Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

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,18may 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. Desierto 22 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 the "[T]he accused

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.1awphi1.nét While it may indeed be true that 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.

ROMEO J. CALLEJO, SR.