Does absence of complainants in the clarificatory hearings affect determination of probable cause?

Non-appearance of complainants does not take away probable cause. Complainants are not even obliged to present evidence.

The resolution highlighted the non-appearance of the complainants during the public hearings and added that certain individuals “who were making statements before the mass media regarding alleged anomalies in the bidding and award of the Automated Counting and Canvassing Project were likewise invited as resource persons but none of them responded to th[e] panel’s invitation.”

Ombudsman Mercedita Gutierrez capitalized on the absence of complainants to justify the supplemental resolution. As reported in the Philippine Daily Inquirer (October 11), “We had 12 public hearings in the Comelec case. We called and invited all the complainants, witnesses and all others with interest in the case -- many from civil society groups, NGOs and others listed,” Gutierrez said in Filipino. “But the complainants didn’t actively participate and failed to submit their evidence in the 12 hearing days,”

This non-appearance of parties should not have, in any way, affected the resolution of the case. The complainants need not even present evidence as the Office of the Ombudsman can “motu proprio” or on its own, act on any complaint. In fact, the OMB can act even on an anonymous complaint provided there are sufficient leads given by the anonymous complainant. Sec. 3 of Ombudsman Adminstrative order No. 07 provides, “A complaint which does not disclose the identity of the complainant will be acted upon only if it merits appropriate consideration, or contains sufficient leads or particulars to enable the taking of further action.”

This power to investigate on its own is provided for in Article XI, Sec. 13 of the 1987 Constitution
“The Office of the Ombudsman shall have the following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.”

and reiterated in Sec. 15 of R.A. No. 6770, which reads:

“Powers, Functions and Duties. — The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.”

Likewise, Ombudsman Administrative Order No. 07 As Amended or the Rules of Procedure of the Office of the Ombudsman, Section 4.(f ) provides:

“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.”

Thus, if the panel needed the testimonies of the persons they named in the resolution, they could have easily sent written questions to those individuals. It is well within their powers and the Office of the Ombudsman is given wide latitude in the conduct of investigation to gather every possible evidence to bolster the case against erring public officials.

The Ombudsman is an active investigator who should leave no stone unturned in search for evidence; it is not a court that relies on submissions of parties.