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

The Court ruled that Paircargo Consortium, PIATCO’s predecessor-in-interest, was not a qualified
bidder as it failed to meet the financial 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 conspiracy, direct proof of an agreement concerning the
commission of a felony and the decision to commit it is not necessary. It may be inferred from the
acts of the accused before, during or after the commission of the crime which, when taken together,
would be enough to reveal a community of criminal design, as the proof of conspiracy is frequently
made by evidence of a chain of circumstances. Once established, all the conspirators are criminally
liable as co-principals regardless of the degree of participation of each of them, for in contemplation
of the law the act of one is the act of all."25

In this connection, for purposes of the Information, it is sufficient that the requirements of Section 8,
Rule 110 of the Rules of Court are complied with:

SEC. 8. Designation of the offense. – The complaint or information shall state the designation of the
offense given by the statute, aver the acts or omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there is no designation of the offense, reference shall
be made to the section or subsection of the statute punishing it.

An accused, like petitioner Go, may file a motion to quash the Information under Section 3(a) of Rule
117 on the grounds that the facts charged do not constitute an offense. In such a case, the
fundamental test in determining the sufficiency of the material averments of an Information is
whether or not the facts alleged therein, which are hypothetically admitted, would establish the
essential elements of the crime defined by law. Evidence aliunde or matters extrinsic of the
Information are not to be considered.26

As correctly outlined by the Office of the Ombudsman, the facts alleged in the Information, if
admitted hypothetically, establish all the elements of Section 3(g) of RA 3019 vis-à-vis petitioner Go:

ELEMENTS ALLEGATIONS
1a\^/phi1.net

1. The offender is a public officer [T]he accused

VICENTE C.
RIVERA, JR.,
Secretary of
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
Philippine
International Air
Terminals, Co., xxx"

2. He entered into a contract or transaction in behalf of "[T]he accused

the government VICENTE C.
RIVERA, JR., xxx in
conspiracy with
accused HENRY T.
GO xxx did then and
 there, willfully &
unlawfully and
feloniously entered
into an Amended
and Restated
Concession
Agreement (ARCA),
after the project for
the construction of
the Ninoy Aquino
International Airport
International
Passenger Terminal
III (NAIA IPT III) was
awarded to
Paircargo
Consortium/PIATCO
xxx

3. The contract or transaction is grossly and manifestly "xxx which ARCA

disadvantageous to the government 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 terms are
more beneficial to
PIATCO and in
violation of the BOT
Law and manifestly
grossly
disadvantageous to
the government of
the Republic of 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.

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 that
1awphi1.nét

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 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.