent and without subjecting said acquisition to the
required
public
bidding.
"Contrary to law."

[13]

On 27 February 1996, petitioners filed a Motion for Reconsideration and on

29 March 1996, a Supplemental Motion for Reconsideration on the following
grounds:
1. Petitioners were deprived of their right to a preliminary investigation, due
process
and
the
speedy
disposition
of
their
case;
2. Petitioner Duterte acted in good faith and was clothed with authority to
enter
into
the
subject
contract;
3. There is no contract manifestly and grossly disadvantageous to the
government since the subject contract has been duly rescinded.
On 19 March 1996, the Ombudsman issued a Resolution denying petitioners'
motion
for
reconsideration.
On 18 June 1997, petitioners filed a Motion to Quash which was denied by
the Sandiganbayan in its Order dated 27 June 1997. The Sandiganbayan
ruled:

It appears, however, that the accused were able to file Motions for the
Reconsideration of the Resolution authorizing the filing of the Information
herein with the Ombudsman in Manila. This would mean, therefore, that
whatever decision which might have occurred with respect to the preliminary
investigation would have been remedied by the motion for reconsideration in
the sense that whatever the accused had to say in their behalf, they were
able
to
do
in
that
motion
for
reconsideration.
Considering the denial thereof by the Office of the Ombudsman, the Court
does not believe itself empowered to authorize a reinvestigation on the
ground of an inadequacy of the basic preliminary investigation nor with
respect to a dispute as to the proper appreciation by the prosecution of the
evidence
at
that
time.
In view hereof, upon further representation by Atty. Medialdea that he
represents not only Mayor Duterte but City Administrator de Guzman as
well, upon his commitment, the arraignment hereof is now set for July 25,
1997 at 8:00 o'clock in the morning. [14]
On 15 July 1997, petitioners moved for reconsideration of the above Order
but the same was denied by the Sandiganbayan for lack of merit in its
Resolution
dated
5
August
1997. [15]
Hence,

the

present

recourse.

Petitioners allege that:

THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
DENYING PETITIONERS' MOTION TO QUASH AND MOTION FOR
RECONSIDERATION,
CONSIDERING
THAT:
A.
[1] PETITIONERS WERE EFFECTIVELY DEPRIVED OF THEIR RIGHT TO A
PRELIMINARY INVESTIGATION PURSUANT TO SEC. 4, RULE II OF
ADMINISTRATIVE ORDER NO. 07 (RULES OF PROCEDURE OF THE OFFICE OF
THE
OMBUDSMAN);
and
[2] ASSUMING THAT A PRELIMINARY INVESTIGATION WAS PROPERLY
CONDUCTED, THERE WAS AN INORDINATE DELAY IN TERMINATING THE
SAME THEREBY DEPRIVING THEM OF THEIR RIGHT TO DUE PROCESS AND
SPEEDY DISPOSITION OF THE CASE.
B.

THERE IS NO SUFFICIENT BASIS, IN FACT AND IN LAW, TO CHARGE

PETITIONERS DUTERTE AND DE GUZMAN OF VIOLATING SEC. 3 (G) OF R.A.
3019 IN THAT:
[1] PETITIONER DUTERTE ACTED IN GOOD FAITH AND WAS CLOTHED WITH
FULL LEGAL AUTHORITY FROM THE CITY COUNCIL TO ENTER INTO A
CONTRACT
WITH
SYSTEMS
PLUS,
INC.;
[2]
THERE
IS
NO
CONTRACT
MANIFESTLY
AND
GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT TO SPEAK OF AS THE SAME HAS
BEEN RESCINDED AND NO DAMAGE WAS SUFFERED BY THE CITY
GOVERNMENT;
[3] ASSUMING THAT THE CONTRACT WAS NOT RESCINDED, THE SAME
CANNOT
BE
CONSIDERED
AS
MANIFESTLY
AND
GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT. [16]
On 4 September 1997, the Court issued a Temporary Restraining Order
enjoining the Sandiganbayan from further proceeding with Criminal Case No.
23193.
The

Court

finds

the

petition

meritorious.

I.
We have judiciously studied the case records and We find that the
preliminary investigation of the charges against petitioners has been
conducted not in the manner laid down in Administrative Order No. 07.
In the 12 November 1991 Order of Graft Investigator Manriquez, petitioners
were merely directed to submit a point-by-point Comment under oath on the
allegations in Civil Case No. 20,550-91 and on SAR No. 91-05. The said
Order was not accompanied by a single affidavit of any person charging
petitioners of any offense as required by law. [17] They were just required to
comment upon the allegations in Civil Case No. 20,550-91 of the Regional
Trial Court of Davao City which had earlier been dismissed and on the COA
Special Audit Report. Petitioners had no inkling that they were being
subjected to a preliminary investigation as in fact there was no indication in
the order that a preliminary investigation was being conducted. If Graft
Investigator Manriquez had intended merely to adopt the allegations of the
plaintiffs in the civil case or the Special Audit Report [whose
recommendation for the cancellation of the contract in question had been
complied with] as his bases for criminal prosecution, then the procedure was
plainly anomalous and highly irregular. As a consequence, petitioners'
constitutional
right
to
due
process
was
violated.

Sections [2] and [4], Rule II of Administrative Order No. 07 [Rules of

Procedure of the Office of the Ombudsman] provide:
Sec. 2. Evaluation. - Upon evaluating the complaint, the investigating officer
shall
recommend
whether
or
not
it
may
be:
(a)
dismissed
outright
for
want
of
palpable
merit;
(b)
referred
to
respondent
for
comment;
(c) endorsed to the proper government office or agency which has
jurisdiction
over
the
case;
(d) forwarded to the appropriate office or official for fact-finding
investigation;
(e)
referred
for
administrative
adjudication;
or
(f)
subjected
to
a
preliminary
investigation.
xxx
Sec. 4. Procedure. - The preliminary
jurisdiction of the Sandiganbayan
conducted in the manner prescribed
Court,
subject
to

investigation of cases falling under the

and Regional Trial Courts shall be
in Section 3, Rule 112 of the Rules of
the
following
provisions:

(a) If the complaint is not under oath or is based only on official reports, the
investigating officer shall require the complainant or supporting witnesses to
execute
affidavits
to
substantiate
the
complaints.
(b) After such affidavits 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 and controverting evidence
with proof of service thereof on the complainant. The complainant may file
reply affidavits within ten (10) days after service of the counter-affidavits.
(c) If the respondent does not file a counter-affidavit, the investigating
officer may consider the comment filed by him, if any, as his answer to the
complaint. In any event, the respondent shall have access to the evidence
on
record.
(d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained. If respondent
desires any matter in the complainant's affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning
in
the
manner
provided
in
paragraph
[f]
of
this
section.

(e) If the respondent cannot be served with the order mentioned in

paragraph 6 hereof, or having been served, does not comply therewith, the
complaint shall be deemed submitted for resolution on the basis of the
evidence
on
record.
(f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the investigating officer
may need to be clarified on, he may conduct a clarificatory hearing during
which the parties shall be afforded the opportunity to be present but without
the right to examine or cross-examine the witness being questioned. Where
the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to
be asked by the investigating officer or a party shall be reduced into writing
and served on the witness concerned who shall be required to answer the
same
in
writing
and
under
oath.
(g) Upon the termination of the preliminary investigation, the investigating
officer shall forward the records of the case together with his resolution to
the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan or the proper Deputy Ombudsman in all
other cases.
In what passes off as application of the foregoing rules, all that petitioners
were asked to do was merely to file their comment upon every allegation of
the complaint in Civil Case No. 20,550-91 in the Regional Trial Court [RTC]
and on the COA Special Audit Report. The comment referred to in Section
2[b] Rule II, of A.O. No. 07 is not part of or is equivalent to the preliminary
investigation contemplated in Sec. 4, Rule II, of the same Administrative
Order. A plain reading of Sec. 2 would convey the idea that upon evaluation
of the complaint, the investigating officer may recommend its outright
dismissal for palpable want of merit; otherwise, or if the complaint appears
to have some merit, the investigator may recommend action under any of
those enumerated from [b] to [f], that is, the investigator may recommend
that the complaint be: referred to respondent for comment, or endorsed to
the proper government office or agency which has jurisdiction over the case;
or forwarded to the appropriate office or official for fact-finding investigation;
or referred for administrative adjudication; or subjected to preliminary
investigation. Now, if the investigator opts to recommend the filing of a
comment by the respondent, it is presumably because he needs more facts

and information for further evaluation of the merits of the complaint. That
being done, the investigating officer shall again recommend any one of the
actions enumerated in Section 2, which include the conduct of a preliminary
investigation.
A preliminary investigation, on the other hand, takes on an adversarial
quality and an entirely different procedure comes into play. This must be so,
because the purpose of a preliminary investigation or a previous inquiry of
some kind before an accused person is placed on trial, is to secure the
innocent against hasty, malicious and oppressive prosecution, and to protect
him from an open and public accusation of a crime, from the trouble,
expenses and anxiety of public trial. [18] It is also intended to protect the
state from having to conduct useless and expensive trials. [19] While the
right is statutory rather than constitutional in its fundament, it is a
component part of due process in criminal justice. The right to have a
preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is a substantive right. To
deny the accused's claim to a preliminary investigation would be to deprive
him of the full measure of his right to due process. [20]
Note that in preliminary investigation, if the complaint is unverified or based
only on official reports [which is the situation obtaining in the case at bar],
the complainant is required to submit affidavits to substantiate the
complaint. The investigating officer, thereafter, shall issue an order, to which
copies of the complaint-affidavit are attached, requiring the respondent to
submit his counter-affidavits. In the preliminary investigation, what the
respondent is required to file is a counter-affidavit, not a comment. It is only
when the respondent fails to file a counter-affidavit may the investigating
officer consider the respondent's comment as the answer to the complaint.
Against the foregoing backdrop, there was a palpable non-observance by the
Office of the Ombudsman of the fundamental requirements of preliminary
investigation.
Apparently, in the case at bar, the investigating officer considered the filing
of petitioner's comment as a substantial compliance with the requirements of
a preliminary investigation. Initially, Graft Investigator Manriquez directed
the members of the Special Audit Team on 9 October 1991 to submit their
affidavits relative to SAR No. 91-05. However, on 12 November 1991, before
the affidavits were submitted, Manriquez required petitioners to submit their
respective comments on the complaint in the civil case and on Special Audit
Report [SAR] 91-05. Even when the required affidavits were filed by the
audit team on 4 December 1991, petitioners were still not furnished copies

thereof. The Ombudsman contends that failure to provide petitioners the

complaint-affidavits is immaterial since petitioners were well aware of the
existence of the civil complaint and SAR No. 91-05. We find the
Ombudsman's reasoning flawed. The civil complaint and the COA Special
Audit Report are not equivalent to the complaint-affidavits required by the
rules. Moreover, long before petitioners were directed to file their comments,
the civil complaint (Civil Case No. 20,550-91) was rendered moot and
academic and, accordingly, dismissed following the mutual cancellation of
the computerization contract. In SAR No. 91-05, on the other hand,
petitioners were merely advised to rescind the subject contract - which was
accomplished even before the audit report came out. In light of these
circumstances, the Court cannot blame petitioners for being unaware of the
proceedings
conducted
against
them.
In Olivas vs. Office of the Ombudsman, [21] this Court, speaking through
Justice Vicente V. Mendoza, emphasized that it is mandatory requirement for
the complainant to submit his affidavit and those of his witnesses before the
respondent can be compelled to submit his counter-affidavits and other
supporting documents. Thus:
Even in investigations looking to the prosecution of a party, Rule I, Section 3
can only apply to the general criminal investigation, which in the case at bar
was already conducted by the PCGG. But after the Ombudsman and his
deputies have gathered evidence and their investigation has ceased to be a
general exploratory one and they decide to bring the action against a party,
their proceedings become adversary and Rule II Section 4[a] then applies.
This means that before the respondent can be required to submit counteraffidavits and other supporting documents, the complainantt must submit his
affidavit and those of his witnesses. This is true not only of prosecutions of
graft cases under Rep. Act No. 3019 but also of actions for the recovery of
unexplained wealth under Rep. Act No. 1379, because Section 2 of this latter
law requires that before a petition is filed there must be a "previous inquiry
similar to preliminary investigation in criminal cases."
Indeed, since a preliminary investigation is designed to screen cases for
trial, only evidence may be considered. While reports and even raw
information may justify the initiation of an investigation, the stage of
preliminary investigation can be held only after sufficient evidence has been
gathered and evaluated warranting the eventual prosecution of the case in
Court. As this Court held in Cojuangco, Jr. v. PCGG:
Although such a preliminary investigation is not a trial and is not intended to
usurp the function of the trial court, it is not a casual affair. The officer
conducting the same investigates or inquires into the facts concerning the
commission of the crime with the end in view of determining whether or not

an information may be prepared against the accused. Indeed, a preliminary

investigation is in effect a realistic judicial appraisal of the merits of the case.
Sufficient proof of the guilt of the accused must be adduced so that when
the case is tried, the trial court may not be bound as a matter of law to
order an acquittal. A preliminary investigation has then been called a judicial
inquiry. It is a judicial proceeding. An act becomes judicial when there is
opportunity to be heard and for the production and weighing of evidence,
and a decision is rendered thereof.
II.
Compounding the deprivation of petitioners of their right to a preliminary
investigation was the undue and unreasonable delay in the termination of
the irregularly conducted preliminary investigation. Petitioners' manifestation
adopting the comments of their co-respondents was filed on 18 February
1992. However, it was only on 22 February 1996 or four [4] years later, that
petitioners received a memorandum dated 8 February 1996 submitted by
Special Prosecutor Officer I Lemuel M. De Guzman recommending the filing
of Information against them for violation of Sec. 3[g] of R.A. No. 3019 [AntiGraft and Corrupt Practices Act]. The inordinate delay in the conduct of the
"preliminary investigation" infringed upon their constitutionally guaranteed
right to a speedy disposition of their case. [22] In Tatad vs. Sandiganbayan,
[23] We held that an undue delay of close to three [3] years in the
termination of the preliminary investigation in the light of the circumstances
obtaining in that case warranted the dismissal of the case:
We find the long delay in the termination of the preliminary investigation by
the Tanodbayan in the instant case to be violative of the constitutional right
of the accused to due process. Substantial adherence to the requirements of
the law governing the conduct of preliminary investigation, including
substantial compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural due
process constitutionally guaranteed by the fundamental law. Not only under
the broad umbrella of the due process clause, but under the constitutional
guarantee of "speedy disposition" of cases as embodied in Section 16 of the
Bill of Rights [both in the 1973 and 1987 Constitution], the inordinate delay
is violative of the petitioner's constitutional rights. A delay of close to three
[3] years can not be deemed reasonable or justifiable in the light of the
circumstances obtaining in the case at bar. We are not impressed by the
attempt of the Sandiganbayan to sanitize the long delay by indulging in the
speculative assumption that "the delay may be due to a painstaking and
grueling scrutiny by the Tanodbayan as to whether the evidence presented
during the preliminary investigation merited prosecution of a former highranking government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected.

Secondly, three out of the five charges against the petitioner were for his
alleged failure to file his sworn statement of assets and liabilities required by
Republic Act No. 3019, which certainly did not involve complicated legal and
factual issues necessitating such "painstaking and grueling scrutiny" as
would justify a delay of almost three years in terminating the preliminary
investigation. The other two charges relating to alleged bribery and alleged
giving of unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or justify the
period of three years, which it took the Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary
investigation should not be deemed fatal, for even the complete absence of a
preliminary investigation does not warrant dismissal of the information. True,
but the absence of a preliminary investigation can be corrected by giving the
accused such investigation. But an undue delay in the conduct of the
preliminary investigation can not be corrected, for until now, man has not
yet
invented
a
device
for
setting
back
time.
In the recent case of Angchangco, Jr. vs. Ombudsman, [24] the Court upheld
Angchangco's right to the speedy disposition of his case. Angchangco was a
Sheriff in the Regional Trial Court of Agusan del Norte and Butuan City. In
1990 criminal complaints were filed against him which remained pending
before the Ombudsman even after his retirement in 1994. The Court, thus,
ruled:
Here, the Office of the Ombudsman, due to its failure to resolve the criminal
charges against petitioner for more than six years, has transgressed on the
constitutional right of petitioner to due process and to a speedy disposition
of the cases against him, as well as the Ombudsman's own constitutional
duty to act promptly on complaints filed before it. For all these past 6 years,
petitioner has remained under a cloud, and since his retirement in
September 1994, he has been deprived of the fruits of his retirement after
serving the government for over 42 years all because of the inaction of
respondent Ombudsman. If we wait any longer, it may be too late for
petitioner to receive his retirement benefits, not to speak of clearing his
name. This is a case of plain injustice which calls for the issuance of the writ
prayed for. [25]
We are not persuaded by the Ombudsman's argument that the Tatad ruling
does not apply to the present case which is not politically motivated unlike
the former, pointing out the following findings of the Court in the Tatad
decision:
A painstaking review of the facts can not but leave the impression that
political motivations played a vital role in activating and propelling the

prosecutorial process in this case. Firstly, the complaint came to life, as it

were, only after petitioner Tatad had a falling out with President Marcos.
Secondly, departing from established procedures prescribed by law for
preliminary investigation, which require the submission of affidavits and
counter-affidavits by the complainant and the respondent and their
witnesses, the Tanodbayan referred the complaint to the Presidential
Security
Command
for
fact-finding
investigation
and
report.
We find such blatant departure from the established procedure as a dubious,
but revealing attempt to involve an office directly under the President in the
prosecutorial process, lending credence to the suspicion that the prosecution
was politically motivated. We cannot emphasize too strongly that
prosecutors should not allow, and should avoid, giving the impression that
their noble office is being used or prostituted, wittingly or unwittingly, for
political ends, or other purposes alien to, or subversive of, the basic and
fundamental objective observing the interest of justice evenhandedly,
without fear or favor to any and all litigants alike whether rich or poor, weak
or strong, powerless or mighty. Only by strict adherence to the established
procedure may be public's perception of the impartiality of the prosecutor be
enhanced. [26]
The Ombudsman endeavored to distinguish the present suit from the
Angchangco case by arguing that in the latter, Angchangco filed several
motions for early resolution, implying that in the case at bar petitioners were
not
as
vigilant
in
asserting
or
protecting
their
rights.
We disagree. The constitutional right to speedy disposition of cases does not
come into play only when political considerations are involved. The
Constitution makes no such distinction. While political motivation in Tatad
may have been a factor in the undue delay in the termination of the
preliminary investigation therein to justify the invocation of their right to
speedy disposition of cases, the particular facts of each case must be taken
into consideration in the grant of the relief sought. In the Tatad case, We are
reminded:
In a number of cases, this Court has not hesitated to grant the so-called
"radical relief" and to spare the accused from undergoing the rigors and
expense of a full-blown trial where it is clear that he has been deprived of
due process of law or other constitutionally guaranteed rights. Of course, it
goes without saying that in the application of the doctrine enunciated in
those cases, particular regard must be taken of the facts and circumstances
peculiar to its case. [27]
In Alviso vs. Sandiganbayan,

[28]

the Court observed that the concept of

speedy disposition of cases "is a relative term and must necessarily be a

flexible concept" and that the factors that may be considered and balanced
are the "length of the delay, the assertion or failure to assert such right by
the
accused,
and
the
prejudice
caused
by
the
delay."
Petitioners in this case, however, could not have urged the speedy resolution
of their case because they were completely unaware that the investigation
against them was still on-going. Peculiar to this case, we reiterate, is the fact
that petitioners were merely asked to comment, and not file counteraffidavits which is the proper procedure to follow in a preliminary
investigation. After giving their explanation and after four long years of
being in the dark, petitioners, naturally, had reason to assume that the
charges
against
them
had
already
been
dismissed.
On the other hand, the Office of the Ombudsman failed to present any
plausible, special or even novel reason which could justify the four-year
delay in terminating its investigation. Its excuse for the delay - the many
layers of review that the case had to undergo and the meticulous scrutiny it
had to entail - has lost its novelty and is no longer appealing, as was the
invocation in the Tatad case. The incident before us does not involve
complicated factual and legal issues, specially in view of the fact that the
subject computerization contract had been mutually cancelled by the parties
thereto even before the Anti-Graft League filed its Complaint.
The Office of the Ombudsman capitalizes on petitioners' three motions for
extension of time to file comment which it imputed for the delay. However,
the delay was not caused by the motions for extension. The delay occurred
after petitioners filed their comment. Between 1992 to 1996, petitioners
were under no obligation to make any move because there was no
preliminary investigation within the contemplation of Section 4, Rule II of
A.O.
No.
07
to
speak
of
in
the
first
place.
III.
Finally, under the facts of the case, there is no basis, in law or in fact, to
charge petitioners for violation of Sec. 3[g] of R.A. No. 3019. To establish
probable cause against the offender for violation of Sec. 3[g], the following
elements must be present: [1] the offender is a public officer; [2] he
entered into a contract or transaction in behalf of the government; and [3]
the contract or transaction is grossly and manifestly disadvantageous to the
government. The second element of the crime - that the accused public
officers entered into a contract in behalf of the government - is absent. The
computerization contract was rescinded on 6 May 1991 before SAR No. 9105 came out on 31 May 1991 and before the Anti-Graft League filed its

complaint with the Ombudsman on 1 August 1991. Hence, at that time the
Anti-Graft League instituted their complaint and the Ombudsman issued its
Order on 12 November 1991, there was no longer any contract to speak of.
The contract, after 6 May 1991 became in contemplation of law, nonexistent,
as
if
no
contract
was
ever
executed.
WHEREFORE, premises considered, the petition is GRANTED and Criminal
Case No. 23193 is hereby DISMISSED. The temporary restraining order
issued
on
4
September
1997,
is
made
PERMANENT.
SO ORDERED.