SC: SALN must be complete, accurate, under oath

THIRD DIVISION [ G.R. No. 225939, October 05, 2016 ] G.R. No. 225939 NURBERT M. SAHALI VS. OFFICE OF THE OMBUDSMAN AND THE FIELD INVESTIGATION UNIT, OFFICE OF THE OMBUDSMAN-MINDANAO REPRESENTED BY SIEGFRED L. LABANG.

For the consideration of the Court is a Petition for Certiorari filed under Rule 65 of the Rules of Court by Nurbert M. Sahali, assailing the Resolution dated April 27, 2016 and Order dated June 30, 2016 issued by the Office of the Ombudsman in Case No. 0MB- M-C-14-0157, entitled Field Investigation Unit, Office of the Ombudsman — Mindanao, represented by Siegfred L. Labang v. Nurbert M. Sahali, Municipal Mayor, Sherwina S. Juhaili, Municipal Human Resource Management Officer.

The facts are as follows:

In a letter dated July 11, 2011, Muhammad Suhaili wrote then Secretary of the Department of the Interior and Local Government Jesse Robredo alleging that:

In accordance with President Aquino's "Daang Matuwid" advocacy, the undersigned and Concerned Citizens of Tawi-Tawi would like to report to your good office the continuing plunder of the people's money in Tawi-Tawi by Governor S. Sahali, his children and wife, and worst including his Sister-in-Law who continue to be the provincial treasurer Mrs. Patricia Mar, since he became governor of the province.

During his term, of the more than 60M internal revenue allotment of the province, nothing is utilize[d] for socio-economic development. This is very obvious that since then Governor Sahali has no tangible accomplishment that could be seen, except the construction of a mansion in Bongao Tawi-Tawi, a Hotel, [other] buildings owned by his son Mayor Norbert Sahair, purchase of several land in the province; worst purchase of commercial properties at Zamboanga City, Bukidnon (home place of Mrs. Sahali and treasurer Patricia Mar) to include real estate properties in Metro Manila.The Office of the Overall Deputy Ombudsman then issued an Evaluation Report dated September 5, 2011 recommending that the letter be endorsed to the Office of the Ombudsman-Mindanao and for the latter to conduct a lifestyle check on all the concerned officials.

After investigation, the Office of the Ombudsman - Mindanao learned that they had no records of the Statement of Assets, Liabilities and Net Worth (SALN) of Governor Sahali A. Sadikul, Provincial Treasurer Patricia Mar, and Mayor Norbert Sadikul as evidenced by a Certification issued by the Office of the Ombudsman - Mindanao dated January 30, 2012. Thus, the Office of the Ombudsman — Field Investigation Unit filed a complaint against Nurbert M. Sahali docketed as Case No. OMB-M-C-14-0157 for Violation of Section 8 of R.A. No. 6713 - Statements and Disclosure (SALN).

In an Order dated October 9, 2014, the Office of the Ombudsman -Mindanao directed Norberto Sahali to file a counter-affidavit within ten (10) days from receipt thereof.

In a Submission dated February 18, 2015, Nurbert M. Sahali complied with the Order and attached his Counter-Affidavit dated February 9, 2015 with his SALNs for the years 2007, 2008, 2009, 2010, 2011 and2012.

From such Counter-Affidavit, the Office of the Ombudsman - Field Investigation Unit filed a Reply dated March 5, 2015 pointing out several irregularities in the SALNs of petitioner, not the least of which was the fact that they were not executed under oath.

Thereafter, the Ombudsman issued the assailed Resolution dated April 27, 2016, the dispositive portion of which reads:

WHEREFORE, this Office finds PROBABLE CAUSE to indict respondent Nurbert M. Sahali for six (6) counts of violation of Section 8 of Republic Act No. 6713; and respondent Sherwina S. Juhaili for one (1) count of violation of Section 36 of Republic Act No. 6770. Let the corresponding Informations be filed with the appropriate court.

SO ORDERED.

From such Resolution petitioner filed a Motion for Reconsideration dated June 1, 2016 which the Ombudsman denied in the assailed Order dated June 30, 2016.

Hence, the instant petition. Petitioner raises the following issues:

Grounds

A.

With all due respect, public respondent Office of the Ombudsman acted with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, when it found that probable cause exists to indict petitioner for violation of Section 8 of R.A. 6713 when petitioner has submitted his SALNs to the Chief or Head of the Personnel/Administrative Division or Unit/Human Resource Management Office (HRMO).

B.

With all due respect, public respondent Office of the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, when it failed to consider that there was substantial compliance by the petitioner when he submitted his SALNs to the HRMO.

Preliminarily, contrary to the contention of petitioner, the question of whether petitioner filed his SALNs with the correct office is a non-issue.

Paragraph IV of OMB-MC No. 95-13 provides:

All public officials and employees concerned shall file their respective statements and disclosures with their respective chief of the personnel division or in his absence the chief of the administrative division or the person designated by the head of the agency, to be subsequently submitted to the respective area or sectoral offices of the Office of the Ombudsman as specified in Attachment "A" of this circular.

Thus, petitioner complied with this procedure by filing his SALNs with the Human Resource Management Office of the Municipality. This is not the issue m this case. The basis of petitioner's indictment is the irregularities present in the SALNs themselves. As stated by the Ombudsman:

While Sahali admittedly followed the said procedure, and showed proof that his SALN for the years 2007 to 2012 were submitted to the HRMO, his SALNs for the said years are riddled with irregularities which in the view of this Office amounted to non-filing of the same.

The Ombudsman enumerated these irregularities as follows:

First, his SALNs appear to have been hastily, filled out as there are a lot of pertinent information left blank.

Second, his SALNs were all undated and not made under oath as required by RA 6713; apparently prepared as an afterthought on account of the complaint filed against him.

Third, the dates of submission of the SALNs to the HRMO negate the likelihood that they were regularly and timely filed considering that the filing thereof, particularly for Sahali's December 2008, December 2009 and December 2010 SALNs, were made on 22 July 2008, 27 July 2009, 20 July 2010, respectively, when it is clear from Rule VII, Section 1 (b) (2) of the Rules Implementing RA6713 and paragraph IV (A) of OMB-MC No. 95-13 that the statements must reflect the assets, liabilities and net worth of the public official until the 31 st of December of a given year, and filed on or before the 30 th of April of the succeeding year.

Given the foregoing circumstances, this Office is convinced that there is probable cause to indict Saliali for violation of RA 6713 for his failure to file Ms SALNs for 2007 to 2012.

Petitioner answered these allegations in this wise:

24. With all due respect, there was grave abuse of discretion amounting to lack or excess of jurisdiction when Public Respondent ruled that the alleged irregularities in the SALN's of Petitioner Nurbeit M. Sahali already constitute non-filing thereof. Such questionable ruling of the Public Respondent in the assailed Resolution dated 27 April 2016 and 30 June 2016 Order do NOT find any legal basis in law and jurisprudence. For sure, this is not the intent and spirit of RA 6713. What the law condemns and even criminalizes is the utter failure of public officials and employees to file or submit their required SALN's annually.

xxxx

29. It stands to reason that Petitioner Nurbert M. Sahali has substantially complied with the mandate of RA 6713 as to the filing and/or submission of SALN's for Calendar of Years 2007 to 2012. It is thus in the interest of substantial justice to consider the veritable fact of filing or submission of his SALN's for Calendar Years 2007 to 2012 as substantial compliance with the rule. As such, it is very glaring that there is NEITHER criminal intent NOR malice on the part of herein Petitioner Nurbert M. Sahali to commit a wrong, as that alleged or asserted in the questioned Resolution dated 27 April 2016 and Order dated 30 June 2016. (emphasis supplied)

Such contentions are erroneous.

Petitioner's failure to file a complete and accurate SALN that was executed under oath is a violation of Republic Act No. (RA) 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. Section 8 (A) of RA 6713 requires the submission of a Statement of Assets and Liabilities and Financial Disclosure by public officials and employees:

Section ; 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households.

(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households, (emphasis supplied)

Moreover, Section 11 (a) of the same law provides the penalty for failure to comply with the provisions of Section 8 (A), to wit:

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office, (emphasis supplied)

Contrary to the allegation of petitioner, it is not just the non-filing of the SALN that would subject a government official or employee to penalties, but rather, any violation of RA 6713. This would logically include the failure to comply with the various requirements of the law in relation to the filing of these SALNs, such as, that the SALN be complete and accurate. This is in consonance with the stated objective of RA 6713, that is:

Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of ethics in public service. Public officials and employees shall at all times be accountable to the people and shall discharge their duties with utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over personal interest.

This policy would be rendered inutile if government officials and employees are allowed to submit incomplete SALNs. Verily, the Ombudsman's position that petitioner's failure to fill-out his SALN completely and accurately is a violation of RA 6713 is well-founded.

Further, petitioner cannot invoke substantial compliance to justify his SALNs that were not executed under oath. Substantial compliance or substantial performance doctrine is defined under Black's Law Dictionary as:

The rule that if a good-faith attempt to perform does not precisely meet the terms of an agreement or statutory requirements, the performance will still be considered complete if the essential purpose is accomplished, subject to a claim for damages for the shortfall.

In Alvarez v. People, the Court defined substantial compliance as; "compliance with the essential requirements, whether of a contract or of a statute."

Section 17, Article XI of the 1987 Constitution itself requires that the SALNs be executed under oath:

Section 17. A public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. (emphasis supplied)

Such requirement that the SALN be executed under oath is essential in order to hold government officials and employees accountable for the entries therein. In Presidential Anti-Graft Commission (PAGC) v. Pleyto, the Court opined that the purpose of such requirement is to hold government officials and employees accountable for their entries in the SALN: "[O]fficials and employees are assumed to be accountable for the veracity of the entries considering that the SALNs are under oath."

This is because, precisely, by executing a SALN under oath, a government official or employee exposes himself to the crime of perjury. As explained in The Ombudsman and the Commissioner of Internal Revenue v. Pelino:

Perjury in solemn affirmation, on the other hand, is committed when the declarant omits to declare material information that is required of him under oath. It is an act which infirms a public officer's integrity and reliability, qualities that are necessarily connected with the discharge of his functions and duties, x x x

The requirement that a SALN be executed under oath is essential to carry out the very purpose of requiring the submission thereof. As such, petitioner cannot claim substantial compliance to the requirements of RA 7613. The Ombudsman correctly considered petitioner's SALNs as not having been filed at all.

Anent the inconsistent dates of submission of petitioner's SALNs; notably, petitioner did not refute the stamped received dates of his SALNs. Thus, he impliedly admits that he filed his SALN for 2008 on July 22, 2008, his SALN for 2009 on July 27, 2009, and his SALN for 2010 on July 20, 2010. At the very least, such face would render the submission of the SALNs questionable at best. Considering that the SALNs cover the period of January to December of that year, it is a wonder how or why he would submit the SALNs in the middle of that year.

From the foregoing, it becomes clear that the Ombudsman properly found probable cause that petitioner violated Section 8 of RA 6713. In Kalalo v. Office of the Ombudsman, the Court explained the principle of probable cause and the grounds for the overturning thereof:

xxx Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more man bare suspicion; it requires less than evidence which would justify conviction. Unless it is shown that the questioned acts were done in a capricious and whimsical exercise of judgment evidencing a clear case of grave abuse of discretion amounting to lack or excess of jurisdiction, this Court will not interfere in the findings of probable cause determined by the Ombudsman, (emphasis supplied)

Here, petitioner failed to show that the Ombudsman acted with grave abuse of discretion in indicting him for violation of Section 8 of RA 6713. Hence, the instant petition must necessarily be dismissed.

WHEREFORE, the instant petition is hereby DISMISSED. The Resolution dated April 27, 2016 and Order dated June 30, 2016 issued by the Office of the Ombudsman are hereby AFFIRMED.

SO ORDERED.