Extreme bias

A preliminary investigation is suppose to "secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of crime, the trouble, expense and anxiety of a public trial" in much the same way as it is intended "to protect the State from useless and expensive trials" (Trocio vs. Manta, 118 SCRA 241). The purpose is laudable. But its realization cannot always be assured precisely because of the accepted fact that the preliminary investigators, like all imperfect human beings, are prone to mistakes or bias. The risk is greater if the honor and reputation of the persons charged are at stake like those implicated of crimes cognizable by the Ombudsman that usually affect their good name, character and stature. They are exposed to more serious harms and graver damages because once they are wrongly accused after completion of the preliminary investigation, the damage inflicted is irreparable, irremediable and irretrievable. This is the greatest risk facing any individual charged before the Ombudsman.

In the cases of Mario B. Crespo a.k.a Mark Jimenez vs. Hernando B. Perez, Ernest Escaler and Ramon Arceo as well as those filed by the Ombudsman’s Field Investigation Office against the same individuals and Perez’ wife, Rosario S. Perez, for extortion (robbery) under paragraph 5 of Article 294 in relation to Article 293 of the Revised Penal Code and the violation of Section 3(b) of R.A. 3019 or the Anti- Graft Law, that feared risk indeed came about. After a careful reading of the Ombudsman’s resolution, it appears clear enough that the honor and reputation of individuals have been irreparably and inestimably damaged because of extreme bias and glaring mistakes.

First of all, like all other resolutions of the Ombudsman or investigating prosecutors, the resolution in this case is still subject to reconsideration or review. Prudence and fairness therefore dictate limiting if not preventing too much publicity on said resolution until after the reconsideration or review has been completed even if the case is of great public interest. Calling a press conference to announce said resolution is as glaringly uncalled for as it is a clear indication of uneven treatment of high profile cases pending before it. When she cleared the Comelec Officials of liability in the Mega Pacific Deal despite the contrary findings of the Supreme Court itself, she didn’t face media but went abroad allegedly on an official trip. Very rare indeed has the Ombudsman gone out of its way just to announce its findings in a preliminary investigation that is still reversible.

Secondly, in preliminary investigations with a specific complainant like this case, the complainant himself should have come forward with his own proofs to establish the allegations of his own affidavit complaint. In this case, the complainant Mario Crespo was actively assisted by the Ombudsman and her hearing officers who took up the cudgels to prove his affidavit complaint. But the worst part here is that the Ombudsman relied upon the "due diligence interview" conducted by an "EFG Bank Officer" who was never identified. Under existing jurisprudence (Pp. vs. Cheng Ho Chua, 305 SCRA 28) said report is purely hearsay and therefore inadmissible.

This complaint was filed by a disgruntled individual against then Justice Secretary Perez who was merely performing his job of extraditing him to the USA as a fugitive from justice. It was referred by the Ombudsman to the Investigating Officer way back on December 23, 2002 with instructions to complete the investigation within 30 days. But it took the Investigators almost three years or until November 14, 2005 to submit its 1st endorsement. After taking them so long which already violates the rights of Perez and his co-respondents to a speedy disposition of the case, the Ombudsman even blamed the respondents for the delay of their own making completely overlooking the fact that as early as July 3, 2003 respondents already asked for the early resolution of the case. And from the submission of the report in 2005, a copy of the resolution was sent to Perez and his co-respondents only on January 8, 2007.

More aggravating however is that aside from containing hearsay evidence, the report is replete with falsities on the personal circumstances of Nani Perez and his wife. It also falsely states that Ramon Arceo, a co-respondent is the brother of Nani’s wife Rosario when they are not related by consanguinity at all. And they were implicated in the robbery and extortion because of an alleged conspiracy despite the un-rebutted sworn statements of eyewitnesses that they were not even around during the alleged incidents cited by the Ombudsman as constituting threats or intimidation committed against complainant.

But the height of prejudice and bias of the Ombudsman is shown by the complete disregard of certain vital pieces of exculpatory evidence that would have been enough to establish lack of probable cause to indict Perez and his co-respondents before the Sandiganbayan. First of all is the letter of Coutts Bank dated November 26, 2002 categorically declaring that it "does not have (nor ever had previously) any business relation" with Perez and "hold no accounts for you either in your name or otherwise as beneficial owner". Then the very Annex G-7 of the Filed Investigation complaint also clearly and undeniably shows that the money referred to in the complaint ($ 2 million) had already been reverted back to respondent Escaler because of the cancellation of the MOU between Escaler and Perez regarding the sale of real properties of companies owned by the Perez family.

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