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SUPREME COURT OF THE PHILIPPINES

PUBLIC INFORMATION OFFICE

3aepublic of tbe llbilippines D) 1 MAR 1 9 2021

:i,upreme Qt:ourt
:ffl,anila

EN BANC
ALFREDO J. NON, GLORIA G.R. No. 239168
VICTORIA C. YAP-TARUC,
JOSEFINA PATRICIA A. Present:
MAGPALE-ASIRIT AND
GERONIMO D. STA. ANA, PERALTA, CJ,
Petitioners, PERLAS-BERNABE,
LEONEN,
CAGUIOA,
GESMUNDO,
REYES, J. JR.,
HERNANDO,
CARANDANG,
- versus - LAZARO-JAVIER,
INTING,*
ZALAMEDA,
LOPEZ,
DELOS SANTOS,
GAERLAN, and
BALTAZAR-PADILLA,* JJ
OFFICE OF THE OMBUDSMAN
and ALYANSA PARA SA BAGONG Promulgated:
PILIPINAS, INC.,
Respondents. September 15,
X - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -

DECISION

REYES, J. JR., J.:

Before the Court is a Petition for Certiorari 1 assailing the 29

September 201 7 Resolution2 and the 20 April 2018 Order3 of the Office of
the Ombudsman (Ombudsman), respectively finding probable cause to hold
petitioners Alfredo J. Non (Non), Gloria Victoria C. Yap-Taruc (Yap-
Taruc ), Josefina Patricia A. Magpale-Asirit (Magpale-Asirit), and Geronimo
D. Sta. Ana (Sta. Ana; collectively, petitioners) - Commissioners of the

No part.
On sick leave.
Under Rule 65 of the RULES OF COURT; rollo, pp. 3-35.
Signed by Graft Investigation and Prosecution Officer II, Cezar M. Tirol II, id. at 37-51.
Id. at 52-58.

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Decision 2 G.R. No. 239168

Energy Regulatory Commission (ERC) - for prosecution under Section

3(e)4 of Republic Act (R.A.) No. 3019, 5 and denying reconsideration.

Antecedents

In 2001, the state enacted the Electric Power Industry Reform Act 6
(EPIRA) to ensure quality, reliable, secure, and affordable electric power
supply in a regime of free and fair competition, and full public
accountability. Thus, the ERC 7 came into being, vested with powers to
enforce the said law and to issue rules and regulations for that purpose. 8 One
of its principal mandates, as a regulatory body, is to ensure consumer
protection and to enhance competitive operations within the electric power
industry. It is specifically tasked to institutionalize a working methodology
for setting transmission and distribution wheeling rates and retail rates for
the captive market of a power distribution utility. 9

On 4 November 2015, after a series of public consultations with

power industry stakeholders, 10 the ERC issued Resolution No. 13, Series of
2015 (Resolution No, 13-2015). 11 The issuance proceeds from the directive 12
of the Department of Energy (DOE) to require all distribution utilities (DUs)
to undergo a competitive selection process (CSP) in procuring power supply
agreements (PSAs), as well as from a Joint Resolution 13 of the DOE
and the ERC whereby the latter has committed to issue regulations
requiring DUs to undertake CSP in securing supply agreements affecting the
captive markets. The CSP requifement is seen to ensure transparency in the
supply procurement of DUs and to provide opportunities to elicit the best
price offers from suppliers. 14

4
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers
already penaiized by existing law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
XX X (e) Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official
admimstrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
THE ANTI··GRAFT AND CORRUPT PRACTICES ACT.
6
Republic Act No. 9136, entitled, AN ACT ORDAINING REFORMS IN THE ELECTRIC POWER
INDUSTRY, AMENDING FOR THE PURPOSE CERTAIN LAWS AND FOR OTHER PURPOSES.
The Commission replaced the Energy Regulatory Board.
Id., Section 2.
9
Section 7 ofR.A. No. 9136.
IO
Per the Resolution No, 13 s. 20 L'i, the ERC had posted a notice on its website directing interested
parties to comment on the first and second draft of the rules governing power supply agreements.
After making all inputs of record, the ERC then conducted a series of public consultations in
February 2014 as well as focus group discussions in April of the same year.
II
Signed by herein, petitioners in their official .capacity, as well as by the · ERC Chainnan, Jose
Vicente B. Salazar.
12
In Circular No.DC2015-06-0008. Sec. 3 thereof provides:
S,;:c. 3. Standard features in the conduct of CSP. After the effectivity of this Circular, all DUs
shall procure }lSAs only through CSP conducted through a Third Party duly recognized by the
ERC and the DOE In the case of the ECs, the Third Pany shall also be duly recognized by the
National Electrification Administration.
15
Dated October 20, 2015.
14
Final Whereas Clause of Resolution No. 13-2015.

I
Decision 3 G.R. No. 239168

Power distribution utilities are entities responsible for billing the end-
users of electric power supply. They transact with generation companies
through power supply agreements that are, in tum, filed with and reviewed
by the ERC to determine whether the retail rates are at their lowest and most
efficient. Thus, Resolution No. 13 requires that as a precondition to an award
of a supply agreement to a generation company, there has to be either a
successful, transparent, and competitive selection process, or a direct
negotiation where at least two CSPs have failed. A CSP is said to be
successful when the DU has received two qualified bids from entities with
which it is not prohibited from entering into a contract of power supply. 15

At the time, the ERC has not yet issued the prescribed CSP guidelines,
but distribution utilities have been allowed to adopt any accepted form of
selection process subject only to the minimum terms of reference laid out in
Resolution No. 13-2015. 16 Exempted from the CSP requirement are PSAs
already filed with and pending review by the ERC at the time the Resolution
took effect on 6 November 2015. 17

A barrage of inquiries from different stakeholders were lodged before

the ERC in the interim. Individually, they put forth their concen1s on the
legal implications of Resolution No. 13-2015 on PSAs already existing, up
for renewal, and already executed. They also asked for clarification and
guidance on what the acceptable forms of CSP could be applied, as well as
possible exemptions from said requirement. 18

Manila Electric Company (MERALCO) was among these

stakeholders. In its letter dated 26 November 2015, it sought the ERC's
approval of its request for exemption from the CSP requirement. The ERC,
in a letter sigr,1ed by Jose Vicente B. Salazar (Salazar), denied said request.

ERC Resolution No. 1, Series of2016

On 15 March 2016, the ERC issued Resolution No. 1, Series of 2016

19
(Resolution No. 1-2016) which, although declaring to merely clarify the
effective date of Resolution No. 13-2015, actually extended the same from
6 November 2015 to 30 April 2016. The leeway was meant to be a transition
period for the facilitation of the full implementation of Resolution No. 13-

15
Resolution No. 13-2015, Sec.land Sec. 3.
16
Id. at Sec. 2. The terms of reference include: (a) Required/Contracted Capacity and/or Energy
Volumes; (b) Generation Sources; (c) Method of Procurement for Fuel, if applicable; (d)
Cooperation/Contract Period; (e) Tariff Structure Unbundled to Capacity Fees, Variable and Fixed
Operating and Maintenance Fee, Fuel Fee and Others, including the derivation ofoach component.
Base Fee Adjustment Formula, if any; (f) Form of Payment; (g) Penalties, if applicable; (h) If
applicable, details r,egarding any transmission projects necessary to complement the proposed
generation capacity; and (i) Other Key Parameters.
17
Id. at Sec. 4.
18
Rollo, pp. 162-191. Some of these letter-inquiries challenged the legality of Resolution No. 13-
2015.
19
Entitled, A RESOLUTION CLARIFYING THE EFFECTIVITY OF ERC RESOLUTION No. 13, SERIES OF
2015.

f
 Decision 4 G.R. No. 239168

2015, such that all PSAs executed on or after the later date would be bound
without exception to abide by the CSP requirement.

MERALCO allegedly entered into seven PSAs on 26 April 2016, and

filed all of them with the ERC on the day before the new deadline.

Cases arising from ERC Resolution No. 1-2016

Believing that the ERC issued Resolution No. 1-2016 merely to

unduly favor MERALCO, respondent Alyansa Para sa Bagong Pilipinas,
Inc. (ABP) filed several cases against petitioners.

Petition for certiorari with the Court

In November 2016, ABP filed a petition for certiorari and prohibition

before this Court against ERC, docketed as G.R. No. 227670. On 3 May
2019, the Court granted the petition and declared void ab initio the first
paragraph of Section 4 of ERC Resolution No. 13-2015 (CSP Guidelines),
and ERC Resolution No. 1-2016 (ERC Clarificatory Resolution). 20

Complaint for violation of R.A. No. 3019

with the Ombudsman

On 24 November 2016, ABP also filed a verified Complaint21 before

the Ombudsman charging the ERC commissioners, petitioners herein,
together with Chairman Salazar, with violation of Section 3(e) of R,A. No.
3019. It specifically alleged that the collective act of the ERC members in
extending the implementation date of Resolution No. 13-2015 via
Resolution No. 1-2016 was a mere ploy to accommodate MERALCO's
sister companies and affiliates and allow them to bag lucrative PSAs without
complying with the mandated CSP requirement. It noted that the seven
PSAs filed by MERALCO in the interim were in fact deregulated and would
prejudice the consuming public in the succeeding 20 years of overpriced
power charges.

The complaint was docketed as OMB-C-C-16-0497 for the criminal

aspect and OMJ3-C-A-16-0438 for the administrative aspect.

OMB-C-C-16-0497

On 29 September 2017, the Ombudsman found probable cause to

22
indict petitioners and their co-respondent a quo, Salazar, for violation of
Section 3(e) ofR.A. No. 3019 and directed the filing of the corresponding

20
A(vansa Para sa Bagong Pilipinas, Inc. v. Energy Regulatory Commission, G.R. No. 227670, May
3, 2019.
2!
Rollo, pp. 59-79:
22
Salazar filed a separate petition for c2rtiorari before the Court, docketed as G.R. No. 240288.

V
Decision 5 G.R. No. 239168

23
information in court Petitioners filed a Joint Motion for Reconsideration24
and a Supplemental. Motion for Reconsideration25 which the Ombudsman
denied in the assailed 20 April 2018 Order. 26

From these Ombudsman issuances, petitioners Non, Yap-Taruc,

Magpale-Asirit and Sta. Ana filed the present Petition for Certiorari,
docketed as G.R. No. 239168.

Their co-respondent, Salazar, on the other hand, filed a separate

petition docketed as G.R. No. 240288 against ABP and the Ombudsman
raising the defense that he never approved Resolution No. 1-2016 in the first
place. Said petition is still pending with the Court.

Meanwhile, on 7 June 2018, the criminal information against

petitioners and Salazar was filed with the Regional Trial Court (RTC) of
Pasig City. 27

OMB-C-A-16-0438

In a Decision dated 29 September 201 7, the Ombudsman found

petitioners28 guilty of Conduct Prejudicial to the Best Interest of the Service,
aggravated by Simple Misconduct and Simple Neglect of Duty, for which
they were meted the penalty of suspension for one year without pay.

Petitioners appealed to the CA with a prayer for temporary restraining

order (TRO) which the CA granted on 9 February 2018. This prompted ABP
to file a petition for certiorari with this Court, docketed as G.R. No. 237586
assailing the 9 February 2018 Resolution of the CA which granted a 60-day
TRO on the Decision of the Ombudsman in OMB-C-A-16-0438. 29

23
Rollo, pp. 49-50. The dispositive portion of the Resolution reads:
WHEREFORE, this Office finds probable cause to prosecute Jose Vicente
Buenviaje Salazar, Gloria Victoria Cabaies Yap-Taruc, Alfredo Jacinto Non, Josefina
Patricia Almendras Magpale-Asirit, and Geronimo Delgado Sta. Ana for violation of
Section 3(e) of Republic Act No. 3019, as amended. Let the corresponding Information
be filed against them with the proper court.
SO ORDERED.
24
Rollo, pp. 117-161.
25
Id. at 192-196.
26
Id. at 52-56. The dispositive portion reads:
WHEREFORE, the Motions for Reconsideration are DENIED.
SO ORDERED.
27
Branch 155, rollo, pp. 844-846.
28
Together with Salazar.
29
Alyansa Para sa Bagong Pilipinas, Inc., rep. by Noel G Vil/ones and Evelyn V Jallorina v. Court
of Appeals, Jose Vicente B. Salaza,; Gloria Victoria C. Yap-Taruc, Alfredo J. Non, G.R. No.
237586, rollo, pp. 3-4.

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 Decision 6 G.R. No. 239168

Deconsolidation of the cases

G.R. Nos. 239168 and 240288 were consolidated on 30 July 2018.

These two cases, together with G.R. No. 237586 were further consolidated
with G.R. No. 227670 on 17 October 2018.

On 15 January 2019, the Court deconsolidated the cases and returned

to same original members in charge.

In the meantime, petitioners in G.R. No. 239168 filed an Urgent

Motion for Issuance of TRO or Writ of Preliminary Injunction due to the
filing of Information against them with the RTC of Pasig City. They alleged
that they filed a motion to quash with the RTC arguing that R.A. No.
30
10660, which directs that criminal cases within the RTC's jurisdiction
involving public officials shall be tried in a judicial region other than where
the official holds office, applies to them as they hold office in Pasig City.
They reiterated this argument in their Supplemental Petition dated 20
September 2019.

On 28 January 2020, the Court re-docketed the Supplemental Petition

dated 20 September 2019 as a separate petition, G.R. No. 251177.

Present Petition
G.R. No. 239168

From the 29 September 2017 Resolution31 and the 20 April 2018

32
Order of the Ombudsman in OMB-C-C-16-0497, petitioners filed the
present Petition for Certiorari, docketed as G.R. No. 239168, attributing
grave abuse of discretion amounting to excess in jurisdiction on the part of
the Ombudsman (a) in finding probable cause for their indictment when said
finding is not supported by substantial evidence; (b) in arrogating unto
herself the authority of declaring Resolution No. 1-2016 invalid, which
could be done only by the Court; and (c) in proceeding to resolve the
complaint despite the fact that the constitutionality of Resolution No. 1-2016
is still pending resolution before this Court. 33

Told to comment, the Ombudsman remains unswayed in its finding

and prays for the dismissal of this Petition. 34

30
AN ACT STRENGTHENING FURTHER THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
SANDIGANBAYAN, FURTHER AMENDING PRESIDENTIAL DECREE No. 1606, AS AMENDED, AND
APPROPRIATING FUNDS THEREFOR.
31
Signed by Graft Investigation and Prosecution Officer II, Cezar M. Tirol II.
32
Rollo, p. 52-57.
33
Id. at 10-11.
34
The Comment was filed also in connection with G.R. No. 240288 (rollo, pp. 642-657). Note that
the OSG filed a Manifestation and Motion on September 3, 2018 in which it made a preliminary
assessment that the petition in G.R. No. 227670 is a prejudicial question in the resolution of the
instant petition (rollo, pp. 265-292). It has not yet filed its Comment on the present petition. ABP
also submitted its Comment on 17 December 2018, but only on Meralco's earlier Manifestation in
G.R. No. 227670 (rollo, pp. 851-853).

\
 Decision 7 G.R. No. 239168

The Court's Ruling

We grant the petition.

The principle of non-interference

does not apply in this case

While the Court generally upholds the policy of non-interference

when it comes to the Ombudsman's determination of the existence of
probable cause and in deciding whether the Information should be filed, the
Court will also not hesitate from wielding its power of r.eview and correct
actions that result to needless prosecution.

Both the Constitution and the Ombudsman Act of 1989 give the
Ombudsman wide latitude to act on criminal complaints against public
officials and government employees. Thus, the consistent policy of the
Court has been to maintain non-interference in the determination of the
Ombudsman of the existence of probable cause. As this Court is not a trier
of facts, we give due deference to the sound judgment of the Ombudsman. 35

Such policy is based not only on respect for the investigatory and
prosecutory powers granted by the Constitution to the Ombudsman, but
upon practicality as well. 36 Otherwise, a deluge of petitions seeking
dismissal of investigatory proceedings conducted by the Ombudsman will
grievously hamper the functions of the courts. 37

Nevertheless, the Court is not precluded from reviewing the

Ombudsman's action when there is a charge of grave abuse of discretion. 38
While as a rule, the determination of probable cause for the filing of
information lies with the public prosecutors, it is equally settled that the
aggrieved person charged for an offense, has the present recourse, a petition
for certiorari under Rule 65 of the Rules of Court, to challenge the finding
of probable cause on the ground of grave abuse of discretion. 39 Whenever
there are allegations of grave abuse of discretion, the Ombudsman's act
cannot escape judicial scrutiny under the Court's own constitutional power
and duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the goverru11ent. 40

"There is grave abuse of discretion where power is exercised in an

arbitrary, capricious; whimsical or despotic manner by reason of passion or
personal hostility, patent and gross as to amount to evasion of positive duty

35
Villarosa v. Ombudsman, G.R. No. 221418, January 23, 2019.
36
Jason v.. Office of the Ombudsman, 816 Phil. 288, 320 (2017).
37
Villarosa v. Ombudsman, supra.
38
Estrada v. Office of the Ombudsman, G.R. Nos. 212761-62, July 31, 2018.
39
Crucillo v. Office of the Ombudrnian, 552 Phil. 699, 713 (2007).
40
Casingv. Ombudsman, 687 Phil. 468,476 (2012).

\
Decision 8 G.R. No. 239168

or virtual refusal to perform a duty enjoined by law." 41 When the

Ombudsman does not take essential facts into consideration in the
determination of probable cause, we have ruled that such constitutes grave
abuse of discretion.

This Court will not shirk from its duty to intervene upon proof of
commission of grave abuse of discretion by the Ombudsman as we are not
precluded from reviewing the Ombudsman's action when there is grave
abuse of discretion, in which case the certiorari jurisdiction of the Court
may exceptionally be invoked pursuant to Section 1, Article VIII of the
· · 42
Constltut10n.

Cases have enumerated the exceptions to the general rule of non-

interference. These are:

1. When necessary to afford adequate protection to the constitutional

rights of the accused;

2. When necessary for the orderly administration of justice or to

avoid oppression or multiplicity of actions;

3. When there is a prejudicial question which is sub Judice;

4. When the acts of the officer are without or in excess of authority;

5. Where the prosecution is under an invalid law, ordinance or

regulation;
6. When double jeopardy is clearly apparent;

7. Where the court has no jurisdiction over the offense;

8. Where it is a case of persecution rather than prosecution;

9. Where the charges are manifestly false and motivated by the lust for
vengeance;

10. When there is clearly no prima facie case against the accused and
43
motion to quash on that ground has been denied. (Emphases
supplied)

A review of the attendant circumstances shows that the present case

falls under the exception.

Lack ofprobable cause

The Ombudsman found probable cause to indict herein petitioners for

violation of Section 3(e) of R.A. No. 3019. We know that probable cause

41
Sistozu v. Desierto, 437 Phil. 117, 129 (2002).
42
Crucillo v. Ombudsman, supra note 39, at 712-713.
43
Mendoza-Arce 1,: Office of the Ombudrnwn. 430 Phil. 101, 113 (2002).

\
 Decision 9 G.R. No. 239168

exists when the facts are sufficient to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof. 44

It should also be stressed, however, that to determine if the suspect is

probably guilty of the offense, the elements of the crime charged should, in
all reasonable likelihood, be present. This is based in the principle that
every crime is defined by its elements, without which, there should be, at
. . 1o f:C1ense.45
most, no cnmma

There are three modes by which Section 3(e) ofR.A. No. 3019 may be
committed by a public officer: through manifest partiality, evident bad faith,
or through gross inexcusable negligence. 46

"Partiality" connotes bias which excites a disposition to see and report

matters as they are wished for rather than as they are. "Bad faith" meanwhile
does not simply connote bad judgment or negligence. It imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach
of sworn duty through some motive, or intent, or ill will, and partakes of the
nature of a fraud. Finally, "gross negligence" refers to negligence
characterized by the want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently, but willfully and
intentionally with a conscious indifference to consequences insofar as other
persons may be affected. It is that omission of care which even inattentive
47
and thoughtless men never fail to take on their own property.

Here, the Ombudsman supported its finding of probable cause with

this disquisition:

x x x [R]espondents acted with manifest partiality, evident bad

faith or gross inexcusable negligence when they suspended the
implementation of the required CSP, to accommodate the PSAs/PSCs of
[distribution utilities] and [generation companies], particularly of
MERALCO, thereby exempting them from the CSP mandated
requirement.

The manifest partiality, evident bad faith or gross inexcusable

negligence of respondents can be gleaned from the following documented
chronological events:

1. On 20 October 2015, the ERC issued [Resolution No. 13-2015]

with the provision that all PSAs and PSCs not filed with the ERC as of 06
November 2015 should already be covered by CSP as their Mandatory
Selection Process;

44
Alberto v. Court ofAppeals, 711 Phil. 530,553 (2013).
45
Id. at 553-554.
46
Rivera v. People, G.R. No. 228154, October 16, 2019.
47
Id.

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 Decision 10 G.R. No. 239168

2. Thus, by 07 November 2015, the requirement that PSAs not

filed with ERC as of said date should already be covered by CSP, already
took effect [sic];

3. In a Letter dated 26 November 2015, MERALCO sought the

permission of ERC to exempt their PS Cs from the CSP requirement;

4. On 10 December 2015, the ERC, through Salazar's letter,

denied MERALCO's request;

5. On 15 March 2016, ERC, through respondents, issued ERC

[Resolution No. 1-2016], modifying the effectivity date of the Resolution
from 07 November 2015 to 30 April 2016, thus, giving a window period
for PSAs without CSPs to be filed from 15 March 2016 to 30 April 2016;
[and]

6. On 29 April 2016, a day before the extended deadline of 30

April 2016, MERALCO filed seven PSAs that did not undergo the CSP
requirement.

xxxx

Their non-implementation of the requirement of CSP cannot hide

under the cloak of presumption of regularity in the performance of their
official duties. There is sufficient evidence that respondents gave
unwarranted benefits to MERALCO and other companies by exempting
them from the coverage of the CSP requirement which was already in
effect after 06 November 2015. The 45-day period gave MERALCO and
other companies the opportunity to dispense with CSP. Their gross
inexcusable negligence led to the circumvention of the government policy
requiring CSP, and denied the consumers the opportunities to elicit the best
price offers and other PSA terms and conditions from suppliers. 48

It is clear therefore that the Ombudman's finding of probable cause

rests on the supposition that petitioners violated R.A. No. 3019 with the
issuance of ERC Resblution No. 1-2016, which suspended the
implementation of the CSP requirement. For the Ombudsman, the mere act
of suspending the implementation of the CSP, shows that petitioners acted
with manifest partiality, evident bad faith or gross and inexcusable
negligence to accommodate the PSAs/Power Supply Contracts (PSCs) of
DUs and generation companies, specifically, MERALCO. Stated differently,
the premise is that since MERALCO benefited from Resolution No. 1-2016,
then the subject resolution was, from the start, meant only to give an undue
advantage to MERALCO, that is tantamount to a crime.

A perusal of Resolution No. 1-2016, however, would readily show that

the ERC temporarily deferred the implementation of the CSP in order to
ensure that there were suitable guidelines for its execution in light of the
concerns raised by the power industry's various stakeholders. To quote:

48
Rollo, pp. 44-45, 49.

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 Decision 11 G.R. No. 239168

WHEREAS, since the publication of the CSP [Guidelines] on 06

November 2015, the [ERC] has received several letters from stakeholders
which raised issues on the constitutionality of the effectivity of the CSP
[Guidelines], sought clarification on the implementation of the CSP and its
applicability to the renewal and extension of PSAs, requested a
determination of the accepted forms of CSP, and submitted grounds for
exemption from its applicability, among others.

WHEREAS, after judicious study and due consideration of the

different perspectives raised in the aforementioned letters, with the end in
view of ensuring the successful implementation of the CSP for the benefit
of consumers, DUs, and GenCos, the [ERC] has resolved to allow a period
of transition for the full implementation of the CSP [Guidelines] and, as
such, restates the effectivity date of the CSP [Guidelines] to a later date.

Among these stakeholders are: (1) SMC Global Power which

requested, through a Letter dated 25 November 2015, that they be allowed to
file their PSCs because the requirements imposed pursuant to the CSP
implementations were non-existent when their PSCs were evaluated and
49
signed; (2) Philippine Rural Electric Cooperative Association, Inc., which
requested for exemption from coverage of Department Circular No.
DC2015-06-0008, via a Letter dated 1 December 2015; 50 (3) Agusan del
Norte Electric Cooperative, Inc., which requested, per Letter dated 10
December 2015, confirmation that any extension of PSAs or Energy Supply
Agreements previously approved is outside the scope of ERC Resolution
No. 13-2015; 51 (4) Astronergy Development, which requested, through a
Letter dated 15 December 2015, a meeting to discuss their situation
following the issuance of Resolution No. 13-2015; 52 (5) Camarines Sur IV
Electric Cooperative, Inc. and Unified Leyte Geothermal Energy, Inc., which
requested for an extension to file their joint application for the approval of a
PSA in their Letter dated 21 December 2015; 53 and (6) Aklan Electric
Cooperative, Inc. which sent a letter dated 9 March 2016 inquiring about the
CSP requirement. 54

The presence of these other stakeholders with their respective

concerns, weaken the reasoning that petitioners acted with manifest partiality
or evident bad faith that is tantamount to a finding of probable cause.
Indeed, Resolution No. 1-2016 was available to all industry players and
electric cooperatives alike, not just to MERALCO.

A reading of Resolution No. 1-2016 would also show that not only did
it extend the transition period, it also addressed pressing concerns affecting
the impact of the CSP upon the power industry and resolved other matters
that involved the other stakeholders, abovementioned. The issuance of the

49
Id. at 162-163.
50
Id. at 164.
51
Id. at 167-168.
52
Id. at 176-177.
53
Id. at 171-174.
54
Id. at 175.

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 Decision 12 G.R. No. 239168

subject resolution was in the exercise of ERC's sound judgment as a

regulator and pursuant to its mandate under the EPIRA to protect the public
interest as it is affected by the rates and services of electric utilities and other
providers of electric power. Thus, it cannot be classified as arbitrary,
whimsical or capricious. The transition period, together with the
clarifications provided in Resolution No. 1-2016, constitute a reasonable
response to the various concerns posed by DUs, GenCos and electric
cooperatives.

We note that in GR. No. 227670, the Court, through the ponencia of
Justice Carpio, declared that the issuance of Resolution No. 1-2016 was
attended with grave abuse of discretion. It should be stressed, however, that
said case centered on the constitutionality of Resolution No. 1-2016. Even
though wrongful, the error of the concerned Commissioners in issuing
Resolution No. 1-2016 should not be automatically deemed as criminal.

Power of the Court to order dismissal of the case

We acknowledge the opinions of our esteemed colleagues, Justice

Leonen and Justice Zalameda. As they correctly pointed out, the Information
in this case was already filed with the RTC of Pasig City. Thus, the RTC
already acquired jurisdiction over the case.

A review of the events leading to the present petition would show that,
petitioners filed on 29 May 2018 a petition before the Court praying that a
TRO and/or Writ of Preliminary Injunction be issued in order to restrain the
Ombudsman from filing the Information. The application however was not
granted, thus, the Ombudsman proceeded in filing the Information against
petitioners on 7 June 2018. The case was raffle to Branch 155 of RTC, Pasig
and petitioners were arraigned on 21 November 2018.

Having determined, however, that the Ombudsman committed grave

abuse of discretion in issuing the 29 September 201 7 Resolution and 20
April 2018 Order which led to the filing of the Information with the trial
court, we cannot subscribe to the proposition of our respected colleagues that
we should refrain from resolving the instant petition on the ground that the
trial court already acquired exclusive jurisdiction over the criminal case.

\Ve have not hesitated in ordering the dismissal of a case already filed
in court for want of probable cause.

In Cabahug v. People, 55 we declared:

Judicial power of review includes the determination of whether

there was gr<:1-ve abuse of discretion amounting t9 lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.

55
426 Phil. 490, 509-510 (2002).

y
Decision 13 G.R. No. 239168

xxxx

Certainly, this will not be the first time that we order the
dismissal of a case filed before the Sandiganbayan for want of
probable cause. In the case of Fernando v. Sandiganbayan, we justified
our action as follows:

We emphasize at this point that the Court has a policy of non-

interference in the Ombudsman's exercise of his constitutionally mandated
powers. The overwhelming number of petitions brought to us questioning
the filing by the Ombudsman of charges against them are invariably
denied due course. Occasionally, however, there are rare cases when, for
various reasons there has been a misapprehension of facts, we step in
with our review power. This is one such case. (Emphases supplied and
citations omitted)

This was reiterated in Sistoza v. Desierto 56 where the Court

categorically held that we can direct the Sandiganbayan to dismiss the
criminal case filed against petitioner after finding that the Ombudsman
wrongfully found probable cause against him. For want of a well-founded
and reasonable ground to believe that petitioner violated Section 3(e), of
R.A. No. 3019 or for want of probable cause, the Court ordered the
Sandiganbayan t~ dismiss the criminal case against petitioner.

Indeed, in the few occasions when there is evident misapprehension of

facts, we set aside the policy of non-interference and step in armed with our
power of review. When at the outset the evidence cannot sustain a prima
facie case or that the existence of probable cause to form a sufficient belief
as to the guilt of the accused cannot be ascertained, the prosecution must
57
desist from inflicting on any person the trauma of going through a trial.

While it is the function of the Ombudsman to determine whether

petitioners should be subjected to the expense, rigors and embarrassment of
trial, the Ombudsman cannot do so arbitrarily. The seemingly exclusive and
unilateral authority of the Ombudsman must be tempered by the Court when
powers of prosecution are in danger of being used for persecution.
Dismissing the case against the accused for palpable want of probable cause
not only spares him of the expense, rigors and embarrassment of trial, but
also prevents needless waste of the court's time and saves the precious
58
resources of the government.

56
Supra note 41.
57
See Cabahugv. People, supra note 55, at 509.
58
Jimenez v. Tolentino, J1:, 490 Phil. 367, 375-376 (2005).

\J

\
 Decision 14 G.R. No. 239168

WHEREFORE, the petition is GRANTED. The 29 September 2017

Resolution and 20 April 2018 Order of the Office of the Ombudsman are
hereby REVERSED and SET ASIDE. The Information against petitioners
is hereby DISMISSED for lack of probable cause.

SO ORDERED.
_..,.,.

WE CONCUR:
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.PERALTA

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ESTELA l\f.'i;ERLAS-BERNABE
Associate Justice

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AMY --1l~fER
~isociate -:Justice
(NO PART)
HENRI JEAN PAUL B. INTING
Associate Justice
Decision 15 G.R. No. 239168

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EDGARDO L. DELOS SANTOS
Associate Justice
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Associate Justice

(ON SICK LEAVE)

PRISCILLA J. BALTAZAR-PADILLA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court. /"\ /