II. The respondents’ exclusion in the informations is grounded on the Ombudsman’s grant of immunity
Mandamus is the proper remedy to compel the performance of a ministerial duty imposed by law upon the respondent.[38] In matters involving the exercise of judgment and discretion, mandamus may only be resorted to, to compel the respondent to take action; it cannot be used to direct the manner or the particular way discretion is to be exercised.[39]
In the exercise of his investigatory and prosecutorial powers, the Ombudsman is generally no different from an ordinary prosecutor in determining who must be charged.[40] He also enjoys the same latitude of discretion in determining what constitutes sufficient evidence to support a finding of probable cause (that must be established for the filing of an information in court)[41] and the degree of participation of those involved or the lack thereof. His findings and conclusions on these matters are not ordinarily subject to review by the courts except when he gravely abuses his discretion,[42] i.e., when his action amounts to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or when he acts outside the contemplation of law.[43]
If, on the basis of the same evidence, the Ombudsman arbitrarilyexcludes from an indictment some individuals while impleading all others, the remedy of mandamus lies[44] since he is duty-bound, as a rule, to include in the information all persons who appear responsible for the offense involved.[45]
Citing the cases of Guiao v. Figueroa[46] and Castro, Jr., et al. v. Castañeda and Liceralde,[47] the petitioner argues for the inclusion of the respondents in the criminal informations, pointing out that the respondents accomplished the inspection reports that allegedly set in motion the documentary process in the repair of the DPWH vehicles; these reports led to the payment by the government and the consequent losses.
In Guiao and Castro, we ruled that mandamus lies to compel a prosecutor who refuses (i) to include in the information certain persons, whose participation in the commission of a crime clearly appears, and (ii) to follow the proper procedure for the discharge of these persons in order that they may be utilized as prosecution witnesses.
These cited cases, however, did not take place in the same setting as the present case as they were actions by the public prosecutor, not by the Ombudsman. In the present case, the Ombudsman granted the respondents immunity from prosecution pursuant to RA No. 6770 which specifically empowers the Ombudsman to grant immunity “in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives.” The pertinent provision – Section 17 of this law – provides:
Sec. 17. Immunities. – x x x.
Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. [emphasis ours]
To briefly outline the rationale for this provision, among the most important powers of the State is the power to compel testimony from its residents; this power enables the government to secure vital information necessary to carry out its myriad functions.[48] This power though is not absolute. The constitutionally-enshrined right against compulsory self-incrimination is a leading exception. The state’s power to compel testimony and the production of a person’s private books and papers run against a solid constitutional wall when the person under compulsion is himself sought to be penalized. In balancing between state interests and individual rights in this situation, the principles of free government favor the individual to whom the state must yield.[49]
A state response to the constitutional exception to its vast powers, especially in the field of ordinary criminal prosecution and in law enforcement and administration, is the use of an immunity statute.[50] Immunity statutes seek a rational accommodation between the imperatives of an individual’s constitutional right against self-incrimination[51] (considered the fount from which all statutes granting immunity emanate[52]) and the legitimate governmental interest in securing testimony.[53] By voluntarily offering to give information on the commission of a crime and to testify against the culprits, a person opens himself to investigation and prosecution if he himself had participated in the criminal act. To secure his testimony without exposing him to the risk of prosecution, the law recognizes that the witness can be given immunity from prosecution.[54] In this manner, the state interest is satisfied while respecting the individual’s constitutional right against self-incrimination.
III. Nature of the power to grant immunity
The power to grant immunity from prosecution is essentially a legislative prerogative.[55] The exclusive power of Congress to define crimes and their nature and to provide for their punishment concomitantly carries the power to immunize certain persons from prosecution to facilitate the attainment of state interests, among them, the solution and prosecution of crimes with high political, social and economic impact.[56] In the exercise of this power, Congress possesses broad discretion and can lay down the conditions and the extent of the immunity to be granted.[57]
Early on, legislations granting immunity from prosecution were few.[58] However, their number escalated with the increase of the need to secure vital information in the course and for purposes of prosecution. These statutes[59] considered not only the importance of the testimony sought, but also the unique character of some offenses and of some situations where the criminal participants themselves are in the best position to give useful testimony.[60] RA No. 6770 or the Ombudsman Act of 1989 was formulated along these lines and reasoning with the vision of making the Ombudsman the protector of the people against inept, abusive and corrupt government officers and employees.[61] Congress saw it fit to grant the Ombudsman the power to directly confer immunity to enable his office to effectively carry out its constitutional and statutory mandate of ensuring effective accountability in the public service.[62]
IV. Considerations in the grant of immunity
While the legislature is the source of the power to grant immunity, the authority to implement is lodged elsewhere. The authority to choose the individual to whom immunity would be granted is a constituent part of the process and is essentially an executive function. Mapa, Jr. v. Sandiganbayan[63] is instructive on this point:
The decision to grant immunity from prosecution forms a constituent part of the prosecution process. It is essentially a tactical decision to forego prosecution of a person for government to achieve a higher objective. It is a deliberate renunciation of the right of the State to prosecute all who appear to be guilty of having committed a crime. Its justification lies in the particular need of the State to obtain the conviction of the more guilty criminals who, otherwise, will probably elude the long arm of the law.Whether or not the delicate power should be exercised, who should be extended the privilege, the timing of its grant, are questions addressed solely to the sound judgment of the prosecution. The power to prosecute includes the right to determine who shall be prosecuted and the corollary right to decide whom not to prosecute. In reviewing the exercise of prosecutorial discretion in these areas, the jurisdiction of the respondent court is limited. For the business of a court of justice is to be an impartial tribunal, and not to get involved with the success or failure of the prosecution to prosecute. Every now and then, the prosecution may err in the selection of its strategies, but such errors are not for neutral courts to rectify, any more than courts should correct the blunders of the defense. [emphasis ours]
RA No. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to “such terms and conditions” as he may determine. The only textual limitation imposed by law on this authority is the need to take “into account the pertinent provisions of the Rules of Court,” – i.e., Section 17, Rule 119 of the Rules of Court.[64]This provision requires that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
This Rule is itself unique as, without detracting from the executive nature of the power to prosecute and the power to grant immunity, it clarifies that in cases already filed with the courts,[65] the prosecution merely makes a proposal and initiates the process of granting immunity to an accused-witness in order to utilize him as a witness against his co-accused.[66] As we explained in Webb v. De Leon[67] in the context of the Witness Protection, Security and Benefit Act:
The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. [emphasis ours]
Thus, it is the trial court that determines whether the prosecution’s preliminary assessment of the accused-witness’ qualifications to be a state witness satisfies the procedural norms.[68] This relationship is in reality a symbiotic one as the trial court, by the very nature of its role in the administration of justice,[69]largely exercises its prerogative based on the prosecutor’s findings and evaluation. On this point, the Court’s pronouncement in the 1918 case ofUnited States v. Abanzado[70] is still very much relevant:
A trial judge cannot be expected or required to inform himself with absolute certainty at the very outset of the trial as to everything which may be developed in the course of the trial in regard to the guilty participation of the accused in the commission of the crime charged in the complaint. If that were practicable or possible there would be little need for the formality of a trial. He must rely in large part upon the suggestions and the information furnished by the prosecuting officer in coming to his conclusions as to the "necessity for the testimony of the accused whose discharge is requested"; as to the availability or nonavailability of other direct or corroborative evidence; as to which of the accused is "most guilty," and the like.
Notably, this cited case also observes that the Rules-provided guidelines are mere express declarations of the conditions which the courts ought to have in mind in exercising their sound discretion in granting the prosecution’s motion for the discharge of an accused.[71] In other words, these guidelines are necessarily implied in the discretion granted to the courts.
RA No. 6770 recognizes that these same principles should apply when the Ombudsman directly grants immunity to a witness. The same consideration – to achieve the greater and higher purpose of securing the conviction of the most guilty and the greatest number among the accused[72]– is involved whether the grant is secured by the public prosecutor with active court intervention, or by the Ombudsman. If there is any distinction at all between the public prosecutor and the Ombudsman in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsman’s purpose and objective – to focus on offenses committed by public officers and employees to ensure accountability in the public service. This accounts for the Ombudsman’s unique power to grant immunity by itself and even prior to the filing of information in court, a power that the public prosecutor himself generally does not enjoy.[73]
V. Extent of judicial review of a bestowed immunity
An immunity statute does not, and cannot, rule out a review by this Court of the Ombudsman’s exercise of discretion. Like all other officials under our constitutional scheme of government, all their acts must adhere to the Constitution.[74] The parameters of our review, however, are narrow. In the first place, what we review are executive acts of a constitutionally independent Ombudsman.[75] Also, we undertake the review given the underlying reality that this Court is not a trier of facts. Since the determination of the requirements under Section 17, Rule 119 of the Rules of Court is highly factual in nature, the Court must, thus, generally defer to the judgment of the Ombudsman who is in a better position (than the Sandiganbayan or the defense) to know the relative strength and/or weakness of the evidence presently in his possession and the kind, tenor and source of testimony he needs to enable him to prove his case.[76] It should not be forgotten, too, that the grant of immunity effectively but conditionally results in the extinction of the criminal liability the accused-witnesses might have incurred, as defined in the terms of the grant.[77] This point is no less important as the grant directly affects the individual and enforces his right against self-incrimination. These dynamics should constantly remind us that we must tread softly, but not any less critically, in our review of the Ombudsman’s grant of immunity.
From the point of view of the Court’s own operations, we are circumscribed by the nature of the review powers granted to us under the Constitution and the Rules of Court. We rule on the basis of a petition forcertiorari under Rule 65 and address mainly the Ombudsman’s exercise of discretion. Our room for intervention only occurs when a clear and grave abuse of the exercise of discretion is shown. Necessarily, this limitation similarly reflects on the petitioner who comes to us on the allegation of grave abuse of discretion; the petitioner himself is bound to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity in order to fully establish his case.[78]
As a last observation, we note the unique wording of the grant of the power of immunity to the Ombudsman. It is not without significance that the law encompassed (and appears to have pointedly not separated) the consideration of Section 17, Rule 119 of the Rules of Court within the broader context of “such terms and conditions as the Ombudsman may determine.” This deliberate statutory wording, to our mind, indicates the intent to define the role of Section 17, Rule 119 in the Ombudsman’s exercise of discretion. It suggests a broad grant of discretion that allows the Ombudsman’s consideration of factors other than those outlined under Section 17, Rule 119; the wording creates the opening for the invocation, when proper, of the constitutional and statutory intents behind the establishment of the Ombudsman.
Based on these considerations, we shall now proceed to determine whether the petitioner has clearly and convincingly shown that the Ombudsman gravely abused his discretion in granting immunity to the respondents.
Under the factual and legal situation before us, we find that the petitioner miserably failed to clearly and convincingly establish that the Ombudsman gravely abused his discretion in granting immunity to the respondents. While he claims that both conditions (a) and (d) of Section 17, Rule 119 of the Rules of Court are absent, we observe his utter lack of argument addressing the “absolute necessity” of the respondents’ testimony. In fact, the petitioner simply concluded that the requirement of “absolute necessity” does not exist based on the Ombudsman’s “evidence,” without even attempting to explain how he arrived at this conclusion.
We note in this regard that the respondents’ proposed testimony tends to counteract the petitioner’s personal defense of good faith (i.e., that he had no actual participation and merely relied on his subordinates) in approving the job orders and in his concurrence with the inspection reports. In their Joint Counter-Affidavit, the respondents narrated the accused DPWH officials/employees’ flagrant disregard of the proper procedure and the guidelines in the repair of DPWH service vehicles which culminated in losses to the government. Particularly telling is the respondents’ statement that a number of pre-repair inspection reports for a particular month in 2001 bear the petitioner’s signature despite the fact that these reports are not supported by findings from the respondents as SIT members.[79] This kind of statement cannot but impact on how the Ombudsman viewed the question of “absolute necessity” of the respondents’ testimony since this testimony meets the defense of good faith head-on to prove the prosecution’s allegations. Under these circumstances, we cannot preempt, foreclose, nor replace with our own the Ombudsman’s position on this point as it is clearly not without basis.
Vb. The respondents do not appear to be the “most guilty”
Similarly, far from concluding that the respondents are the “most guilty,” we find that the circumstances surrounding the preparation of the inspection reports can significantly lessen the degree of the respondents’ criminal complicity in defrauding the government. Again, this is a matter that the Ombudsman, in the exercise of his discretion, could not have avoided when he considered the grant of immunity to the respondents.
We note, too, that while the petitioner incessantly harped on the respondents’ role in the preparation of the inspection reports, yet, as head of the SIT, he was eerily silent on the circumstances surrounding this preparation, particularly on the respondents’ explanation that they tried “to curb the anomalous practices”[80] in the DPWH. We are aware, of course, that the present petition merely questions the immunity granted to the respondents and their consequent exclusion from the informations; it does not assail the finding of probable cause against the petitioner himself. This current reality may explain the petitioner’s silence on the respondents’ assertions; the respondents’ allegations, too, still have to be proven during the trial. However, these considerations are not sufficient to save the petitioner from the necessity of controverting the respondents’ allegations, even for the limited purpose of the present petition, since his counter-assertion on this basic ground (that the respondents bear the most guilt) is essential and critical to the viability of his petition.
In considering the respondents’ possible degree of guilt, we are keenly aware of their admission that they resorted to a “short-cut”[81] in the procedure to be observed in the repairs and/or purchase of emergency parts of DPWH service vehicles. To our mind, however, this admission does not necessarily result in making the respondents the “most guilty” in the premises; not even a semblance of being the “most guilty” can be deduced therefrom.
In sum, the character of the respondents’ involvement vis-à-vis the crimes filed against the DPWH officials/employees, coupled with the substance of the respondents’ disclosures, compels this Court to take a dim view of the position that the Ombudsman gravely abused his discretion in granting immunity to the respondents. The better view is that the Ombudsman simply saw the higher value of utilizing the respondents themselves as witnesses instead of prosecuting them in order to fully establish and strengthen its case against those mainly responsible for the criminal act, as indicated by the available evidence.
VI. The respondents’ administrative liability has no bearing at all on the immunity granted to the respondents
The fact that the respondents had previously been found administratively liable, based on the same set of facts, does not necessarily make them the “most guilty.” An administrative case is altogether different from a criminal case, such that the disposition in the former does not necessarily result in the same disposition for the latter, although both may arise from the same set of facts.[82] The most that we can read from the finding of liability is that the respondents have been found to be administratively guilty by substantial evidence – the quantum of proof required in an administrative proceeding. The requirement of the Revised Rules of Criminal Procedure (which RA No. 6770 adopted by reference) that the proposed witness should not appear to be the “most guilty” is obviously in line with the character[83] and purpose[84] of a criminal proceeding, and the much stricter standards[85] observed in these cases. They are standards entirely different from those applicable in administrative proceedings.
VII. The policy of non-interference with the Ombudsman’s investigatory and prosecutory powers cautions a stay of judicial hand
The Constitution and RA No. 6770 have endowed the Office of the Ombudsman with a wide latitude of investigatory and prosecutory powers, freed, to the extent possible within our governmental system and structure, from legislative, executive, or judicial intervention, and insulated from outside pressure and improper influence.[86] Consistent with this purpose and subject to the command of paragraph 2, Section 1, Article VIII of the 1987 Constitution,[87] the Court reiterates its policy of non-interference with the Ombudsman’s exercise of his investigatory and prosecutory powers (among them, the power to grant immunity to witnesses[88]), and respects the initiative and independence inherent in the Ombudsman who, “beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service.”[89] Ocampo IV v. Ombudsman[90] best explains the reason behind this policy:
The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.
Following this policy, we deem it neither appropriate nor advisable to interfere with the Ombudsman’s grant of immunity to the respondents, particularly in this case, where the petitioner has not clearly and convincingly shown the grave abuse of discretion that would call for our intervention.
