Can the SC review Ombudsman's discretion?

At the outset, it must be stressed that the Court has consistently refrained from interfering with the discretion of the Ombudsman to determine the existence of probable cause and to decide whether or not an Information should be filed. Nonetheless, the Court is not precluded from reviewing the Ombudsman's action when there is a charge of grave abuse of discretion.

Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. (Ciron v. Gutierrez, G.R. Nos. 194339-41, April 20, 2015) In Ciron, it was held that:
[T]his Court's consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed policy is based not only on 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 Court will be seriously 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 with cases 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. (See Ciron, citing Tetangco v. Ombudsman, 515 Phil. 230, 234-235, further citing Roxas v. Vasquez, 411 Phil. 276, 288)
In assessing if the Ombudsman had committed grave abuse of discretion, attention must be drawn to the context of its ruling - that is: preliminary investigation is merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed and that the person charged should be held responsible for it. (Encinas v. Agustin, Jr., G.R. No. 187317, April 11, 2013)

Being merely based on opinion and belief, "a finding of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction."(Clay & Feather International, Inc. v. Lichaytoo, 664 Phil. 764, 771) In Fenequito v. Vergara, Jr. (691 Phil. 335), "[p]robable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The term does not mean 'actual or positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged." (Reyes v. Pearlbank Securities, Inc., 582 Phil. 505, 518-519)

Thus, in determining the elements of the crime charged for purposes of arriving at a finding of probable cause, "only facts sufficient to support a prima facie case against the [accused] are required, not absolute certainty." (Shu v. Dee, G.R. No. 182573, April 23, 2014)

In Lucila v. Ombudsman (G.R. Nos. 212593-94, March 15, 2016), petitioners were charged with the crimes of Plunder and violations of Section 3 (e) of RA 3019. 

Plunder, defined and penalized under Section 2 of RA 7080, as amended, has the following elements: (a) that the offender is a public officer, who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; (b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts described in Section 1 (d)[154] thereof; and (c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos (P50,000,000.00). (Enrile v. People, G.R. No. 213455, August 11, 2015)
Section 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty Million Pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State.

READ: CREBELLO V. OMBUDSMAN (G.R. NO. 232325. APRIL 10, 2019).

Section 1. Definition of Terms. - As used in this Act, the term - xxx

d) "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks, or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivision, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly, or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

6) By taking undue advantage of official position, authority, relationship, connection, or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.
On the other hand, the elements of violation of Section 3 (e) of RA 3019 are: (a) that the accused must be a public officer discharging administrative, judicial, or official functions (or a private individual acting in conspiracy with such public officers); (b) that he acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c) that his action caused any undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage, or preference in the discharge of his functions. (PCGG v. Navarro-Gutierrez, G.R. No. 194159, October 21, 2015)

Owing to the nature of a preliminary investigation and its purpose, all of the foregoing elements need not be definitively established for it is enough that their presence becomes reasonably apparent. This is because probable cause - the determinative matter in a preliminary investigation implies mere probability of guilt; thus, a finding based on more than bare suspicion but less than evidence that would justify a conviction would suffice. (Shu v. Dee, supra)

Also, it should be pointed out that a preliminary investigation is not the occasion for the full and exhaustive display of the prosecution's evidence, and 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. Therefore, "the validity and merits of a party's defense or accusation, as well as the admissibility of testimonies and evidence, are better ventilated during trial proper than at the preliminary investigation level." (Lee v. KBC Bank N. V., 624 Phil. 115, 126)

Furthermore, owing to the initiatory nature of preliminary investigations, the "technical rules of evidence should not be applied" in the course of its proceedings (De Chavez v. Ombudsman, 543 Phil. 600, 619-620), keeping in mind that "the determination of probable cause does not depend on the validity or merits of a party's accusation or defense or on the admissibilitv or veracity of testimonies presented." (Unilever Philippines, Inc. v. Tan, G.R. No. 179367, January 29, 2014) Thus, in Estrada v. Ombudsman (G.R. Nos. 212140-41, January 21, 2015), the Court declared that since a preliminary investigation does not finally adjudicate the rights and obligations of parties, "probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the hearsay." (Estrada v. Ombudsman, supra)

Guided by these considerations, the Supreme Court found that the Ombudsman did not gravely abuse its discretion in finding probable cause to indict Reyes, Janet Napoles, and De Asis of one (1) count of Plunder, and Reyes, Janet Napoles, the Napoles siblings, and De Asis of fifteen (15) counts of violation of Section 3 (e) of RA 3019.

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