G.R. No.

177244 November 20, 2007 In his Memorandum7 dated January 3, 2001, President and
Chief Executive Officer Federico Puno found petitioner guilty of
TEODULO V. LARGO, petitioner, grave misconduct and imposed upon him the penalty of
vs. dismissal from service.
THE COURT OF APPEALS, THE CIVIL SERVICE
COMMISSION, THE NATIONAL POWER CORPORATION On petitioner’s motion for reconsideration, NPC President Jesus
and ALAN OLANDESCA, respondents. N. Alcordo reduced the penalty to one year suspension, taking
into consideration that this was petitioner’s first offense, the
DECISION absence of physical harm caused by the shots he fired, his 21
years of service, his consistent very satisfactory performance,
and Olandesca’s act of humiliating him prior to the incident.
YNARES-SANTIAGO, J.:
Considering, however, the retirement of petitioner, the NPC
directed the execution of the penalty by deducting an amount
Assailed in this petition for review1 is the March 23, 2007 equivalent to one year suspension without pay, from his
Decision2 of the Court of Appeals in CA-G.R. SP No. 84984 retirement benefits.8
which affirmed the July 4, 2003 Resolution3 of the Civil Service
Commission (CSC) finding petitioner guilty of grave misconduct
Petitioner appealed to the CSC which on July 4, 2003, affirmed
and imposing upon him the penalty of dismissal from service.
the finding of the NPC that petitioner was guilty of grave
misconduct but modified the penalty to dismissal from service.
On December 17, 1997, petitioner Teodulo V. Largo, Section The dispositive portion of the CSC Resolution, provides:
Chief, Administrative/General Services of the National Power
Corporation (NPC) in Angat River Hydroelectric Power Plant
WHEREFORE, the appeal of Teodulo V. Largo from
(ARHEP), Norzagaray, Bulacan, was administratively charged
the Decision dated August 15, 2001 of National Power
with grave misconduct, conduct prejudicial to the best interest
Corporation President Jesus N. Alcordo, finding him
of the service, oppression, or unlawful exercise of power by an
guilty of Grave Misconduct, is DISMISSED. The
officer or employee as to harm anyone in his person or
penalty of one-year suspension to be executed by
property while purporting to act under the color of authority
deducting an amount equivalent to one-year salary
and willfull violation of NPC Circular No. 97-66, which prohibits
from the retirement benefits of Largo is hereby
personnel from carrying firearms inside the NPC premises.
MODIFIED to dismissal from service. Largo’s dismissal
These charges were based on the complaint filed by Alan A.
from the service carries with it cancellation of
Olandesca (Olandesca), former property officer of the NPC at
eligibility, forfeiture of retirement benefits and
ARHEP.
perpetual disqualification for re-employment in the
government service.9
The NPC investigation revealed that on October 30, 1997,
petitioner and Olandesca attended a birthday party where
On June 21, 2004, the CSC denied petitioner’s motion for
petitioner claimed to have been humiliated by Olandesca who
reconsideration in Resolution No. 040690.10
threw a piece of paper at him and shouted, "Ikaw ang
magnanakaw." At around 5:05 in the afternoon of the same
day, petitioner went to the quarters of Olandesca at ARHEP On petition with the Court of Appeals, the latter rendered a
shouting invectives and threatening to kill Olandesca. decision affirming the Resolution of the CSC. The decretal
Petitioner proceeded to the dirty kitchen at the back of the portion thereof provides:
quarters where he met Olandesca’s wife. While they were
conversing, a dog suddenly appeared and barked at petitioner. WHEREFORE, the instant petition is DENIED and the
Claiming to have been frightened by the incessant barking of assailed Orders of the Civil Service Commission dated
the dog which was about to attack him, petitioner fired two July 4, 2003 and June 21, 2004 are AFFIRMED.
shots which scared the wife of Olandesca, as well as his 2
children, sister-in-law and mother-in law who were then SO ORDERED.11
gathered at the dirty kitchen. The first shot hit the flooring,
while the other hit the water hose. Unable to find Olandesca,
Hence, the instant petition.
petitioner left the compound.4

Petitioner contends that the administrative case against him

Meanwhile, petitioner retired from service effective January 1,
should be dismissed, the same having been rendered academic
1998 under the NPC SDP Retirement Plan.5
by his retirement from service. He further claims that there is
no case against him and, assuming that he is guilty of an
On March 19, 1998, the NPC Regional Board of Inquiry & administrative offense, his liability could only be for simple
Discipline conducted a pre-hearing conference. On motion of misconduct. Petitioner further prays for the imposition of a
Olandesca, the NPC President approved the transfer of the lighter penalty instead of dismissal from service.
formal investigation to the Board of Inquiry and Discipline of
the NPC Head Office, which recommended that petitioner be
The issues for resolution are: (1) whether the retirement of
held liable for simple misconduct with the minimum penalty of
petitioner rendered moot the resolution of the instant
suspension for one month and one day to two months.6

1
administrative case; and (2) whether petitioner was validly
dismissed for serious misconduct.
The settled rule in this jurisdiction is that cessation from office
by reason of resignation,12 death, or retirement13does not
warrant the dismissal of the administrative case filed against a
public officer while he or she was still in the service, or render
the said case academic. The jurisdiction of the disciplining
authority attaches at the time of the filing of the administrative
complaint and is not lost by the mere fact that the respondent
public official had ceased to be in office during the pendency
of his case. This rule applies to all employees in the civil
service,14 mindful of the constitutional precept that public
office is a public trust for which all government employees and
officials are accountable to the people. The rationale for this
doctrine, as applied to government employees and officials in
the judiciary, was explained in Perez v. Abiera15 in this wise:
[T]he jurisdiction that was Ours at the time of the
filing of the administrative complaint was not lost by
the mere fact that the respondent public official had
ceased to be in office during the pendency of his
case. The Court retains jurisdiction either to
pronounce the respondent official innocent of the
charges or declare him guilty thereof. A contrary rule
would be fraught with injustices and pregnant with
dreadful and dangerous implications. For, what
remedy would the people have against a civil servant
who resorts to wrongful and illegal conduct during his
last days in office? What would prevent a corrupt and
unscrupulous government employee from committing
abuses and other condemnable acts knowing fully
well that he would soon be beyond the pale of the
law and immune to all administrative penalties? If
only for reasons of public policy, this Court must
assert and maintain its jurisdiction over members of
the judiciary and other officials under its supervision
and control for acts performed in office which are
inimical to the service and prejudicial to the interests
of litigants and the general public. If innocent,
respondent official merits vindication of his name and
integrity as he leaves the government which he
served well and faithfully; if guilty, he deserves to
receive the corresponding censure and a penalty
proper and imposable under the situation.
The retirement of petitioner effective January 1, 1998, did not
render moot the instant case. The filing of the administrative
complaint against petitioner on December 17, 1997, prior to
his retirement, effectively conferred upon the NPC, the CSC,
and this Court, the jurisdiction to resolve the case until its
conclusion. Hence, the guilt or innocence of petitioner can be
validly addressed by the Court in the instant administrative
case.
Anent the acts constituting the administrative charge, we find
that the positive and categorical declarations of Olandesca’s
witnesses16 prevail over the negative allegation of petitioner
that he did not utter threatening words when he went to the
quarters of Olandesca. It is settled that denial is inherently a
weak defense. To be believed, it must be buttressed by a
strong evidence of non-culpability; otherwise, such denial is
2
purely self-serving and without evidentiary value.17 Like the
defense of alibi, petitioner’s denial crumbles in the light of the
positive declarations of the witnesses that petitioner uttered
threats to kill Olandesca. It was established that petitioner
entered the ARHEP, proceeded to Olandesca’s quarters,
specifically to the dirty kitchen where the wife, two children,
sister-in-law, and mother-in-law of Olandesca were gathered.
Thereat, petitioner fired his gun twice and hurled threats to kill
Olandesca. His acts of entering the quarters without
permission, hurling threats, and discharging a gun, even
assuming that the same were merely to scare a dog, are
blatant displays of arrogance and recklessness and do not
speak well of his character as a public officer.
However, the administrative offense committed by petitioner is
not "misconduct." To constitute misconduct, the act or acts
must have a direct relation to and be connected with the
performance of his official duties. In Manuel v. Calimag, Jr.,18 it
was held that:
Misconduct in office has been authoritatively defined
by Justice Tuazon in Lacson v. Lopez in these words:
"Misconduct in office has a definite and well-
understood legal meaning. By uniform legal definition,
it is a misconduct such as affects his performance of
his duties as an officer and not such only as affects
his character as a private individual. In such cases, it
has been said at all times, it is necessary to separate
the character of the man from the character of the
officer x x x x It is settled that misconduct,
misfeasance, or malfeasance warranting removal from
office of an officer must have direct relation to and be
connected with the performance of official duties
amounting either to maladministration or willful,
intentional neglect and failure to discharge the duties
of the office x x x More specifically, in Buenaventura
v. Benedicto, an administrative proceeding against a
judge of the court of first instance, the present Chief
Justice defines misconduct as referring ‘to a
transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross
negligence by the public officer."
xxxx
In Salcedo v. Inting we also ruled –
It is to be noted that the acts of the respondent judge
complained of have no direct relation with his official
duties as City Judge. The misfeasance or malfeasance
of a judge, to warrant disciplinary action must have
direct relation to and be connected with the
performance of official duties amounting either to
maladministration or willful, intentional neglect and
failure to discharge the duties of said judge.
In Milanes v. De Guzman,19 a mayor collared a person, shook
him violently, and threatened to kill him in the course of a
political rally of the Nacionalista Party where said mayor was
acting as the toastmaster. The Court held that the acts of the
mayor cannot come under the class of the administrative
offense of misconduct, considering that as the toastmaster in a
non-governmental rally, he acted in his private capacity, for
said function was not part of his duties as mayor. In Amosco v.
Magro,20 the respondent Judge was charged with grave
misconduct for his alleged failure to pay the amount
of P215.80 for the purchase of empty Burma sacks. In
dismissing the case, the Court sustained, among others, the
argument of respondent Judge that the charge did not
constitute misconduct because it did not involve the discharge
of his official duties. It was further held that misconduct in
office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his
performance of his duties as an officer and not such only as
affects his character as a private individual. So also, a Judge’s
abandonment of, and failure to give support to his
family;21 and alleged sale of carnapped motor vehicles,22 do
not fall within the species of misconduct, not being related to
the discharge of official functions.
In the instant case, it was not proven that petitioner’s acts of
trespassing in the quarters, threatening to kill Olandesca, and
firing his gun, were related to, or performed by petitioner by
taking advantage of his functions as Section Chief,
Administrative/General Services. In fact, Olandesca argued
that the authority to carry a gun inside NPC premises was not
among the powers vested in petitioner. Also, it was not
established that the gun used by petitioner was issued by the
NPC. Evidence reveals that the position of petitioner is not
among those vested with authority to carry a gun in the
premises of the NPC. His act of entering the NPC ARHEP
carrying a firearm was in violation of NPC Circular No. 97-66
dated August 6, 1997. Under said circular, only those directly
involved in the security of an installation shall be allowed to
enter the premises with their firearm. Moreover, it was never
alleged or proven that petitioner could not have gained access
to Olandesca’s quarters were it not for his position. In
administrative proceedings, the burden of proving the acts
complained of,23 particularly the relation thereof to the official
functions of the public officer, rests on the complainant. This,
Olandesca failed to discharge. The inevitable conclusion
therefore is that petitioner acted in his private capacity, and
hence, cannot be held liable for misconduct, which must have
a direct relation to and be connected with the performance of
official duties.
Nevertheless, the complained acts of petitioner constitute the
administrative offense of conduct prejudicial to the best
interest of the service, which need not be related or connected
to the public officer’s official functions. As long as the
questioned conduct tarnished the image and integrity of
his/her public office, the corresponding penalty may be meted
on the erring public officer or employee. The Code of Conduct
and Ethical Standards for Public Officials and Employees
(Republic Act No. 6713) enunciates, inter alia, the State policy
of promoting a high standard of ethics and utmost
responsibility in the public service. Section 4 (c) of the Code
commands that "[public officials and employees] shall at all
times respect the rights of others, and shall refrain from doing
acts contrary to law, good morals, good customs, public policy,
public order, public safety and public interest." By his
actuations, petitioner failed to live up to such standard.
3
In Cabalitan v. Department of Agrarian Reform,24 the Court
sustained the ruling of the CSC that the offense committed by
the employee in selling fake Unified Vehicular Volume Program
exemption cards to his officemates during office hours was not
grave misconduct, but conduct prejudicial to the best interest
of the service. In Mariano v. Roxas, 25 the Court held that the
offense committed by a Court of Appeals employee in forging
some receipts to avoid her private contractual obligations, was
not misconduct but conduct prejudicial to the best interest of
the service because her acts had no direct relation to or
connection with the performance of official duties. Then too,
the Court considered the following conduct as prejudicial to the
best interest of the service, to wit: a Judge’s act of brandishing
a gun and threatening the complainants during a traffic
altercation;26 and a court interpreter’s participation in the
execution of a document conveying complainant’s property
which resulted in a quarrel in the latter’s family.27
In sum, we find petitioner guilty of conduct prejudicial to the
best interest of the service, which under Section 52 of Rule IV
of Civil Service Commission Memorandum Circular No. 19,
series of 1999, is classified as a grave administrative offense
punishable by suspension of six (6) months and 1 day to one
(1) year if committed for the first time.
Considering the retirement of petitioner, the penalty of
suspension is no longer viable. Thus, in lieu of suspension, the
penalty of fine equivalent to his salary for a period of six (6)
months may be imposed. This ruling is in line with Section 19
of the Omnibus Rules Implementing Book V of Executive Order
No. 292,28 which provides:
The penalty of transfer, or demotion, or fine may be
imposed instead of suspension from one month and
one day to one year except in case of fine which shall
not exceed six months.
WHEREFORE, the petition is PARTIALLY GRANTED. The
March 23, 2007 Decision of the Court of Appeals in CA-G.R. SP
No. 84984 affirming the July 4, 2003 Resolution of the Civil
Service Commission finding petitioner guilty of grave
misconduct and imposing upon him the penalty of dismissal
is REVERSED and SET ASIDE. Petitioner is
declared GUILTY of conduct prejudicial to the best interest of
the service and is directed to pay a FINE equivalent to his
salary for six (6) months, to be deducted from his retirement
benefits.
SO ORDERED.
G.R. No. 164316 September 27, 2006
OFFICE OF THE OMBUDSMAN, petitioner,
vs.
GERTRUDES MADRIAGA and ANA MARIE
BERNARDO, respondents.
DECISION
CARPIO MORALES, J.:
The Court of Appeals having declared, by Decision of May 28,
2004, that the six-month suspension meted out by the Office
of the Ombudsman to respondent Gertrudes Madriaga
(Gertrudes), school principal of San Juan Elementary School,
San Juan, Metro Manila, and her co-respondent Ana Marie
Bernardo (Ana Marie), a classroom teacher who was
designated as Canteen Manager of the same school, is merely
recommendatory to the Department of Education, the Office of
the Ombudsman filed the present Petition for Review on
Certiorari.
The factual antecedents of the case are as follows:
By letter-complaint1 of September 8, 2000 filed before the
Office of the Ombudsman, the San Juan School Club (the
Club), through its president Teresa Nuque (Teresa), charged
respondents with violation of Section 1 of Rule IV2 and Section
1 of Rule VI3 of the Rules Implementing Republic Act (R.A.)
No. 6713 otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees.
After respondents had given their side of the complaint, Graft
Investigation Officer Helen M. Acuña, by Decision of May 28,
2001, found respondents guilty of violation of Section 5(a) of
R.A. No. 6713 reading:
SEC. 5. Duties of Public Officials and Employees. – In
the performance of their duties, all public officials and
employees are under obligation to:
(a) Act promptly on letters and requests. – All public
officials and employees shall, within fifteen (15)
working days from receipt thereof, respond to
letters, telegrams or other means of
communications sent by the public. The reply
must contain the action taken on the request
(Emphasis supplied),
and imposed upon them the penalty of reprimand.4
By Memorandum Order dated June 28, 2001, however, Graft
Investigation Officer Julita Calderon "set aside" Helen Acuña's
decision, the former finding that respondents were guilty also
of conduct grossly prejudicial to the best interest of the
service, and accordingly penalizing them with six months
suspension. Thus Julita Calderon's order disposed:
WHEREFORE, foregoing premises being considered
and there being substantial evidence to establish the
4
guilt of respondent GERTRUDES MADRIAGA
for violation of Section 5 (a) of RA 6713 for not
promptly responding to the letter request of the
complainant for copies of the school canteen's
financial statements for the period from February to
August 2000 and against respondents GERTRUDES
MADRIAGA and ANA MARIE BERNARDO
for [C]onduct Grossly Prejudicial to the Best
Interest of the Service under Section 22(t) of
Rule XIV, of the Omnibus Rules Implementing
Book V of EO No. 292, the penalty of six (6)
months suspension is hereby imposed as against
both these respondents.
Accordingly, the Decision dated May 28, 2001 of GIO
Acuña is therefore SET ASIDE.
Let a copy of this Memorandum Order of June
28, 2001 be sent to the Secretary of the
Department of Education, Culture and Sports
(DECS) with office address at ULTRA, Pasig
City, for proper implementation.5 (Emphasis
partly supplied and partly in the original; underscoring
supplied)
Respondents' motion for reconsideration and/or reinvestigation
having been denied by Order6 of July 26, 2001, they elevated
the case to the Court of Appeals via petition for certiorari.
Finding the issues that called for resolution in the petition to be
A. Whether or not the Office of the Ombudsman has
the authority to impose administrative sanctions over
public officials; and
B. What is the nature of the functions of the
Ombudsman as envisioned by the Fundamental Law,7
the appellate court, by Decision of May 28, 2004, declared that
the penalty imposed by the Office of the Ombudsman is merely
"recommendatory" to the Department of Education,8 it (Office
of the Ombudsman) having "only the power to investigate
possible misconduct of a government official or employee in
the performance of his functions, and thereafter recommend to
the disciplining authority the appropriate penalty to be meted
out; and that it is the disciplining authority that has the power
or prerogative to impose such penalty."9
Hence, the present petition.
The Office of the Ombudsman (hereafter petitioner) argues
that the Constitution and R.A. No. 6770 (The Ombudsman Act
of 1989) have conferred on it full disciplinary authority over
public officials and employees including the power to enforce
its duly-issued judgments,10 and jurisprudence has upheld such
authority; and under Section 21 of R.A. No. 6770,11 with the
exception of impeachable officials, Members of Congress and
the Judiciary, it has been given full administrative disciplinary
jurisdiction over all public officials and employees who commit
any kind of malfeasance, misfeasance or non-feasance.12
The petition is impressed with merit.
Article XI, Section 13 of the 1987 Constitution13 grants
petitioner administrative disciplinary power to
(1) Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient, [and]
xxxx
(3) Direct the officer concerned to take appropriate
action against a public official or employee at fault,
and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure
compliance therewith.
x x x x (Emphasis supplied)
Section 15(3) of R.A. No. 6770 echoes the constitutional grant
to petitioner of the power to "recommend" the imposition of
penalty on erring public officials and employees and ensure
compliance therewith.
SEC. 15. Powers, Functions and Duties. – The Office
of the Ombudsman shall have the following powers,
functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate
action against a public officer or employee at fault or
who neglects to perform an act or discharge a duty
required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution,
and ensure compliance therewith; or enforce its
disciplinary authority as provided in Section
2114 of this Act: Provided, that the refusal by an
officer without just cause to comply with an order of
the Ombudsman to remove, suspend, demote, fine,
censure, or prosecute an officer or employee who is
at fault or who neglects to perform an act or
discharge a duty required by law shall be a ground for
disciplinary action against said officer;
x x x x (Emphasis supplied)
In the recent case of Ledesma v. Court of Appeals,15 this
Court, resolving in the negative the issue of whether the
recommendation of the Ombudsman for the suspension of the
therein petitioner, who was found administratively liable in
connection with the extension of Temporary Resident Visas of
two foreign nationals, was merely advisory on the Bureau of
Immigration and Deportation where petitioner was the
Chairman of the First Division of its Board of Special Inquiry,
held:
Petitioner insists that the word "recommend" be given
its literal meaning, that is, that the Ombudsman's
action is only advisory in nature rather than one
5
having any binding effect, citing Tapiador v. Office of
the Ombudsman, . . .
xxxx
For their part, the Solicitor General and the Office of
the Ombudsman argue that the
word "recommend" must be taken in conjunction with
the phrase "and ensure compliance therewith." The
proper interpretation of the Court's statement
in Tapiador should be that the Ombudsman has
the authority to determine the administrative
liability of a public official or employee at fault,
and direct and compel the head of the office or
agency concerned to implement the penalty
imposed. In other words, it merely concerns
the procedural aspect of the Ombudsman's functions
and not its jurisdiction.
We agree with the ratiocination of public respondents.
Several reasons militate against a literal interpretation
of the subject constitutional provision. Firstly, a
cursory reading of Tapiador reveals that the main
point of the case was the failure of the complainant
therein to present substantial evidence to prove the
charges of the administrative case. The statement
that made reference to the power of the Ombudsman
is, at best, merely an obiter dictum and, as it is
unsupported by sufficient explanation, is susceptible
to varying interpretations, as what precisely is before
us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from
judicial examination.
The provisions of RA 6770 support public
respondents' theory. Section 15 is substantially the
same as Section 13, Article XI of the Constitution
which provides for the powers, functions and duties
of the Ombudsman. We draw attention to
subparagraph 3, to wit:
SEC. 15. Powers, Functions and Duties. –
The Office of the Ombudsman shall have the
following powers, functions and duties:
xxxx
(3) Direct the officer concerned to take
appropriate action against a public officer or
employee at fault or who neglects to
perform an act or discharge a duty required
by law, and recommend his removal,
suspension, demotion, fine, censure, or
prosecution, and ensure compliance
therewith; or enforce its disciplinary
authority as provided in Section 21 of this
Act: Provided, that the refusal by an officer
without just cause to comply with an order
of the Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an
officer or employee who is at fault or who
 neglects to perform an act or discharge a
duty required by law shall be a ground for
disciplinary action against said
officer;(Emphasis supplied)

We note that the proviso above qualifies the

"order" "to remove, suspend, demote, fine,
censure, or prosecute" an officer or employee –
akin to the questioned issuances in the case at
bar. That the refusal, without just cause, of any
officer to comply with such an order of the
Ombudsman to penalize an erring officer or
employee is a ground for disciplinary action, is
a strong indication that the Ombudsman's
"recommendation" is not merely advisory in
nature but is actually mandatory within the
bounds of law. This should not be interpreted
as usurpation by the Ombudsman of the
authority of the head of office or any officer
concerned. It has long been settled that the
power of the Ombudsman to investigate and
prosecute any illegal act or omission of any
public official is not an exclusive authority but
a shared or concurrent authority in respect of
the offense charged. By stating therefore that
the Ombudsman "recommends" the action to
be taken against an erring officer or employee,
the provisions in the Constitution and in RA
6770 intended that the implementation of the
order be coursed through the proper
officer, which in this case would be the head of the
BID.16

x x x x (Citations omitted; Emphasis partly in the

original and partly supplied, italics in the original)

The word "recommend" in Sec. 15(3) must thus be read in

conjunction with the phrases "ensure compliance therewith" or
"enforce its disciplinary authority as provided in Section 21" of
R.A. No. 6770.

In fine, petitioner's authority to impose administrative penalty

and enforce compliance therewith is not merely
recommendatory. It is mandatory within the bounds of the
law. The implementation of the order imposing the penalty is,
however, to be coursed through the proper officer.

WHEREFORE, the challenged Court of Appeals Decision of

May 28, 2004 is REVERSED and SET ASIDE.

Let the records of the case be remanded to the office of origin,

Office of the Ombudsman, for appropriate action consistent
with the ruling in this case.

SO ORDERED.

6
G.R. No. 196231 January 28, 2014
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES,
ACTING THROUGH AND REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO,
OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY.
RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, AND ATTY. CARLITO D.
CATAYONG, Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS
EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND
ATTY. FROILAN D. MONTALBAN, JR., IN THEIR
CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE
OF MALACANANG LEGAL AFFAIRS,Respondents.
DECISION
BRION, J.:
We resolve the Office of the President's (OP 's) motion for
reconsideration of our September 4, 2012 Decision1which ruled
on the petitions filed by Deputy Ombudsman Emilio Gonzales
III and Special Prosecutor Wendell Barreras-Sulit. Their
petitions challenged the constitutionality of Section 8(2) of
Republic Act (RA) No. 6770.2
In the challenged Decision, the Court upheld the
constitutionality of Section 8(2) of RA No. 6770 and ruled that
the President has disciplinary jurisdiction over a Deputy
Ombudsman and a Special Prosecutor. The Court, however,
reversed the OP ruling that: (i) found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of
public trust; and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought
to restrain the disciplinary proceedings against her, solely
questioned the jurisdiction of the OP to subject her to
disciplinary proceedings. The Court affirmed the continuation
of the proceedings against her after upholding the
constitutionality of Section 8(2) of RA No. 6770.
The fallo of our assailed Decision reads:
WHEREFORE, in G.R. No. 196231, the decision of the Office of
the President in OP Case No. 1 O-J-460 is REVERSED and SET
ASIDE. Petitioner Emilio A. Gonzales III is ordered
REINSTATED with payment of backwages corresponding to the
period of suspension effective immediately, even as the Office
7
of the Ombudsman is directed to proceed with the
investigation in connection with the above case against
petitioner. In G.R. No. 196232, We AFFIRM the continuation of
OP-DC Case No. ll-B-003 against Special Prosecutor Wendell
Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public
trust, in accordance with Section 8(2) of the Ombudsman Act
of 1989.3
In view of the Court’s ruling, the OP filed the present motion
for reconsideration through the Office of the Solicitor General
(OSG).
We briefly narrate the facts that preceded the filing of the
petitions and the present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales’ petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw filed separate charges with
the Philippine National Police Internal Affairs Service (PNP-IAS)
and with the Manila City Prosecutor’s Office against Manila
Police District Senior Inspector Rolando Mendoza and four
others (Mendoza, et al.) for robbery, grave threat, robbery
extortion and physical injury.4
On May 29, 2008, Police Senior Superintendent Atty. Clarence
Guinto filed an administrative charge for grave misconduct
with the National Police Commission (NAPOLCOM) PNP-NCRPO
against Mendoza, et al. based on the same allegations made
by Kalaw before the PNP-IAS.5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military
and Other Law Enforcement Officers (MOLEO), directed the
NAPOLCOM to turn over the records of Mendoza’s case to his
office. The Office of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008.6 Mendoza, et al. filed their
position papers with Gonzales, in compliance with his Order.7
Pending Gonzales’ action on Mendoza, et al.’s case (on August
26, 2008), the Office of the City Prosecutor of Manila City
dismissed Kalaw’s complaint against Mendoza, et al. for his
failure to substantiate his allegations.8 Similarly, on October
17, 2008, the PNP-IAS recommended the dismissal without
prejudice of the administrative case against Mendoza, et al. for
Kalaw’s failure to prosecute.9
On February 16, 2009, after preparing a draft decision on
Mendoza, et al.’s case, Gonzales forwarded the entire records
to the Office of then Ombudsman Merceditas Gutierrez for her
review.10 In his draft decision, Gonzales found Mendoza, et al.
guilty of grave misconduct and imposed on them the penalty
of dismissal from the service.11
Mendoza, et al. received a copy of the Ombudsman’s decision
that approved Gonzales’ recommendation on October 30,
2009. Mendoza, et al. filed a motion for reconsideration12 on
November 5, 2009, followed by a Supplement to the Motion for
Reconsideration.13
On December 10, 2009, the MOLEO-Records Section
forwarded Mendoza, et al.’s case records to the Criminal
Investigation, Prosecution and Administrative Bureau-MOLEO.
On December 14, 2009, the case was assigned to Graft
Investigation and Prosecution Officer (GIPO) Dennis Garcia for
review and recommendation.14
GIPO Garcia released a draft order15 to his immediate superior,
Director Eulogio S. Cecilio, for appropriate action on April 5,
2010. Dir. Cecilio signed and forwarded the draft order to
Gonzales’ office on April 27, 2010. Gonzales reviewed the draft
and endorsed the order, together with the case records, on
May 6, 2010 for the final approval by the Ombudsman.16
On August 23, 2010, pending final action by the Ombudsman
on Mendoza, et al.’s case, Mendoza hijacked a tourist bus and
held the 21 foreign tourists and the four Filipino tour assistants
on board as hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it ended
tragically, resulting in the deaths of Mendoza and several
others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the
Department of Justice and the Department of Interior and
Local Government to conduct a joint thorough investigation of
the incident. The two departments issued Joint Department
Order No. 01-2010, creating an Incident Investigation and
Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the
Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against
Mendoza."17 The IIRC stated that the Ombudsman and
Gonzales’ failure to promptly resolve Mendoza’s motion for
reconsideration, "without justification and despite repeated
pleas" xxx "precipitated the desperate resort to hostage-
taking."18 The IIRC recommended the referral of its findings to
the OP for further determination of possible administrative
offenses and for the initiation of the proper administrative
proceedings.19
Accordingly, on October 15, 2010, Gonzales was formally
charged before the OP for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for
Misconduct in Office.20
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged
and dismissed him from the service.21According to the OP, "the
inordinate and unjustified delay in the resolution of
[Mendoza’s] Motion for Reconsideration [‘that spanned for nine
(9) long months’] xxx amounted to gross neglect of duty" and
"constituted a flagrant disregard of the Office of the
Ombudsman’s own Rules of Procedure."22
c. The Petition
8
Gonzales posited in his petition that the OP has no
administrative disciplinary jurisdiction over a Deputy
Ombudsman. Under Section 21 of RA No. 6770, it is the
Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
On the merits, Gonzales argued that his office received the
draft order from GIPO Garcia on April 27, 2010. On May 6,
2010, he completed his review of the draft, approved it, and
transmitted it to the Office of the Ombudsman for final
approval. Since the draft order on Mendoza’s motion for
reconsideration had to undergo different levels of preparation,
review and approval, the period it took to resolve the motion
could not be unjustified, since he himself acted on the draft
order only within nine (9) calendars days from his receipt of
the order.23
B. Sulit’s petition (G.R. No. 196232)
In April 2005, the Office of the Ombudsman charged Major
General Carlos F. Garcia and several others, before the
Sandiganbayan, with plunder and money laundering. On May
7, 2007, Garcia filed an Urgent Petition for Bail which the
prosecution opposed. The Sandiganbayan denied Garcia's
urgent petition for bail on January 7, 2010, in view of the
strength of the prosecution’s evidence against Garcia.
On February 25, 2010, the Office of the Ombudsman, through
Sulit and her prosecutorial staff, entered into a plea bargaining
agreement (Agreement) with Garcia.24 Garcia thereby agreed
to: (i) withdraw his plea of not guilty to the charge of plunder
and enter a plea of guilty to the lesser offense of indirect
bribery; and (ii) withdraw his plea of not guilty to the charge of
money laundering and enter a guilty plea to the lesser offense
of facilitating money laundering. In exchange, he would
convey to the government his ownership, rights and other
interests over the real and personal properties enumerated in
the Agreement and the bank deposits alleged in the
information.25
The Sandiganbayan approved the Agreement on May 4,
201026 based on the parties’ submitted Joint Motion for
Approval.27
The apparent one-sidedness of the Agreement drew public
outrage and prompted the Committee on Justice of the House
of Representatives to conduct an investigation. After public
hearings, the Committee found that Sulit, her deputies and
assistants committed culpable violations of the Constitution
and betrayal of public trust – grounds for removal under
Section 8(2) of RA No. 6770.28The Committee recommended to
the President the dismissal from the service of Sulit and the
filing of appropriate charges against her deputies and
assistants before the appropriate government office.
Accordingly, the OP initiated an administrative disciplinary
proceeding against Sulit.29 On March 24, 2011, Sulit filed her
Written Explanation, questioning the OP’s jurisdiction.30 The
question of jurisdiction notwithstanding, the OP set the case
for preliminary investigation on April 15, 2011, prompting Sulit
to seek relief from this Court.
II. COURT’S RULING
On motion for reconsideration and further reflection, the Court
votes to grant Gonzales’ petition and to declare Section 8(2) of
RA No. 6770 unconstitutional with respect to the Office of the
Ombudsman. (As the full explanation of the Court’s vote
describes below, this conclusion does not apply to Sulit as the
grant of independence is solely with respect to the Office of
the Ombudsman which does not include the Office of the
Special Prosecutor under the Constitution. The prevailing ruling
on this latter point is embodied in the Concurring and
Dissenting Opinion of J. Marvic Mario Victor Leonen).
A. Preliminary considerations:
a. Absence of motion for reconsideration on the part of the
petitioners
At the outset, the Court notes that Gonzales and Sulit did not
file a motion for reconsideration of the Court’s September 4,
2012 Decision; only the OP, through the OSG, moved for the
reconsideration of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Court’s
review of its ruling on the whole case since a serious
constitutional question has been raised and is one of the
underlying bases for the validity or invalidity of the presidential
action. If the President does not have any constitutional
authority to discipline a Deputy Ombudsman and/or a Special
Prosecutor in the first place, then any ruling on the legal
correctness of the OP’s decision on the merits will be an empty
one.
In other words, since the validity of the OP’s decision on the
merits of the dismissal is inextricably anchored on the final and
correct ruling on the constitutional issue, the whole case –
including the constitutional issue – remains alive for the Court’s
consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy
Ombudsman may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently with that
of the Ombudsman) is a justiciable – not a political – question.
A justiciable question is one which is inherently susceptible of
being decided on grounds recognized by law,31 as where the
court finds that there are constitutionally-imposed limits on the
exercise of the powers conferred on a political branch of the
government.32
In resolving the petitions, we do not inquire into the wisdom of
the Congress’ choice to grant concurrent disciplinary authority
to the President. Our inquiry is limited to whether such
statutory grant violates the Constitution, particularly whether
Section 8(2) of RA No. 6770 violates the core constitutional
principle of the independence of the Office of the Ombudsman
as expressed in Section 5, Art. XI of the Constitution.
9
To be sure, neither the Executive nor the Legislative can create
the power that Section 8(2) of RA No. 6770 grants where the
Constitution confers none. When exercised authority is drawn
from a vacuum, more so when the authority runs counter to a
core constitutional principle and constitutional intents, the
Court is duty-bound to intervene under the powers and duties
granted and imposed on it by Article VIII of the Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established
several Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against
abuses and misconduct in the government. Ultimately,
however, these agencies failed to fully realize their objective
for lack of the political independence necessary for the
effective performance of their function as government critic.33
It was under the 1973 Constitution that the Office of the
Ombudsman became a constitutionally-mandated office to give
it political independence and adequate powers to enforce its
mandate. Pursuant to the 1973 Constitution, President
Ferdinand Marcos enacted Presidential Decree (PD) No. 1487,
as amended by PD No. 1607 and PD No. 1630, creating the
Office of the Ombudsman to be known as Tanodbayan. It was
tasked principally to investigate, on complaint or motu proprio,
any administrative act of any administrative agency, including
any government-owned or controlled corporation. When the
Office of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority
to conduct preliminary investigation of all cases cognizable by
the Sandiganbayan, file the corresponding information, and
control the prosecution of these cases.34
With the advent of the 1987 Constitution, a new Office of the
Ombudsman was created by constitutional fiat. Unlike in the
1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the
state policy in Section 27, Article II35 and the standard of
accountability in public service under Section 1, Article XI of
the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in
the public service and take positive and effective measures
against graft and corruption.
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest
lives.
Under Section 12, Article XI of the 1987 Constitution, the
Office of the Ombudsman is envisioned to be the "protector of
the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action
bureau.36 This constitutional vision of a Philippine Ombudsman
practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses
of the bureaucracy. Pursuant to Section 13(8), Article XI of the
1987 Constitution, Congress enacted RA No. 6770 to enable it
to further realize the vision of the Constitution. Section 21 of
RA No. 6770 provides:
Section 21. Official Subject to Disciplinary Authority;
Exceptions. — The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive officials of
the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary.
[emphasis ours, italics supplied]
As the Ombudsman is expected to be an "activist
watchman,"37 the Court has upheld its actions, although not
squarely falling under the broad powers granted it by the
Constitution and by RA No. 6770, if these actions are
reasonably in line with its official function and consistent with
the law and the Constitution.38
The Ombudsman’s broad investigative and disciplinary powers
include all acts of malfeasance, misfeasance, and nonfeasance
of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure. To support these broad
powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom
and partisan politics and from fear of external reprisal by
making it an "independent" office. Section 5,
Article XI of the Constitution expressed this intent, as follows:
Section 5. There is hereby created the independent Office of
the Ombudsman, composed of the Ombudsman to be known
as Tanodbayan, one overall Deputy and at least one Deputy
each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed.
[emphasis ours]
Given the scope of its disciplinary authority, the Office of the
Ombudsman is a very powerful government constitutional
agency that is considered "a notch above other grievance-
handling investigative bodies."39 It has powers, both
constitutional and statutory, that are commensurate with its
daunting task of enforcing accountability of public officers.40
b. "Independence" of constitutional bodies vis-a-vis the
Ombudsman’s independence
Under the Constitution, several constitutional bodies have been
expressly labeled as "independent."41The extent of the
independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant
considerations in mind: first, the functions performed or the
powers involved in a given case; and second, consistency of
any allowable interference to these powers and functions, with
the principle of checks and balances.
10
Notably, the independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions shares
certain characteristics – they do not owe their existence to any
act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms,
the framers of the Constitution intended that these
"independent" bodies be insulated from political pressure to
the extent that the absence of "independence" would result in
the impairment of their core functions.
In Bengzon v. Drilon,42 involving the fiscal autonomy of the
Judiciary, we ruled against the interference that the President
may bring and maintained that the independence and the
flexibility of the Judiciary, the Constitutional Commissions and
the Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the
independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal
autonomy and violative not only the express mandate of the
Constitution but especially as regards the Supreme Court, of
the independence and separation of powers upon which the
entire fabric of our constitutional system is based.
The constitutional deliberations explain the Constitutional
Commissions’ need for independence. In the deliberations of
the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil
Service Commission, instead of one created by law, on the
premise that the effectivity of this body is dependent on its
freedom from the tentacles of politics.43 In a similar manner,
the deliberations of the 1987 Constitution on the Commission
on Audit highlighted the developments in the past
Constitutions geared towards insulating the Commission on
Audit from political pressure.44
Notably, the Constitution also created an "independent"
Commission on Human Rights, although it enjoys a lesser
degree of independence since it is not granted fiscal autonomy
in the manner fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy notwithstanding, the
framers of the 1987 Constitution clearly expressed their desire
to keep the Commission independent from the executive
branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of
Commissioner Rodrigo. If we explain to him our concept, he
can advise us on how to reconcile his position with ours. The
position of the committee is that we need a body that would
be able to work and cooperate with the executive because the
Commissioner is right. Many of the services needed by this
commission would need not only the cooperation of the
executive branch of the government but also of the judicial
branch of government. This is going to be a permanent
constitutional commission over time. We also want a
commission to function even under the worst circumstance
when the executive may not be very cooperative. However,
the question in our mind is: Can it still function during that
time? Hence, we are willing to accept suggestions from
Commissioner Rodrigo on how to reconcile this. We realize the
need for coordination and cooperation. We also would like to
build in some safeguards that it will not be rendered useless by
an uncooperative executive.
xxxx
MR. GARCIA. xxx Very often, when international commissions
or organizations on human rights go to a country, the most
credible organizations are independent human rights bodies.
Very often these are private organizations, many of which are
prosecuted, such as those we find in many countries in Latin
America. In fact, what we are proposing is an independent
body on human rights, which would provide governments with
credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation
will be credible because it is not subject to pressure or control
from the present political leadership.
Secondly, we all know how political fortunes come and go.
Those who are in power yesterday are in opposition today and
those who are in power today may be in the opposition
tomorrow. Therefore, if we have a Commission on Human
Rights that would investigate and make sure that the rights of
each one is protected, then we shall have a body that could
stand up to any power, to defend the rights of individuals
against arrest, unfair trial, and so on.45
These deliberative considerations abundantly show that the
independent constitutional commissions have been consistently
intended by the framers to be independent from executive
control or supervision or any form of political influence. At least
insofar as these bodies are concerned, jurisprudence is not
scarce on how the "independence" granted to these bodies
prevents presidential interference.
In Brillantes, Jr. v. Yorac,46 we emphasized that the
Constitutional Commissions, which have been characterized
under the Constitution as "independent," are not under the
control of the President, even if they discharge functions that
are executive in nature. The Court declared as unconstitutional
the President’s act of temporarily appointing the respondent in
that case as Acting Chairman of the Comelec "however well-
meaning"47 it might have been.
In Bautista v. Senator Salonga,48 the Court categorically stated
that the tenure of the commissioners of the independent
Commission on Human Rights could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to be
independent – as the Commission on Human Rights – and
vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures
therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President.
Executive Order No. 163-A, being antithetical to the
11
constitutional mandate of independence for the Commission on
Human Rights has to be declared unconstitutional.
Again, in Atty. Macalintal v. Comelec,49 the Court considered
even the mere review of the rules of the Commission on
Elections by Congress a "trampling" of the constitutional
mandate of independence of this body. Obviously, the mere
review of rules places considerably less pressure on a
constitutional body than the Executive’s power to discipline
and remove key officials of the Office of the Ombudsman, yet
the Court struck down the law as unconstitutional.
The kind of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior – but is similar in
degree and kind – to the independence similarly guaranteed by
the Constitution to the Constitutional Commissions since all
these offices fill the political interstices of a republican
democracy that are crucial to its existence and proper
functioning.50
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court’s expressed caution
against presidential interference with the constitutional
commissions, on one hand, and those expressed by the
framers of the 1987 Constitution, on the other, in protecting
the independence of the Constitutional Commissions, speak for
themselves as overwhelming reasons to invalidate Section 8(2)
of RA No. 6770 for violating the independence of the Office of
the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President, whose
own alter egos and officials in the Executive Department are
subject to the Ombudsman’s disciplinary authority, cannot but
seriously place at risk the independence of the Office of the
Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them
tasked to support the Ombudsman in carrying out her
mandate. Unfortunately, intrusion upon the constitutionally-
granted independence is what Section 8(2) of RA No. 6770
exactly did. By so doing, the law directly collided not only with
the independence that the Constitution guarantees to the
Office of the Ombudsman, but inevitably with the principle of
checks and balances that the creation of an Ombudsman office
seeks to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her complete
trust in her subordinate officials who are not as independent as
she is, if only because they are subject to pressures and
controls external to her Office. This need for complete trust is
true in an ideal setting and truer still in a young democracy like
the Philippines where graft and corruption is still a major
problem for the government. For these reasons, Section 8(2)
of RA No. 6770 (providing that the President may remove a
Deputy Ombudsman) should be declared void.
The deliberations of the Constitutional Commission on the
independence of the Ombudsman fully support this position.
Commissioner Florenz Regalado of the Constitutional
Commission expressed his apprehension that any form of
presidential control over the Office of the Ombudsman would
diminish its independence.51 The following exchanges between
Commissioners Blas Ople and Christian Monsod further reveal
the constitutional intent to keep the Office of the Ombudsman
independent from the President:
MR. OPLE. xxx
May I direct a question to the Committee? xxx [W]ill the
Committee consider later an amendment xxx, by way of
designating the office of the Ombudsman as a constitutional
arm for good government, efficiency of the public service and
the integrity of the President of the Philippines, instead of
creating another agency in a kind of administrative limbo
which would be accountable to no one on the pretext that it is
a constitutional body?
MR. MONSOD. The Committee discussed that during our
committee deliberations and when we prepared the report, it
was the opinion of the Committee — and I believe it still is —
that it may not contribute to the effectiveness of this office of
the Ombudsman precisely because many of the culprits in
inefficiency, injustice and impropriety are in the executive
department. Therefore, as we saw the wrong implementation
of the Tanodbayan which was under the tremendous influence
of the President, it was an ineffectual body and was reduced to
the function of a special fiscal. The whole purpose of our
proposal is precisely to separate those functions and to
produce a vehicle that will give true meaning to the concept of
Ombudsman. Therefore, we regret that we cannot accept the
proposition.52
The statements made by Commissioner Monsod emphasized a
very logical principle: the Executive power to remove and
discipline key officials of the Office of the Ombudsman, or to
exercise any power over them, would result in an absurd
situation wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of the very
persons who can remove or suspend its members. Equally
relevant is the impression that would be given to the public if
the rule were otherwise. A complainant with a grievance
against a high-ranking official of the Executive, who appears to
enjoy the President’s favor, would be discouraged from
approaching the Ombudsman with his complaint; the
complainant’s impression (even if misplaced), that the
Ombudsman would be susceptible to political pressure, cannot
be avoided. To be sure, such an impression would erode the
constitutional intent of creating an Office of the Ombudsman
as champion of the people against corruption and bureaucracy.
d. The mutual-protection argument for
crafting Section 8(2)of RA No. 6770
12
In crafting Section 8(2) of RA No. 6770, Congress apparently
addressed the concern that a lack of an external check against
the Deputy Ombudsman would result in mutual protection
between the Ombudsman and her Deputies.
While the preceding discussion already suffices to address this
concern, it should be added that this concern stands on shaky
grounds since it ignores the existing checks and balances
already in place. On the one hand, the Ombudsman’s Deputies
cannot protect the Ombudsman because she is subject to the
impeachment power of Congress. On the other hand, the
Ombudsman’s attempt to cover up the misdeeds of her
Deputies can be questioned before the Court on appeal or
certiorari. The same attempt can likewise subject her to
impeachment.
The judicial recourse available is only consistent with the
nature of the Supreme Court as a non-political independent
body mandated by the Constitution to settle judicial and quasi-
judicial disputes, whose judges and employees are not subject
to the disciplinary authority of the Ombudsman and whose
neutrality would be less questionable. The Members of the
Court themselves may be subjected to the impeachment power
of Congress.
In these lights, the appeal, if any, of the mutual protection
argument becomes distinctly implausible. At the same time,
the Court remains consistent with its established rulings - that
the independence granted to the Constitutional Commissions
bars any undue interference from either the Executive or
Congress – and is in full accord with constitutional intent.
e. Congress’ power determines the
manner and causes for the removal
of non-impeachable officers is not a
carte blanch authority
Under Section 2, Article XI of the 1987
Constitution,53 Congress is empowered to determine the
modes of removal from office of all public officers and
employees except the President, the Vice-President, the
Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman, who are all
impeachable officials.
The intent of the framers of the Constitution in providing that
"[a]ll other public officers and employees may be removed
from office as provided by law, but not by impeachment" in
the second sentence of Section 2, Article XI is to prevent
Congress from extending the more stringent rule of "removal
only by impeachment" to favored public
officers.54 Understandably so, impeachment is the most
difficult and cumbersome mode of removing a public officer
from office. It is, by its nature, a sui generis politico-legal
process55 that signals the need for a judicious and careful
handling as shown by the process required to initiate the
proceeding;56 the one-year limitation or bar for its
initiation;57 the limited grounds for impeachment;58 the defined
instrumentality given the power to try impeachment
cases;59 and the number of votes required for a finding of
guilt.60 All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the
complications and problems an impeachment proceeding
entails, thus justifying its limited application only to the officials
occupying the highest echelons of responsibility in our
government. To name a few, some of the negative practical
effects of impeachment are: it stalls legislative work; it is an
expensive process in terms of the cost of prosecution alone;
and, more importantly, it is inherently divisive of the
nation.61 Thus, in a cost-benefit analysis of adopting
impeachment as a mechanism, limiting Congress’ power to
otherwise legislate on the matter is far more advantageous to
the country.
It is in these lights that the second sentence in Section 2,
Article XI of the 1987 Constitution should be read. Contrary to
the implied view of the minority, in no way can this provision
be regarded as blanket authority for Congress to provide for
any ground of removal it deems fit. While the manner and
cause of removal are left to congressional determination, this
must still be consistent with constitutional guarantees and
principles, namely: the right to procedural and substantive due
process; the constitutional guarantee of security of tenure; the
principle of separation of powers; and the principle of checks
and balances.62
In short, the authority granted by the Constitution to Congress
to provide for the manner and cause of removal of all other
public officers and employees does not mean that Congress
can ignore the basic principles and precepts established by the
Constitution.
In the same manner, the congressional determination of the
identity of the disciplinary authority is not a blanket authority
for Congress to repose it on whomsoever Congress chooses
without running afoul of the independence enjoyed by the
Office of the Ombudsman and without disrupting the delicate
check and balance mechanism under the Constitution. Properly
viewed from this perspective, the core constitutional principle
of independence is observed and any possible absurdity
resulting from a contrary interpretation is avoided. In other
words, while the Constitution itself vested Congress with the
power to determine the manner and cause of removal of all
non-impeachable officials, this power must be interpreted
consistent with the core constitutional principle of
independence of the Office of the Ombudsman. Our
observation in Macalintal v. Comelec63 is apt:
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional provisions.
One such provision is Section 1 of Article IX-A of the 1987
Constitution ordaining that constitutional commissions such as
the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under
Section 8(2) of RA No. 6770 is intended as a measure of
protection for the Deputy Ombudsman and Special Prosecutor
– since these grounds are not intended to cover all kinds of
official wrongdoing and plain errors of judgment - this
argument seriously overlooks the erosion of the independence
of the Office of the Ombudsman that it creates. The mere fact
that a statutorily-created sword of Damocles hangs over the
Deputy Ombudsman’s head, by itself, opens up all the
13
channels for external pressures and influence of officialdom
and partisan politics. The fear of external reprisal from the
very office he is to check for excesses and abuses defeats the
very purpose of granting independence to the Office of the
Ombudsman.
That a judicial remedy is available (to set aside dismissals that
do not conform to the high standard required in determining
whether a Deputy Ombudsman committed an impeachable
offense) and that the President’s power of removal is limited to
specified grounds are dismally inadequate when balanced with
the constitutional principle of independence. The mere filing of
an administrative case against the Deputy Ombudsman and
the Special Prosecutor before the OP can already result in their
suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the
Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the
President, can be reduced to the very same ineffective Office
of the Ombudsman that the framers had foreseen and carefully
tried to avoid by making these offices independent
constitutional bodies.
At any rate, even assuming that the OP has disciplinary
authority over the Deputy Ombudsman, its decision finding
Gonzales guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust is patently erroneous. The
OP’s decision perfectly illustrates why the requirement of
impeachment-grounds in Section 8(2) of RA No. 6770 cannot
be considered, even at a minimum, a measure of protection of
the independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President’s
finding of gross negligence
has no legal and factual leg to
stand on
The OP’s decision found Gonzales guilty of Gross Neglect of
Duty and of Grave Misconduct. The assailed Decision of the OP
reads:
Upon consideration of the First Report, the evidence and
allegations of respondent Deputy Ombudsman himself, and
other documentary evidence gathered, this Office finds that
the inordinate and unjustified delay in the resolution of Captain
Mendoza’s Motion for Reconsideration timely filed on 5
November 2009 xxx amounted to gross neglect of duty and/or
inefficiency in the performance of official duty.64
b. No gross neglect of duty or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 - Mendoza filed a Motion for
Reconsideration of the decision of the
Ombudsman,65 which was followed by a Supplement
to the Motion for Reconsideration;66
 2. December 14, 200967 - GIPO Garcia, who was
assigned to review these motions and make his
recommendation for the appropriate action, received
the records of the case;
3. April 5, 2010 – GIPO Garcia released a draft order
to be reviewed by his immediate superior, Dir.
Cecilio;68
4. April 27, 2010 – Dir. Cecilio signed and forwarded
to Gonzales this draft order;69
5. May 6, 2010 (or nine days after the records were
forwarded to Gonzales) – Gonzales endorsed the draft
order for the final approval of the Ombudsman.70
Clearly, when Mendoza hijacked the tourist bus on August 23,
2010, the records of the case were already pending before
Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the
want of even the slightest 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. In the
case of public officials, there is gross negligence when a
breach of duty is flagrant and palpable.71
Gonzales cannot be guilty of gross neglect of duty and/or
inefficiency since he acted on the case forwarded to him within
nine days. In finding Gonzales guilty, the OP72 relied on
Section 8, Rule III of Administrative Order No. 7 (or the Rules
of Procedure of the Office of the Ombudsman, series of 1990,
as amended) in ruling that Gonzales should have acted on
Mendoza’s Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation:
Grounds – Whenever allowable, a motion for reconsideration
or reinvestigation may only be entertained if filed within ten
(10) days from receipt of the decision or order by the party on
the basis of any of the following grounds:
a) New evidence had been discovered which
materially affects the order, directive or decision;
b) Grave errors of facts or laws or serious
irregularities have been committed prejudicial to the
interest of the movant.
Only one motion for reconsideration or reinvestigation shall be
allowed, and the Hearing Officer shall resolve the same within
five (5) days from the date of submission for resolution.
[emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period
it requires cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case; he is not
simply a Hearing Officer tasked with the initial resolution of the
motion. In Section 6 of Administrative Order No. 7 on the
resolution of the case and submission of the proposed
14
decision, the period for resolving the case does not cover the
period within which it should be reviewed:
Section 6. Rendition of decision. – Not later than thirty (30)
days after the case is declared submitted for resolution, the
Hearing Officer shall submit a proposed decision containing his
findings and recommendation for the approval of the
Ombudsman. Said proposed decision shall be reviewed by the
Directors, Assistant Ombudsmen and Deputy Ombudsmen
concerned. With respect to low ranking public officials, the
Deputy Ombudsman concerned shall be the approving
authority. Upon approval, copies thereof shall be served upon
the parties and the head of the office or agency of which the
respondent is an official or employee for his information and
compliance with the appropriate directive contained therein.
[italics and emphases supplied]
Thus, the OP’s ruling that Gonzales had been grossly negligent
for taking nine days, instead of five days, to review a case was
totally baseless.
c. No actionable failure to supervise subordinates
The OP’s claims that Gonzales could have supervised his
subordinates to promptly act on Mendoza’s motion and
apprised the Tanodbayan of the urgency of resolving the same
are similarly groundless.
The Office of the Ombudsman is not a corner office in our
bureaucracy. It handles numerous cases that involve the
potential loss of employment of many other public employees.
We cannot conclusively state, as the OP appears to suggest,
that Mendoza’s case should have been prioritized over other
similar cases.
The Court has already taken judicial notice of the steady
stream of cases reaching the Office of the Ombudsman.73 This
consideration certainly militates against the OSG’s observation
that there was "a grossly inordinate and inexcusable
delay"74 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy
disposition of cases" before, among others, quasi-judicial
bodies,75 like the Office of the Ombudsman, is itself a relative
concept.76 Thus, the delay, if any, must be measured in this
objective constitutional sense. Unfortunately, because of the
very statutory grounds relied upon by the OP in dismissing
Gonzales, the political and, perhaps, "practical" considerations
got the better of what is legal and constitutional.
The facts do not show that Gonzales’ subordinates had in any
way been grossly negligent in their work. While GIPO Garcia
reviewed the case and drafted the order for more than three
months, it is noteworthy that he had not drafted the initial
decision and, therefore, had to review the case for the first
time.77 Even the Ombudsman herself could not be faulted for
acting on a case within four months, given the amount of
cases that her office handles.
The point is that these are not inordinately long periods for the
work involved: examination of the records, research on the
pertinent laws and jurisprudence, and exercise of legal
judgment and discretion. If this Court rules that these periods
per se constitute gross neglect of duty, the Ombudsman’s
constitutional mandate to prosecute all the erring officials of
this country would be subjected to an unreasonable and
overwhelming constraint. Similarly, if the Court rules that these
periods per se constitute gross neglect of duty, then we must
be prepared to reconcile this with the established concept of
the right of speedy disposition of cases – something the Court
may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest
in Mendoza’s case by having the case endorsed to the Office of
the Ombudsman and by resolving it against Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim,
Kalaw.
The fact that Gonzales had Mendoza’s case endorsed to his
office lies within his mandate, even if it were based merely on
the request of the alleged victim’s father. The Constitution
empowers the Ombudsman and her Deputies to act promptly
on complaints filed in any form or manner against any public
official or employee of the government.78 This provision is
echoed by Section 13 of RA No. 6770,79 and by Section 3, Rule
III of Administrative Order No. 7, series of 1990, as
amended.80
Moreover, Gonzales and his subordinates did not resolve the
complaint only on the basis of the unverified affidavit of Kalaw.
Based on the prosecution officer’s recommendations, the
finding of guilt on the part of Mendoza, et al. was based on
their admissions as well. Mendoza, et al. admitted that they
had arrested Kalaw based on two traffic violations and allowed
him to stay the whole night until the following morning in the
police precinct. The next morning, Kalaw was allowed to leave
the precinct despite his failure to show a valid license and
based merely on his promise to return with the proper
documents.81 These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending
Kalaw, since the proper procedure for the apprehension of
traffic violators would be to give them a ticket and to file a
case, when appropriate.82
Lastly, we cannot deduce undue interest simply because
Gonzales’ decision differs from the decision of the PNP-IAS
(which dismissed the complaint against Mendoza). To be sure,
we cannot tie the hands of any judicial or quasi-judicial body
by ruling that it should always concur with the decisions of
other judicial or quasi-judicial bodies which may have also
taken cognizance of the case. To do so in the case of a Deputy
Ombudsman would be repugnant to the independence that our
Constitution has specifically granted to this office and would
nullify the very purpose for which it was created.
e. Penalty of dismissal totally
incommensurate with established facts
Given the lack of factual basis for the charges against
Gonzales, the penalty of removal imposed by the OP
15
necessarily suffers grave infirmity. Basic strictures of fair play
dictate that we can only be held liable for our own misdeeds;
we can be made to account only for lapses in our
responsibilities. It is notable that of all the officers, it was
Gonzales who took the least time — nine days — followed by
Cecilio, who took 21 days; Garcia — the writer of the draft —
took less than four months, and the Ombudsman, less than
four months until the kidnapping incident rendered Mendoza’s
motion moot.
In these lights, the decision of the OP is clearly and patently
wrong. This conclusion, however, does not preclude the
Ombudsman from looking into any other possible
administrative liability of Gonzales under existing Civil Service
laws, rules and regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent Office of
the Ombudsman. The existing Tanodbayan at the
time83 became the Office of the Special Prosecutor under the
1987 Constitution. While the composition of the independent
Office of the Ombudsman under the 1987 Constitution does
not textually include the Special Prosecutor, the weight of the
foregoing discussions on the unconstitutionality of Section 8(2)
of RA No. 6770 should equally apply to the
Special Prosecutor on the basis of the legislative history of the
Office of the Ombudsman as expounded in jurisprudence.
Under the 1973 Constitution,84 the legislature was mandated to
create the Office of the Ombudsman, known as the
Tanodbayan, with investigative and prosecutorial powers.
Accordingly, on June 11, 1978, President Ferdinand Marcos
enacted PD No. 1487.85
Under PD No. 1486,86 however, the "Chief Special Prosecutor"
(CSP) was given the "exclusive authority" to conduct
preliminary investigation and to prosecute cases that are
within the jurisdiction of the Sandiganbayan.87 PD No. 1486
expressly gave the Secretary of Justice the power of control
and supervision over the Special Prosecutor.88 Consistent with
this grant of power, the law also authorized the Secretary of
Justice to appoint or detail to the Office of the CSP "any officer
or employee of Department of Justice or any Bureau or Office
under the executive supervision thereof" to assist the Office of
the CSP.
In December 1978, PD No. 160789 practically gave back to the
Tanodbayan the powers taken away from it by the Office of
the CSP. The law "created in the Office of the Tanodbayan an
Office of the Chief Special Prosecutor" under the Tanodbayan’s
control,90 with the exclusive authority to conduct preliminary
investigation and prosecute all cases cognizable by the
Sandiganbayan. Unlike the earlier decree, the law also
empowered the Tanodbayan to appoint Special Investigators
and subordinate personnel and/or to detail to the Office of the
CSP any public officer or employees who "shall be under the
supervision and control of the Chief Special Prosecutor."91 In
1979, PD No. 1630 further amended the earlier decrees by
transferring the powers previously vested in the Special
Prosecutor directly to the Tanodbayan himself.92
This was the state of the law at the time the 1987 Constitution
was ratified. Under the 1987 Constitution, an "independent
Office of the Ombudsman" is created.93 The existing
Tanodbayan is made the Office of the Special Prosecutor, "who
shall continue to function and exercise its powers as now 94 or
hereafter may be provided by law."95
Other than the Ombudsman’s Deputies, the Ombudsman shall
appoint all other officials and employees of the Office of the
Ombudsman.96 Section 13(8), Article XI of the 1987
Constitution provides that the Ombudsman may exercise "such
other powers or perform such functions or duties as may be
provided by law." Pursuant to this constitutional command,
Congress enacted RA No. 6770 to provide for the functional
and structural organization of the Office of the Ombudsman
and the extent of its disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 defines the
composition of the Office of the Ombudsman, including in this
Office not only the offices of the several Deputy Ombudsmen
but the Office of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority to
appoint the Ombudsman, his Deputies and the Special
Prosecutor, from a list of nominees prepared by the Judicial
and Bar Council. In case of vacancy in these positions, the law
requires that the vacancy be filled within three (3) months
from occurrence.97
The law also imposes on the Special Prosecutor the same
qualifications it imposes on the Ombudsman himself/herself
and his/her deputies.98 Their terms of office,99 prohibitions and
qualifications,100 rank and salary are likewise the same.101 The
requirement on disclosure102 is imposed on the Ombudsman,
the Deputies and the Special Prosecutor as well. In case of
vacancy in the Office of the Ombudsman, the Overall Deputy
cannot assume the role of Acting Ombudsman; the President
may designate any of the Deputies or the Special Prosecutor
as Acting Ombudsman.103 The power of the Ombudsman and
his or her deputies to require other government agencies to
render assistance to the Office of the Ombudsman is likewise
enjoyed by the Special Prosecutor.104
Given this legislative history, the present overall legal structure
of the Office of the Ombudsman, both under the 1987
Constitution and RA No. 6770, militates against an
interpretation that would insulate the Deputy Ombudsman
from the disciplinary authority of the OP and yet expose the
Special Prosecutor to the same ills that a grant of
independence to the Office of the Ombudsman was designed
for.
Congress recognized the importance of the Special Prosecutor
as a necessary adjunct of the Ombudsman, aside from his or
her deputies, by making the Office of the Special Prosecutor an
organic component of the Office of the Ombudsman and by
granting the Ombudsman control and supervision over that
office.105 This power of control and supervision includes
vesting the Office of the Ombudsman with the power to assign
duties to the Special Prosecutor as he/she may deem
16
fit.1âwphi1 Thus, by constitutional design, the Special
Prosecutor is by no means an ordinary subordinate but one
who effectively and directly aids the Ombudsman in the
exercise of his/her duties, which include investigation and
prosecution of officials in the Executive Department.
Under Section 11(4) of RA No. 6770, the Special Prosecutor
handles the prosecution of criminal cases within the jurisdiction
of the Sandiganbayan and this prosecutorial authority includes
high-ranking executive officials. For emphasis, subjecting the
Special Prosecutor to disciplinary and removal powers of the
President, whose own alter egos and officials in the Executive
Department are subject to the prosecutorial authority of the
Special Prosecutor, would seriously place the independence of
the Office of the Ombudsman itself at risk.
Thus, even if the Office of the Special Prosecutor is not
expressly made part of the composition of the Office of the
Ombudsman, the role it performs as an organic component of
that Office militates against a differential treatment between
the Ombudsman’s Deputies, on one hand, and the Special
Prosecutor himself, on the other. What is true for the
Ombudsman must be equally true, not only for her Deputies
but, also for other lesser officials of that Office who act directly
as agents of the Ombudsman herself in the performance of her
duties.
In Acop v. Office of the Ombudsman,106 the Court was
confronted with an argument that, at bottom, the Office of the
Special Prosecutor is not a subordinate agency of the Office of
the Ombudsman and is, in fact, separate and distinct from the
latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's
statement as authority to advocate that the intent of the
framers of the 1987 Constitution was to place the Office of the
Special Prosecutor under the Office of the President. Xxx
In the second place, Section 7 of Article XI expressly provides
that the then existing Tanodbayan, to be henceforth known as
the Office of the Special Prosecutor, "shall continue to function
and exercise its powers as now or hereafter may be provided
by law, except those conferred on the Office of the
Ombudsman created under this Constitution." The underscored
phrase evidently refers to the Tanodbayan's powers under P.D.
No. 1630 or subsequent amendatory legislation. It follows then
that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other
powers, except those powers conferred by the Constitution on
the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers
that by express mandate of paragraph 8, Section 13, Article XI
of the Constitution, the Ombudsman may "exercise such other
powers or perform functions or duties as may be provided by
law," it is indubitable then that Congress has the power to
place the Office of the Special Prosecutor under the Office of
the Ombudsman.107
Thus, under the present Constitution, there is every reason to
treat the Special Prosecutor to be at par with the
Ombudsman's deputies, at least insofar as an extraneous
disciplinary authority is concerned, and must also enjoy the
same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-

7,108 the Court resolved to reverse its September 4, 2012
Decision insofar as petitioner Gonzales is concerned (G.R. No.
196231). We declared Section 8(2) of RA No. 6770
unconstitutional by granting disciplinary jurisdiction to the
President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved to

maintain the validity of Section 8(2) of RA No. 6770 insofar as
Sulit is concerned. The Court did not consider the Office of the
Special Prosecutor to be constitutionally within the Office of
the Ombudsman and is, hence, not entitled to the
independence the latter enjoys under the Constitution.

WHEREFORE, premises considered, the Court resolves to

declare Section 8(2) UNCONSTITUTIONAL. This ruling renders
any further ruling on the dismissal of Deputy Ombudsman
Emilio Gonzales III unnecessary, but is without prejudice to
the power of the Ombudsman to conduct an administrative
investigation, if warranted, into the possible administrative
liability of Deputy Ombudsman Emilio Gonzales III under
pertinent Civil Service laws, rules and regulations.

SO ORDERED.

17
G.R. No. 108072 December 12, 1995 respondent officials in the separately docketed administrative
case.
HON. JUAN M. HAGAD, in his capacity as Deputy
Ombudsman for the Visayas, petitioner, Aside from opposing the motion for preventive suspension,
vs. respondent officials, on 05 August 1992, prayed for the
HON. MERCEDES GOZO-DADOLE, Presiding Judge, dismissal of the complaint on the ground that the Ombudsman
Branch XXVIII, Regional Trial Court, Mandaue City, supposedly was bereft of jurisdiction to try, hear and decide
Mandaue City Mayor ALFREDO M. OUANO, Mandaue the administrative case filed against them since, under Section
City Vice-Mayor PATERNO CAÑETE and Mandaue City 63 of the Local Government Code of 1991, the power to
Sangguniang Panlungsod Member RAFAEL investigate and impose administrative sanctions against said
MAYOL, respondents. local officials, as well as to effect their preventive suspension,
had now been vested with the Office of the President.

In their opposition, filed on 10 August 1992, Dionson and

VITUG, J.: Bercede argued that the Local Government Code of 1991 could
not have repealed, abrogated or otherwise modified the
pertinent provisions of the Constitution granting to the
The determination of whether the Ombudsman under Republic
Ombudsman the power to investigate cases against all public
Act ("R.A.") No. 6770,1 otherwise known as the Ombudsman
officials and that, in any case, the power of the Ombudsman to
Act of 1989, has been divested of his authority to conduct
investigate local officials under the Ombudsman Act had
administrative investigations over local elective officials by
remained unaffected by the provisions of the Local
virtue of the subsequent enactment of R.A. No.
Government Code of 1991.
7160,2 otherwise known as the Local Government Code of
1991, is the pivotal issue before the Court in this petition.
During the hearing on the motion for preventive suspension,
the parties were directed by the Deputy Ombudsman to file
The petition seeks (a) to annul the writ of preliminary
their respective memoranda.
injunction, dated 21 October 1992, issued against petitioner by
respondent trial court and (b) to prohibit said court from
further proceeding with RTC Case No. MDE-14.3 In his memorandum, Mayor Ouano reiterated that, under
Sections 61 and 63 of the Local Government Code of 1991, the
Office of the President, not the Office of the Ombudsman,
Parenthetically, Deputy Ombudsman for the Visayas Arturo
could lawfully take cognizance of administrative complaints
Mojica assumed the office of Juan Hagad, now resigned, 4 who
against any elective official of a province, a highly urbanized
took the initiative in instituting this special civil action
city or an independent component city and to impose
for certiorari and prohibition.
disciplinary sanctions, including preventive suspensions, and
that there was nothing in the provision of the Constitution
The controversy stemmed from the filing of criminal and giving to the Office of the Ombudsman superior powers than
administrative complaints, on 22 July 1992, against herein those of the President over elective officials of local
respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete governments.
and Sangguniang Panlungsod Member Rafael Mayol, all public
officials of Mandaue City, by Mandaue City Councilors Magno
In an Order,9 dated 10 September 1992, the Office of the
B. Dionson and Gaudiosa O. Bercede with the Office of the
Deputy Ombudsman denied the motion to dismiss and
Deputy Ombudsman for the Visayas. The respondents were
recommended the preventive suspension of respondent
charged with having violated R.A. No. 3019, as
officials, except City Budget Officer Pedro M. Guido, until the
amended,5 Articles 1706 and 1717 of the Revised Penal Code;
administrative case would have been finally resolved by the
and R.A. No. 6713.8Councilors Dionson and Bercede averred
Ombudsman.10 Respondent officials were formally placed
that respondent officials, acting in conspiracy, had caused the
under preventive suspension by the Deputy Ombudsman
alteration and/or falsification of Ordinance No. 018/92 by
pursuant to an Order11 of 21 September 1992.
increasing the allocated appropriation therein from
P3,494,364.57 to P7,000,000.00 without authority from the
Sangguniang Panlungsod of Mandaue City. The complaints On 25 September 1992, a petition for prohibition, with prayer
were separately docketed as Criminal Case No. OMB-VIS-92- for a writ of preliminary injunction and temporary restraining
391 and as Administrative Case No. OMB-VIS-ADM-92-015. order, was filed by respondent officials with the Regional Trial
Court of Mandaue City. Acting favorably on the pleas of
petitioning officials, respondent Judge issued, on even date, a
A day after the filing of the complaints, or on 23 July 1992, a
restraining order directed at petitioner, enjoining him ". . .
sworn statement was executed by Mandaue City Council
from enforcing and/or implementing the questioned order of
Secretary, Atty. Amado C. Otarra, Jr., in support of the
preventive suspension issued in OMB-VIS-ADM-92-015."
accusations against respondent officials. The next day,
petitioner ordered respondents, including Acting Mandaue City
Treasurer Justo G. Ouano and Mandaue City Budget Officer Petitioner moved to dismiss the petition but it was to no avail.
Pedro M. Guido, to file their counter-affidavits within ten (10) The court a quo, on 15 October 1992, denied the motion to
days from receipt of the order. Forthwith, Councilors Dionson dismiss and issued an Order for the issuance of a writ of
and Bercede moved for the preventive suspension of preliminary injunction, holding thusly:

18
 So by following and applying the well-
established rules of statutory construction
that endeavor should be made to harmonize
the provisions of these two laws in order
that each shall be effective, it is the finding
of this Court that since the investigatory
power of the Ombudsman is so general,
broad and vague and gives wider discretion
to disciplining authority to impose
administrative sanctions against
responsible public official or employee while
that of Section 60 of the New Local
Government Code provides for more well
defined and specific grounds upon which a
local elective official can be subjected to
administrative disciplinary action, that it
Could be considered that the latter law could
be an exception to the authority and
administrative power of the Ombudsman to
conduct an investigation against local
elective officials and as such, the jurisdiction
now to conduct administrative investigation
against local elective officials is already
lodged before the offices concerned under
Section 61 of Republic Act No. 7160.
xxx xxx xxx
WHEREFORE, foregoing premises
considered, Order is hereby issued:
1) Expanding the restraining order dated
September 25, 1992 issued by the Court into
an Order for the issuance of a writ of
preliminary injunction upon the posting of
the petitioners of the bond in the amount of
Fifty thousand pesos (P50,000.00)
conditioned that the latter will pay all the
costs that may be adjudged to the adverse
party and/or damages which he may sustain
by reason of the injunction, if the Court will
finally adjudge that the petitioners are not
entitled thereto, and
2) Denying the respondent's Motion to
Dismiss dated September 28, 1992 for lack
of merit.
12
SO ORDERED.
A writ of preliminary injunction was issued on 21 October
1992.13 A motion for reconsideration made by petitioner was
denied by the trial court.
The instant recourse seeks the nullification of the order of 15
October 1992 and the writ of preliminary injunction of 21
October 1992 both issued by the trial court and prays that
respondent judge be directed to desist from further proceeding
with RTC Case No. MDE-14.
There is merit in the petition.
The general investigatory power of the Ombudsman is decreed
by Section 13 (1,) Article XI, of the 1987 Constitution,14 thus:
Sec. 13. The Office of the Ombudsman shall
have the following powers, functions, and
duties:
(1) Investigate on its own, or on complaint
by any person, any act or omission of any
a
public official, employee, office or agency,
when such act or omission appears to be
illegal, unjust, improper, or inefficient;
while his statutory mandate to act on administrative
complaints is contained in Section 19 of R.A. No. 6770
that reads:
Sec. 19. Administrative complaints. — The
Ombudsman shall act on all complaints
relating, but not limited, to acts or omissions
which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or
discriminatory;
3. Are inconsistent with the general course
of an agency's functions, though in
accordance with law;
4. Proceed from a mistake of law or an
arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers
but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid
of
justification.
Section 21 of the same statute names the officials
who could be subject to the disciplinary authority of
the Ombudsman, viz.:
Sec. 21. Officials Subject to Disciplinary
Authority; Exceptions. — The Office of the
Ombudsman shall have disciplinary authority
over all elective and appointive officials of
the Government and its subdivisions,
instrumentalities and agencies, including
Members of the Cabinet, local government,
government-owned or controlled
corporations and their subsidiaries except
over officials who may be removed only by
impeachment or over Members of Congress,
and the Judiciary. (Emphasis supplied)
Taken in conjunction with Section 24 of R.A. No.
6770, petitioner thus contends that the Office of the
19
 Ombudsman correspondingly has the authority to
decree preventive suspension on any public officer or
employee under investigation by it. Said section of
the law provides:
Sec. 24. Preventive Suspension. — The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his
authority pending an investigation, if in his
judgment, the evidence of guilt is strong,
and (a) the charge against such officer or
employee involves dishonesty, oppression or
grave misconduct or neglect in the
performance of duty; (b) the charges would
warrant removal from the service; or (c) the
respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue
until the case is terminated by the Office of
the Ombudsman but not more than six
months, without pay, except when the delay
in the disposition of the case by the Office of
the Ombudsman is due to the fault,
negligence or petition of the respondent, in
which case the period of such delay shall not
be counted in computing the period of
suspension herein provided.
Respondent officials, upon the other hand, argue that the
disciplinary authority of the Ombudsman over local officials
must be deemed to have been removed by the subsequent
enactment of the Local Government Code of 1991 which vests
the authority to investigate administrative charges, listed under
Section 6015 thereof, on various offices. In the case specifically
of complaints against elective officials of provinces and highly
urbanized cities, the Code states:
Sec. 61. Form and Filing of Administrative
Complaints. — A verified complaint against
any erring local elective officials shall be
prepared as follows:
(a) A complaint against any elective official
of a province, a highly urbanized city, an
independent component city or component
city shall be filed before the Office of the
President.
Thus respondents insist, conformably with Section 63
of the Local Government Code, preventive suspension
can only be imposed by: ". . . the President if the
respondent is an elective official of a province, a
highly urbanized or an independent component city; .
. . " under sub-paragraph (b) thereof:
(b) Preventive suspension may be imposed
at any time after the issues are joined, when
the evidence of guilt is strong, and given the
gravity of the offense, there is great
probability that the continuance in office of
20
the respondent could influence the witnesses
or pose a threat to the safety and integrity
of the records and other evidence; Provided,
That, any single preventive suspension of
local elective officials shall not extend
beyond sixty (60) days: Provided, further,
That in the event that several administrative
cases are filed against an elective official, he
cannot be preventively suspended for more
than ninety (90) days within a single year on
the same ground or grounds existing and
known at the time of the first suspension.
In his comment, which the Court required considering that any
final resolution of the case would be a matter of national
concern, the Solicitor-General has viewed the Local
Government Code of 1991 as having conferred, but not on an
exclusive basis, on the Office of the President (and the various
Sanggunians) disciplinary authority over local elective officials.
He posits the stand that the Code did not withdraw the power
of the Ombudsman theretofore vested under R.A. 6770
conformably with a constitutional mandate. In passing, the
Solicitor General has also opined that the appropriate remedy
that should have been pursued by respondent officials is a
petition for certiorari before this Court rather than their
petition for prohibition filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to
indicate that it has repealed, whether expressly or impliedly,
the pertinent provisions of the Ombudsman Act. The two
statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other . Well settled is the rule
that repeals of laws by implication are not favored,16 and that
courts must generally assume their congruent
application.17 The two laws must be absolutely
incompatible,18 and a clear finding thereof must surface,
before the inference of implied repeal may be drawn.19 The
rule is expressed in the maxim, interpretare et concordare
legibus est optimus interpretendi, i.e., every statute must be
so interpreted and brought into accord with other laws as to
form a uniform system of jurisprudence.20 The fundament is
that the legislature should be presumed to have known the
existing laws on the subject and not to have enacted
conflicting statutes.21 Hence, all doubts must be resolved
against any implied repeal,22 and all efforts should be exerted
in order to harmonize and give effect to all laws on the
subject.23
Certainly, Congress would not have intended to do injustice to
the very reason that underlies the creation of the Ombudsman
in the 1987 Constitution which "is to insulate said office from
the long tentacles of officialdom."24
Quite interestingly, Sections 61 and 63 of the present Local
Government Code run almost parallel with the provisions then
existing under the old code. Section 61 and Section 63 of the
precursor local Government Code of 1983, 25 under the
heading of "Suspension and Removal," read:
 Sec. 61. Form and Filing of Complaints. —
Verified complaints against local elective
officials shall be prepared as follows:
(a) Against any elective provincial or city
official, before the Minister of Local
Government.
Sec. 63. Preventive Suspension. — (1)
Preventive suspension may be imposed by
the Minister of Local Government if the
respondent is a provincial or city official, by
the provincial governor if the respondent is
an elective municipal official, or by the city
or municipal mayor if the respondent is an
elective barangay official.
the officer or employee should involve dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b)
the charges should warrant removal from the service; or (c)
the respondent's continued stay in office would prejudice the
case filed against him. The Ombudsman can impose the 6-
month preventive suspension to all public officials, whether
elective or appointive, who are under investigation. Upon the
other hand, in imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local Government
Code of 1991 on an elective local official (at any time after the
issues are joined), it would be enough that (a) there is
reasonable ground to believe that the respondent has
committed the act or acts complained of, (b) the evidence of
culpability is strong, (c) the gravity of the offense so warrants,
or (d) the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence.

(2) Preventive suspension may be imposed

at any time after the issues are joined, when
there is reasonable ground to believe that
the respondent has committed the act or
acts complained of, when the evidence of
culpability is strong, when the gravity of the
offense so warrants, or when the
continuance in office of the respondent could
influence the witnesses or pose a threat to
the safety and integrity of the records and
other evidence. In all cases, preventive
suspension shall not extend beyond sixty
days after the start of said suspension.
(3) At the expiration of sixty days, the
suspended official shall be deemed
reinstated in office without prejudice to the
continuation of the proceedings against him
until its termination. However, if the delay in
the proceedings of the case is due to his
fault, neglect or request, the time of the
delay shall not be counted in computing the
time of suspension.
The authority to conduct administrative investigation
and to impose preventive suspension over elective
provincial or city officials was at that time entrusted
to the Minister of Local Government until it became
concurrent with the Ombudsman upon the enactment
of R.A. No. 6770, specifically under Sections 21 and
24 thereof, to the extent of the common grant. The
Local Government Code of 1991 (R.A. No. 7160), in
fine, did not effect a change from what already
prevailed, the modification being only in the
substitution of the Secretary (the Minister) of Local
Government by the Office of the President.
Respondent officials, nevertheless, claim that petitioner
committed grave abuse of discretion when he caused the
issuance of the preventive suspension order without any
hearing.
The contention is without merit. The records reveal that
petitioner issued the order of preventive suspension after the
filing (a) by respondent officials of their opposition on the
motion for preventive suspension and (b) by Mayor Ouano of
his memorandum in compliance with the directive of petitioner.
Be that, as it may, we have heretofore held that, not being in
the nature of a penalty, a preventive suspension can be
decreed on an official under investigation after charges are
brought and even before the charges are heard. Naturally,
such a preventive suspension would occur prior to any finding
of guilt or innocence. In the early case of Nera
vs. Garcia,26 reiterated in subsequent cases,27 we have said:
In connection with the suspension of
petitioner before he could file his answer to
the administrative complaint, suffice it to say
that the suspension was not a punishment or
penalty for the acts of dishonesty and
misconduct in office, but only as a
preventive measure. Suspension is a
preliminary step in an administrative
investigation. If after such investigation, the
charges are established and the person
investigated is found guilty of acts
warranting his removal, then he is removed
or dismissed. This is the penalty. There is,
therefore, nothing improper in suspending
an officer pending his investigation and
before the charges against him are heard
and be given an opportunity to prove his
innocence.

Respondent local officials contend that the 6-month preventive

Moreover, respondent officials were, in point of fact, put on
suspension without pay under Section 24 of the Ombudsman
preventive suspension only after petitioner had found, in
Act is much too repugnant to the 60-day preventive
consonance with our ruling in Buenaseda vs. Flavier,28 that the
suspension provided by Section 63 of the Local Government
evidence of guilt was strong. Petitioner gave his justification
Code to even now maintain its application. The two provisions
for the preventive suspension in this wise:
govern differently. In order to justify the preventive suspension
of a public official under Section 24 of R.A. No. 6770, the
evidence of guilt should be strong, and (a) the charge against
21
 After a careful and honest scrutiny of the All told, petitioner is plainly entitled to the relief prayed for,
evidence submitted on record, at this stage, and we must, accordingly; grant the petition.
it is the holding of this office that the
evidence of guilt against the respondents in WHEREFORE, the questioned writ of preliminary injunction of
the instant case is strong. There is no 21 October 1992 is ANNULLED and SET ASIDE, and RTC Case
question that the charge against the No. MDE-14 is hereby ordered DISMISSED. No costs.
respondents involves dishonesty or gross
misconduct which would warrant their
SO ORDERED.
removal from the service and there is no
gainsaying the fact that the charge for
falsification of veritable documents like city
ordinances are very serious charges that
affect the very foundations of duly
established representative governments.
Finally, it is likewise the holding of this office
at this stage that the continued stay in office
of respondents may prejudice the judicious
investigation and resolution of the instant
case.29

Finally, it does appear, as so pointed out by the Solicitor

General, that respondent official's petition for prohibition,
being an application for remedy against the findings of
petitioner contained in his 21 September 1992 order, should
not have been entertained by the trial court. The proscription
in Section 14 of R.A. No. 6770 reads:

Sec. 14. Restrictions. — No writ of injunction

shall be issued by any court to delay an
investigation being conducted by the
Ombudsman under this Act, unless there is
a prima facie evidence that the subject
matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application

for remedy against the decision or findings
of the Ombudsman, except the Supreme
Court, on pure question of law.

Likewise noteworthy is Section 27 of the law which

prescribes a direct recourse to this Court on matters
involving orders arising from administrative
disciplinary cases originating from the Office of the
Ombudsman; thus:

Sec. 27. Effectivity and Finality of Decisions.

—...

In all administrative disciplinary cases,

orders, directives, or decisions of the Office
of the Ombudsman may be appealed to the
Supreme Court by filing a petition
for certiorari within ten (10) days from
receipt of the written notice of the order,
directive or decision or denial of the motion
for reconsideration in accordance with Rule
45 of the Rules of Court. (Emphasis
supplied)

22
[G.R. No. 128055. April 18, 2001]
MIRIAM DEFENSOR SANTIAGO, petitioner,
vs. SANDIGANBAYAN, FRANCIS E.
GARCHITORENA, JOSE S. BALAJADIA AND
MINITA V. CHICO-NAZARIO, AS PRESIDING
JUSTICE AND MEMBERS OF THE FIRST
DIVISION, respondents.
DECISION
VITUG, J.:
The Court is called upon to review the act of the
Sandiganbayan, and how far it can go, in ordering the
preventive suspension of petitioner, Mme. Senator Miriam
Defensor-Santiago, in connection with pending criminal cases
filed against her for alleged violation of Republic Act No. 3019,
as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act.
The instant case arose from complaints filed by a group
of employees of the Commission of Immigration and
Deportation (CID) against petitioner, then CID Commissioner,
for alleged violation of the Anti-Graft and Corrupt Practices
Act. The investigating panel, that took over the case from
Investigator Gualberto dela Llana after having been constituted
by the Deputy Ombudsman for Luzon upon petitioners request,
came up with a resolution which it referred, for approval, to
the Office of the Special Prosecutor (OSP) and the
Ombudsman. In his Memorandum, dated 26 April 1991, the
Ombudsman directed the OSP to file the appropriate
informations against petitioner. On 13 May 1991, OSP
submitted to the Ombudsman the informations for clearance;
approved, forthwith, three informations were filed on even
date.
In Criminal Case No. 16698 filed before the
Sandiganbayan, petitioner was indicted thusly:
That on or about October 17, 1988, or sometime prior or
subsequent thereto, in Manila, Philippines and within the
jurisdiction of this Honorable Court, accused MIRIAM
DEFENSOR-SANTIAGO, a public officer, being then the
Commissioner of the Commission on Immigration and
Deportation, with evident bad faith and manifest partiality in
the exercise of her official functions, did then and there
willfully, unlawfully and criminally approve the application for
legalization of the stay of the following aliens: Jhamtani Shalini
Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein
Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li
Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui
@ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong
Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian,
Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting,
Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping
Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @
Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan,
So Chen Yueh-O, Cai Ya Rong, who arrived in the Philippines
after January 1, 1984 in violation of Executive Order no. 324
dated April 13, 1988 which prohibits the legalization of said
23
disqualified aliens knowing fully well that said aliens are
disqualified, thereby giving unwarranted benefits to said aliens
whose stay in the Philippines was unlawfully legalized by said
accused.[1]
Two other criminal cases, one for violation of the
provisions of Presidential Decree No. 46 and the other for libel,
were filed with the Regional Trial Court of Manila, docketed,
respectively, No. 91-94555 and no. 91-94897.
Pursuant to the information filed with the Sandiganbayan,
Presiding Justice Francis E. Garchitorena issued an order for
the arrest of petitioner, fixing the bail at Fifteen Thousand
(P15,000.00) Pesos.Petitioner posted a cash bail without need
for physical appearance as she was then recuperating from
injuries sustained in a vehicular accident. The Sandiganbayan
granted her provisional liberty until 05 June 1991 or until her
physical condition would warrant her physical appearance in
court. Upon manifestation by the Ombudsman, however, that
petitioner was able to come unaided to his office on 20 May
1991, Sandiganbayan issued an order setting the arraignment
on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her
cash bond and prayed that she be allowed provisional liberty
upon a recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition
for Certiorari with Prohibition and Preliminary Injunction before
the Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698
and a motion before the Sandiganbayan to meanwhile defer
her arraignment. The Court taking cognizance of the petition
issued a temporary restraining order.
The Sandiganbayan, thus, informed, issued an order
deferring petitioners arraignment and the consideration of her
motion to cancel the cash bond until further advice from the
court.
On 13 January 1992, the Court rendered its decision
dismissing the petition and lifting the temporary restraining
order. The subsequent motion for reconsideration filed by
petitioner proved unavailing.
On 06 July 1992, in the wake of media reports
announcing petitioners intention to accept a fellowship from
the John F. Kennedy School of Government at Harvard
University, the Sandiganbayan issued an order to enjoin
petitioner from leaving the country.
On 15 October 1992, petitioner moved to inhibit
Sandiganbayan Presiding Justice Garchitorena from the case
and to defer her arraignment pending action on her motion to
inhibit. On 09 November 1992, her motion was denied by the
Sandiganbayan. The following day, she filed anew a Petition
for Certiorari and Prohibition with urgent Prayer for Preliminary
Injunction with the Court, docketed G.R. No. 99289-90. At the
same time, petitioner filed a motion for bill of particulars with
the Sandiganbayan asseverating that the names of the aliens
whose applications she purportedly approved and thereby
supposedly extended undue advantage were conspicuously
omitted in the complaint.
 The Court, in its resolution of 12 November 1992,
directed the Sandiganbayan to reset petitioners arraignment
not later than five days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman
filed with the Sandiganbayan a motion to admit thirty-two
amended informations. Petitioner moved for the dismissal of
the 32 informations. The court, in its 11th March 1993
resolution, denied her motion to dismiss the said informations
and directed her to post bail on the criminal cases, docketed
Criminal Case No. 18371-18402, filed against her.
Unrelenting, petitioner, once again came to this
Court via a Petition for Certiorari, docketed G.R. No. 109266,
assailing the 03rd March 1993 resolution of the Sandiganbayan
which resolved not to disqualify its Presiding Justice, as well as
its 14th March 1993 resolution admitting the 32 Amended
Informations, and seeking the nullification thereof.
Initially, the Court issued a temporary restraining order
directing Presiding Justice Garchitorena to cease and desist
from sitting in the case, as well as from enforcing the
11th March 1993 resolution ordering petitioner to post bail
bonds for the 32 amended informations, and from proceeding
with her arraignment on 12 April 1993 until the matter of his
disqualification would have been resolved by the Court.
On 02 December 1993, the Court, in its decision in G.R.
109266, directed the OSP and Ombudsman to consolidate the
32 amended informations. Conformably therewith, all the 32
informations were consolidated into one information under
Criminal Case No. 16698.
Petitioner, then filed with the Sandiganbayan a Motion to
Redetermine probable Cause and to dismiss or quash said
information. Pending the resolution of this incident, the
prosecution filed on 31 July 1995 with the Sandiganbayan a
motion to issue an order suspending petitioner.
On 03 August 1995, the Sandiganbayan resolved to allow
the testimony of one Rodolfo Pedellaga (Pedellaga). The
presentation was scheduled on 15 September 1995.
In the interim, the Sandiganbayan directed petitioner to
file her opposition to the 31st July 1995 motion for the
prosecution within fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the
Sandiganbayan a motion for reconsideration of its 03rd August
1995 order which would allow the testimony of Pedellaga. The
incident, later denied by the Sandiganbayan, was elevated to
the Court via a Petition for Review on Certiorari, entitled
Miriam Defensor-Santiago vs. Sandiganbayan, docketed G.R.
No. 123792.
On 22 August 1995, petitioner filed her opposition to the
motion of the prosecution to suspend her. On 25 January
1996, the Sandiganbayan resolved:
WHEREFORE, for all the foregoing, the Court hereby grants the
motion under consideration and hereby suspends the accused
Miriam Defensor-Santiago from her position as Senator of the
Republic of the Philippines and from any other government
position she may be holding at present or hereafter. Her
suspension shall be for ninety (90) days only and shall take
effect immediately upon notice.
24
Let a copy of this Resolution be furnished to the Hon. Ernesto
Maceda, Senate President, Senate of the Philippines, Executive
House, Taft Ave., Manila, through the Hon. Secretary of the
Senate, for the implementation of the suspension herein
ordered. The Secretary of the Senate shall inform this court of
the action taken thereon within five (5) days from receipt
hereof.
The said official shall likewise inform this Court of the actual
date of implementation of the suspension order as well as the
expiry of the ninetieth day thereof so that the same may be
lifted at the time.[2]
Hence, the instant recourse. The petition assails the
authority of the Sandiganbayan to decree a ninety-day
preventive suspension of Mme. Miriam Defensor-Santiago, a
Senator of the Republic of the Philippines, from any
government position, and furnishing a copy thereof to the
Senate of the Philippines for the implementation of the
suspension order.
The authority of the Sandiganbayan to order the
preventive suspension of an incumbent public official charged
with violation of the provisions of Republic Act No. 3019 has
both legal and jurisprudential support. Section 13 of the
statute provides:
SEC. 13. Suspension and loss of benefits. any incumbent public
officer against whom any criminal prosecution under a valid
information under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving fraud upon
government or public funds or property whether as a simple or
as a complex offense and in whatever stage of execution and
mode of participation, 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.
In the event that such convicted officer, who may have already
been separated from the service, has already received such
benefits he shall be liable to restitute the same to the
Government. (As amended by BP Blg. 195, March 16, 1982).
In the relatively recent case of Segovia vs.
Sandiganbayan,[3] the Court reiterated:
The validity of Section 13, R.A. 3019, as amended --- treating
of the suspension pendente lite of an accused public officer ---
may no longer be put at issue, having been repeatedly upheld
by this Court.
xxx xxx xxx
The provision of suspension pendente lite applies to all persons
indicted upon a valid information under the Act, whether they
be appointive or elective officials; or permanent or temporary
employees, or pertaining to the career or non-career service.[4]
 It would appear, indeed, to be a ministerial duty of the
court to issue an order of suspension upon determination of
the validity of the information filed before it. Once the
information is found to be sufficient in form and substance, the
court is bound to issue an order of suspension as a matter of
course, and there seems to be no ifs and buts about
it.[5] Explaining the nature of the preventive suspension, the
Court in the case of Bayot vs. Sandiganbayan[6] observed:
x x x It is not a penalty because it is not imposed as a result of
judicial proceedings. In fact, if acquitted, the official concerned
shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension.[7]
In issuing the preventive suspension of petitioner, the
Sandiganbayan merely adhered to the clear an unequivocal
mandate of the law, as well as the jurisprudence in which the
Court has, more than once, upheld Sandiganbayans authority
to decree the suspension of public officials and employees
indicted before it.
Section 13 of Republic Act No. 3019 does not state that
the public officer concerned must be suspended only in the
office where he is alleged to have committed the acts with
which he has been charged.Thus, it has been held that the
use of the word office would indicate that it applies to
any office which the officer charged may be holding,
and not only the particular office under which he
stands accused.[8]
En passan, while the imposition of suspension is not
automatic or self-operative as the validity of the information
must be determined in a pre-suspension hearing, there is no
hard and fast rule as to the conduct thereof. It has been said
that-
x x x No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused should
be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g.
that he has not been afforded the right of due preliminary
investigation; that the acts for which he stands charged do not
constitute a violation of the provisions of Republic Act 3019 or
the bribery provisions of the revised Penal Code which would
warrant his mandatory suspension from office under section 13
of the Act; or he may present a motion to quash the
information on any of the grounds provided for in Rule 117 of
the Rules of Court x x x.
xxx xxx xxx
Likewise, he is accorded the right to challenge the propriety of
his prosecution on the ground that the acts for which he is
charged do not constitute a violation of Rep. Act 3019, or of
the provisions on bribery of the Revised Penal Code, and the
right to present a motion to quash the information on any
other grounds provided in Rule 117 of the Rules of Court.
However, a challenge to the validity of the criminal
proceedings on the ground that the acts for which the accused
is charged do not constitute a violation of the provisions of
Rep. Act 3019, or of the provisions on bribery of the revised
25
Penal Code, should be treated only in the same manner as a
challenge to the criminal proceeding by way of a motion to
quash on the ground provided in Paragraph (a), section 2 of
Rule 117 of the Rules of Court, i.e., that the facts charged do
not constitute an offense. In other words, a resolution of the
challenge to the validity of the criminal proceeding, on such
ground, should be limited to an inquiry whether the facts
alleged in the information, if hypothetically admitted,
constitute the elements of an offense punishable under Rep.
Act 3019 or the provisions on bribery of the Revised Penal
Code.[9]
The law does not require that the guilt of the accused
must be established in a pre-suspension proceeding before
trial on the merits proceeds. Neither does it contemplate a
proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged,
or (3) whether or not his continuance in office could influence
the witnesses or pose a threat to the safety and integrity of
the records an other evidence before the court could have a
valid basis in decreeing preventive suspension pending the trial
of the case. All it secures to the accused is adequate
opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been
afforded the right to due preliminary investigation, that the
acts imputed to him do not constitute a specific crime
warranting his mandatory suspension from office under Section
13 of Republic Act No. 3019, or that the information is subject
to quashal on any of the grounds set out in Section 3, Rule
117, of the Revised Rules on Criminal procedure.[10]
The instant petition is not the first time that an incident
relating to petitioners case before the Sandiganbayan has been
brought to this Court. In previous occasions, the Court has
been called upon the resolve several other matters on the
subject. Thus: (1) In Santiago vs. Vasquez,[11] petitioner
sought to enjoin the Sandiganbayan from proceeding with
Criminal case No. 16698 for violation of Republic Act No. 3019;
(2) in Santiago vs. Vasquez,[12] petitioner sought the
nullification of the hold departure order issued by the
Sandiganbayan via a Motion to Restrain the Sandiganbayan
from Enforcing its Hold Departure Order with Prayer for
Issuance of a Temporary Restraining Order and/or Preliminary
Injunction, with Motion to set Pending Incident for Hearing;
(3) in Santiago vs. Garchitorena,[13] petitioner sought the
nullification of the resolution, dated 03 March 1993, in Criminal
Case No. 16698 of the Sandiganbayan (First Division) and to
declare Presiding Justice Garchitorena disqualified from acting
in said criminal case, and the resolution, dated 14 March 1993,
which deemed as filed the 32 amended informations against
her; and (4) in Miriam Defensor Santiago vs.
Sandiganbayan,[14] petitioner assailed the denial by the
Sandiganbayan of her motion for her reconsideration from its
03rd August 1995 order allowing the testimony of Pedellaga. In
one of these cases,[15] the Court declared:
We note that petitioner had previously filed two petitions
before us involving Criminal Case No. 16698 (G.R. Nos. 99289-
99290; G.R. No. 107598). Petitioner has not explained why she
failed to raise the issue of the delay in the preliminary
investigation and the filing of the information against her in
those petitions. A piece-meal presentation of issues, like the
splitting of causes of action, is self-defeating.
Petitioner next claims that the Amended informations did not
charge any offense punishable under Section 3 (e) of R.A. No.
3019 because the official acts complained of therein were
authorized under Executive Order No. 324 and that the Board
of Commissioners of the Bureau of Investigation adopted the
policy of approving applications for legalization of spouses and
unmarried, minor children of qualified aliens even though they
had arrived in the Philippines after December 31 1983. She
concludes that the Sandiganbayan erred in not granting her
motion to quash the informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the
allegations of fact in the information (People vs. Supnad, 7
SCRA 603 [1963]). Therefore, petitioner admitted
hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of
the stay of aliens, who arrived in the Philippines
after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in evident bad faith and manifest
partiality in the execution of her official
functions.
The foregoing allegations of fact constitute the elements of the
offense defined in Section 3 (e) of R.A. No. 3019.[16]
The pronouncement, upholding the validity of the
information filed against petitioner, behooved Sandiganbayan
to discharge its mandated duty to forthwith issue the order of
preventive suspension.
The order of suspension prescribed by Republic Act No.
3019 is distinct from the power of Congress to discipline its
own ranks under the Constitution which provides that each-
x x x house may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or
expel a Member. A penalty of suspension, when imposed,
shall not exceed sixty days.[17]
The suspension contemplated in the above constitutional
provision is a punitive measure that is imposed upon
determination by the Senate or the house of Representatives,
as the case may be, upon an erring member. Thus, in its
resolution in the case of Ceferino Paredes, Jr., vs.
Sandiganbayan, et al.,[18] the Court affirmed the order of
suspension of Congressman Paredes by the Sandiganbayan,
despite his protestations on the encroachment by the court on
the prerogatives of congress. The Court ruled:
x x x. Petitioners invocation of Section 16 (3), Article VI of the
Constitution which deals with the power of each House of
Congress inter alia to punish its Members for disorderly
behavior, and suspend or expel a Member by a vote of two-
thirds of all its Members subject to the qualification that the
26
penalty of suspension, when imposed, should not exceed sixty
days is unavailing, as it appears to be quite distinct from the
suspension spoken of in Section 13 of RA 3019, which is not a
penalty but a preliminary, preventive measure, prescinding
from the fact that the latter is not being imposed on petitioner
for misbehavior as a Member of the House of Representatives.
The doctrine of separation of powers by itself may not be
deemed to have effectively excluded members of Congress
from Republic Act No. 3019 nor from its sanctions. The maxim
simply recognizes each of the three co-equal and independent,
albeit coordinate, branches of the government the Legislative,
the Executive and the Judiciary has exclusive prerogatives and
cognizance within its own sphere of influence and effectively
prevents one branch from unduly intruding into the internal
affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section
1, Article VIII, of the 1987 Constitution, empowers the Court to
act not only in the settlement of actual controversies involving
rights which are legally demandable and enforceable, but also
in the determination of whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality
of the Government. The provision allowing the Court to look
into any possible grave abuse of discretion committed by any
government instrumentality has evidently been couched in
general terms in order to make it malleable to judicial
interpretation in the light of any emerging milieu. In its normal
concept, the term has been said to imply an arbitrary,
despotic, capricious or whimsical exercise of judgment
amounting to lack or excess of jurisdiction. When the question,
however, pertains to an affair internal to either of Congress or
the Executive, the Court subscribes to the view[19] that unless
an infringement of any specific Constitutional
proscription thereby inheres the Court should not deign
substitute its own judgment over that of any of the
other two branches of government. It is an impairment
or a clear disregard of a specific constitutional precept
or provision that can unbolt the steel door for judicial
intervention. If any part of the Constitution is not, or ceases
to be, responsive to contemporary needs, it is the people, not
the Court, who must promptly react in the manner prescribed
by the Charter itself.
Republic Act No. 3019 does not exclude from its
coverage the members of Congress and that, therefore,
the Sandiganbayan did not err in thus decreeing the
assailed preventive suspension order.
Attention might be called to the fact that Criminal Case
No. 16698 has been decided by the First Division of the
Sandiganbayan on 06 December 1999, acquitting herein
petitioner. The Court, nevertheless, deems it appropriate to
render this decision for future guidance on the significant issue
raised by petitioner.
WHEREFORE, the instant petition for certiorari is
DISMISSED. No costs.
SO ORDERED.

G.R. No. 159747 April 13, 2004
The Sworn Statement of AFP Major Perfecto Ragil referred to
by PNP/P Director Matillano is quoted verbatim, to wit:
GREGORIO B. HONASAN II, petitioner,
vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE
DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F.
CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO
MATILLANO, and HON. OMBUDSMAN SIMEON V.
MARCELO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
On August 4, 2003, an affidavit-complaint was filed with the
Department of Justice (DOJ) by respondent CIDG-PNP/P
Director Eduardo Matillano. It reads in part:
… 5. That Capt. Alejano and I arrived at the meeting at
2. After a thorough investigation, I found that a crime
of coup d'etat was indeed committed by military
personnel who occupied Oakwood on the 27th day of
July 2003 and Senator Gregorio "Gringo"Honasan, II
… issues and concerns within the framework of NRP and
3. …
4. The said crime was committed as follows:
4.1 On June 4, 2003, at on or about 11 p.m., in a
house located in San Juan, Metro Manila, a meeting
was held and presided by Senator
Honasan. Attached as Annex "B" is the affidavit
of Perfecto Ragil and made an integral part of
this complaint.
… military institution, the judiciary, the executive branch
4.8 In the early morning of July 27, 2003,
Capt. Gerardo Gambala, for and in behalf of
the military rebels occupying Oakwood,
made a public statement aired on nation
television, stating their withdrawal of support
to the chain of command of the AFP and the
Government of President Gloria Macapagal
Arroyo and they are willing to risk their lives
in order to achieve the National Recovery
Agenda of Sen. Honasan, which they believe
27
is the only program that would solve the ills
of society. . . . (Emphasis supplied).
1. That I am a member of the Communication –
Electronics and Information Systems Services, Armed
Forces of the Philippines with the rank of Major;
2. That I met a certain Captain Gary Alejano of the
Presidential Security Guard (PSG) during our Very
Important Person (VIP) Protection Course sometime
in last week of March 2003;
3. That sometime in May 2003, Captain Alejano gave
me a copy of the pamphlet of the National Recovery
Program (NRP) and told me that: "Kailangan ng
Bansa ng taong kagaya mo na walang bahid ng
corruption kaya basahin mo ito (referring to NRP)
pamphlet. I took the pamphlet but never had the time
to read it;
4. That sometime in the afternoon of June 4, 2003,
Captain Alejano invited me to join him in a meeting
where the NRP would be discussed and that there
would be a special guest;
past 9 o'clock in the evening of June 4, 2003 in a
house located somewhere in San Juan, Metro Manila;
6. That upon arrival we were given a document
consisting of about 3-4 pages containing discussion of
we were likewise served with dinner;
7. That while we were still having dinner at about
past 11 o'clock in the evening, Sen. Gregorio "Gringo"
Honasan arrived together with another fellow who
was later introduced as Capt. Turingan;
8. That after Sen. Honasan had taken his dinner, the
meeting proper started presided by Sen. Honasan;
9. That Sen. Honasan discussed the NRP, the graft
and corruption in the government including the
and the like;
10. That the discussion concluded that we must use
force, violence and armed struggle to achieve the
vision of NRP. At this point, I raised the argument
that it is my belief that reforms will be achieved
through the democratic processes and not thru force
and violence and/or armed struggle. Sen. Honasan
countered that "we will never achieve reforms
through the democratic processes because the people
who are in power will not give up their positions as
they have their vested interests to protect." After a
few more exchanges of views, Sen. Honasan
appeared irritated and asked me directly three (3)
times: "In ka ba o out?" I then asked whether all
those present numbering 30 people, more or less, are
really committed, Sen. Honasan replied: "Kung kaya
nating pumatay sa ating mga kalaban, kaya din
nating pumatay sa mga kasamahang magtataksil." I
decided not to pursue further questions;
11. That in the course of the meeting, he presented
the plan of action to achieve the goals of NRP, i.e.,
overthrow of the government under the present
leadership thru armed revolution and after which, a
junta will be constituted and that junta will run the
new government. He further said that some of us will
resign from the military service and occupy civilian
positions in the new government. He also said that
there is urgency that we implement this plan and that
we would be notified of the next activities.
12. That after the discussion and his presentation, he
explained the rites that we were to undergo-some
sort of "blood compact". He read a prayer that
sounded more like a pledge and we all recited it with
raised arms and clenched fists. He then took a knife
and demonstrated how to make a cut on the left
upper inner arm until it bleeds. The cut was in form of
the letter "I" in the old alphabet but was done in a
way that it actually looked like letter "H". Then, he
pressed his right thumb against the blood and
pressed the thumb on the lower middle portion of the
copy of the Prayer. He then covered his thumb mark
in blood with tape. He then pressed the cut on his left
arm against the NRP flag and left mark of letter "I" on
it. Everybody else followed;
13. That when my turn came, I slightly made a cut on
my upper inner arm and pricked a portion of it to let
it bleed and I followed what Senator HONASAN did;
14. That I did not like to participate in the rites but I
had the fear for my life with what Senator HONASAN
said that "…kaya nating pumatay ng kasamahan";
15. That after the rites, the meeting was adjourned
and we left the place;
16. That I avoided Captain Alejano after that meeting
but I was extra cautious that he would not notice it
for fear of my life due to the threat made by Senator
HONASAN during the meeting on June 4, 2003 and
the information relayed to me by Captain Alejano that
their group had already deeply established their
network inside the intelligence community;
17. That sometime in the first week of July 2003,
Captain Alejano came to see me to return the rifle
that he borrowed and told me that when the group
arrives at the Malacañang Compound for "D-DAY", my
task is to switch off the telephone PABX that serves
28
the Malacañang complex. I told him that I could not
do it. No further conversation ensued and he left;
18. That on Sunday, July 27, 2003, while watching
the television, I saw flashed on the screen Lieutenant
Antonio Trillanes, Captain Gerardo Gambala, Captain
Alejano and some others who were present during
the June 4th meeting that I attended, having a press
conference about their occupation of the Oakwood
Hotel. I also saw that the letter "I" on the arm bands
and the banner is the same letter "I" in the banner
which was displayed and on which we pressed our
wound to leave the imprint of the letter "I";
19. That this Affidavit is being executed in order to
attest the veracity of the foregoing and in order to
charge SENATOR GREGORIO "GRINGO" HONASAN,
Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt.
ANTONIO TRILLANES, Capt. GERARDO GAMBALA and
others for violation of Article 134-A of the Revised
Penal Code for the offense of "coup d'etat".
(Emphasis supplied)
The affidavit-complaint is docketed as I.S. No. 2003-1120 and
the Panel of Investigating Prosecutors of the Department of
Justice (DOJ Panel for brevity) sent a subpoena to petitioner
for preliminary investigation.
On August 27, 2003, petitioner, together with his counsel,
appeared at the DOJ. He filed a Motion for Clarification
questioning DOJ's jurisdiction over the case, asserting that
since the imputed acts were committed in relation to his public
office, it is the Office of the Ombudsman, not the DOJ, that
has the jurisdiction to conduct the corresponding preliminary
investigation; that should the charge be filed in court, it is the
Sandiganbayan, not the regular courts, that can legally take
cognizance of the case considering that he belongs to the
group of public officials with Salary Grade 31; and praying that
the proceedings be suspended until final resolution of his
motion.
Respondent Matillano submitted his comment/opposition
thereto and petitioner filed a reply.
On September 10, 2003, the DOJ Panel issued an Order, to
wit:
On August 27, 2003, Senator Gregorio B. Honasan II
filed through counsel a "Motion to Clarify Jurisdiction".
On September 1, 2003, complainant filed a
Comment/Opposition to the said motion.
The motion and comment/opposition are hereby duly
noted and shall be passed upon in the resolution of
this case.
In the meantime, in view of the submission by
complainant of additional affidavits/evidence and to
afford respondents ample opportunity to controvert
the same, respondents, thru counsel are hereby
directed to file their respective counter-affidavits and
 controverting evidence on or before September 23,
2003.1
Hence, Senator Gregorio B. Honasan II filed the herein petition
for certiorari under Rule 65 of the Rules of Court against the
DOJ Panel and its members, CIDG-PNP-P/Director Eduardo
Matillano and Ombudsman Simeon V. Marcelo, attributing
grave abuse of discretion on the part of the DOJ Panel in
issuing the aforequoted Order of September 10, 2003 on the
ground that the DOJ has no jurisdiction to conduct the
preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General in
representation of respondents DOJ Panel, and Director
Matillano submitted their respective comments.
The Court heard the parties in oral arguments on the following
issues:
1) Whether respondent Department of Justice Panel
of Investigators has jurisdiction to conduct
preliminary investigation over the charge of coup
d'etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001
violates the Constitution and Republic Act No. 6770 or
Ombudsman Act of 1989; and
3) Whether respondent DOJ Panel of Investigators
committed grave abuse of discretion in deferring the
resolution of the petitioner's motion to clarify
jurisdiction considering the claim of the petitioner that
the DOJ Panel has no jurisdiction to conduct
preliminary investigation.
After the oral arguments, the parties submitted their respective
memoranda. The arguments of petitioner are:
1. The Office of the Ombudsman has jurisdiction to
conduct the preliminary investigation over all public
officials, including petitioner.
2. Respondent DOJ Panel is neither authorized nor
deputized under OMB-DOJ Joint Circular No. 95-001
to conduct the preliminary investigation involving
Honasan.
3. Even if deputized, the respondent DOJ Panel is still
without authority since OMB-DOJ Joint Circular No.
95-001 is ultra vires for being violative of the
Constitution, beyond the powers granted to the
Ombudsman by R.A. 6770 and inoperative due to lack
of publication, hence null and void.
4. Since petitioner is charged with coup de 'etat in
relation to his office, it is the Office of the
Ombudsman which has the jurisdiction to conduct the
preliminary investigation.
29
5. The respondent DOJ Panel gravely erred in
deferring the resolution of petitioner's Motion to
Clarify Jurisdiction since the issue involved therein is
determinative of the validity of the preliminary
investigation.
6. Respondent DOJ Panel gravely erred when it
resolved petitioner's Motion in the guise of directing
him to submit Counter-Affidavit and yet refused
and/or failed to perform its duties to resolve
petitioner's Motion stating its legal and factual bases.
The arguments of respondent DOJ Panel are:
1. The DOJ has jurisdiction to conduct the preliminary
investigation on petitioner pursuant to Section 3,
Chapter I, Title III, Book IV of the Revised
Administrative Code of 1987 in relation to P.D. No.
1275, as amended by P.D. No. 1513.
2. Petitioner is charged with a crime that is not
directly nor intimately related to his public office as a
Senator. The factual allegations in the complaint and
the supporting affidavits are bereft of the requisite
nexus between petitioner's office and the acts
complained of.
3. The challenge against the constitutionality of the
OMB-DOJ Joint Circular, as a ground to question the
jurisdiction of the DOJ over the complaint below, is
misplaced. The jurisdiction of the DOJ is a statutory
grant under the Revised Administrative Code. It is not
derived from any provision of the joint circular which
embodies the guidelines governing the authority of
both the DOJ and the Office of the Ombudsman to
conduct preliminary investigation on offenses charged
in relation to public office.
4. Instead of filing his counter-affidavit, petitioner
opted to file a motion to clarify jurisdiction which, for
all intents and purposes, is actually a motion to
dismiss that is a prohibited pleading under Section 3,
Rule 112 of the Revised Rules of Criminal Procedure.
The DOJ Panel is not required to act or even
recognize it since a preliminary investigation is
required solely for the purpose of determining
whether there is a sufficient ground to engender a
well founded belief that a crime has been committed
and the respondent is probably guilty thereof and
should be held for trial. The DOJ panel did not
outrightly reject the motion of petitioner but ruled to
pass upon the same in the determination of the
probable cause; thus, it has not violated any law or
rule or any norm of discretion.
The arguments of respondent Ombudsman are:
1. The DOJ Panel has full authority and jurisdiction to
conduct preliminary investigation over the petitioner
for the reason that the crime of coup d'etat under
Article No. 134-A of the Revised Penal Code (RPC)
 may fall under the jurisdiction of the Sandiganbayan
only if the same is committed "in relation to office" of
petitioner, pursuant to Section 4, P.D. No. 1606, as
amended by R.A. No. 7975 and R.A. No. 8249.
2. Petitioner's premise that the DOJ Panel derives its
authority to conduct preliminary investigation over
cases involving public officers solely from the OMB-
DOJ Joint Circular No. 95-001 is misplaced because
the DOJ's concurrent authority with the OMB to
conduct preliminary investigation of cases involving
public officials has been recognized in Sanchez vs.
Demetriou (227 SCRA 627 [1993]) and incorporated
in Section 4, Rule 112 of the Revised Rules of
Criminal Procedure.
3. Petitioner's assertion that the Joint Circular is ultra
vires and the DOJ cannot be deputized by the
Ombudsman en masse but must be given in reference
to specific cases has no factual or legal basis. There is
no rule or law which requires the Ombudsman to
write out individualized authorities to deputize
prosecutors on a per case basis. The power of the
Ombudsman to deputize DOJ prosecutors proceeds
from the Constitutional grant of power to request
assistance from any government agency necessary to
discharge its functions, as well as from the statutory
authority to so deputize said DOJ prosecutors under
Sec. 31 of RA 6770.
4. The Joint Circular which is an internal arrangement
between the DOJ and the Office of the Ombudsman
need not be published since it neither contains a
penal provision nor does it prescribe a mandatory act
or prohibit any under pain or penalty. It does not
regulate the conduct of persons or the public, in
general.
The Court finds the petition without merit.
The authority of respondent DOJ Panel is based not on the
assailed OMB-DOJ Circular No. 95-001 but on the provisions of
the 1987 Administrative Code under Chapter I, Title III, Book
IV, governing the DOJ, which provides:
Sec. 1. Declaration of policy - It is the declared policy
of the State to provide the government with a
principal law agency which shall be both its legal
counsel and prosecution arm; administer the
criminal justice system in accordance with the
accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders
and administration of the correctional system; …
Sec. 3. Powers and Functions - To accomplish its
mandate, the Department shall have the following
powers and functions:
…
30
(2) Investigate the commission of crimes,
prosecute offenders and administer the
probation and correction system; (Emphasis
supplied)
and Section 1 of P.D. 1275, effective April 11, 1978, to wit:
SECTION 1. Creation of the National Prosecution
Service; Supervision and Control of the Secretary of
Justice. – There is hereby created and established a
National Prosecution Service under the supervision
and control of the Secretary of Justice, to be
composed of the Prosecution Staff in the Office of the
Secretary of Justice and such number of Regional
State Prosecution Offices, and Provincial and City
Fiscal's Offices as are hereinafter provided,
which shall be primarily responsible for the
investigation and prosecution of all cases
involving violations of penal laws. (Emphasis
supplied)
Petitioner claims that it is the Ombudsman, not the DOJ, that
has the jurisdiction to conduct the preliminary investigation
under paragraph (1), Section 13, Article XI of the 1987
Constitution, which confers upon the Office of the Ombudsman
the power to investigate on its own, or on complaint by any
person, any act or omission of any public official, employee,
office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient. Petitioner rationalizes
that the 1987 Administrative Code and the Ombudsman Act of
1989 cannot prevail over the Constitution, pursuant to Article 7
of the Civil Code, which provides:
Article 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the
latter shall govern.
Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the
Constitution.
and Mabanag vs. Lopez Vito.2
The Court is not convinced. Paragraph (1) of Section 13,
Article XI of the Constitution, viz:
SEC. 13. The Office of the Ombudsman shall have the
following powers, functions, and duties:
1. Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient.
does not exclude other government agencies tasked by law to
investigate and prosecute cases involving public officials. If it
were the intention of the framers of the 1987 Constitution,
they would have expressly declared the exclusive conferment
of the power to the Ombudsman. Instead, paragraph (8) of
the same Section 13 of the Constitution provides:
(8) Promulgate its rules of procedure and exercise
such other powers or perform such functions or duties
as may be provided by law.
Accordingly, Congress enacted R.A. 6770, otherwise known as
"The Ombudsman Act of 1989." Section 15 thereof provides:
Sec. 15. Powers, Functions and Duties. - The Office of
the Ombudsman shall have the following powers,
functions and duties:
(1) Investigate and prosecute on its own or on
complaint by any person, any act or omission of any
public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction
over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction,
it may take over, at any stage, from any
investigatory agency of the government, the
investigation of such cases.
…. (Emphasis supplied)
Pursuant to the authority given to the Ombudsman by the
Constitution and the Ombudsman Act of 1989 to lay down its
own rules and procedure, the Office of the Ombudsman
promulgated Administrative Order No. 8, dated November 8,
1990, entitled, Clarifying and Modifying Certain Rules of
Procedure of the Ombudsman, to wit:
A complaint filed in or taken cognizance of by the
Office of the Ombudsman charging any public officer
or employee including those in government-owned or
controlled corporations, with an act or omission
alleged to be illegal, unjust, improper or inefficient is
an Ombudsman case. Such a complaint may be the
subject of criminal or administrative proceedings, or
both.
For purposes of investigation and prosecution,
Ombudsman cases involving criminal offenses
may be subdivided into two classes, to wit: (1)
those cognizable by the Sandiganbayan, and
(2) those falling under the jurisdiction of the
regular courts. The difference between the
two, aside from the category of the courts
wherein they are filed, is on the authority to
investigate as distinguished from the authority
to prosecute, such cases.
The power to investigate or conduct a
preliminary investigation on any Ombudsman
case may be exercised by an investigator or
31
prosecutor of the Office of the Ombudsman, or
by any Provincial or City Prosecutor or their
assistance, either in their regular capacities or
as deputized Ombudsman prosecutors.
The prosecution of cases cognizable by the
Sandiganbayan shall be under the direct
exclusive control and supervision of the Office
of the Ombudsman. In cases cognizable by the
regular Courts, the control and supervision by
the Office of the Ombudsman is only in
Ombudsman cases in the sense defined above.
The law recognizes a concurrence of
jurisdiction between the Office of the
Ombudsman and other investigative agencies
of the government in the prosecution of cases
cognizable by regular courts. (Emphasis supplied)
It is noteworthy that as early as 1990, the Ombudsman had
properly differentiated the authority to investigate cases from
the authority to prosecute cases. It is on this note that the
Court will first dwell on the nature or extent of the authority of
the Ombudsman to investigate cases. Whence, focus is
directed to the second sentence of paragraph (1), Section 15
of the Ombudsman Act which specifically provides that the
Ombudsman has primary jurisdiction over cases cognizable by
the Sandiganbayan, and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigating agency of the government, the investigation of
such cases.
That the power of the Ombudsman to investigate offenses
involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the
government such as the provincial, city and state prosecutors
has long been settled in several decisions of the Court.
In Cojuangco, Jr. vs. Presidential Commission on Good
Government, decided in 1990, the Court expressly declared:
A reading of the foregoing provision of the
Constitution does not show that the power of
investigation including preliminary investigation
vested on the Ombudsman is exclusive.3
Interpreting the primary jurisdiction of the Ombudsman under
Section 15 (1) of the Ombudsman Act, the Court held in said
case:
Under Section 15 (1) of Republic Act No. 6770
aforecited, the Ombudsman has primary jurisdiction
over cases cognizable by the Sandiganbayan so that it
may take over at any stage from any investigatory
agency of the government, the investigation of such
cases. The authority of the Ombudsman to
investigate offenses involving public officers or
employees is not exclusive but is concurrent
with other similarly authorized agencies of the
government. Such investigatory agencies
referred to include the PCGG and the provincial
and city prosecutors and their assistants, the
 state prosecutors and the judges of the
municipal trial courts and municipal circuit trial
court.
In other words the provision of the law has
opened up the authority to conduct preliminary
investigation of offenses cognizable by the
Sandiganbayan to all investigatory agencies of
the government duly authorized to conduct a
preliminary investigation under Section 2, Rule
112 of the 1985 Rules of Criminal Procedure
with the only qualification that the
Ombudsman may take over at any stage of
such investigation in the exercise of his
primary jurisdiction.4 (Emphasis supplied)
A little over a month later, the Court, in Deloso vs.
Domingo,5 pronounced that the Ombudsman, under the
authority of Section 13 (1) of the 1987 Constitution, has
jurisdiction to investigate any crime committed by a public
official, elucidating thus:
As protector of the people, the office of the
Ombudsman has the power, function and duty to "act
promptly on complaints filed in any form or manner
against public officials" (Sec. 12) and to "investigate x
x x any act or omission of any public official x x x
when such act or omission appears to be illegal,
unjust, improper or inefficient." (Sec. 13[1].) The
Ombudsman is also empowered to "direct the officer
concerned," in this case the Special Prosecutor, "to
take appropriate action against a public official x x x
and to recommend his prosecution" (Sec. 13[3]).
The clause "any [illegal] act or omission of any public
official" is broad enough to embrace any crime
committed by a public official. The law does not
qualify the nature of the illegal act or omission of the
public official or employee that the Ombudsman may
investigate. It does not require that the act or
omission be related to or be connected with or arise
from, the performance of official duty. Since the law
does not distinguish, neither should we.
The reason for the creation of the Ombudsman in the
1987 Constitution and for the grant to it of broad
investigative authority, is to insulate said office from
the long tentacles of officialdom that are able to
penetrate judges' and fiscals' offices, and others
involved in the prosecution of erring public officials,
and through the exertion of official pressure and
influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public
officers. It was deemed necessary, therefore, to
create a special office to investigate all criminal
complaints against public officers regardless of
whether or not the acts or omissions complained of
are related to or arise from the performance of the
duties of their office. The Ombudsman Act makes
perfectly clear that the jurisdiction of the Ombudsman
encompasses "all kinds of malfeasance, misfeasance,
and non-feasance that have been committed by any
32
officer or employee as mentioned in Section 13
hereof, during his tenure of office" (Sec. 16, R.A.
6770).
.........
Indeed, the labors of the constitutional commission
that created the Ombudsman as a special body to
investigate erring public officials would be wasted if
its jurisdiction were confined to the investigation of
minor and less grave offenses arising from, or related
to, the duties of public office, but would exclude
those grave and terrible crimes that spring from
abuses of official powers and prerogatives, for it is
the investigation of the latter where the need for an
independent, fearless, and honest investigative body,
like the Ombudsman, is greatest.6
At first blush, there appears to be conflicting views in the
rulings of the Court in the Cojuangco, Jr. case and
the Deloso case. However, the contrariety is more apparent
than real. In subsequent cases, the Court elucidated on the
nature of the powers of the Ombudsman to investigate.
In 1993, the Court held in Sanchez vs. Demetriou,7 that while it
may be true that the Ombudsman has jurisdiction to
investigate and prosecute any illegal act or omission of any
public official, the authority of the Ombudsman to investigate
is merely a primary and not an exclusive authority, thus:
The Ombudsman is indeed empowered under Section
15, paragraph (1) of RA 6770 to investigate and
prosecute any illegal act or omission of any public
official. However as we held only two years ago in the
case of Aguinaldo vs. Domagas,8 this authority "is not
an exclusive authority but rather a shared or
concurrent authority in respect of the offense
charged."
Petitioners finally assert that the information and
amended information filed in this case needed the
approval of the Ombudsman. It is not disputed that
the information and amended information here did
not have the approval of the Ombudsman. However,
we do not believe that such approval was necessary
at all. In Deloso v. Domingo, 191 SCRA 545 (1990),
the Court held that the Ombudsman has authority to
investigate charges of illegal acts or omissions on the
part of any public official, i.e., any crime imputed to a
public official. It must, however, be pointed out
that the authority of the Ombudsman to
investigate "any [illegal] act or omission of any
public official" (191 SCRA 550) is not an
exclusive authority but rather a shared or
concurrent authority in respect of the offense
charged, i.e., the crime of sedition. Thus, the non-
involvement of the office of the Ombudsman in the
present case does not have any adverse legal
consequence upon the authority of the panel of
prosecutors to file and prosecute the information or
amended information.
 In fact, other investigatory agencies of the
government such as the Department of Justice
in connection with the charge of sedition, and
the Presidential Commission on Good
Government, in ill gotten wealth cases, may
conduct the investigation.9 (Emphasis supplied)
In Natividad vs. Felix,10 a 1994 case, where the petitioner
municipal mayor contended that it is the Ombudsman and not
the provincial fiscal who has the authority to conduct a
preliminary investigation over his case for alleged Murder, the
Court held:
The Deloso case has already been re-examined in two
cases, namely Aguinaldo vs. Domagas and Sanchez
vs. Demetriou. However, by way of amplification, we
feel the need for tracing the history of the legislation
relative to the jurisdiction of Sandiganbayan since the
Ombudsman's primary jurisdiction is dependent on
the cases cognizable by the former.
In the process, we shall observe how the policy of the
law, with reference to the subject matter, has been in
a state of flux.
These laws, in chronological order, are the following:
(a) Pres. Decree No. 1486, -- the first law on the
Sandiganbayan; (b) Pres. Decree No. 1606 which
expressly repealed Pres. Decree No. 1486; (c) Section
20 of Batas Pambansa Blg. 129; (d) Pres. Decree No.
1860; and (e) Pres. Decree No. 1861.
The latest law on the Sandiganbayan, Sec. 1 of Pres.
Decree No. 1861 reads as follows:
"SECTION 1. Section 4 of Presidential Decree
No. 1606 is hereby amended to read as
follows:
'SEC. 4. Jurisdiction. – The Sandiganbayan
shall exercise:
'(a) Exclusive original jurisdiction in all cases involving:
...
(2) Other offenses or felonies committed by public officers and
employees in relation to their office, including those employed
in government-owned or controlled corporation, whether
simple or complexed with other crimes, where the penalty
prescribed by law is higher that prision correccional or
imprisonment for six (6) years, or a fine of P6,000: PROVIDED,
HOWEVER, that offenses or felonies mentioned in this
paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or
a fine of P6,000 shall be tried by the proper Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court and
Municipal Circuit Trial Court."
33
A perusal of the aforecited law shows that two
requirements must concur under Sec. 4 (a) (2) for an
offense to fall under the Sandiganbayan's jurisdiction,
namely: the offense committed by the public officer
must be in relation to his office and the penalty
prescribed be higher then prision correccional or
imprisonment for six (6) years, or a fine
of P6,000.00.11
Applying the law to the case at bench, we find that
although the second requirement has been met, the
first requirement is wanting. A review of these
Presidential Decrees, except Batas Pambansa Blg.
129, would reveal that the crime committed by public
officers or employees must be "in relation to their
office" if it is to fall within the jurisdiction of the
Sandiganbayan. This phrase which is traceable to
Pres. Decree No. 1468, has been retained by Pres.
Decree No. 1861 as a requirement before the
Ombudsman can acquire primary jurisdiction on its
power to investigate.
It cannot be denied that Pres. Decree No. 1861
is in pari materia to Article XI, Sections 12 and
13 of the 1987 Constitution and the
Ombudsman Act of 1989 because, as earlier
mentioned, the Ombudsman's power to
investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are
in pari materia when they relate to the same
person or thing or to the same class of persons
or things, or object, or cover the same specific
or particular subject matter.
It is axiomatic in statutory construction that a
statute must be interpreted, not only to be
consistent with itself, but also to harmonize
with other laws on the same subject matter, as
to form a complete, coherent and intelligible
system. The rule is expressed in the maxim,
"interpretare et concordare legibus est optimus
interpretandi," or every statute must be so
construed and harmonized with other statutes
as to form a uniform system of jurisprudence.
Thus, in the application and interpretation of
Article XI, Sections 12 and 13 of the 1987
Constitution and the Ombudsman Act of 1989,
Pres. Decree No. 1861 must be taken into
consideration. It must be assumed that when
the 1987 Constitution was written, its framers
had in mind previous statutes relating to the
same subject matter. In the absence of any
express repeal or amendment, the 1987
Constitution and the Ombudsman Act of 1989
are deemed in accord with existing statute,
specifically, Pres. Decree No. 1861.12 (Emphasis
supplied)
R.A. No. 8249 which amended Section 4, paragraph (b) of the
Sandiganbayan Law (P.D. 1861) likewise provides that for
other offenses, aside from those enumerated under
paragraphs (a) and (c), to fall under the exclusive jurisdiction
of the Sandiganbayan, they must have been committed by
public officers or employees in relation to their office.
In summation, the Constitution, Section 15 of the Ombudsman
Act of 1989 and Section 4 of the Sandiganbayan Law, as
amended, do not give to the Ombudsman exclusive jurisdiction
to investigate offenses committed by public officers or
employees. The authority of the Ombudsman to investigate
offenses involving public officers or employees is concurrent
with other government investigating agencies such as
provincial, city and state prosecutors. However, the
Ombudsman, in the exercise of its primary jurisdiction over
cases cognizable by the Sandiganbayan, may take over, at any
stage, from any investigating agency of the government, the
investigation of such cases.
In other words, respondent DOJ Panel is not precluded from
conducting any investigation of cases against public officers
involving violations of penal laws but if the cases fall under the
exclusive jurisdiction of the Sandiganbayan, then respondent
Ombudsman may, in the exercise of its primary jurisdiction
take over at any stage.
Thus, with the jurisprudential declarations that the
Ombudsman and the DOJ have concurrent jurisdiction to
conduct preliminary investigation, the respective heads of said
offices came up with OMB-DOJ Joint Circular No. 95-001 for
the proper guidelines of their respective prosecutors in the
conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
TO: ALL GRAFT INVESTIGATION/SPECIAL
PROSECUTION OFFICERS OF THE OFFICE OF THE
OMBUDSMAN
ALL REGIONAL STATE PROSECUTORS AND THEIR
ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND
THEIR ASSISTANTS, STATE PROSECUTORS AND
PROSECUTING ATTORNEYS OF THE DEPARTMENT
OF JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST
PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT
OF PRELIMINARY INVESTIGATION, PREPARATION OF
RESOLUTIONS AND INFORMATIONS AND
PROSECUTION OF CASES BY PROVINCIAL AND CITY
PROSECUTORS AND THEIR ASSISTANTS.
x----------------------------------------------------------------
---------------------------------------x
In a recent dialogue between the OFFICE OF THE
OMBUDSMAN and the DEPARTMENT OF JUSTICE,
discussion centered around the latest pronouncement
of the supreme court on the extent to which the
ombudsman may call upon the government
prosecutors for assistance in the investigation and
34
prosecution of criminal cases cognizable by his office
and the conditions under which he may do so. Also
discussed was Republic Act No. 7975 otherwise
known as "an act to strengthen the functional and
structural organization of the sandiganbayan,
amending for the purpose presidential decree no.
1606, as amended" and its implications on the
jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and
employees.
Concerns were expressed on unnecessary delays that
could be caused by discussions on jurisdiction
between the OFFICE OF THE OMBUDSMAN and the
department of justice, and by procedural conflicts in
the filing of complaints against public officers and
employees, the conduct of preliminary investigations,
the preparation of resolutions and informations, and
the prosecution of cases by provincial and city
prosecutors and their assistants as deputized
prosecutors of the ombudsman.
Recognizing the concerns, the office of the
ombudsman and the department of justice, in a series
of consultations, have agreed on the following
guidelines to be observed in the investigation and
prosecution of cases against public officers and
employees:
1. Preliminary investigation and prosecution of
offenses committed by public officers and employees
in relation to office whether cognizable by the
sandiganbayan or the regular courts, and whether
filed with the office of the ombudsman or with the
office of the provincial/city prosecutor shall be under
the control and supervision of the office of the
ombudsman.
2. Unless the Ombudsman under its Constitutional
mandate finds reason to believe otherwise, offenses
not in relation to office and cognizable by the regular
courts shall be investigated and prosecuted by the
office of the provincial/city prosecutor, which shall
rule thereon with finality.
3. Preparation of criminal information shall be the
responsibility of the investigating officer who
conducted the preliminary investigation. Resolutions
recommending prosecution together with the duly
accomplished criminal informations shall be forwarded
to the appropriate approving authority.
4. Considering that the office of the ombudsman has
jurisdiction over public officers and employees and for
effective monitoring of all investigations and
prosecutions of cases involving public officers and
employees, the office of the provincial/city prosecutor
shall submit to the office of the ombudsman a
monthly list of complaints filed with their respective
offices against public officers and employees.
 Manila, Philippines, October 5, 1995.
(signed) (signed)
TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO
Secretary Ombudsman
Department of Justice Office of the Ombudsman
A close examination of the circular supports the view of the
respondent Ombudsman that it is just an internal agreement
between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure on Preliminary Investigation, effective December 1,
2000, to wit:
SEC. 2. Officers authorized to conduct preliminary
investigations-
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their
assistants;
(b) Judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors;
and
(d) Other officers as may be authorized by
law.
Their authority to conduct preliminary
investigation shall include all crimes cognizable
by the proper court in their respective
territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its
review. - If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the
resolution and information, He shall certify under oath
in the information that he, or as shown by the record,
an authorized officer, has personally examined the
complainant and his witnesses; that there is
reasonable ground to believe that a crime has been
committed and that the accused is probably guilty
thereof; that the accused was informed of the
complaint and of the evidence submitted against him;
and that he was given an opportunity to submit
controverting evidence. Otherwise, he shall
recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall
forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses
cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. They shall act
35
on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the
parties of such action.
No complaint or information may be filed or
dismissed by an investigating prosecutor
without the prior written authority or approval
of the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his
deputy.
Where the investigating prosecutor recommends the
dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his
deputy on the ground that a probable cause exists,
the latter may, by himself file the information against
the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting
another preliminary investigation.
If upon petition by a proper party under such rules as
the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies
the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information
without conducting another preliminary investigation,
or to dismiss or move for dismissal of the complaint
or information with notice to the parties. The same
Rule shall apply in preliminary investigations
conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct
preliminary investigation of criminal complaints filed with them
for offenses cognizable by the proper court within their
respective territorial jurisdictions, including those offenses
which come within the original jurisdiction of the
Sandiganbayan; but with the qualification that in offenses
falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their
investigation, transmit the records and their
resolutions to the Ombudsman or his deputy for
appropriate action. Also, the prosecutor cannot dismiss the
complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor file an
Information with the Sandiganbayan without being deputized
by, and without prior written authority of the Ombudsman or
his deputy.
Next, petitioner contends that under OMB-Joint Circular No.
95-001, there is no showing that the Office of the Ombudsman
has deputized the prosecutors of the DOJ to conduct the
preliminary investigation of the charge filed against him.
We find no merit in this argument. As we have lengthily
discussed, the Constitution, the Ombudsman Act of 1989,
Administrative Order No. 8 of the Office of the Ombudsman,
the prevailing jurisprudence and under the Revised Rules on
Criminal Procedure, all recognize and uphold the concurrent
jurisdiction of the Ombudsman and the DOJ to conduct
preliminary investigation on charges filed against public officers
and employees.
To reiterate for emphasis, the power to investigate or conduct
preliminary investigation on charges against any public officers
or employees may be exercised by an investigator or by any
provincial or city prosecutor or their assistants, either in their
regular capacities or as deputized Ombudsman prosecutors.
The fact that all prosecutors are in effect deputized
Ombudsman prosecutors under the OMB-DOJ Circular is a
mere superfluity. The DOJ Panel need not be authorized nor
deputized by the Ombudsman to conduct the preliminary
investigation for complaints filed with it because the DOJ's
authority to act as the principal law agency of the government
and investigate the commission of crimes under the Revised
Penal Code is derived from the Revised Administrative Code
which had been held in the Natividad case13 as not being
contrary to the Constitution. Thus, there is not even a need to
delegate the conduct of the preliminary investigation to an
agency which has the jurisdiction to do so in the first place.
However, the Ombudsman may assert its primary jurisdiction
at any stage of the investigation.
Petitioner's contention that OMB-DOJ Joint Circular No. 95-001
is ineffective on the ground that it was not published is not
plausible. We agree with and adopt the Ombudsman's
dissertation on the matter, to wit:
Petitioner appears to be of the belief,
although NOT founded on a proper reading and
application of jurisprudence, that OMB-DOJ Joint
Circular No. 95-001, an internal arrangement between
the DOJ and the Office of the Ombudsman, has to be
published.
As early as 1954, the Honorable Court has already
laid down the rule in the case of People vs. Que Po
Lay, 94 Phil. 640 (1954) that only circulars and
regulations which prescribe a penalty for its violation
should be published before becoming effective, this,
on the general principle and theory that before the
public is bound by its contents, especially its penal
provision, a law, regulation or circular must first be
published and the people officially and specifically
informed of said contents and its penalties: said
precedent, to date, has not yet been modified or
reversed. OMB-DOJ Joint Circular No. 95-001 DOES
NOT contain any penal provision or prescribe a
mandatory act or prohibit any, under pain or penalty.
What is more, in the case of Tanada v. Tuvera, 146
SCRA 453 (1986), the Honorable Court ruled that:
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-
called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of
their duties. (at page 454. emphasis supplied)
36
OMB-DOJ Joint Circular No. 95-001 is merely an
internal circular between the DOJ and the Office of
the Ombudsman, outlining authority and
responsibilities among prosecutors of the DOJ and of
the Office of the Ombudsman in the conduct of
preliminary investigation. OMB-DOJ Joint Circular No.
95-001 DOES NOT regulate the conduct of persons or
the public, in general.
Accordingly, there is no merit to petitioner's
submission that OMB-DOJ Joint Circular No. 95-001
has to be published.14
Petitioner insists that the Ombudsman has jurisdiction to
conduct the preliminary investigation because petitioner is a
public officer with salary Grade 31 so that the case against him
falls exclusively within the jurisdiction of the Sandiganbayan.
Considering the Court's finding that the DOJ has concurrent
jurisdiction to investigate charges against public officers, the
fact that petitioner holds a Salary Grade 31 position does not
by itself remove from the DOJ Panel the authority to
investigate the charge of coup d'etat against him.
The question whether or not the offense allegedly committed
by petitioner is one of those enumerated in the Sandiganbayan
Law that fall within the exclusive jurisdiction of the
Sandiganbayan will not be resolved in the present petition so
as not to pre-empt the result of the investigation being
conducted by the DOJ Panel as to the questions whether or
not probable cause exists to warrant the filing of the
information against the petitioner; and to which court should
the information be filed considering the presence of other
respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED for lack
of merit.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales,
Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Puno, J., joins J. Ynares-Santiago.
Vitug, J., see separate dissenting opinion.
Quisumbing, J., joins the dissent.
Ynares-Santiago, J., see separate dissenting opinion.
Sandoval-Gutierrez, J., see dissenting opinion.