Determination of Probable Cause or Establishing Criminal Liability?

In its resolution, the panel, as approved by the Office of the Ombudsman stated that the clarificatory hearings and further investigation were conducted “in order to determine criminal liability of public and private respondents.”

This mistaken belief by the Office of the Ombudsman might have been caused by the wording of the Supreme Court directive in its decision in the Infotech case. The directive reads: “Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any, of the public officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract.”

In its Resolution dated June 15, 2006 which is also quoted in the Ombudsman Supplemental Resolution, the SC, however, clarified this by saying, “Our directive was for OMB to report on its “final determination of whether probable cause exists against any of the public officials (and conspiring private individuals, if any)…”

The job of the Ombudsman, then, is to conduct a preliminary investigation and to gather evidence preparatory to the filing of appropriate criminal or administrative cases with the proper court or the filing of an impeachment complaint if impeachable officials are involved.

“Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.” (Rule 112, Sec. 1, Rules of Court)

What is required in a preliminary investigation is to establish sufficient ground that will give rise to a belief, based on facts presented and gathered during the investigation, that the acts complained of is a criminal offense, and that the persons against whom the complaint is lodged are the ones who performed the acts.

It is not a mere belief that is required but a well-founded belief, meaning the belief must have a strong foundation to stand on. This foundation upon which such belief can be based are the facts gathered during the investigation, either as presented by the parties or as gathered by the investigator during their independent investigation.

A well-founded belief in the preliminary investigation, however, need not amount to belief in certainty of guilt. That certainty will be determined later when the criminal case is prosecuted in court. All that is required in a preliminary investigation is a belief with solid foundation that the respondents are probably guilty of the crime committed.

Yet, the Ombudsman, in its supplemental resolution wrote, “the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed.”

It is during the trial that the criminal liability of the offenders is determined, after all the available and relevant evidence are submitted to the court. This is also in consonance with the principle of ‘presumption of innocence’ that says, “Every person is presumed innocent unless proven guilty.”

In addition, the Ombudsman also reasoned out that “the mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause” and that “the finding of probable cause must, in addition, be supported by a clear and convincing evidence of malice, bad faith, bribery, manifest impartiality, (sic) unwarranted benefit and undue advantage.”

This ratiocination of the Ombudsman finds no support in law or jurisprudence.
Erroneously, the Ombudsman is raising the bar for finding probable cause.