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 : p

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
theSandiganbayan 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 CIScaA
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
underthe 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: DSHTaC
 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. ISHaTA

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 petitionerGo a period of ten (10) days within which to
file a comment thereon. THaCAI

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. ACEIac

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. IDSaTE

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. cTSDAH

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. Sandiganbayan 9 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 aEIcHA

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 xxx 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
3019because 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. CAaDTH

The petition is bereft of merit.

For clarity, Section 3 (g) of RA 3019 is quoted below a new:

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 xxx 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 ASaTCE
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 ofpublic 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:
. . . [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 HTacDS

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 xxx 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. IDEHCa

The case of Singian, Jr. v. Sandiganbayan 17 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. DAcSIC

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. . . .

(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. IcESDA

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. CDaTAI

Reliance by petitioner Go on Marcos v. Sandiganbayan 20 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. ACETIa

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 isevidentiary 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
ECSHAD

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--vis petitioner Go: EcTIDA

ELEMENTS ALLEGATIONS

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., . . ."
 2. He entered into a contract or "[T]he accused VICENTE C. RIVERA,
transaction in behalf of the JR., . . . in conspiracy with accused
government HENRY T. GO . . . 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 . . .

3. The contract or transaction is ". . . which ARCA substantially amended

grossly and manifestly the draft Concession Agreement covering
disadvantageous to the the construction of the NAIA IPT III
government 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 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 HaTAEc

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.
||| (Go v. Sandiganbayan, G.R. No. 172602