QUINTIN S. DOROMAL, PETITIONER, VS. SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, RESPONDENTS.

Brought up for
review before this Court is the order dated
August 19, 1988 of the Sandiganbayan denying petitioner’s motion to quash the
information against him in Criminal Case No. 12893, entitled
“People of the Philippines vs. Hon. Quintin S. Doromal,” and the Sandiganbayan’s
order suspending him from office during the pendency
of the case.

In October 1987, Special
Prosecution Officer II, Dionisio A. Caoili, conducted a preliminary investigation of the charge
against the petitioner, Quintin S. Doromal, a former Commissioner of the
Presidential Commission on Good Government (PCGG), for violation of the
Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings
and position as president and director of the Doromal
International Trading Corporation (DITC) which submitted bids to supply P61
million worth of electronic, electrical, automotive, mechanical and airconditioning equipment to the Department of Education,
Culture and Sports (or DECS) and the National Manpower and Youth Council (or
NMYC).

On January
25, 1988, with the
approval of Special Prosecutor Raul Gonzales, Caoili
filed in the Sandiganbayan an
information against the petitioner (Criminal Case No. 12766) alleging:

“That in or about the period from April 28, 1986 to October
16, 1987, in Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer, being then Commissioner of the
Presidential Commission on Good Government, did then and there willfully and
unlawfully have direct or indirect financial interest in the Doromal International Trading Corporation, an entity which
transacted or entered into a business transaction or contract with the
Department of Education, Culture and Sports and the National Manpower and Youth
Council, both agencies of the government which business, contracts or
transactions he is prohibited by law and the constitution from having any interest.” (pp. 246-247, Rollo; underlining supplied.)

The petitioner filed a
petition for certiorari and
prohibition in this Court
questioning the jurisdiction of the “Tanodbayan”
to file the information without the approval of the Ombudsman after the effectivity of the 1987 Constitution (G.R. No. 81766,
entitled “Doromal vs. Sandiganbayan“).

On June 30, 1988, this
Court annulled the information in accordance with its decision in the
consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos.
79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that:

“x x x the
incumbent Tanodbayan (called Special Prosecutor under
the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN
to the Ombudsman) is clearly without authority to conduct preliminary
investigations and to direct the filing of
criminal cases with the Sandiganbayan, except upon
orders of the Ombudsman.  This right to
do so was lost effective February 2, 1987.  From
that time, he has been divested
of such authority.”

Upon the annulment of the
information against the petitioner,
the Special Prosecutor sought clearance from the Ombudsman to refile it.

In a Memorandum dated July 8, 1988, the Ombudsman, Honorable Conrado Vasquez, granted clearance but advised that
“some changes be made in the information previously filed.” (p. 107, Rollo.)

Complying with that Memorandum, a new
information, duly approved by the Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893), alleging that:

“x x
x, the above-named accused [Doromal],
a public officer, being then a Commissioner of the Presidential
Commission on Good Government, did
then and there wilfully and unlawfully, participate
in a business through the Doromal International
Trading Corporation, a family corporation of which he is the President, and
which company participated in the
biddings conducted by the
Department of Education, Culture and Sports and the National Manpower &
Youth Council, which act or participation is prohibited by
law and the constitution.” (p. 68, Rollo; emphasis supplied.)

On July 25, 1988,
petitioner filed a “Motion to Quash” the information for being:

(a) invalid because there had been no preliminary investigation; and

(b) defective because the facts alleged
do not constitute the offense charged (Annex C).

The Sandiganbayan denied the motion to
quash in its orders dated July 25, 1988 and August 19, 1988 (Annexes D, N and O,
pp. 81, 173 & 179, Rollo).

On August 22, 1988,
the Special Prosecutor filed a “Motion to Suspend Accused Pendente Lite” pursuant to
Section 13 of the Anti-Graft and Corrupt Practices Act (R.A. 3019).  Over the petitioner’s objection (because the
President had earlier approved his application for indefinite leave of absence as PCGG commissioner “effective
immediately and until final decision
of the courts in your
case” [Annex S–1, p. 189, Rollo]),
the Sandiganbayan on September 5, 1988 ordered his supension pendente lite from his position as PCGG Commissioner and from
any other office he may be holding (Annex T). 
His motion for reconsideration of that order was also denied by the
Court (Annex Y).  Hence, this petition
for certiorari and prohibition alleging that the Sandiganbayan
gravely abused its discretion:  (1) in
denying the petitioner’s motion to quash the information in Criminal Case No.
12893; and, (2) in suspending
the petitioner from office
despite the President’s having previously approved his indefinite leave of
absence “until final decision” in this case.

The petitioner contends that as the preliminary investigation
that was conducted prior to the filing of the
original information in Criminal Case No. 12766 was nullified by this
Court, another preliminary investigation should have been conducted before the
new information in Criminal Case No. 12893 was filed against him.  The denial of his right to such investigation
allegedly violates his right to due process and constitutes a ground to quash
the information.

On the other hand, the public
respondent argues that another preliminary investigation is unnecessary
because both old and new informations involve the
same subject matter – a violation of Section 3(H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices
Act) in relation to Section 13, Article VII of the 1987 Constitution.  Moreover, the petitioner allegedly waived the
second preliminary investigation by his failure to comply with the Court’s
Order dated August 12, 1988 directing him to submit a statement of new
or additional facts, duly supported by photo copies of
documents which he would present should a new preliminary investigation be
ordered (Annex H, p. 94, Rollo).

The petition is
meritorious.  A new preliminary
investigation of the charge against the petitioner is in order not only because
the first was a nullity (“a dead limb on the judicial tree which
should be lopped off and wholly disregarded” – Anuran vs. Aquino,
38 Phil. 29) but also because the accused demands it as his right.  Moreover, the charge against him had been
changed, as directed by the Ombudsman.

Thus, while the first
information in Criminal Case No. 12766 charged that the DITC –

“entered
into a business transaction or contract with the Department of Education,
Culture and Sports and the National Manpower and Youth Council, x x x which business, contracts or transactions he [petitioner] is prohibited by
law and the constitution from having any interest.” (p.
70, Rollo.)

the new
information in Criminal Case No. 12883 alleges that the petitioner:

“unlawfully
participate[d] in a business through the Doromal
International Trading Corporation, a 
family corporation of which he is the President, and which company participated in the biddings conducted by
the Department of Education, Culture and Sports and the National Manpower &
Youth Council, which act or participation is prohibited by law and the
constitution.” (p. 68, Rollo.)

The petitioner’s  right to a preliminary investigation of the new charge is secured to him by
the following provisions of Rule 112 of
the 1985 Rules on Criminal Procedure:

“SEC. 3. 
Procedure.  x x x no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted x x x.”

“SEC. 7.  When accused lawfully
arrested without warrant.  –
When a person is lawfully arrested without a warrant for an offense cognizable
by the Regional Trial Court, the complaint or information may be filed by the offended party, peace officer
or fiscal without a preliminary investigation having been first conducted, on
the basis of the affidavit of the offended party or arresting officer or
person.

“However, before the filing of such complaint or
information, the person arrested may ask for a preliminary investigation by
a proper officer in accordance with this Rule x x x.

“If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may within five
(5) days from the time he learns of the filing of the information, ask for a
preliminary investigation with the same right to adduce evidence in his
favor in the manner prescribed in this
Rule.”

That
right of the accused is “a substantial one.” Its denial over his
opposition is a “prejudicial error, in that it subjects the accused to the
loss of life, liberty, or property without due process of law” (U.S. vs. Marfori, 35
Phil. 666).

The need to conduct a new
preliminary investigation when the defendant demands it and the allegations of
the complaint have been amended, has been more than once affirmed by this Court:

“III.  (a) x x x, the Court finds that since
the information for alleged violation of the
Anti-Graft Law was filed without any previous notice to petitioners and due preliminary investigation
thereof, and despite the dismissal of the original charge for falsification as
being ‘without any factual or legal basis,’ petitioners are entitled to a
new preliminary investigation for the graft charge, with all the rights to
which they are entitled under section 1 of Republic Act No. 5180, approved
September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the testimonies in affidavit
form of the complainant and his witnesses duly, sworn to before the
investigating fiscal, and the right of accused, through counsel, to
cross-examine them and to adduce 
evidence in their defense.  In
line with the settled doctrine as restated in People vs. Abejuela
(38 SCRA 324), respondent court shall hold in abeyance all proceedings in the
case before it until after the outcome of such new preliminary
investigation.  (Luciano vs. Mariano, 40 SCRA 187, 201; underlining ours).

“The right of the accused not to be brought to trial except
when remanded therefor as a result of a preliminary
examination before a committing magistrate, it has been held is a substantial one.  Its denial over the objections of the accused
is prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law.  (Conde
vs. Judge of Court of First Instance of Tayabas, 45
Phil. 173, 176.)

“The absence of a preliminary investigation – if it is not
waived – may amount to a denial of due process. 
(San Diego vs. Hernandez, 24
SCRA 110, 114.)

“In this jurisdiction, the preliminary investigation in
criminal cases is not a creation of the Constitution; its origin is
statutory and it exists and the right thereto can be invoked when so
established and granted by law. 
(Mariano Marcos,
et al. vs. Roman A. Cruz, 68
Phil. 96; underscoring supplied.)”

The Solicitor General’s argument that the right to a
preliminary investigation may be waived and was in fact waived by the petitioner,
impliedly admits that the right exists.  Since the right belongs to the accused, he
alone may waive it.  If he demands
it, the State may not withhold it.

However, as the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec.
3, Rule 117, Rules of Court), the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the
Special Prosecutor to conduct a preliminary investigation.  Thus did We rule in Luciano
vs. Mariano, 40 SCRA 187, 201, Ilagan vs. Enrile, 139 SCRA 349 and more recently
in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4:

“The absence of preliminary investigation does not affect the
court’s jurisdiction over the case.  Nor
do they impair the validity of the information or otherwise render it
defective; but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing the information should conduct such
investigation, order the fiscal to conduct it or remand the case to the
inferior court so that the preliminary investigation may be conducted.  (See People vs. Gomez, 117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478).  In this case, the Tanodbayan
has the duty to conduct the said investigation.”

There is no merit in petitioner’s insistence that the information
should be quashed because the Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed
and/or submitted to the DECS by the petitioner after he became a PCGG
Commissioner (p. 49, Rollo).  That admission allegedly belies the averment
in the information that the petitioner “participated” in the business
of the DITC in which he is prohibited by the Constitution or by law from having
any interest.  (Sec.
3-h, RA No. 3019.)

The Sandiganbayan in its order of
August 19, 1988 correctly observed that “the presence of a signed document
bearing the signature of accused Doromal as part of
the application to bid x x x
is not a sine qua non” (Annex O, p. 179, Rollo),
for, the Ombudsman indicated in his Memorandum/Clearance to the Special
Prosecutor, that the petitioner “can rightfully be charged x x x with having participated in a
business which act is absolutely prohibited by Section 13 of Article VII of the Constitution” because
“the DITC remained a family corporation in which Doromal
has at least an indirect interest.”
(pp. 107-108, Rollo.)

Section 13, Article VII
of the 1987 Constitution provides that “the President, Vice-President, the members of the Cabinet and their deputies or assistants shall not x
x x during (their) tenure, x x x directly or indirectly x x x participate in any business.” The constitutional ban is similar to
the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that “pursuit of private business x
x x without the permission required by Civil Service Rules and
Regulations” shall be a ground for disciplinary action against any officer
or employee in the civil service.

On the suspension of the
petitioner from office, Section 13 of the Anti-Graft and Corrupt Practices Act
(RA 3019) provides:

 “SEC. 13.  Suspension and loss of benefits.  – Any public officer against whom any criminal prosecution
under a valid information under this
Act or under the provisions of the Revised Penal Code on bribery is pending in
court, shall be suspended from office. 
Should he be convicted by final judgment, he shall lose all retirement
or gratuity benefits under any law, but if he is acquitted, he shall be
entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings
have been filed against him.”

Since the petitioner is
an incumbent public official charged in a valid
information with an offense punishable under the Constitution and the
laws (RA 3019 and PD 807), the
law’s command that he “shall be suspended from office” pendente lite must be obeyed.  His
approved leave of absence is not a bar to his preventive suspension for, as
indicated by the Solicitor General, an approved leave,
whether it be for a fixed or
indefinite period, may be cancelled or shortened at will by the incumbent.

Nevertheless, as we held in Layno,
Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a
preventive suspension for an indefinite period of time, such as one that would
last until the case against the incumbent official shall have been finally
terminated, would “outrun the bounds of reason and result in sheer
oppression” and a denial of due process.

In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered
the immediate reinstatement, to his position as chairman of the National
Science Development Board of a presidential appointee whose preventive suspension
had lasted for nearly seven (7) months. 
Some members of the Court held that the maximum period of sixty (60)
days provided in Section 35 of the Civil Service Act of 1959 (Republic Act
2260) was applicable to the petitioner. 
The others believed, however, that that period may not apply strictly to
cases of presidential appointees, nevertheless, the
preventive suspension shall be limited to a reasonable period.  Obviously, the Court found the petitioner’s
preventive suspension for seven (7)
months to be unreasonable.  The Court stated:

“To adopt the theory of
respondents that an officer appointed by the President, facing administrative
charges can be preventively suspended indefinitely, would be to countenance a
situation where the preventive suspension can, in effect, be the penalty itself
without a finding of guilt after due hearing, contrary to the express mandate
of the Constitution (No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law.  [Art. XII, Sec. 4, Constitution of the
Philippines]) and the Civil Service Law (No officer or employee in the Civil
Service shall be removed or suspended except for cause as provided by law and after
due process).  x x x In the guise of a preventive suspension, his term of office
could be shortened and he could, in effect, be removed without a finding of a
cause duly established after due hearing, in violation of the
Constitution.  x x x.”

Pursuant to the guarantee of equal protection of the laws in the
Bill of Rights of our Constitution, that same ruling was applied in Deloso vs. Sandiganbayan,
G.R. Nos. 86899-903, May 15, 1989.

The petitioner herein is no
less entitled to similar protection. 
Since his preventive suspension has
exceeded the reasonable maximum period of ninety (90) days provided in Section
42 of the Civil Service Decree of the Philippines
(P.D. 807), it should now be
lifted.

WHEREFORE, the petition for certiorari and
prohibition is granted.  The Sandiganbayan
shall immediately remand Criminal Case No. 12893 to the Office of the Ombudsman
for preliminary investigation and shall
hold in abeyance the proceedings
before it pending the result of such investigation.  The preventive suspension of the
petitioner is hereby lifted.  No costs.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento,
Cortes, Medialdea, and
Regalado, JJ., concur.