G.R. No.
153284 April 17, 2007 the above-citied provisions of the law, to the damage and
REGIONAL STATE PROSECUTOR SANTIAGO M. TURINGAN,
as alter ego of the Secretary of Justice in Region V and STATE
PROSECUTOR and SPECIAL PROSECUTOR ON SSS 1 CASES IN
REGION V ROMULO SJ. TOLENTINO, in their official capacities
and for and in representation of the PEOPLE OF THE
PHILIPPINES and MARITES C. DE LA TORRE, in her official
capacity as counsel for the complainant Social Security
System Bicol Cluster, Petitioners,
vs.
HON. ZEIDA AURORA B. GARFIN, in her capacity as Presiding
Judge of the Regional Trial Court of Naga City, Branch 19, and
MURIEL C. APOLINAR, Respondents.
RESOLUTION
CORONA, J.:
This petition for certiorari and mandamus2 seeks the
nullification of the March 13, 2002 and April 12, 2002 orders
of respondent Judge Zeida Aurora B. Garfin3 in Criminal Case
No. RTC 2001-0582 entitled People of the Philippines v. Muriel
C. Apolinar. The orders granted private respondent Muriel C.
Apolinar’s motion to quash and denied petitioner state
prosecutor Romulo SJ. Tolentino’s motion for reconsideration.
Criminal Case No. RTC 2001-0582 arose from an Information
charging Apolinar for violation of Section 22(a) in relation to
Sections 19(b) and 28(e) of RA 82824 for non-remittance of
social security and employees’ compensation5 premiums of his
workers for the period January 1997 to December 1998, and
nonpayment of the 3% monthly penalty for late remittance.
The Information, signed by state prosecutor Tolentino, read:
The undersigned State Prosecutor of the Office of the Regional
State Prosecutor, Legazpi City, accuses MURIEL C. APOLINAR,
as a registered trimobile operator with business address at
108-1 San Mateo Street, Peñafrancia Avenue, Naga City, for
Violation of Section 22(a) in relation to Sections 19(b) and
28(e) of R.A. 8282[,] otherwise known as the Social Security Act
of 1997, committed as follows:
That on or about February 1997 and up to the present, in the
City of Naga, Camarines Sur, Philippines, within the functional
jurisdiction of SSS Naga Branch and the territorial jurisdiction
of this Honorable Court, the above named accused while being
a registered trimobile operator, did then and there wilfully,
unlawfully, and criminally refuse and fail and continuously
refuse and fail to remit the premiums due for (sic) his
employee to the SSS in the amount of TWO THOUSAND TWO
HUNDRED FIFTY SIX PESOS (₱2,256.00), Philippine Currency,
representing SSS and EC premiums, for the period from
January 1997 to December 1998, and the 3% penalty per
month for late remittance in the amount of TWO THOUSAND
FORTY EIGHT PESOS and 26/100 (₱2,048.26) computed as of
30 July 2000, despite lawful demands by letter in violation of
prejudice of the SSS and the public in general.
CONTRARY TO LAW.61ªvvphi1.nét
The accompanying certification, also signed by state
prosecutor Tolentino, read:
I HEREBY CERTIFY THAT THE REQUIRED INVESTIGATION IN THIS
CASE HAS BEEN CONDUCTED BY THE UNDERSIGNED SPECIAL
PROSECUTOR IN ACCORDANCE WITH LAW AND UNDER OATH
AS OFFICER OF THE COURT, THAT THERE IS REASONABLE
GROUND TO BELIEVE THAT THE OFFENSE HAS BEEN
COMMITTED, THAT THE ACCUSED IS PROBABLY GUILTY
THEREOF AND THAT THE FILING OF THE INFORMATION IS
WITH THE PRIOR AUTHORITY AND APPROVAL OF THE
REGIONAL STATE PROSECUTOR.7
Prior to his arraignment, Apolinar moved for the quashing of
the Information on the ground that state prosecutor Tolentino
lacked the authority to sign it.
On February 13, 2002, Tolentino opposed Apolinar’s motion.
He contended that he was clothed with the authority to
investigate, file the necessary Information and prosecute SSS
cases in view of his designation as special prosecutor for SSS
cases in Region V under Regional Order No. 97-024-A dated
July 14, 1997.
In an order dated March 13, 2002,8 respondent Judge Garfin
dismissed Criminal Case No. RTC 2001-0582 for lack of
jurisdiction. State prosecutor Tolentino moved for
reconsideration but the motion was denied in an order dated
April 12, 2002.9 Thus, this petition.
The petition must be dismissed.
The issue in this petition — whether or not state prosecutor
Tolentino had the authority to file the Information for violation
of RA 8282 despite the absence of a written authority or
approval of the provincial or state prosecutor — is similar to
that in People v. Garfin.10 In that case, the same state
prosecutor Tolentino charged Serafin Saballegue also for
violation of Section 22(a) in relation to Sections 19(b) and 28(e)
of RA 8282. The certification accompanying the Information
(which was identical to the certification in the Information
against Apolinar) was also signed by Tolentino. The case was
also raffled to the sala of respondent Judge Garfin.
Three days after pleading not guilty to the charge, Saballegue
filed a motion to dismiss on the ground that the Information
was filed without the written authority or approval of the city
prosecutor. This was opposed by Tolentino.
After considering the arguments of the parties, respondent
Judge Garfin granted Saballegue’s motion. She denied the
motion for reconsideration filed by Tolentino.
Tolentino filed a petition for certiorari and mandamus in this
Court assailing respondent Judge Garfin’s orders granting
Saballegue’s motion to dismiss and denying the motion for
reconsideration. This Court, thru Mr. Justice (now Chief
Justice) Puno, dismissed the petition and declared:
[I]n the absence of a directive from the Secretary of Justice
designating State Prosecutor Tolentino as Special Prosecutor
for SSS cases or a prior written approval of the information by
the provincial or city prosecutor, the information in Criminal
Case No. RTC 2001-0597 was filed by an officer without
authority to file the same. As this infirmity in the information
constitutes a jurisdictional defect that cannot be cured, the
respondent judge did not err in dismissing the case for lack of
jurisdiction.11
In this case, state prosecutor Tolentino lacked the authority to
file the Information in Criminal Case No. RTC 2001-0582
because there was neither a directive from the Secretary of
Justice designating him as special prosecutor for SSS cases nor
the written approval of the Information by the city prosecutor.
In accordance with Garfin, the Information suffered from a
jurisdictional defect. Respondent Judge Garfin correctly
dismissed the case against Apolinar for lack of jurisdiction.
WHEREFORE, the petition is hereby DISMISSED.
Costs against state prosecutor Romulo SJ. Tolentino.
SO ORDERED.
[G.R. NO. 163656 : April 27, 2007]
MARINA B. SCHROEDER, Petitioner, v. ATTYS. MARIO A.
SALDEVAR and ERWIN C. MACALINO,Respondents.
DECISION
For review on certiorari are the Decision 1 dated October 30,
2003 and the Resolution2 dated May 6, 2004 of the Court of
Appeals in CA-G.R. SP No. 63418, entitled "Attys. Mario A.
Saldevar and Erwin C. Macalino v. Hon. Lydia Querubin-Layosa,
in her capacity as Presiding Judge, Branch 217, Regional Trial
Court, Quezon City, The Ombudsman, The Department of
Justice, National Bureau of Investigation, and Marina B.
Schroeder," that partly set aside the Order3 dated October 30,
2000 of the Office of the Ombudsman (Ombudsman) in OMB-
0-00-1090 [I.S. No. 98-394].
The pertinent facts are as follows.
Petitioner Marina B. Schroeder owns a liquor store in
Robinson's Galleria, Pasig City. Respondents Mario A. Saldevar
and Erwin C. Macalino are the Legal Division Chief and
Attorney II, respectively, of the Bureau of Internal Revenue,
Revenue District Office No. 7 in Quezon City.
Sometime in 1998, respondents were arrested by agents of the
National Bureau of Investigation (NBI) in an entrapment
operation conducted upon petitioner's complaint.
After inquest, the Department of Justice (DOJ) filed in the
Regional Trial Court of Quezon City, Branch 217, an
information for direct bribery against respondents. The case
was remanded to the DOJ for preliminary investigation.
The DOJ issued a Resolution4 finding probable cause to indict
respondents for direct bribery. Aggrieved, respondents filed in
the DOJ a Petition for Review of the said Resolution. The DOJ,
however, endorsed the petition to the Ombudsman.
The Ombudsman treated the Petition for Review as a motion
for reconsideration of the aforesaid DOJ Resolution. It denied
the Petition for Review for lack of merit, thus:
WHEREFORE, premises considered and finding no merit to the
Petition for Review of public respondents Mario A. Saldevar
and Erwin C. Macalino, treated herein as a motion for
reconsideration of the Resolution of the Department of
Justice, Manila, dated 07 June 1999, in I.S. No. 98-394 [Crim.
Case No. Q-98-76453], finding probable cause to continue with
the prosecution in court of said respondents for Direct Bribery,
the same [Petition for Review a.k.a. Motion for
Reconsideration] is hereby DENIED, with finality.
SO ORDERED.5
Respondents filed in the Court of Appeals a petition
for certiorari and mandamus . The appellate court found no
probable cause against respondent Saldevar, but upheld the
finding of probable cause against respondent Macalino. The
dispositive portion of its assailed Decision reads:
WHEREFORE, the instant petition is GRANTED insofar as
petitioner Mario A. Saldevar is concerned. Accordingly, the
order of the Ombudsman dated October 30, 2000 finding
probable cause to prosecute said petitioner for direct bribery
is ANNULLED and SET ASIDE. The subject order
is AFFIRMED in all other aspects.
SO ORDERED.6
Petitioner filed a motion for reconsideration of the
aforequoted Decision, but it was denied for lack of merit.
Hence, the instant petition raising the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING
THAT THERE WAS NO PROBABLE CAUSE AGAINST
RESPONDENT SALDEVAR; and
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
SUBSTITUTED ITS OWN FINDINGS FOR THE FINDINGS OF
PROBABLE CAUSE BY THE PROSECUTORIAL ARMS OF THE
GOVERNMENT.7
Petitioner contends that the determination of probable cause
is an executive function lodged with the prosecutorial arm of
the government, not with the judiciary. Petitioner argues the
evidence on record clearly establish probable cause to indict
Saldevar with Macalino. Petitioner stresses Saldevar need not
actually demand and receive the marked money in order for
him to be indicted for direct bribery. Petitioner adds that since
respondents never ascribed any ill motive to the NBI agents
who conducted the entrapment operation, the presumption of
regularity in the performance of their duties applies.
Respondents, however, insist that the DOJ erred in endorsing
the Petition for Review to the Ombudsman. They aver that the
Ombudsman cannot deny the Petition for Review filed in the
DOJ. Respondents maintain that the Court of Appeals can
determine probable cause because the DOJ erred in not
resolving the Petition for Review . They also point out that the
Ombudsman glossed over the issue of illegal arrest.
Respondents posit that the operation conducted by the NBI
was an instigation, not an entrapment.
We find the petition meritorious.
In our criminal justice system, the public prosecutor exercises
wide latitude of discretion in determining whether a criminal
case should be filed in court. Courts must respect the exercise
of such discretion when the information filed against the
person charged is valid on its face, and no manifest error or
grave abuse of discretion can be imputed to the public
prosecutor.8 As a rule, courts cannot interfere with the
Ombudsman's discretion in the conduct of preliminary
investigations. In the determination of probable cause, the
Ombudsman's discretion prevails over judicial discretion.9
In this case, there being no clear showing of manifest error or
grave abuse of discretion committed by the Ombudsman in
finding probable cause against Saldevar for direct bribery, the
Court of Appeals erred in supplanting the Ombudsman's
discretion with its own.
Probable cause is simply the existence of such facts and
circumstances as would excite a belief that a crime has been
committed and that the person charged is probably guilty of
the said crime.10 In this case, sufficient evidence on record
clearly shows the existence of probable cause against Saldevar.
Contrary to the appellate court's theory, Saldevar need not
actually demand and receive the bribe money in order for him
to be indicted for direct bribery. Mere belief, after weighing
the relevant facts and circumstances, that Saldevar probably
committed direct bribery suffices for the establishment of
probable cause. Whether he is indeed guilty of direct bribery
is a different matter, which can properly be determined at a
full blown trial on the merits of the case.
Furthermore, note that the Ombudsman's findings are
essentially factual in nature. Hence, when respondents
assailed the said findings before the Court of Appeals on the
contention that the Ombudsman committed grave abuse of
discretion, respondents clearly raised questions of fact.
Respondents' arguments zeroed in on the Ombudsman's
appreciation of facts. It bears stress that a petition
for certiorari admits only of questions of grave abuse of
discretion amounting to lack or excess of jurisdiction.
Therefore, the Court of Appeals should have, in the first place,
dismissed respondents' petition for certiorari on the ground
that it raised questions of fact.
Lastly, we are not prepared to indulge respondents' insistence
that the DOJ cannot endorse to the Ombudsman the Petition
for Review of the abovementioned DOJ Resolution. The
Ombudsman's power to investigate and to prosecute is
plenary and unqualified.11 It pertains to any act or omission of
any public officer or employee when such act or omission
appears to be illegal, unjust, or improper.12 In this case,
respondents are public officers charged with the commission
of a crime. The DOJ Resolution, subject of the Petition for
Review, found probable cause against respondents for the
crime of direct bribery. The Ombudsman thus acted within its
authority in taking over the said Petition for Review .
WHEREFORE, the petition is GRANTED. The assailed Decision
dated October 30, 2003 and Resolution dated May 6, 2004 of
the Court of Appeals in CA-G.R. SP No. 63418 are SET ASIDE.
The October 30, 2000 Order13 of the Ombudsman in OMB-0- G.R. No. 165975 September 13, 2007
00-1090 [I.S. No. 98-394], finding no merit and denying the
Petition for Review of herein respondents and finding PAYAKAN G. TILENDO, Petitioner,
probable cause to indict respondents Mario A. Saldevar and vs.
Erwin C. Macalino for direct bribery, is AFFIRMED. OMBUDSMAN and SANDIGANBAYAN, Respondents.

No pronouncement as to costs. DECISION

SO ORDERED. The Case

This petition for certiorari1 with prayer for the issuance of a

temporary restraining order assails the 13 January 2004
Resolution2 and the 14 October 2004 Order3 of the Office of
the Ombudsman (Ombudsman) in Case No. OMB-M-C-02-
0632-K. The Ombudsman found probable cause against
Payakan G. Tilendo (Tilendo) for malversation under Article
217 of the Revised Penal Code (RPC) and violation of Section
3(e) of Republic Act No. 3019 (RA 3019) or the Anti-Graft and
Corrupt Practices Act.

The Facts

In 1993, Tilendo was appointed as President of the Cotabato

City State Polytechnic College (CCSPC).

In 1996, the CCSPC had an appropriation of ₱6 million for the

construction of its Agriculture Building and Science Academic
Building.4 The Department of Budget and Management
Regional Office in Cotabato City released ₱5.7 million to the
CCSPC, after deducting the 5% reserve. Out of this amount,
₱3,496,797 was allocated for the construction of the
Agriculture Building. The release of this amount to CCSPC was
evidenced by the following Notices of Cash Allocation (NCA):
(a) ₱237,500 per NCA dated 23 January 1996; (b) ₱702,640 per
NCA dated 3 June 1996; (c) ₱763,477 per NCA dated 19
September 1996; and (d) ₱1,793,180 per NCA dated 4 October
1996.

In December 1998, the "Concerned Faculty Members" of the

CCSPC filed before the Ombudsman a letter-complaint against
Tilendo for violation of RA 3019.

The complaint basically alleged that Tilendo enriched himself

and his family while he was President of the CCSPC, using
government funds for personal purposes. The complaint
likewise accused Tilendo of diverting and misusing the funds
allocated for the construction of the CCSPC Agriculture
Building. The complaint pertinently reads:

3. Sometime in the late part of 1995, the decades-old academic

main building was demolished on instruction of Dr. Tilendo.
Coincidentally, an allotment of ₱6,000,000.00 was released by
the Department of Budget and Management for the
construction of an agricultural building in the college satellite
campus at Rebuken, Sultan Kudarat, Maguindanao. x x x There
are no engineering designs, plans and bill of materials. The
contractor, Mr. Mohammad Oliver Uka, who is his nephew was
so obedient to Dr. Tilendo that he blindly obeyed his
instructions.
Instead of utilizing the allotment for putting-up the agricultural
building, he only instructed Mr. Uka to buy steel bars, cement,
sand and gravel and hollow blocks. Other materials like
lumber. G.I. sheets were taken from the scrap materials of the
demolished academic school building. x x x This illegal act was
in connivance with his nephew-contractor MR. MOHAMMAD
OLIVER "BOY" UKA who is subservient to all the wishes and
decisions of his uncle Dr. Tilendo. We believe that only an
actual inspection of the building can prove the truth. He and
his Budget Officer MR. PASTOR T. TAGURA has (sic) many ways
to conceal facts and justify their actions. Any document that
will show an implementation of the project is a mere
fabrication in cahoots with other government officials to
cover-up his anomalous activities and enrich himself while in
office.
The conversion of [Tilendo’s] 2-door apartment into a 3-storey
building took place while the agricultural building is being
constructed. Truckloads of construction materials were
delivered from the Pigcawayan Hardware in the Poblacion
Pigcawayan, Cotabato and other hardware in Cotabato City to
two (2) destinations – his house in Pigcawayan and the house
of his 3rd wife, MS. SAMSIA IBRAHIM.5
On 2 February 1999, the Office of the Deputy Ombudsman for
Mindanao (Deputy Ombudsman-Mindanao) forwarded the
anonymous complaint, docketed as CPL-MIN-99-003, to the
then Ministry of Education, Culture and Sports (Ministry of
Education) for the conduct of a fact-finding investigation.
The Ministry of Education transmitted the complaint to the
Chairman of the Board of Trustees of the CCSPC to decide on
who should conduct the investigation.
In a letter dated 19 March 1999, Commission on Higher
Education (CHED) Chairman Angel C. Alcala instructed CHED
Region XII Director, Dr. Carmen V. Dormitorio (Dormitorio), to
form and head a committee, together with two other
members, which would investigate on the complaints against
Tilendo, among others.
On 28 June 1999, the two investigating members of
Dormitorio’s committee reported that it was the Commission
on Audit (COA) which could determine whether the
government funds were properly used or misused. The CHED
alleged that it had neither the authority to examine the
CCSPC’s records nor the technical knowledge of government
accounting and auditing procedures.
The Deputy Ombudsman-Mindanao also endorsed the
anonymous complaint to the National Bureau of Investigation
(NBI), Region XII for the conduct of a fact-finding investigation.
Subsequently, the NBI subpoenaed Tilendo several times and
informed him of the complaints against him.6 Tilendo, through
counsel, requested for several extensions of time to submit his
counter-affidavit. It was only on 22 October 1999 that he filed
his counter-affidavit.7
On 10 March 2000, the NBI filed a Report on the investigation
confirming that, despite the ₱10,080,000 three-year allocation
for the construction of the Agriculture Building, only ₱300,000
was actually used for this construction project. Further, only
scrap materials from the old Administrative Building were
used. The pertinent portions of the report read:
Investigation conducted disclosed that the construction of
Agricultural Building a[t] Rebuken, Sultan Kudarat,
Maguindanao has an appropriation of ₱10,800,000.00 in three
years broken down as follows, i.e., in 1996 GAA ₱6,000,000.00,
in 1997 GAA ₱1,080,000.00 and in 1998 GAA ₱3,000,000.00.
Witnesses alleged that the project was constructed without
the necessary Engineering Designs, Plans and Programs of
Work. Most of the materials used were scrap materials of the
demolished Old Administrative Building at CCSPC Campus,
Cotabato City and the estimated amount spent for the said
project did not exceed ₱300,000.00. The said allegations were
corroborated by the COA Special Audit finding conducted on
September 1996. The same COA report further states that the
balance was used in the construction of the Science Building
and the Makeshift Building at Main Campus. However, the
realignment of such funds do not have the AUTHORITY from
the DBM. Inspection conducted by the NBI Investigators
disclosed that the project at Rebuken, Sultan Kudarat,
Maguindanao was not completed and some of the materials
used were indeed scrap.8
xxxx
COMMENTS AND OBSERVATIONS:
xxx
The alleged Program of Works prepared by ENGR.
HASANADDIN S. MAMA, designated Project Engineer of CCSPC
in 1996 per directive of [Tilendo] did not jibe or correspond to
the ₱6 million appropriation of the said project without
mentioning the additional budget of the project in 1997 and
1998, as what was prepared was only ₱1.05 million budget
only.
The Counter-Affidavit of President Payakan G. Tilendo did not
fully explain the ₱6 million budget of the Construction of
Agricultural Building at Rebuken Sultan, Kudarat,
Maguindanao which is the subject of this investigation, rather
it pertains to the Construction of Extension (4th Floor) of
Academic Building in the amount of ₱1,865,000.00. x x x
The admission of [Tilendo] in his Counter-Affidavit that the
project had been completed in accordance with the funds duly
allocated thereto, and in consonance with the government
bidding procedures, Accounting and Auditing regulations and
all other legal documents are devoid of merit considering that
the documents submitted showed that it did not respond to
the questioned project.
The attached publication of the Invitation to Bid dated
February 27 to March 1, 1997 which is published one year after
the project or the Construction of the Agricultural Building at
Rebuken, Sultan Kudarat, Maguindanao was started sometime
in April 1996. The alleged publication seems to be that of the
Construction of the Extension of Academic Building. In the
instant case, NO AUTHORITY FOR THE REALIGNMENT OF
FUNDS FROM DBM was given to the CCSPC Management.9
On 26 April 2002, the Deputy Ombudsman-Mindanao received
the NBI report charging Tilendo, Samaon A. Ebrahim,
Wilhelmina B. Monte de Ramos, and Abdulla Oliver Uka with
violation of Section 3(e) of RA 3019, and Articles 217, 218, and
219 of the RPC.
In January 2003, Tilendo filed his counter-affidavit,10 alleging,
among others, that the "dragging of the case for more than
three years in preliminary investigation stage without his fault
is violative of his right to speedy disposition of cases." Tilendo
also denied the allegations against him, insisting that the
complaint was aimed purely at harassing him. Tilendo claimed
that the construction of the CCSPC Agriculture Building was
completed using the funds allocated for it, and following
government bidding procedures and auditing regulations.
In its Resolution dated 13 January 2004, the Deputy
Ombudsman-Mindanao disposed of the complaint, as follows:
WHEREFORE, PREMISES CONSIDERED, this Office finds
probable cause to believe that the crime of Malversation and
Violation of Section 3(e) of RA 3019 were committed and that
respondent DR. PAYAKAN G. TILENDO is probably guilty
thereof. Consequently, let the herein attached Informations
be filed with the proper court.
Further, the charges against respondents SAMAON A.
EBRAHIM, WHILHELMINA B. MONTE DE RAMOS, ABDULLA
OLIVER UKA, and NESTOR VILLARIN are hereby DISMISSED for
insufficiency of evidence.
Lastly, the National Bureau of Investigation is hereby directed
to forward to the Office of the Special Prosecutor the original
copy of their report, subject matter of the instant case,
together with its annexes.
SO RESOLVED.11
Tilendo moved for reconsideration which the Ombudsman
denied in its Order dated 14 October 2004.
Hence, this petition.
The Ruling of the Ombudsman
The Ombudsman found probable cause against Tilendo for
malversation under Article 217 of the RPC and violation of
Section 3(e) of RA 3019.
The Ombudsman found that since Tilendo received the
₱3,496,797 appropriated and released to the CCSPC for the
construction of the Agriculture Building, Tilendo, as head of
the CCSPC, is accountable for this amount. Tilendo, however,
failed to account for the fund.
The Ombudsman found several lapses in the disbursement of
the funds making it impossible for Tilendo to liquidate the
amount. First, the construction of the Agriculture Building was
haphazardly done. Second, there was no bidding for the
construction project as required by law. Third, scrap materials
were used in the construction. Fourth, there was no showing
when the construction was completed and whether the
construction was according to the alleged plans. Finally, the
funds for the construction of the Agriculture Building were
used for another building within the CCSPC main campus.
However, Tilendo failed to show the actual amount used for
the construction of this other building.
The Ombudsman also found that Tilendo’s acts caused undue
injury to the government through bad faith. The amount
released for the construction of the Agriculture Building could
not be liquidated and was presumed to have been lost due to
Tilendo’s misappropriation. The use of scrap materials for the
construction of a supposedly new building, while it might bring
savings to the government, was actually hazardous to the lives
of those who would use the building.
The Issues
Tilendo seeks the reversal of the assailed resolutions on the
following grounds:
1. The Ombudsman acted with grave abuse of
discretion amounting to lack or excess of jurisdiction
in disregarding his constitutional right to speedy
disposition of cases.
2. The Ombudsman acted with grave abuse of
discretion in finding probable cause against him for
malversation under Article 217 of the RPC and for
violation of Section 3(e) of RA 3019, as amended.12
The Ruling of this Court
The petition has no merit.
On Tilendo’s right to speedy disposition of cases
Tilendo contends that the cases against him dragged for more
than three years in preliminary investigation phase without his
fault. The anonymous letters addressed to the Ombudsman
were dated 4 and 28 December 1998. The Ombudsman
referred the matter to the NBI which required Tilendo to file
his counter-affidavit, which he did only on 22 October 1999.
Nothing was heard from the NBI or the Ombudsman until
January 2003 when the Ombudsman directed Tilendo to
submit his counter-affidavit to the various criminal charges
against him. According to Tilendo, the inordinate delay in the
termination of the preliminary investigation violates his right
to speedy disposition of cases.
The right to "a speedy disposition of cases" is enshrined in the
Constitution. Section 16 of Article III of the Constitution
provides: "All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or
administrative bodies." This right, however, is considered
violated only when the proceedings is attended by vexatious,
capricious, and oppressive delays, which are absent in this
case.13
The concept of speedy disposition of cases is relative or
flexible.14 A simple mathematical computation of the time
involved is insufficient. The facts and circumstances peculiar to
each case must be examined.15 In ascertaining whether the
right to speedy disposition of cases has been violated, the
following factors must be considered: (1) the length of delay;
(2) the reasons for the delay; (3) the assertion or failure to
assert such right by the accused; and (4) the prejudice caused
by the delay.16
In this case, after the fact-finding investigation, the NBI
reported its findings to the Ombudsman and consequently
filed a complaint against Tilendo for various criminal charges.
If we consider the fact-finding investigation conducted by the
NBI as part of the preliminary investigation stage, then the NBI
served a conflicting role. The NBI acted as the investigating
body on the charges against Tilendo, and thereafter, acted as
the complainant against Tilendo. This is absurd. What the NBI
clearly did, in accordance with Section 2(d) of Rule II of AO 7,
was to analyze the facts and gather evidence which could
either exonerate or further implicate Tilendo in the offenses
charged.
Further, the NBI is not among those authorized under Section
3, Rule II of AO 7 to conduct preliminary investigations for
complaints cognizable by the Ombudsman, to wit:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct
preliminary investigations; or
5) Lawyers in the government service, so designated
by the Ombudsman.

Even assuming there was delay in the termination of the

In this case, there was no unreasonable delay to speak of
preliminary investigation, Tilendo is deemed to have slept on
because the preliminary investigation stage officially began
his right to a speedy disposition of cases. From 22 October
when the NBI filed before the Ombudsman a complaint against
1999, when he submitted to the NBI his counter-affidavit, after
Tilendo for violation of the relevant provisions of RA 3019 and
the RPC. Contrary to Tilendo’s view, the preliminary asking for several extensions of time, Tilendo did nothing until
December 2002. It seems that Tilendo was insensitive to the
investigation did not automatically commence upon the filing
implications and contingencies of the projected criminal
of the anonymous letters in the Ombudsman. 17
prosecution posed against him. He did not take any step
whatsoever to accelerate the disposition of the matter.
Administrative Order No. 07 (AO 7), as amended, or the Rules
Tilendo’s inaction gives the impression that he did not object
of Procedure of the Office of the Ombudsman outlines the
to the supervening delay, and hence it was impliedly with his
procedure applicable to all criminal and administrative
acquiescence.19 He did not make any overt act like, for
complaints cognizable by the Ombudsman. Section 2, Rule II of
instance, filing a motion for early resolution. He asserted his
AO 7 clearly states that "upon evaluating the complaint, the
right to a speedy disposition of cases only when the Deputy
investigating officer shall recommend whether it may be: (a)
Ombudsman-Mindanao required him to file his counter-
dismissed outright for want of palpable merit; (b) referred to
affidavit to the NBI complaint.
respondent for comment; (c) endorsed to the proper
government office or agency which has jurisdiction over the
Tilendo’s contention of violation of his right to speedy
case; (d) forwarded to the appropriate office or official for
disposition of cases must fail. There was no unreasonable and
fact-finding investigation; or (e) referred for administrative
unjustifiable delay which attended the resolution of the
adjudication; or (f) subjected to a preliminary investigation."
complaints against him in the preliminary investigation phase.
Significantly, the Court held in Raro v. Sandiganbayan,18 that
On the finding of probable cause for the offenses charged
by referring the complaint to the NBI, the Ombudsman did not
thereby delegate the conduct of the preliminary investigation
of the case to the NBI. What was delegated was only the fact- The Ombudsman conducts preliminary investigations in
finding function, preparatory to the preliminary investigation accordance with Section 3, Rule 112 of the Rules of Court,
still to be conducted by the Ombudsman. subject to the provisions in Section 4, Rule II of AO 7.
A preliminary investigation is an inquiry or proceeding to
determine whether there is 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.20 Stated differently, during the preliminary investigation,
the prosecutor, or the Ombudsman in this case, determines
whether there is probable cause to hold the respondent for
trial.1âwphi1
Probable cause is the "existence of such facts and
circumstances as would excite the belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for which he
was prosecuted."21
In this case, the Ombudsman found probable cause against
Tilendo for malversation under Article 217 of the RPC and for
violation of Section 3(e) of RA 3019.
Article 217 of the RPC states:
Art. 217. Malversation of public funds or property. —
Presumption of malversation. Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or
property, shall suffer: x x x
Section 3(e) of RA 3019 provides:
SEC. 3. Corrupt practices of public officers. — In addition to acts
or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any
public officer and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of licenses
or permits or other concessions.
This Court, as a rule, does not interfere with the Ombudsman’s
determination of probable cause to accord respect to the
discretion granted to the Ombudsman and for reasons of
practicality. Otherwise, courts would be swamped with
petitions to review the Ombudsman’s findings in preliminary
investigations.22 An exception to this rule is where the
Ombudsman abused his discretion by ignoring clear
insufficiency of evidence to support a finding of probable
cause, thus denying the accused his right to substantive and
procedural due process.23 Here, no such conduct can be
imputed on the Ombudsman. Thus, we apply the rule.
The Ombudsman found that Tilendo failed to account for the
subject funds. According to the Ombudsman, it would even be
an impossibility to account for the funds due to the various
lapses in its disbursement. The Ombudsman cited the
haphazard construction of the Agriculture Building, the
absence of any bidding required by law, the usage of scrap
materials, the failure to show the completion date of the
building, and the failure to show the actual amount spent for
the construction of another building within the CCSPC main
campus.
Tilendo’s claims of non-receipt of the subject funds, as well as
his good faith in the transfer of the Agriculture Building to the
main campus, constitute evidentiary matters that must be
ventilated in a full-blown trial and not during the preliminary
investigation. The presence or absence of the elements of the
crimes, which are by their nature evidentiary and defense
matters, can be best passed upon after a trial on the merits. A
preliminary investigation is not the occasion for the full and
exhaustive display of the parties’ evidence. What is presented
is evidence only as may engender a well-founded belief that an
offense has been committed and that the accused is probably
guilty thereof.24
Whether Tilendo, as a public officer, had custody or control of
the funds allocated for the construction of the CCSPC
Agriculture Building, and whether he misappropriated the
same are matters requiring an examination of the parties’
evidence, which are not found in the case records and which
can be properly threshed out during the trial.
Based on the records, Tilendo, as President of the CCSPC, after
being asked to liquidate the amount released to the CCSPC for
the construction of the Agriculture Building, failed to account
for the funds. Thus, the presumption that he misused or
misappropriated the funds arises, resulting to the finding of
probable cause for malversation under Article 217 of the RPC.
On the other hand, the haphazard construction of the
Agriculture Building, the absence of any bidding for its
construction, the usage of scrap materials for the construction
of a school building in CCSPC, and the lack of engineering plans
clearly demonstrate undue injury to the government. These
circumstances support the finding of probable cause for
violation of Section 3(e) of RA 3019. Whether there was bad
faith on Tilendo’s part is a different matter which necessarily
is subject to proof.
Further, nowhere in the records did Tilendo sufficiently rebut
the Ombudsman’s findings or clearly explain what actually
happened to the construction project. Tilendo admits that
there was no construction of the Agriculture Building in
Rebuken in 1996. Instead, a school building was constructed
using funds from the CCSPC’s MOOE, which construction
project used scrap materials taken from the demolished main
building.25 He also claims that the construction of the
Agriculture Building had to be transferred due to the peace
and order problem in the original site. During the fact-finding
investigation, Tilendo submitted an "Invitation to Bid" which
was published in the 23 February-1 March 1997 issue of The
Mindanao Newscast,26 but there was no evidence that a
bidding was held on the scheduled dates. He also presented
documents pertaining to the construction of the Academic
Building and a make-shift building, not the Agriculture
Building, such as (1) a "Notice of Award" to Esperanza Gold
Construction for the extension (4th floor) of the Academic
Building in the amount of ₱1,865,000;27 (2) a list of materials
and labor requirements with their corresponding value;28 and
(3) floor plans.29 Instead of showing completion of the
Agriculture Building, Tilendo introduced an
"Inspection/Evaluation Report" dated 30 April 1999 referring
to the 54.71% accomplishment of the construction of a two-
storey Main Library Building inside the CCSPC Campus worth
more than ₱5.2 million and whose contractor was "FFJJ
Construction."30
Tilendo insists that he merely exercised administrative
supervision and points to the CCSPC treasury as the recipient
of the funds and to the foreman, engineers, and workers as the
ones who made the expenses for the construction. Apparently,
Tilendo is suggesting that these personnel were responsible
for the misuse or misappropriation of the funds. However,
Tilendo miserably failed to substantiate his allegations. He did
not even attempt to mention names to clear his own name.
Tilendo seems contented with alleging that these personnel
"made the liquidations of the amounts they spent for the
construction."31 Aside from this bare allegation, Tilendo did
not introduce any convincing evidence that he had no
participation whatsoever with the unsatisfactory construction
of the Agriculture Building and the apparent wastage or
diversion of the public funds.
Thus, we sustain the finding of probable cause against Tilendo
for malversation under Article 217 of the RPC and for violation
of Section 3(e) of RA 3019.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
G.R. No. 163586 January 27, 2009
SHARON CASTRO, Petitioner,
vs.
HON. MERLIN DELORIA, as Presiding Judge, Regional Trial
Court, Branch 65, Guimaras; the COA-Region VI, represented
by its Director; and HON. COURT OF APPEALS, Respondents.
DECISION
Before the Court is a Petition for Certiorari under Rule 65 of
the Rules of Court filed by Sharon Castro (petitioner) to assail
the July 22, 2003 Decision1 of the Court of Appeals (CA) which
dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA
Resolution2 which denied the motion for reconsideration.
The facts are of record.
On May 31, 2000, petitioner was charged by the Ombudsman
before the Regional Trial Court (RTC), Branch 65, Guimaras,
with Malversation of Public Funds, under an Information which
reads, as follows:
That on or about the 17th day of August 1998, and for
sometime prior thereto, in the Municipality of Buenavista,
Province of Guimaras, Philippines and within the jurisdiction of
the this Honorable Court, abovenamed accused, a public
officer, being the Revenue Officer I of the Bureau of Internal
Revenue, Buenavista, Guimaras and as such, was in the
custody and possession of public funds in the amount of
P556,681.53, Philippine Currency, representing the value of
her collections and other accountabilities, for which she is
accountable by reason of the duties of her office, in such
capacity and committing the offense in relation to office,
taking advantage of her public position, with deliberate intent,
and with intent to gain, did then and there willfully, unlawfully
and feloniously appropriate, take, misappropriate, embezzle
and convert to her own personal use and benefit said amount
of P556,681.53, and despite notice and demands made upon
her account for said public funds, she has failed to do so, to the
damage and prejudice of the government.
CONTRARY TO LAW.3
Petitioner pleaded NOT GUILTY when arraigned on February
16, 2001.
On August 31, 2001, petitioner filed a Motion to Quash on the
grounds of lack of jurisdiction and lack of authority of the
Ombudsman to conduct the preliminary investigation and file
the Information. Petitioner argued that the Information failed
to allege her salary grade -- a material fact upon which
depends the jurisdiction of the RTC. Citing Uy v.
Sandiganbayan,4 petitioner further argued that as she was a
public employee with salary grade 27, the case filed against her
was cognizable by the RTC and may be investigated and
prosecuted only by the public prosecutor, and not by the
Ombudsman whose prosecutorial power was limited to cases
cognizable by the Sandiganbayan.5
The RTC denied the Motion to Quash in an Order 6 dated
September 7, 2001. It held that the jurisdiction of the RTC over
the case did not depend on the salary grade of petitioner, but
on the penalty imposable upon the latter for the offense
charged.7 Moreover, it sustained the prosecutorial authority of
the Ombudsman in the case, pointing out that in Uy, upon
motion for clarification filed by the Ombudsman, the Court set
aside its August 9, 1999 Decision and issued a March 20, 2001
Resolution expressly recognizing the prosecutorial and
investigatory authority of the Ombudsman in cases cognizable
by the RTC.
The RTC further held that the Motion to Quash was contrary
to Sec. 1, Rule 117, for it was filed after petitioner pleaded not
guilty under the Information.8
Petitioner filed a Motion for Reconsideration,9 which the RTC
denied in its December 18, 2001 Order.10
Petitioner filed a petition for certiorari11 with the CA, but the
latter dismissed the petition in the Decision under review.
Petitioner’s motion for reconsideration12 was also denied.
Hence, the present petition, confining the issues to the
following:
1. Whether or not the Ombudsman, as of May 31,
2000, when the Information for Malvesation of Public
Funds was instituted against the Petitioner, had the
authority to file the same in light of this Supreme
Court’s ruling in the First "Uy vs. Sandiganbayan"
case, which declared that the prosecutorial powers of
the Ombudsman is limited to cases cognizable by the
Sandiganbayan.
2. Whether or not the clarificatory Resolution issued
by the Supreme Court dated February 22, 2001 in the
Uy vs. Sandiganbayan case can be made applicable to
the Petitioner-Accused, without violating the
constitutional provision on ex-post facto laws and
denial of the accused to due process.13
Petitioner contends that from the time of the promulgation on
August 9, 1999 of the Decision of the Court in Uy up to the time
of issuance on March 20, 2001 of the Resolution of the Court
in the same case, the prevailing jurisprudence was that the
Ombudsman had no prosecutorial powers over cases
cognizable by the RTC. As the investigation and prosecution
against petitioner was conducted by the Ombudsman
beginning April 26, 2000, then the August 9, 1999 Decision in
Uy was applicable, notwithstanding that the said decision was
set aside in the March 20, 2001 Resolution of the Court in said
case. Hence, the Information that was filed against petitioner
was void for at that time the Ombudsman had no investigatory
and prosecutorial powers over the case.
The petition lacks merit.
The petition calls to mind Office of the Ombudsman v.
Enoc,14 wherein accused Ruben Enoc, et al. invoked the August
9, 1999 Decision of the Court in Uy15 in a motion to dismiss the
11 counts of malversation that were filed against them by the
Ombudsman before the RTC. The RTC granted the motion but
upon petition filed by the Ombudsman, the Court reversed the
RTC and held:
In turn, petitioner filed a Manifestation invoking the very same
resolution promulgated on March 20, 2001 in Uy v.
Sandiganbayan reconsidering the ruling that the prosecutory
power of the Ombudsman extended only to cases cognizable
by the Sandiganbayan.
Indeed, this Court has reconsidered the said ruling and held
that the Ombudsman has powers to prosecute not only graft
cases within the jurisdiction of the Sandiganbayan but also
those cognizable by the regular courts. It held:
The power to investigate and to prosecute granted by law to
the Ombudsman is plenary and unqualified. It pertains to any
act or omission of any public officer or employee when such
act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases
cognizable by the Sandiganbayan and those cognizable by
regular courts. It has been held that the clause "any illegal act
or omission of any public official" is broad enough to embrace
any crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan. The
law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of
such cases." The grant of this authority does not necessarily
imply the exclusion from its jurisdiction of cases involving
public officers and employees cognizable by other courts. The
exercise by the Ombudsman of his primary jurisdiction over
cases cognizable by the Sandiganbayan is not incompatible
with the discharge of his duty to investigate and prosecute
other offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their
tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman
should not be equated with the limited authority of the Special
Prosecutor under Section 11 of RA 6770. The Office of the
Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and
control and upon authority of the Ombudsman. Its power to
conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to
these types of cases. The Ombudsman is mandated by law to
act on all complaints against officers and employees of the
government and to enforce their administrative, civil and
criminal liability in every case where the evidence warrants. To
carry out this duty, the law allows him to utilize the personnel
of his office and/or designate any fiscal, state prosecutor or
lawyer in the government service to act as special investigator
or prosecutor to assist in the investigation and prosecution of
certain cases. Those designated or deputized to assist him
work under his supervision and control. The law likewise
allows him to direct the Special prosecutor to prosecute cases
outside the Sandiganbayan’s jurisdiction in accordance with
Section 11(4c) of RA 6770.
We, therefore, hold that the Ombudsman has authority to
investigate and prosecute Criminal Case Nos. 374(97) to
385(97) against respondents in the RTC, Branch 19 of Digos,
Davao Del Sur even as this authority is not exclusive and is
shared by him with the regular prosecutors.
WHEREFORE, the order, dated October 7, 2000, of the
Regional Trial Court, branch 19 of Digos, Davao del Sur is SET
ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby
REINSTATED and the Regional Trial Court is ORDERED to try
and decide the same. (Emphasis supplied)
Similarly relevant is the case of Office of Ombudsman v. Hon.
Breva,16 in which, citing the August 9, 1999 Decision in Uy, the
RTC dismissed a criminal complaint that was filed before it by
the Ombudsman. The Court reversed the RTC, for, "given the
Court’s Uy ruling under its March 20, 2001 Resolution, the trial
court’s assailed Orders x x x are, in hindsight, without legal
support and must, therefore, be set aside."
It is settled, therefore, that the March 20, 2001 Resolution in
Uy, that the Ombudsman has prosecutorial powers in cases
cognizable by the RTC, extends even to criminal information
filed or pending at the time when its August 9, 1999 Decision
was the operative ruling on the issue.
Petitioner would argue, however, that the March 20, 2001
Resolution in Uy cannot have retroactive effect, for otherwise
it would amount to "an ex-post facto law, which is
constitutionally proscribed."17
Petitioner is grasping at straws.
A judicial interpretation of a statute, such as the Ombudsman
Act, constitutes part of that law as of the date of its original
passage. Such interpretation does not create a new law but
construes a pre-existing one; it merely casts light upon the
contemporaneous legislative intent of that law.18 Hence, the
March 20, 2001 Resolution of the Court in Uy interpreting the
Ombudsman Act is deemed part of the law as of the date of its
effectivity on December 7, 1989.
Where a judicial interpretation declares a law unconstitutional
or abandons a doctrinal interpretation of such law, the Court,
recognizing that acts may have been performed under the
impression of the constitutionality of the law or the validity of
its interpretation, has consistently held that such operative
fact cannot be undone by the mere subsequent declaration of
the nullity of the law or its interpretation; thus, the declaration
can only have a prospective application.19 But where no law is
invalidated nor doctrine abandoned, a judicial interpretation
of the law should be deemed incorporated at the moment of
its legislation.20
In the present case, the March 20, 2001 Resolution in Uy made
no declaration of unconstitutionality of any law nor did it
vacate a doctrine long held by the Court and relied upon by the
public. Rather, it set aside an erroneous pubescent
interpretation of the Ombudsman Act as expressed in the
August 9, 1999 Decision in the same case. Its effect has
therefore been held by the Court to reach back to validate
investigatory and prosecutorial processes conducted by the
Ombudsman, such as the filing of the Information against
petitioner.
With the foregoing disquisition, the second issue is rendered
moot and academic.
WHEREFORE, the petition is DISMISSED for lack of merit.
No costs.
SO ORDERED.
A.M. No. MTJ-08-1715 March 19, 2009
[Formerly A.M. OCA IPI No. 08-2037-MTJ]
RODOLFO R. MAGO, Complainant,
vs.
JUDGE AUREA G. PEÑALOSA-FERMO, MTC, LABO,
CAMARINES NORTE, Respondent.
DECISION
Rodolfo R. Mago (complainant) filed before the Municipal Trial
Court (MTC) of Labo, Camarines Norte a complaint for grave
coercion against Sheriff Alex Rodolfo Angeles (of the
Department of Agrarian Reform Adjudication Board
[DARAB]), et al. The case was docketed as Criminal Case No.
04-7800.
Sheriff Angeles filed a counter-charge for grave threats against
complainant and his sons, docketed as Criminal Case No. 04-
7811.
Alleging that Presiding Judge of the MTC Labo, Camarines Sur
Judge Aurea G. Peñalosa-Fermo (respondent) committed gross
ignorance of the law and bias in the disposition of his
complaint and of the counter-charge against him, complainant
filed the present administrative complaint, the details of which
were summarized by the Office of the Court Administrator
(OCA) as follows:1
Mr. Mago claims that on April 21, 2004 he filed a complaint
for Grave Coercion against Department of Agrarian Reform
Adjudication Board (DARAB for brevity) Sheriff Alex Roberto
Angeles which was docketed as Criminal Case No. 04-7800.
However, instead of summoning the accused for a
"Preliminary Investigation", he received a complaint charging
him and his two (2) sons with Grave Threats [which was
docketed as Criminal Case No. 04-7811]. He stresses the
complaint against him as purely fabricated. He states that the
complainant in the said case was not DARAB Sheriff Angeles.
He avers that the affidavits of the witnesses in the said case
could not be found in the records of the Municipal Trial Court
(MTC). Complainant further declares that on July 20, 2004, he
received a subpoena to attend the preliminary investigation of
Criminal Case No. 04-7811. In compliance, he and his witnesses
attended, and even without the assistance of counsel, they
were examined through a prepared set of questions handed to
them by the stenographer. The respondent judge was not
present then. The complainant also states that right after the
preliminary investigation, he was immediately arrested and
was imprisoned for three (3) days. Thereafter, he was released
after he posted bail in the amount of Php12,000 pesos.
Complainant also alleges that he filed a Petition
for Certiorari, Mandamus, Prohibition with Application for
Preliminary Injunction and Ex-Parte Motion for Temporary
Restraining Order questioning the order of respondent judge
in denying his omnibus motion to quash the information,
suppress evidence and produce, inspect and copy
documentary evidence. He adds that despite the filing of this
petition, the respondent judge continued to direct him to
appear at the pre-trial/preliminary conference. He likewise
avers that his arraignment was set beyond the period allowed
by the Rules of Court. He also laments that he could not locate
his lawyer, Atty. Lamberto Bonifacio, Jr. Finally, he alleges that
the respondent judge had been biased when hearing his
case.2 (Italics in the original; emphasis an underscoring
supplied)
By 2nd Indorsement dated July 31, 2007,3 respondent gave her
side of the case as follows:
Contrary to complainant’s allegation, the complaint in Criminal
Case No. 04-7811 (for grave threats), and the affidavits of the
therein complainant-sheriff’s witnesses were attached to the
record.4
Admitting complainant’s allegation that the court
stenographer examined complainant and his witnesses during
the preliminary investigation of the grave threats complaint
against him with the use of prepared written set of questions,
respondent explains as follows:
What [complainant] claimed in his Letter-Complaint that the
Court Stenographer has a prepared sheet of questions during
the preliminary examination is true because after a complaint
is filed, the undersigned prepares her questions for
preliminary examination based on the affidavits of the
complaining witnesses and the counter affidavits of the
accused. This is done to make it easy for the Stenographers to
take/print the transcript of the proceedings. Some witnesses
even ask to read/study the question and request that they
write down their answers to the questions for the
Stenographers to finalize. Also, this is convenient when more
than one preliminary examination is scheduled for the day.
This procedure makes it easier for the Stenographers and the
witnesses, too, considering the cramped office space.
After the witnesses are briefed, the [s]tenographers take over
since the prepared sheets are given to them so they could
propound the questions and the answers are typed directly. x
x x5 (Emphasis, italics and underscoring supplied)
Denying complainant’s allegation that he was arrested within
the court premises on July 20, 2004 or right after the conduct
of the preliminary examination conducted in the grave threats
complaint against him, respondent alleges that the preliminary
examination was conducted at 9:00 o’clock in the morning of
July 19, 2004; that she issued an Order6 the following day, July
20, 2004, finding probable cause and directing the issuance of
a warrant of arrest7against complainant which the warrant
officer received at 4:40 p.m. on even date; and that
complainant was arrested on July 21, 2004 at the Poblacion,
Labo, Camarines Norte, as shown by the Warrant Officer’s
Return of Service.8
Admitting that there was delay in scheduling the arraignment
of complainant after his arrest, respondent surmises that the
Clerk of Court or the clerk-in-charge might have overlooked
the Return of Service of the warrant officer. Respondent
states, however, that when the arraignment was scheduled,
complainant’s counsel opposed the same and filed an
Omnibus Motion which resulted in the repeated resetting of
the arraignment. Respondent adds that after complainant was
arraigned on June 6, 2006, the preliminary conference/pre-
trial was set but was not terminated due to the absence of
complainant or his counsel.9
In fact, respondent goes on to allege that in complainant’s
attempt to block his arraignment and to quash the Information
against him, he filed a Petition for Certiorari, Mandamus,
Prohibition with Application for Mandatory Injunction and Ex-
Parte Motion for Temporary Restraining Order with the
Regional Trial Court of Labo which was denied for lack of
merit. 10
On the allegation of bias on her part, respondent claims that
until the criminal complaints were filed, she did not know any
of the parties.
By June 18, 2008 Report,11 the OCA came up with the following
Evaluation:
xxxx
. . . [W]e hold [respondent] administratively liable for
her unfamiliarity with the basic rules on preliminary
investigation. There was irregularity during the preliminary
investigation when the respondent judge allowed the
stenographers to handle the latter part of the proceedings.
xxxx
. . . [R]espondent admitted that after the complaint was filed,
she prepared a set of questions based on the affidavits of the
complaining witnesses and counter affidavits of the accused.
She further added that during the preliminary investigation
and after briefing the accused and his witnesses, the
stenographers took charge of the proceedings. Hence, the
respondent judge violated the rules on preliminary
investigation. Respondent should not have allowed her
stenographer to handle the latter part of the proceedings even
if she only wanted to expedite the proceedings and it was
more convenient. Respondent judge should have personally
taken charge of the entire proceedings since the power to
conduct preliminary investigations vests only on her and not
on the stenographer.
x x x x12 (Emphasis and underscoring supplied)
Finding respondent guilty of gross ignorance of the law or
procedure, the OCA recommended that respondent be FINED
in the amount of ₱20,000 in this wise:
[W]e deem it proper to recommend the imposition upon the
respondent judge of a penalty of fine in the amount of
P20,000[,] this being her first offense.
As regards the issue of continuous hearing of the case by the
respondent judge, we opine that the respondent judge only
acted in good faith and in accordance with law when she
continued to direct the herein complainant to attend the pre-
trial. Based on the records, the Petition for Certiorari,
Mandamus, Prohibition with Application for Mandatory
Injunction and Ex-Parte Motion for Temporary Restraining
Order and the Motion for Reconsideration thereto filed by
complainant with the Regional Trial Court, Branch 64, Labo,
Camarines Norte were already denied; thus the respondent
judge had the authority to proceed with the case. The
postponements in the pre-trial were not attributable to the
respondent judge but to the accused and his counsel.1avvphi1
Finally, on the issue of bias, complainant failed to submit any
evidence showing the respondent biased or partial in hearing
the case. Bias and partiality of a judge must be proved by clear
and convincing evidence. Mere suspicion that a judge is bias or
partial would not be enough.13 (Italics in the original;
underscoring supplied)
By Resolution of August 20, 2008, 14 the Court, on the
recommendation of the OCA, re-docketed the case and
required the parties to manifest within ten days from notice
whether they were willing to submit the matter for resolution
on the basis of the pleadings filed and submitted. Both parties
have manifested in the affirmative.
The Court finds the evaluation well-taken.
Prior to the amendment on October 3, 2005 of Rules 112 and
114 of the Rules of Court via A.M. No. 05-8-26-SC, Re:
Amendment of Rules 112 and 114 of the Revised Rules on
Criminal Procedure by Removing the Conduct of Preliminary
Investigation from Judges of the First Level Courts, judges of
municipal trial courts were empowered to conduct preliminary
investigations in which they exercised discretion in
determining whether there was probable cause to hale the
respondent into court. Such being the case, they could not
delegate the discretion to another.
An officer to whom a discretion is entrusted cannot delegate it
to another, the presumption being that he was chosen
because he was deemed fit and competent to exercise that
judgment and discretion, and unless the power to substitute
another in his place has been given to him, he cannot delegate
his duties to another.
In those cases in which the proper execution of the office
requires on the part of the officer, the exercise of judgment or
discretion, the presumption is that he was chosen because he
was deemed fit and competent to exercise that judgment and
discretion, and, unless power to substitute another in his place
has been given to him, he cannot delegate his duties to
another.15 (Underscoring supplied)
Then, as now, a personal examination of the complainant in a infraction which is tantamount to the same charge shall be
criminal case and his witness/es was required. Thus, under dealt with more severely.
Section 4, Rule 112 of the Revised Rules of Court before its
amendment, the "investigating fiscal" was required to "certify SO ORDERED.
under oath that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his
witnesses . . . "

By respondent’s delegation of the examination of the sheriff-

complainant in the grave threats case to the stenographer, and
worse, by allowing the witnesses to "read/study the [written]
question[s]" to be propounded to them and to "write their
answers [thereto]" upon respondent’s justification that the
scheme was for the convenience of the stenographers,
respondent betrayed her lack of knowledge of procedure,
thereby contributing to the erosion of public confidence in the
judicial system.

Respondent is thus guilty of gross ignorance of the law or

procedure which, under Section 8, Rule 140 of the Rules of
Court, is a serious charge,16 for which Section 11 (A) of the
same Rule prescribes the following penalty:

SEC. 11. Sanctions. – A. If the respondent is guilty of a serious

charge, any of the following sanctions may be imposed:

1. Dismissal from the service, forfeiture of all or part

of the benefits as the Court may determine, and
disqualification from reinstatement or appointment
to any public office, including government-owned
and controlled corporations. Provided, however, That
the forfeiture of benefits shall in no case include
accrued leave credits;

2. Suspension from office without salary and other

benefits for more than three (3) but not exceeding six
(6) months; or

3. A fine of more than P20,000 but not exceeding

P40,000.00.

The Court thus finds in order the Recommendation of the OCA

to impose a fine of ₱20,000 on respondent. The OCA’s
recommendation to warn respondent that a "repetition of
the same act will be dealt with more severely" does not lie,
however, A.M. No. 05-8-26-SC, which took effect on October
3, 2005, having removed the power of judges of the first level
courts17 to conduct preliminary investigation. A warning that a
commission of another infraction tantamount to gross
ignorance of law or procedures shall be dealt with more G.R. No. 156164 September 4, 2009
severely lies, however.
SPS. LEONARDO AND MILAGROS CHUA, Petitioners,
WHEREFORE, the Court finds respondent, Judge Aurea G. vs.
Peñalosa-Fermo of the Municipal Trial Court of Labo, HON. JACINTO G. ANG, DENNIS R. PASTRANA, IN THEIR
Camarines Norte, guilty of Gross Ignorance of the Law or CAPACITIES AS CITY AND ASSISTANT PROSECUTOR OF PASIG,
Procedure. She is FINED in the amount of Twenty Thousand RESPECTIVELY, FERDINAND T. SANTOS, ROBERT JOHN L.
(₱20,000) Pesos and warned that a commission of another SOBREPEÑA, NOEL M. CARIÑO, ROBERTO S. ROCO, ALICE
ODCHIQUE-BONDOC,* ROMULO T. SANTOS AND ENRIQUE A.
SOBREPEÑA, JR., Respondents.
DECISION
Before us is the petition for certiorari1] filed by the spouses
Leonardo and Milagros Chua (petitioners) to assail the
Resolution dated November 4, 2002 of the City Prosecutor of
Pasig in I.S. No. PSG 02-02-09150. The City Prosecutor’s
Resolution dismissed the complaint filed by the petitioners
against Ferdinand T. Santos, Robert John L. Sobrepeña, Noel
M. Cariño, Roberto S. Roco, Alice Odchique-Bondoc, Romulo T.
Santos and Enrique A. Sobrepeña, Jr. (private respondents) for
violation of Presidential Decree (P.D.) No. 957, otherwise
known as "The Subdivision and Condominium Buyers
Protective Decree."
FACTUAL BACKGROUND
The antecedent facts, drawn from the records, are briefly
summarized below.
On February 11, 1999, the petitioners (as buyers) and Fil-Estate
Properties, Inc. (FEPI, as developers) executed a Contract To
Sell2 a condominium unit. Despite the lapse of three (3) years,
FEPI failed to construct and deliver the contracted
condominium unit to the petitioners.
As a result, the petitioners filed on September 3, 2002 a
Complaint-Affidavit3 before the Office of the City Prosecutor of
Pasig City accusing the private respondents, as officers and
directors of FEPI, of violating P.D. No. 957, specifically its
Sections 17 and 20, in relation with Section 39.4 These
provisions state:
Sec. 17. Registration. - All contracts to sell, deeds of sale and
other similar instruments relative to the sale or conveyance of
the subdivision lots and condominium units, whether or not
the purchase price is paid in full, shall be registered by the
seller in the Office of the Register of Deeds of the province or
city where the property is situated.
xxx
Sec. 20. Time of Completion. - Every owner or developer shall
construct and provide the facilities, improvements,
infrastructures and other forms of development, including
water supply and lighting facilities, which are offered and
indicated in the approved subdivision or condominium plans,
brochures, prospectus, printed matters, letters or in any form
of advertisement, within one year from the date of the
issuance of the license for the subdivision or condominium
project or such other period of time as may be fixed by the
Authority.
xxx
Sec. 39. Penalties. - Any person who shall violate any of the
provisions of this Decree and/or any rule or regulation that
may be issued pursuant to this Decree shall, upon conviction,
be punished by a fine of not more than twenty thousand
(P20,000.00) pesos and/or imprisonment of not more than ten
years: Provided, That in the case of corporations, partnership,
cooperatives, or associations, the President, Manager or
Administrator or the person who has charge of the
administration of the business shall be criminally responsible
for any violation of this Decree and/or the rules and
regulations promulgated pursuant thereto. [Emphasis
supplied]
The petitioners alleged that the private respondents did not
construct and failed to deliver the contracted condominium
unit to them and did not register the Contract to Sell with the
Register of Deeds.
Of the seven (7) private respondents, only private respondent
Alice Odchique-Bondoc filed a Counter-Affidavit.5 She
countered that the City Prosecutor has no jurisdiction over the
case since it falls under the exclusive jurisdiction of the
Housing and Land Use Regulatory Board (HLURB).
On November 4, 2002, Assistant City Prosecutor Dennis R.
Pastrana and Pasig City Prosecutor Jacinto G. Ang (public
respondents), respectively issued and approved the
Resolution6 dismissing the complaint for being premature. The
Resolution held that it is the HLURB that has exclusive
jurisdiction over cases involving real estate business and
practices.
THE PETITION and THE PARTIES’ POSITIONS
On December 12, 2002, the petitioners filed the present
petition7 anchored on the following ground:
PUBLIC RESPONDENTS COMMITTED MANIFEST ERROR AND
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR
EXCESS OF JURISDICTION, WHEN IT DISMISSED PETITIONER'S
COMPLAINANT (sic) ON THE GROUND THAT THE HLURB, NOT
THEIR OFFICE HAS JURISDICTION TO CONDUCT PRELIMINARY
INVESTIGATION AND FILE THE CORRESPONDING
INFORMATION IN COURT FOR CRIMINAL VIOLATIONS OF P.D.
No. 957.8
The petitioners argue that jurisdiction to entertain criminal
complaints is lodged with the city prosecutor and that the
jurisdiction of the HLURB under P.D. No. 957 is limited to the
enforcement of contractual rights, not the investigation of
criminal complaints.
In their Comment,9 the private respondents submit that the
petition should be dismissed outright because the petitioners
failed to avail of other remedies provided by law, such as (a)
the filing of a motion for reconsideration with the City
Prosecutor of Pasig City, (b) the filing of a petition for review
with the Secretary of the Department of Justice (DOJ), (c) the
filing of a motion for reconsideration of any judgment
rendered by the DOJ, or (d) the filing of an appeal or a petition
for certiorari with the Court of Appeals (CA); that even
if certiorari is a proper remedy, the petition was filed in
violation of the hierarchy of courts; and that even on the
merits, the petition must fail since the public respondents
correctly dismissed the complaint as a reasonable
interpretation of P.D. No. 957 which requires a prior
determination by the HLURB that a corporation violated P.D.
No. 957 before criminal charges may be filed against its
corporate officers.
In their Reply, the petitioners reiterate that the public
respondents abdicated their authority to conduct a
preliminary investigation and to indict the private respondents
for criminal violations of P.D. No. 957 when they dismissed the
criminal complaint for being premature. 10
OUR RULING
We find the petition meritorious.
At the outset, we note that the petitioners indeed filed the
present petition for certiorari without prior recourse to other
available remedies provided by law and the observance of the
judicial hierarchy of courts. Nonetheless, the rules on prior
recourse to these available remedies are not without
exceptions, nor is the observance of the judicial hierarchy of
courts an inflexible rule; the peculiarity, uniqueness and
unusual character of the factual and circumstantial settings of
a case may allow the flexible application of these established
legal principles to achieve fair and speedy dispensation of
justice.
A prior motion for reconsideration is unnecessary: (a) where
the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari
proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon
in the lower court; (c) where there is an urgent necessity for
the resolution of the question and any further delay would
prejudice the interests of the Government or of the petitioner;
(d) where, under the circumstances, a motion for
reconsideration would be useless; (e) where petitioner was
deprived of due process and there is an extreme urgency for
relief; (f) where, in a criminal case, relief from an order of
arrest is urgent and the grant of such relief by the trial court is
improbable; (g) where the proceedings in the lower court are
a nullity for lack of due process; (h) where the proceedings
were ex parte or in which the petitioner had no opportunity to
object; or (i) where the issue raised is one purely of law or
where public interest is involved.11
On the other hand, prior exhaustion of administrative
remedies may be dispensed with and judicial action may be
validly resorted to immediately: (a) when there is a violation of
due process; (b) when the issue involved is purely a legal
question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is
estoppel on the part of the administrative agency concerned;
(e) when there is irreparable injury; (f) when the respondent is
a department secretary whose acts as an alter ego of the
President bear the implied and assumed approval of the latter;
(g) when to require exhaustion of administrative remedies
would be unreasonable; (h) when it would amount to a
nullification of a claim; (i) when the subject matter is a private
land in land case proceedings; (j) when the rule does not
provide a plain, speedy and adequate remedy; or (k) when
there are circumstances indicating the urgency of judicial
intervention.12
On the non-observance of the principle of hierarchy of courts,
it must be remembered that this rule generally applies to cases
involving conflicting factual allegations. Cases which depend
on disputed facts for decision cannot be brought immediately
before us as we are not triers of facts. 13 A strict application of
this rule may be excused when the reason behind the rule is
not present in a case, as in the present case, where the issues
are not factual but purely legal. In these types of questions,
this Court has the ultimate say so that we merely abbreviate
the review process if we, because of the unique circumstances
of a case, choose to hear and decide the legal issues outright.14
In the present petition for certiorari, we find that there are
four (4) compelling reasons to allow the petitioners' invocation
of our jurisdiction in the first instance, even without prior
recourse to a motion for reconsideration or to the exhaustion
of administrative remedies, and even in disregard of the
principle of hierarchy of courts.
First, the petitioners raise a pure question of law involving
jurisdiction over criminal complaints for violation of P.D. No.
957. A question of law exists when the doubt or controversy
concerns the correct application of law or jurisprudence to a
certain set of facts; or when the issue does not call for an
examination of the probative value of the evidence presented,
the truth or falsehood of facts being admitted.15 As noted
earlier, this Court is the undisputed final arbiter of all questions
of law.
Second, the present case requires prompt action because
public interest and welfare are involved in subdivision and
condominium development, as the terms of P.D. Nos. 957 and
1344 expressly reflect.16 Questions of conflicting processes,
essentially based on jurisdiction, will consistently recur as
people’s need for housing (and hence, subdivisions and
condominiums) escalate. Shelter is a basic human need whose
fulfillment cannot afford any kind of delay.17
Third, considering that this case has been pending for nearly
seven (7) years (since the filing of the Complaint-Affidavit on
September 3, 2002) to the prejudice not only of the parties
involved, but also of the subdivision and condominium
regulatory system and its need for the prompt determination
of controversies, the interests of justice now demand the
direct resolution of the jurisdictional issue this proceeding
poses. As mentioned, at stake in this case is shelter – a basic
human need and to remand the case to the DOJ for a
determination of the merits of the parties’ jurisdictional tug-
of-war would not serve any purpose other than to further
delay its resolution.18 Thus, the practicality of the situation and
the need for the speedy administration of justice justify a
departure from the strict application of procedural rules.
Besides, the issue before us presents no special difficulty, and
we feel it should be decided now, without going through the
procedural formalities that shall anyway end up with this
Court.
Fourth, the petition is meritorious. The public respondents
committed grave abuse of discretion in dismissing the criminal
complaints for violation of P.D. No. 957 on the ground that
jurisdiction lies with the HLURB.
Generally, the extent to which an administrative agency may
exercise its powers depends largely, if not wholly, on the
provisions of the statute creating and defining the terms of the
agency’s mandate. P.D. No. 1344 clarifies and spells out the
quasi-judicial dimensions of the grant of jurisdiction to the
HLURB in the following specific terms:19
SEC. 1. In the exercise of its functions to regulate the real
estate trade and business and in addition to its powers
provided for in Presidential Decree No. 957, the National
Housing Authority shall have exclusive jurisdiction to hear and
decide cases of the following nature:
A. Unsound real estate business practices;
B. Claims involving refund and any other claims filed
by subdivision lot or condominium unit buyer against
the project owner, developer, dealer, broker or
salesman; and
C. Cases involving specific performance of contractual
and statutory obligations filed by buyers of
subdivision lots or condominium units against the
owner, developer, dealer, broker or salesman.
The extent of its quasi-judicial authority, on the other hand, is
defined by the terms of P.D. No. 957 whose Section 3 provides:
x x x National Housing Authority [now HLURB]. - The National
Housing Authority shall have exclusive jurisdiction to regulate
the real estate trade and business in accordance with the
provisions of this Decree.
The provisions of P.D No. 957 were intended to encompass all
questions regarding subdivisions and condominiums. The
intention was to provide for an appropriate government
agency, the HLURB, to which all parties – buyers and sellers of
subdivision and condominium units - may seek remedial
recourse. The law recognized, too, that subdivision and
condominium development involves public interest and
welfare and should be brought to a body, like the HLURB, that
has technical expertise.20 In the exercise of its powers, the
HLURB, on the other hand, is empowered to interpret and
apply contracts, and determine the rights of private parties
under these contracts. This ancillary power, generally judicial,
is now no longer with the regular courts to the extent that the
pertinent HLURB laws provide.21
Viewed from this perspective, the HLURB’s jurisdiction over
contractual rights and obligations of parties under subdivision
and condominium contracts comes out very clearly. But hand
in hand with this definition and grant of authority is the
provision on criminal penalties for violations of the Decree,
provided under the Decree’s Section 39, heretofore quoted.
Significantly, nothing in P.D. No. 957 vests the HLURB with
jurisdiction to impose the Section 39 criminal penalties. What
the Decree provides is the authority of the HLURB to impose
administrative fines under Section 38, as implemented by the
Rules Implementing the Subdivision and Condominium Buyer’s
Protective Decree. This Section of the Decree provides:
Sec. 38. Administrative Fines. – The Authority may prescribe
and impose fines not exceeding ten thousand pesos for
violations of the provisions of this Decree or of any rule or
regulation thereunder. Fines shall be payable to the Authority
and enforceable through writs of execution in accordance with
the provisions of the Rules of Court.1avvphi1
The Implementing Rules, for their part, clarify that "The
implementation and payment of administrative fines shall not
preclude criminal prosecution of the offender under Section
39 of the Decree." Thus, the implementing rules themselves
expressly acknowledge that two separate remedies with
differing consequences may be sought under the Decree,
specifically, the administrative remedy and criminal
prosecution.
Unless the contrary appears under other provisions of law (and
in this case no such provision applies), the determination of
the criminal liability lies within the realm of criminal procedure
as embodied in the Rules of Court. Section 2, Rule 112 of these
Rules provide that the prerogative to determine the existence
or non-existence of probable cause lies with the persons duly
authorized by law; as provided in this Rule, they are (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.
In the present case, the petitioners have expressly chosen to
pursue the criminal prosecution as their remedy but the
prosecutor dismissed their complaint. The prosecutor’s
dismissal for prematurity was apparently on the view that an
administrative finding of violation must first be obtained
before recourse can be made to criminal prosecution. This
view is not without its model in other laws; one such law is in
the prosecution of unfair labor practice under the Labor Code
where no criminal prosecution for unfair labor practice can be
instituted without a final judgment in a previous
administrative proceeding.22 The need for a final
administrative determination in unfair labor practice cases,
however, is a matter expressly required by law. Where the law
is silent on this matter, as in this case, the fundamental
principle – that administrative cases are independent from
criminal actions23 – fully applies, subject only to the rules on
forum shopping under Section 5, Rule 7 of the Rules of
Court.24 In the present case, forum shopping is not even a
matter for consideration since the petitioners have chosen to
pursue only one remedy – criminal prosecution. Thus, we see
no bar to their immediate recourse to criminal prosecution by
filing the appropriate complaint before the prosecutor’s office.

In light of these legal realities, we hold that the public

respondent prosecutors should have made a determination of
probable cause in the complaint before them, instead of
simply dismissing it for prematurity. Their failure to do so and
the dismissal they ordered effectively constituted an evasion
of a positive duty and a virtual refusal to perform a duty
enjoined by law; they acted on the case in a manner outside
the contemplation of law. This is grave abuse of discretion
amounting to a lack of or in excess of jurisdiction warranting a
reversal of the assailed resolution.25 In the concrete context of
this case, the public prosecutors effectively shied away from
their duty to prosecute, a criminal violation of P.D. No. 957 as
mandated by Section 5, Rule 110 of the Rules of Court and
Republic Act No. 5180,26 as amended,27 otherwise known as
the Law on Uniform Procedure of Preliminary Investigation.

As a final word, we stress that the immediate recourse to this

Court that this Decision allows should not serve as a precedent
in other cases where the prosecutor dismisses a criminal
complaint, whether under P.D. No. 957 or any other law.
Recourse to (a) the filing a motion for reconsideration with the
City or Provincial Prosecutor, (b) the filing a petition for review
with the Secretary of the DOJ, (c) the filing a motion for
reconsideration of any judgment rendered by the DOJ, and (d)
intermediate recourse to the CA, are remedies that the
dictates of orderly procedure and the hierarchy of authorities
cannot dispense with. Only the extremely peculiar
circumstances of the present case compelled us to rule as we
did; thus our ruling in this regard is a rare one that should be G.R. NO. 173121 : April 3, 2013
considered pro hac vice.
FRANKLlN ALEJANDRO, Petitioner, v. OFFICE OF THE
WHEREFORE, we hereby GRANT the petition and accordingly OMBUDSMAN FACT-FINDING AND INTELLIGENCE BUREAU,
REVERSE and SET ASIDE the Resolution dated November 4, represented by Atty. Maria Olivia Elena A.
2002 of the City Prosecutor of Pasig in I.S. No. PSG 02-02- Roxas, Respondent.
09150. The complaint is hereby ordered returned to the Office
of the City Prosecutor of Pasig City for the determination of DECISION
probable cause and the filing of the necessary information, if
warranted. No costs. We resolve the petition for review on certiorari,1 filed by
Franklin Alejanctro (petitioneJ), assailing the February 21,
SO ORDERED. 2006 decision2 and the June 15, 2006 resolution3 of the Court
of Appeals (CA) in CA-G.R. SP No. 88544. The CA dismissed for
prematurity the petitioner's appeal on the August 20, 2004
decision4of the Office of the Deputy Ombudsman in OMB-C-A-
03-0310-I finding him administratively liable for grave
misconduct.
The Factual Antecedents
On May 4, 2000, the Head of the Non-Revenue Water
Reduction Department of the Manila Water Services, Inc.
(MWSI) received a report from an Inspectorate and Special
Projects team that the Mico Car Wash (MICO), owned by
Alfredo Rap Alejandro, has been illegally opening an MWSI fire
hydrant and using it to operate its car-wash business in
Binondo, Manila.5chanroblesvirtualawlibrary
On May 10, 2000, the MWSI, in coordination with the
Philippine National Police Criminal Investigation and Detection
Group (PNP-CIDG), conducted an anti-water pilferage
operation against MICO.6chanroblesvirtualawlibrary
During the anti-water pilferage operation, the PNP-CIDG
discovered that MICO's car-wash boys indeed had been
illegally getting water from an MWSI fire hydrant. The PNP-
CIDG arrested the car-wash boys and confiscated the
containers used in getting water. At this point, the petitioner,
Alfredo's father and the Barangay Chairman or punong
barangay of Barangay 293, Zone 28, Binondo, Manila,
interfered with the PNP-CIDG's operation by ordering several
men to unload the confiscated containers. This intervention
caused further commotion and created an opportunity for the
apprehended car-wash boys to escape.7
On August 5, 2003, the respondent Office of the Ombudsman
Fact-Finding and Intelligence Bureau, after conducting its
initial investigation, filed with the Office of the Overall Deputy
Ombudsman an administrative complaint against the
petitioner for his blatant refusal to recognize a joint legitimate
police activity, and for his unwarranted intervention.
In its decision9 dated August 20, 2004, the Office of the Deputy
Ombudsman found the petitioner guilty of grave misconduct
and ordered his dismissal from the service. The Deputy
Ombudsman ruled that the petitioner cannot overextend his
authority as Barangay Chairman and induce other people to
disrespect proper authorities. The Deputy Ombudsman also
added that the petitioner had tolerated the illegal acts of
MICO's car-wash boys.10chanroblesvirtualawlibrary
The petitioner filed a motion for reconsideration which the
Office of the Deputy Ombudsman denied in its order11 of
November 2, 2004.
The petitioner appealed to the CA via a petition for review
under Rule 43 of the Rules of Court. In its decision 12 dated
February 21, 2006, the CA dismissed the petition for
premature filing. The CA ruled that the petitioner failed to
exhaust proper administrative remedies because he did not
appeal the Deputy Ombudsman's decision to the Ombudsman.
The petitioner moved for the reconsideration of the CA ruling.
On June 15, 2006, the CA denied the motion.13
The Petition
The petitioner posits that the CA erred in dismissing his
petition outright without considering Rule 43 of the Rules of
Court and Administrative Order No. 07 (otherwise known as
the Rules of Procedure of the Office of the Ombudsman), 14 on
the belief that the filing of a motion for reconsideration of the
decision of the Office of the Overall Deputy Ombudsman can
already be considered as an exhaustion of administrative
remedies. The petitioner further argues that the Office of the
Ombudsman has no jurisdiction to order his dismissal from the
service since under Republic Act No. (RA) 7160 (otherwise
known as the Local Government Code of 1991), an elective
local official may be removed from office only by the order of
a proper court. Finally, he posits that the penalty of dismissal
from the service is not warranted under the available facts.
The Office of the Deputy Ombudsman, through the Office of
the Solicitor General, pointed out in its Comment15 that the
petitioner failed to exhaust administrative remedies since he
did not appeal the decision of the Deputy Ombudsman to the
Ombudsman. The Office of the Deputy Ombudsman
maintained that under RA 677016 (The Ombudsman Act of
1989), the Office of the Ombudsman has disciplinary authority
over all elective and appointive officials. It also asserted that
sufficient evidence exists to justify the petitioner's dismissal
from the service.
As framed by the parties, the case poses the following issues:
I.
WHETHER THE PRINCIPLE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES REQUIRES A REQUEST FOR
RECONSIDERATION FROM THE OFFICE OF THE DEPUTY
OMBUDSMAN TO THE OMBUDSMAN FOR THE PURPOSE OF A
RULE 43 REVIEW.
II.
WHETHER THE OFFICE OF THE OMBUDSMAN HAS
JURISDICTION OVER ELECTIVE OFFICIALS AND HAS THE POWER
TO ORDER THEIR DISMISSAL FROM THE SERVICE.
III.
WHETHER PETITIONER'S ACT CONSTITUTES GRAVE
MISCONDUCT TO WARRANT HIS DISMISSAL.
The Court's Ruling
We deny the petition for lack of merit.
Preliminary Issues
The CA committed no reversible error in affirming the findings
and conclusions of the Deputy Ombudsman.
No further need exists to exhaust administrative remedies
from the decision of the Deputy Ombudsman because he was
acting in behalf of the Ombudsman
We disagree with the CA's application of the doctrine of
exhaustion of administrative remedies which states that when
there is "a procedure for administrative review, x x x appeal,
or reconsideration, the courts x x x will not entertain a case
unless the available administrative remedies have been
resorted to and the appropriate authorities have been given
an opportunity to act and correct the errors committed in the
administrative forum."17chanroblesvirtualawlibrary
Section 7, Rule III of Administrative Order No. 07, dated April
10, 1990, provides that:
Section 7. FINALITY OF DECISION. Where the respondent is
absolved of the charge and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of
not more than one (1) month, or a fine equivalent to one (1)
month salary, the decision shall be final and unappealable. In
all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the
respondent, unless a motion for reconsideration or petition
for certiorari shall have been filed by him as prescribed in
Section 27 of RA 6770. [italics supplied; emphasis and
underscore ours]
Administrative Order No. 07 did not provide for another
appeal from the decision of the Deputy Ombudsman to the
Ombudsman. It simply requires that a motion for
reconsideration or a petition for certiorari may be filed in all
other cases where the penalty imposed is not one involving
public censure or reprimand, suspension of not more than one
(1) month, or a fine equivalent to one (1) month salary. This
post-judgment remedy is merely an opportunity for the Office
of the Deputy Ombudsman, or the Office of the Ombudsman,
to correct itself in certain cases. To our mind, the petitioner
has fully exhausted all administrative remedies when he filed
his motion for reconsideration on the decision of the Deputy
Ombudsman. There is no further need to review the case at
the administrative level since the Deputy Ombudsman has
already acted on the case and he was acting for and in behalf
of the Office of the Ombudsman.
The Ombudsman has concurrent jurisdiction over
administrative cases which are within the jurisdiction of the
regular courts or administrative agencies
The Office of the Ombudsman was created by no less than the
Constitution.18 It is tasked to exercise disciplinary authority
over all elective and appointive officials, save only for
impeachable officers. While Section 21 of The Ombudsman
Act19 and the Local Government Code both provide for the
procedure to discipline elective officials, the seeming conflicts
between the two laws have been resolved in cases decided by
this Court.20chanroblesvirtualawlibrary
In Hagad v. Gozo-Dadole,21 we pointed out that "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 x x x as to
compel us to only uphold one and strike down the other." The
two laws may be reconciled by understanding the primary
jurisdiction and concurrent jurisdiction of the Office of the
Ombudsman.
The Ombudsman has primary jurisdiction to investigate any
act or omission of a public officer or employee who is under
the jurisdiction of the Sandiganbayan. RA 6770 provides:
Section 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 Government, the
investigation of such cases. [italics supplied; emphasis and
underscore ours]
The Sandiganbayan's jurisdiction extends only to public
officials occupying positions corresponding to salary grade 27
and higher.22chanroblesvirtualawlibrary
Consequently, as we held in Office of the Ombudsman v.
Rodriguez,23 any act or omission of a public officer or
employee occupying a salary grade lower than 27 is within the
concurrent jurisdiction of the Ombudsman and of the regular
courts or other investigative agencies.
In administrative cases involving the concurrent jurisdiction of
two or more disciplining authorities, the body where the
complaint is filed first, and which opts to take cognizance of
the case, acquires jurisdiction to the exclusion of other
tribunals exercising concurrent jurisdiction.25 In this case, the
petitioner is a Barangay Chairman, occupying a position
corresponding to salary grade 14.26 Under RA 7160, the
sangguniang panlungsod or sangguniang bayan has
disciplinary authority over any elective barangay official, as
follows:
Section 61. Form and Filing of Administrative Complaints. A
verified complaint against any erring local elective official shall
be prepared as follows:
xxx
(c) A complaint against any elective barangay official shall be
filed before the sangguniang panlungsod or sangguniang
bayan concerned whose decision shall be final and executory.
[italics supplied]
Since the complaint against the petitioner was initially
filed with the Office of the Ombudsman, the Ombudsman's
exercise of jurisdiction is to the exclusion of the sangguniang
bayan whose exercise of jurisdiction is concurrent.
The Ombudsman has the power to impose administrative
sanctions
Section 15 of RA 677027 reveals the manifest intent of the
lawmakers to give the Office of the Ombudsman
full administrative disciplinary authority. This provision covers
the entire range of administrative activities attendant to
administrative adjudication, including, among others, the
authority to receive complaints, conduct investigations, hold
hearings in accordance with its rules of procedure, summon
witnesses and require the production of documents, place
under preventive suspension public officers and employees
pending an investigation, determine the appropriate penalty
imposable on erring public officers or employees as warranted
by the evidence, and, necessarily, impose the corresponding
penalty.28chanroblesvirtualawlibrary
These powers unmistakably grant the Office of the
Ombudsman the power to directly impose administrative
sanctions; its power is not merely recommendatory. We held
in Office of the Ombudsman v. Apolonio29 that:
It is likewise apparent that under RA 6770, the lawmakers
intended to provide the Office of the Ombudsman with
sufficient muscle to ensure that it can effectively carry out its
mandate as protector of the people against inept and corrupt
government officers and employees. The Office was granted
the power to punish for contempt in accordance with the Rules
of Court. It was given disciplinary authority over all elective
and appointive officials of the government and its
subdivisions, instrumentalities and agencies (with the
exception only of impeachable officers, members of Congress
and the Judiciary). Also, it can preventively suspend any officer
under its authority pending an investigation when the case so
warrants.30 (italics supplied; emphasis and underscore ours)
Substantive Issue
The petitioner is liable for grave misconduct
At the outset, we point out that the maintenance of peace and
order is a function of both the police and the Barangay
Chairman, but crime prevention is largely a police matter. At
the time when the police officers were hauling the confiscated
equipment, they were creating a commotion. As Barangay
Chairman, the petitioner was clearly in the performance of his
official duty when he interfered. Under Section 389(b)(3) of RA
7160, the law provides that a punong barangay must "maintain
public order in the barangay and, in pursuance thereof, assist
the city or municipal mayor and the sanggunian members in
the performance of their duties and functions." The PNP-
CIDG's anti-water pilferage operation against the car-wash
boys was affecting the peace and order of the community and
he was duty-bound to investigate and try to maintain public
order.31chanroblesvirtualawlibrary
After the petitioner introduced himself and inquired about the
operation, the police officers immediately showed their
identifications and explained to him that they were conducting
an anti-water pilferage operation. However, instead of
assisting the PNP-CIDG, he actually ordered several bystanders
to defy the PNP-CIDG's whole operation. The petitioner's act
stirred further commotion that unfortunately led to the escape
of the apprehended car-wash boys.32
The petitioner, as Barangay Chairman, is tasked to enforce all
laws and ordinances which are applicable within the barangay,
in the same manner that the police is bound to maintain peace
and order within the community. While the petitioner has
general charge of the affairs in the barangay, the maintenance
of peace and order is largely a police matter, with police
authority being predominant33 especially when the police has
began to act on an enforcement matter.34 The maintenance of
peace and order in the community is a general function
undertaken by the punong barangay. It is a task expressly
conferred to the punong barangay under Section 389(b)(3) of
RA 7160.35 On the other hand, the maintenance of peace and
order carries both general and specific functions on the part of
the police. Section 24 of RA 6975 (otherwise known as "the
Department of the Interior and Local Government Act of
1990"),36as amended,37 enumerates the powers and functions
of the police. In addition to the maintenance of peace and
order, the police has the authority to "investigate and prevent
crimes, effect the arrest of criminal offenders, bring offenders
to justice and assist in their prosecution," and are charged with
the enforcement of "laws and ordinances relative to the
protection of lives and properties."38 Examined side by side,
police authority is superior to the punong barangay's authority
in a situation where the maintenance of peace and order has
metamorphosed into crime prevention and the arrest of
criminal offenders.
In this case, a criminal act was actually taking place and the
situation was already beyond the general maintenance of
peace and order. The police was, at that point, under the
obligation to prevent the commission of a crime and to effect
the arrest, as it actually did, of criminal offenders.
From another perspective, the peace and order function of the
punong barangay must also be related to his function of
assisting local executive officials (i.e., the city mayor), under
Section 389(b), Chapter III of the Local Government
Code.39 Local executive officials have the power to employ and
deploy police for the maintenance of peace and order, the
prevention of crimes and the arrest of criminal
offenders.40Accordingly, in the maintenance of peace and
order, the petitioner is bound, at the very least, to respect the
PNP-CIDG's authority even if he is not in the direct position to
give aid. By interfering with a legitimate police operation, he
effectively interfered with this hierarchy of authority. Thus, we
are left with no other conclusion other than to rule that
Alejandro is liable for misconduct in the performance of his
duties.

Misconduct is considered grave if accompanied by corruption,

a clear intent to violate the law, or a flagrant disregard of
established rules, which must all be supported by substantial
evidence.41 If the misconduct does not involve any of the
additional elements to qualify the misconduct as grave, the
person charged may only be held liable for simple misconduct.
"Grave misconduct necessarily includes the lesser offense of
simple misconduct.''42chanroblesvirtualawlibrary

Sufficient records exist to justify the imposition of a higher

penalty against the petitioner. His open interference in a
legitimate police activity. and defiance of the police's authority
only show his clear i1itent to violate the law; in fact, he
reneged on his first obligation as the grassroot official tasked
at the first level with the enforcement of the law. The
photographs, taken together with the investigation report of
the Police Superintendent and the testimonies of the
witnesses, even lead to conclusions beyond interference and
defiance; the petitioner himself could have been involved in
corrupt activities, although we cannot make this conclusive
finding at this point.43 We make this observation though as his
son owns MICO whose car-wash boys were engaged in water
pilferage. What we can conclusively confirm is that the
petitioner violated the law by directly interfering with a
legitimate police activity where his own son appeared to be
involved. This act qualifies the misconduct as grave. Section
52(A)(3), Rule IV of the Revised Uniform Rules on
Administrative Cases in the Civil Service provides that the
penalty for grave misconduct is dismissal from the service.

WHEREFORE, in view of the foregoing, we hereby DENY the

petition for lack of merit, and AFFIRM the decision of the Court
of Appeals in CA-G.R. SP No. 88544.

SO ORDERED.