Cases Public Officer.docx

G.R. No. 177244

November 20, 2007

In his Memorandum7 dated January 3, 2001, President and Chief Executive Officer Federico Puno found petitioner guilty of grave misconduct and imposed upon him the penalty of dismissal from service.

TEODULO V. LARGO, petitioner, vs. THE COURT OF APPEALS, THE CIVIL SERVICE COMMISSION, THE NATIONAL POWER CORPORATION and ALAN OLANDESCA, respondents.

On petitioner’s motion for reconsideration, NPC President Jesus N. Alcordo reduced the penalty to one year suspension, taking into consideration that this was petitioner’s first offense, the absence of physical harm caused by the shots he fired, his 21 years of service, his consistent very satisfactory performance, and Olandesca’s act of humiliating him prior to the incident. Considering, however, the retirement of petitioner, the NPC directed the execution of the penalty by deducting an amount equivalent to one year suspension without pay, from his retirement benefits.8

DECISION YNARES-SANTIAGO, J.: Assailed in this petition for review1 is the March 23, 2007 Decision2 of the Court of Appeals in CA-G.R. SP No. 84984 which affirmed the July 4, 2003 Resolution3 of the Civil Service Commission (CSC) finding petitioner guilty of grave misconduct and imposing upon him the penalty of dismissal from service.

Petitioner appealed to the CSC which on July 4, 2003, affirmed the finding of the NPC that petitioner was guilty of grave misconduct but modified the penalty to dismissal from service. The dispositive portion of the CSC Resolution, provides:

On December 17, 1997, petitioner Teodulo V. Largo, Section Chief, Administrative/General Services of the National Power Corporation (NPC) in Angat River Hydroelectric Power Plant (ARHEP), Norzagaray, Bulacan, was administratively charged with grave misconduct, conduct prejudicial to the best interest of the service, oppression, or unlawful exercise of power by an officer or employee as to harm anyone in his person or property while purporting to act under the color of authority and willfull violation of NPC Circular No. 97-66, which prohibits personnel from carrying firearms inside the NPC premises. These charges were based on the complaint filed by Alan A. Olandesca (Olandesca), former property officer of the NPC at ARHEP.

WHEREFORE, the appeal of Teodulo V. Largo from the Decision dated August 15, 2001 of National Power Corporation President Jesus N. Alcordo, finding him guilty of Grave Misconduct, is DISMISSED. The penalty of one-year suspension to be executed by deducting an amount equivalent to one-year salary from the retirement benefits of Largo is hereby MODIFIED to dismissal from service. Largo’s dismissal from the service carries with it cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for re-employment in the government service.9

The NPC investigation revealed that on October 30, 1997, petitioner and Olandesca attended a birthday party where petitioner claimed to have been humiliated by Olandesca who threw a piece of paper at him and shouted, "Ikaw ang magnanakaw." At around 5:05 in the afternoon of the same day, petitioner went to the quarters of Olandesca at ARHEP shouting invectives and threatening to kill Olandesca. Petitioner proceeded to the dirty kitchen at the back of the quarters where he met Olandesca’s wife. While they were conversing, a dog suddenly appeared and barked at petitioner. Claiming to have been frightened by the incessant barking of the dog which was about to attack him, petitioner fired two shots which scared the wife of Olandesca, as well as his 2 children, sister-in-law and mother-in law who were then gathered at the dirty kitchen. The first shot hit the flooring, while the other hit the water hose. Unable to find Olandesca, petitioner left the compound.4

On June 21, 2004, the CSC denied petitioner’s motion for reconsideration in Resolution No. 040690.10 On petition with the Court of Appeals, the latter rendered a decision affirming the Resolution of the CSC. The decretal portion thereof provides: WHEREFORE, the instant petition is DENIED and the assailed Orders of the Civil Service Commission dated July 4, 2003 and June 21, 2004 are AFFIRMED. SO ORDERED.11 Hence, the instant petition. Petitioner contends that the administrative case against him should be dismissed, the same having been rendered academic by his retirement from service. He further claims that there is no case against him and, assuming that he is guilty of an administrative offense, his liability could only be for simple misconduct. Petitioner further prays for the imposition of a lighter penalty instead of dismissal from service.

Meanwhile, petitioner retired from service effective January 1, 1998 under the NPC SDP Retirement Plan.5 On March 19, 1998, the NPC Regional Board of Inquiry & Discipline conducted a pre-hearing conference. On motion of Olandesca, the NPC President approved the transfer of the formal investigation to the Board of Inquiry and Discipline of the NPC Head Office, which recommended that petitioner be held liable for simple misconduct with the minimum penalty of suspension for one month and one day to two months.6

The issues for resolution are: (1) whether the retirement of petitioner rendered moot the resolution of the instant

1

administrative case; and (2) whether petitioner was validly dismissed for serious misconduct.

purely self-serving and without evidentiary value.17 Like the defense of alibi, petitioner’s denial crumbles in the light of the positive declarations of the witnesses that petitioner uttered threats to kill Olandesca. It was established that petitioner entered the ARHEP, proceeded to Olandesca’s quarters, specifically to the dirty kitchen where the wife, two children, sister-in-law, and mother-in-law of Olandesca were gathered. Thereat, petitioner fired his gun twice and hurled threats to kill Olandesca. His acts of entering the quarters without permission, hurling threats, and discharging a gun, even assuming that the same were merely to scare a dog, are blatant displays of arrogance and recklessness and do not speak well of his character as a public officer.

The settled rule in this jurisdiction is that cessation from office by reason of resignation,12 death, or retirement13does not warrant the dismissal of the administrative case filed against a public officer while he or she was still in the service, or render the said case academic. The jurisdiction of the disciplining authority attaches at the time of the filing of the administrative complaint and is not lost by the mere fact that the respondent public official had ceased to be in office during the pendency of his case. This rule applies to all employees in the civil service,14 mindful of the constitutional precept that public office is a public trust for which all government employees and officials are accountable to the people. The rationale for this doctrine, as applied to government employees and officials in the judiciary, was explained in Perez v. Abiera15 in this wise:

However, the administrative offense committed by petitioner is not "misconduct." To constitute misconduct, the act or acts must have a direct relation to and be connected with the performance of his official duties. In Manuel v. Calimag, Jr.,18 it was held that:

[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had ceased to be in office during the pendency of his case. The Court retains jurisdiction either to pronounce the respondent official innocent of the charges or declare him guilty thereof. A contrary rule would be fraught with injustices and pregnant with dreadful and dangerous implications. For, what remedy would the people have against a civil servant who resorts to wrongful and illegal conduct during his last days in office? What would prevent a corrupt and unscrupulous government employee from committing abuses and other condemnable acts knowing fully well that he would soon be beyond the pale of the law and immune to all administrative penalties? If only for reasons of public policy, this Court must assert and maintain its jurisdiction over members of the judiciary and other officials under its supervision and control for acts performed in office which are inimical to the service and prejudicial to the interests of litigants and the general public. If innocent, respondent official merits vindication of his name and integrity as he leaves the government which he served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: "Misconduct in office has a definite and wellunderstood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer x x x x It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office x x x More specifically, in Buenaventura v. Benedicto, an administrative proceeding against a judge of the court of first instance, the present Chief Justice defines misconduct as referring ‘to a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer." xxxx In Salcedo v. Inting we also ruled –

The retirement of petitioner effective January 1, 1998, did not render moot the instant case. The filing of the administrative complaint against petitioner on December 17, 1997, prior to his retirement, effectively conferred upon the NPC, the CSC, and this Court, the jurisdiction to resolve the case until its conclusion. Hence, the guilt or innocence of petitioner can be validly addressed by the Court in the instant administrative case.

It is to be noted that the acts of the respondent judge complained of have no direct relation with his official duties as City Judge. The misfeasance or malfeasance of a judge, to warrant disciplinary action must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of said judge.

Anent the acts constituting the administrative charge, we find that the positive and categorical declarations of Olandesca’s witnesses16 prevail over the negative allegation of petitioner that he did not utter threatening words when he went to the quarters of Olandesca. It is settled that denial is inherently a weak defense. To be believed, it must be buttressed by a strong evidence of non-culpability; otherwise, such denial is

In Milanes v. De Guzman,19 a mayor collared a person, shook him violently, and threatened to kill him in the course of a political rally of the Nacionalista Party where said mayor was acting as the toastmaster. The Court held that the acts of the mayor cannot come under the class of the administrative offense of misconduct, considering that as the toastmaster in a

2

non-governmental rally, he acted in his private capacity, for said function was not part of his duties as mayor. In Amosco v. Magro,20 the respondent Judge was charged with grave misconduct for his alleged failure to pay the amount of P215.80 for the purchase of empty Burma sacks. In dismissing the case, the Court sustained, among others, the argument of respondent Judge that the charge did not constitute misconduct because it did not involve the discharge of his official duties. It was further held that misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. So also, a Judge’s abandonment of, and failure to give support to his family;21 and alleged sale of carnapped motor vehicles,22 do not fall within the species of misconduct, not being related to the discharge of official functions.

In Cabalitan v. Department of Agrarian Reform,24 the Court sustained the ruling of the CSC that the offense committed by the employee in selling fake Unified Vehicular Volume Program exemption cards to his officemates during office hours was not grave misconduct, but conduct prejudicial to the best interest of the service. In Mariano v. Roxas, 25 the Court held that the offense committed by a Court of Appeals employee in forging some receipts to avoid her private contractual obligations, was not misconduct but conduct prejudicial to the best interest of the service because her acts had no direct relation to or connection with the performance of official duties. Then too, the Court considered the following conduct as prejudicial to the best interest of the service, to wit: a Judge’s act of brandishing a gun and threatening the complainants during a traffic altercation;26 and a court interpreter’s participation in the execution of a document conveying complainant’s property which resulted in a quarrel in the latter’s family.27

In the instant case, it was not proven that petitioner’s acts of trespassing in the quarters, threatening to kill Olandesca, and firing his gun, were related to, or performed by petitioner by taking advantage of his functions as Section Chief, Administrative/General Services. In fact, Olandesca argued that the authority to carry a gun inside NPC premises was not among the powers vested in petitioner. Also, it was not established that the gun used by petitioner was issued by the NPC. Evidence reveals that the position of petitioner is not among those vested with authority to carry a gun in the premises of the NPC. His act of entering the NPC ARHEP carrying a firearm was in violation of NPC Circular No. 97-66 dated August 6, 1997. Under said circular, only those directly involved in the security of an installation shall be allowed to enter the premises with their firearm. Moreover, it was never alleged or proven that petitioner could not have gained access to Olandesca’s quarters were it not for his position. In administrative proceedings, the burden of proving the acts complained of,23 particularly the relation thereof to the official functions of the public officer, rests on the complainant. This, Olandesca failed to discharge. The inevitable conclusion therefore is that petitioner acted in his private capacity, and hence, cannot be held liable for misconduct, which must have a direct relation to and be connected with the performance of official duties.

In sum, we find petitioner guilty of conduct prejudicial to the best interest of the service, which under Section 52 of Rule IV of Civil Service Commission Memorandum Circular No. 19, series of 1999, is classified as a grave administrative offense punishable by suspension of six (6) months and 1 day to one (1) year if committed for the first time. Considering the retirement of petitioner, the penalty of suspension is no longer viable. Thus, in lieu of suspension, the penalty of fine equivalent to his salary for a period of six (6) months may be imposed. This ruling is in line with Section 19 of the Omnibus Rules Implementing Book V of Executive Order No. 292,28 which provides: The penalty of transfer, or demotion, or fine may be imposed instead of suspension from one month and one day to one year except in case of fine which shall not exceed six months. WHEREFORE, the petition is PARTIALLY GRANTED. The March 23, 2007 Decision of the Court of Appeals in CA-G.R. SP No. 84984 affirming the July 4, 2003 Resolution of the Civil Service Commission finding petitioner guilty of grave misconduct and imposing upon him the penalty of dismissal is REVERSED and SET ASIDE. Petitioner is declared GUILTY of conduct prejudicial to the best interest of the service and is directed to pay a FINE equivalent to his salary for six (6) months, to be deducted from his retirement benefits.

Nevertheless, the complained acts of petitioner constitute the administrative offense of conduct prejudicial to the best interest of the service, which need not be related or connected to the public officer’s official functions. As long as the questioned conduct tarnished the image and integrity of his/her public office, the corresponding penalty may be meted on the erring public officer or employee. The Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) enunciates, inter alia, the State policy of promoting a high standard of ethics and utmost responsibility in the public service. Section 4 (c) of the Code commands that "[public officials and employees] shall at all times respect the rights of others, and shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety and public interest." By his actuations, petitioner failed to live up to such standard.

SO ORDERED.

3

G.R. No. 164316

September 27, 2006

OFFICE OF THE vs. GERTRUDES MADRIAGA BERNARDO, respondents.

guilt of respondent GERTRUDES MADRIAGA for violation of Section 5 (a) of RA 6713 for not promptly responding to the letter request of the complainant for copies of the school canteen's financial statements for the period from February to August 2000 and against respondents GERTRUDES MADRIAGA and ANA MARIE BERNARDO for [C]onduct Grossly Prejudicial to the Best Interest of the Service under Section 22(t) of Rule XIV, of the Omnibus Rules Implementing Book V of EO No. 292, the penalty of six (6) months suspension is hereby imposed as against both these respondents.

OMBUDSMAN, petitioner, and

ANA

MARIE

DECISION CARPIO MORALES, J.: The Court of Appeals having declared, by Decision of May 28, 2004, that the six-month suspension meted out by the Office of the Ombudsman to respondent Gertrudes Madriaga (Gertrudes), school principal of San Juan Elementary School, San Juan, Metro Manila, and her co-respondent Ana Marie Bernardo (Ana Marie), a classroom teacher who was designated as Canteen Manager of the same school, is merely recommendatory to the Department of Education, the Office of the Ombudsman filed the present Petition for Review on Certiorari.

Accordingly, the Decision dated May 28, 2001 of GIO Acuña is therefore SET ASIDE. Let a copy of this Memorandum Order of June 28, 2001 be sent to the Secretary of the Department of Education, Culture and Sports (DECS) with office address at ULTRA, Pasig City, for proper implementation.5 (Emphasis partly supplied and partly in the original; underscoring supplied)

The factual antecedents of the case are as follows: By letter-complaint1 of September 8, 2000 filed before the Office of the Ombudsman, the San Juan School Club (the Club), through its president Teresa Nuque (Teresa), charged respondents with violation of Section 1 of Rule IV2 and Section 1 of Rule VI3 of the Rules Implementing Republic Act (R.A.) No. 6713 otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees.

Respondents' motion for reconsideration and/or reinvestigation having been denied by Order6 of July 26, 2001, they elevated the case to the Court of Appeals via petition for certiorari. Finding the issues that called for resolution in the petition to be A. Whether or not the Office of the Ombudsman has the authority to impose administrative sanctions over public officials; and

After respondents had given their side of the complaint, Graft Investigation Officer Helen M. Acuña, by Decision of May 28, 2001, found respondents guilty of violation of Section 5(a) of R.A. No. 6713 reading:

B. What is the nature of the functions of the Ombudsman as envisioned by the Fundamental Law,7 the appellate court, by Decision of May 28, 2004, declared that the penalty imposed by the Office of the Ombudsman is merely "recommendatory" to the Department of Education,8 it (Office of the Ombudsman) having "only the power to investigate possible misconduct of a government official or employee in the performance of his functions, and thereafter recommend to the disciplining authority the appropriate penalty to be meted out; and that it is the disciplining authority that has the power or prerogative to impose such penalty."9

SEC. 5. Duties of Public Officials and Employees. – In the performance of their duties, all public officials and employees are under obligation to: (a) Act promptly on letters and requests. – All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of communications sent by the public. The reply must contain the action taken on the request (Emphasis supplied),

Hence, the present petition. The Office of the Ombudsman (hereafter petitioner) argues that the Constitution and R.A. No. 6770 (The Ombudsman Act of 1989) have conferred on it full disciplinary authority over public officials and employees including the power to enforce its duly-issued judgments,10 and jurisprudence has upheld such authority; and under Section 21 of R.A. No. 6770,11 with the exception of impeachable officials, Members of Congress and the Judiciary, it has been given full administrative disciplinary jurisdiction over all public officials and employees who commit any kind of malfeasance, misfeasance or non-feasance.12

and imposed upon them the penalty of reprimand.4 By Memorandum Order dated June 28, 2001, however, Graft Investigation Officer Julita Calderon "set aside" Helen Acuña's decision, the former finding that respondents were guilty also of conduct grossly prejudicial to the best interest of the service, and accordingly penalizing them with six months suspension. Thus Julita Calderon's order disposed: WHEREFORE, foregoing premises being considered and there being substantial evidence to establish the

The petition is impressed with merit.

4

having any binding effect, citing Tapiador v. Office of the Ombudsman, . . .

Article XI, Section 13 of the 1987 Constitution13 grants petitioner administrative disciplinary power to (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient, [and]

xxxx For their part, the Solicitor General and the Office of the Ombudsman argue that the word "recommend" must be taken in conjunction with the phrase "and ensure compliance therewith." The proper interpretation of the Court's statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely concerns the procedural aspect of the Ombudsman's functions and not its jurisdiction.

xxxx (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. x x x x (Emphasis supplied)

We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination.

Section 15(3) of R.A. No. 6770 echoes the constitutional grant to petitioner of the power to "recommend" the imposition of penalty on erring public officials and employees and ensure compliance therewith. SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties: xxxx (3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 2114 of this Act: Provided, that the refusal by an officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;

The provisions of RA 6770 support public respondents' theory. Section 15 is substantially the same as Section 13, Article XI of the Constitution which provides for the powers, functions and duties of the Ombudsman. We draw attention to subparagraph 3, to wit: SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties: xxxx

x x x x (Emphasis supplied)

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act: Provided, that the refusal by an officer

In the recent case of Ledesma v. Court of Appeals,15 this Court, resolving in the negative the issue of whether the recommendation of the Ombudsman for the suspension of the therein petitioner, who was found administratively liable in connection with the extension of Temporary Resident Visas of two foreign nationals, was merely advisory on the Bureau of Immigration and Deportation where petitioner was the Chairman of the First Division of its Board of Special Inquiry, held:

without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who

Petitioner insists that the word "recommend" be given its literal meaning, that is, that the Ombudsman's action is only advisory in nature rather than one

5

neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer;(Emphasis supplied) We note that the proviso above qualifies the "order" "to remove, suspend, demote, fine, censure, or prosecute" an officer or employee – akin to the questioned issuances in the case at bar. That the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsman's "recommendation" is not merely advisory in nature but is actually mandatory within the bounds of law. This should not be interpreted as usurpation by the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority but a shared or concurrent authority in respect of the offense charged. By stating therefore that the Ombudsman "recommends" the action to be taken against an erring officer or employee, the provisions in the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in this case would be the head of the BID.16 x x x x (Citations omitted; Emphasis partly in the original and partly supplied, italics in the original) The word "recommend" in Sec. 15(3) must thus be read in conjunction with the phrases "ensure compliance therewith" or "enforce its disciplinary authority as provided in Section 21" of R.A. No. 6770. In fine, petitioner's authority to impose administrative penalty and enforce compliance therewith is not merely recommendatory. It is mandatory within the bounds of the law. The implementation of the order imposing the penalty is, however, to be coursed through the proper officer. WHEREFORE, the challenged Court of Appeals Decision of May 28, 2004 is REVERSED and SET ASIDE. Let the records of the case be remanded to the office of origin, Office of the Ombudsman, for appropriate action consistent with the ruling in this case. SO ORDERED.

6

G.R. No. 196231

January 28, 2014

of the Ombudsman is directed to proceed with the investigation in connection with the above case against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. ll-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989.3

EMILIO A. GONZALES III, Petitioner, vs. OFFICE OF THE PRESIDENT OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-CHARGE - OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGANSANCHEZ, AND ATTY. CARLITO D. CATAYONG, Respondents.

In view of the Court’s ruling, the OP filed the present motion for reconsideration through the Office of the Solicitor General (OSG).

x-----------------------x

We briefly narrate the facts that preceded the filing of the petitions and the present motion for reconsideration.

G.R. No. 196232

I. ANTECEDENTS

WENDELL BARRERAS-SULIT Petitioner, vs. ATTY. PAQUITO N. OCHOA, JR., IN HIS CAP A CITY AS EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN THEIR CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF MALACANANG LEGAL AFFAIRS,Respondents.

A. Gonzales’ petition (G.R. No. 196231)

a. Factual antecedents On May 26, 2008, Christian Kalaw filed separate charges with the Philippine National Police Internal Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office against Manila Police District Senior Inspector Rolando Mendoza and four others (Mendoza, et al.) for robbery, grave threat, robbery extortion and physical injury.4

DECISION BRION, J.:

On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto filed an administrative charge for grave misconduct with the National Police Commission (NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on the same allegations made by Kalaw before the PNP-IAS.5

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012 Decision1which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No. 6770.2

On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO), directed the NAPOLCOM to turn over the records of Mendoza’s case to his office. The Office of the Regional Director of the NAPOLCOM duly complied on July 24, 2008.6 Mendoza, et al. filed their position papers with Gonzales, in compliance with his Order.7

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.

Pending Gonzales’ action on Mendoza, et al.’s case (on August 26, 2008), the Office of the City Prosecutor of Manila City dismissed Kalaw’s complaint against Mendoza, et al. for his failure to substantiate his allegations.8 Similarly, on October 17, 2008, the PNP-IAS recommended the dismissal without prejudice of the administrative case against Mendoza, et al. for Kalaw’s failure to prosecute.9

Sulit, who had not then been dismissed and who simply sought to restrain the disciplinary proceedings against her, solely questioned the jurisdiction of the OP to subject her to disciplinary proceedings. The Court affirmed the continuation of the proceedings against her after upholding the constitutionality of Section 8(2) of RA No. 6770.

On February 16, 2009, after preparing a draft decision on Mendoza, et al.’s case, Gonzales forwarded the entire records to the Office of then Ombudsman Merceditas Gutierrez for her review.10 In his draft decision, Gonzales found Mendoza, et al. guilty of grave misconduct and imposed on them the penalty of dismissal from the service.11

The fallo of our assailed Decision reads: WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 1 O-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with payment of backwages corresponding to the period of suspension effective immediately, even as the Office

Mendoza, et al. received a copy of the Ombudsman’s decision that approved Gonzales’ recommendation on October 30, 2009. Mendoza, et al. filed a motion for reconsideration12 on

7

November 5, 2009, followed by a Supplement to the Motion for Reconsideration.13

Gonzales posited in his petition that the OP has no administrative disciplinary jurisdiction over a Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the Ombudsman who exercises administrative disciplinary jurisdiction over the Deputy Ombudsman.

On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.’s case records to the Criminal Investigation, Prosecution and Administrative Bureau-MOLEO. On December 14, 2009, the case was assigned to Graft Investigation and Prosecution Officer (GIPO) Dennis Garcia for review and recommendation.14

On the merits, Gonzales argued that his office received the draft order from GIPO Garcia on April 27, 2010. On May 6, 2010, he completed his review of the draft, approved it, and transmitted it to the Office of the Ombudsman for final approval. Since the draft order on Mendoza’s motion for reconsideration had to undergo different levels of preparation, review and approval, the period it took to resolve the motion could not be unjustified, since he himself acted on the draft order only within nine (9) calendars days from his receipt of the order.23

GIPO Garcia released a draft order15 to his immediate superior, Director Eulogio S. Cecilio, for appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded the draft order to Gonzales’ office on April 27, 2010. Gonzales reviewed the draft and endorsed the order, together with the case records, on May 6, 2010 for the final approval by the Ombudsman.16

B. Sulit’s petition (G.R. No. 196232)

On August 23, 2010, pending final action by the Ombudsman on Mendoza, et al.’s case, Mendoza hijacked a tourist bus and held the 21 foreign tourists and the four Filipino tour assistants on board as hostages. While the government exerted earnest attempts to peacefully resolve the hostage-taking, it ended tragically, resulting in the deaths of Mendoza and several others on board the hijacked bus.

In April 2005, the Office of the Ombudsman charged Major General Carlos F. Garcia and several others, before the Sandiganbayan, with plunder and money laundering. On May 7, 2007, Garcia filed an Urgent Petition for Bail which the prosecution opposed. The Sandiganbayan denied Garcia's urgent petition for bail on January 7, 2010, in view of the strength of the prosecution’s evidence against Garcia.

In the aftermath, President Benigno C. Aquino III directed the Department of Justice and the Department of Interior and Local Government to conduct a joint thorough investigation of the incident. The two departments issued Joint Department Order No. 01-2010, creating an Incident Investigation and Review Committee (IIRC).

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered into a plea bargaining agreement (Agreement) with Garcia.24 Garcia thereby agreed to: (i) withdraw his plea of not guilty to the charge of plunder and enter a plea of guilty to the lesser offense of indirect bribery; and (ii) withdraw his plea of not guilty to the charge of money laundering and enter a guilty plea to the lesser offense of facilitating money laundering. In exchange, he would convey to the government his ownership, rights and other interests over the real and personal properties enumerated in the Agreement and the bank deposits alleged in the information.25

In its September 16, 2010 First Report, the IIRC found the Ombudsman and Gonzales accountable for their "gross negligence and grave misconduct in handling the case against Mendoza."17 The IIRC stated that the Ombudsman and Gonzales’ failure to promptly resolve Mendoza’s motion for reconsideration, "without justification and despite repeated pleas" xxx "precipitated the desperate resort to hostagetaking."18 The IIRC recommended the referral of its findings to the OP for further determination of possible administrative offenses and for the initiation of the proper administrative proceedings.19

The Sandiganbayan approved the Agreement on May 4, 201026 based on the parties’ submitted Joint Motion for Approval.27

Accordingly, on October 15, 2010, Gonzales was formally charged before the OP for Gross Neglect of Duty and/or Inefficiency in the Performance of Official Duty and for Misconduct in Office.20

The apparent one-sidedness of the Agreement drew public outrage and prompted the Committee on Justice of the House of Representatives to conduct an investigation. After public hearings, the Committee found that Sulit, her deputies and assistants committed culpable violations of the Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No. 6770.28The Committee recommended to the President the dismissal from the service of Sulit and the filing of appropriate charges against her deputies and assistants before the appropriate government office.

b. The OP ruling On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him from the service.21According to the OP, "the inordinate and unjustified delay in the resolution of [Mendoza’s] Motion for Reconsideration [‘that spanned for nine (9) long months’] xxx amounted to gross neglect of duty" and "constituted a flagrant disregard of the Office of the Ombudsman’s own Rules of Procedure."22

Accordingly, the OP initiated an administrative disciplinary proceeding against Sulit.29 On March 24, 2011, Sulit filed her Written Explanation, questioning the OP’s jurisdiction.30 The question of jurisdiction notwithstanding, the OP set the case for preliminary investigation on April 15, 2011, prompting Sulit to seek relief from this Court.

c. The Petition

8

II. COURT’S RULING

To be sure, neither the Executive nor the Legislative can create the power that Section 8(2) of RA No. 6770 grants where the Constitution confers none. When exercised authority is drawn from a vacuum, more so when the authority runs counter to a core constitutional principle and constitutional intents, the Court is duty-bound to intervene under the powers and duties granted and imposed on it by Article VIII of the Constitution.

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor Leonen).

B. The Deputy Ombudsman: Constitutional Issue a. The Philippine Ombudsman Prior to the 1973 Constitution, past presidents established several Ombudsman-like agencies to serve as the people's medium for airing grievances and for direct redress against abuses and misconduct in the government. Ultimately, however, these agencies failed to fully realize their objective for lack of the political independence necessary for the effective performance of their function as government critic.33

A. Preliminary considerations: a. Absence of motion for reconsideration on the part of the petitioners At the outset, the Court notes that Gonzales and Sulit did not file a motion for reconsideration of the Court’s September 4, 2012 Decision; only the OP, through the OSG, moved for the reconsideration of our ruling reinstating Gonzales.

It was under the 1973 Constitution that the Office of the Ombudsman became a constitutionally-mandated office to give it political independence and adequate powers to enforce its mandate. Pursuant to the 1973 Constitution, President Ferdinand Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It was tasked principally to investigate, on complaint or motu proprio, any administrative act of any administrative agency, including any government-owned or controlled corporation. When the Office of the Tanodbayan was reorganized in 1979, the powers previously vested in the Special Prosecutor were transferred to the Tanodbayan himself. He was given the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan, file the corresponding information, and control the prosecution of these cases.34

This omission, however, poses no obstacle for the Court’s review of its ruling on the whole case since a serious constitutional question has been raised and is one of the underlying bases for the validity or invalidity of the presidential action. If the President does not have any constitutional authority to discipline a Deputy Ombudsman and/or a Special Prosecutor in the first place, then any ruling on the legal correctness of the OP’s decision on the merits will be an empty one. In other words, since the validity of the OP’s decision on the merits of the dismissal is inextricably anchored on the final and correct ruling on the constitutional issue, the whole case – including the constitutional issue – remains alive for the Court’s consideration on motion for reconsideration.

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created by constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II35 and the standard of accountability in public service under Section 1, Article XI of the 1987 Constitution. These provisions read:

b. The justiciability of the constitutional issue raised in the petitions We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected to the administrative disciplinary jurisdiction of the President (concurrently with that of the Ombudsman) is a justiciable – not a political – question. A justiciable question is one which is inherently susceptible of being decided on grounds recognized by law,31 as where the court finds that there are constitutionally-imposed limits on the exercise of the powers conferred on a political branch of the government.32

Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

In resolving the petitions, we do not inquire into the wisdom of the Congress’ choice to grant concurrent disciplinary authority to the President. Our inquiry is limited to whether such statutory grant violates the Constitution, particularly whether Section 8(2) of RA No. 6770 violates the core constitutional principle of the independence of the Office of the Ombudsman as expressed in Section 5, Art. XI of the Constitution.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the Government, to function essentially as a complaints and action bureau.36 This constitutional vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to

9

directly check and guard against the ills, abuses and excesses of the bureaucracy. Pursuant to Section 13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain characteristics – they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these "independent" bodies be insulated from political pressure to the extent that the absence of "independence" would result in the impairment of their core functions.

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. [emphasis ours, italics supplied]

In Bengzon v. Drilon,42 involving the fiscal autonomy of the Judiciary, we ruled against the interference that the President may bring and maintained that the independence and the flexibility of the Judiciary, the Constitutional Commissions and the Office of the Ombudsman are crucial to our legal system.

As the Ombudsman is expected to be an "activist watchman,"37 the Court has upheld its actions, although not squarely falling under the broad powers granted it by the Constitution and by RA No. 6770, if these actions are reasonably in line with its official function and consistent with the law and the Constitution.38

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.

The Ombudsman’s broad investigative and disciplinary powers include all acts of malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the Cabinet and key Executive officers, during their tenure. To support these broad powers, the Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence of officialdom and partisan politics and from fear of external reprisal by making it an "independent" office. Section 5,

The constitutional deliberations explain the Constitutional Commissions’ need for independence. In the deliberations of the 1973 Constitution, the delegates amended the 1935 Constitution by providing for a constitutionally-created Civil Service Commission, instead of one created by law, on the premise that the effectivity of this body is dependent on its freedom from the tentacles of politics.43 In a similar manner, the deliberations of the 1987 Constitution on the Commission on Audit highlighted the developments in the past Constitutions geared towards insulating the Commission on Audit from political pressure.44

Article XI of the Constitution expressed this intent, as follows: Section 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed. [emphasis ours]

Notably, the Constitution also created an "independent" Commission on Human Rights, although it enjoys a lesser degree of independence since it is not granted fiscal autonomy in the manner fiscal autonomy is granted to the constitutional commissions. The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution clearly expressed their desire to keep the Commission independent from the executive branch and other political leaders:

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very powerful government constitutional agency that is considered "a notch above other grievancehandling investigative bodies."39 It has powers, both constitutional and statutory, that are commensurate with its daunting task of enforcing accountability of public officers.40

MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo. If we explain to him our concept, he can advise us on how to reconcile his position with ours. The position of the committee is that we need a body that would be able to work and cooperate with the executive because the Commissioner is right. Many of the services needed by this commission would need not only the cooperation of the executive branch of the government but also of the judicial branch of government. This is going to be a permanent constitutional commission over time. We also want a commission to function even under the worst circumstance when the executive may not be very cooperative. However, the question in our mind is: Can it still function during that time? Hence, we are willing to accept suggestions from

b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence Under the Constitution, several constitutional bodies have been expressly labeled as "independent."41The extent of the independence enjoyed by these constitutional bodies however varies and is to be interpreted with two significant considerations in mind: first, the functions performed or the powers involved in a given case; and second, consistency of any allowable interference to these powers and functions, with the principle of checks and balances.

10

Commissioner Rodrigo on how to reconcile this. We realize the need for coordination and cooperation. We also would like to build in some safeguards that it will not be rendered useless by an uncooperative executive.

constitutional mandate of independence for the Commission on Human Rights has to be declared unconstitutional. Again, in Atty. Macalintal v. Comelec,49 the Court considered even the mere review of the rules of the Commission on Elections by Congress a "trampling" of the constitutional mandate of independence of this body. Obviously, the mere review of rules places considerably less pressure on a constitutional body than the Executive’s power to discipline and remove key officials of the Office of the Ombudsman, yet the Court struck down the law as unconstitutional.

xxxx MR. GARCIA. xxx Very often, when international commissions or organizations on human rights go to a country, the most credible organizations are independent human rights bodies. Very often these are private organizations, many of which are prosecuted, such as those we find in many countries in Latin America. In fact, what we are proposing is an independent body on human rights, which would provide governments with credibility precisely because it is independent of the present administration. Whatever it says on the human rights situation will be credible because it is not subject to pressure or control from the present political leadership.

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its existence and proper functioning.50

Secondly, we all know how political fortunes come and go. Those who are in power yesterday are in opposition today and those who are in power today may be in the opposition tomorrow. Therefore, if we have a Commission on Human Rights that would investigate and make sure that the rights of each one is protected, then we shall have a body that could stand up to any power, to defend the rights of individuals against arrest, unfair trial, and so on.45

c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional

These deliberative considerations abundantly show that the independent constitutional commissions have been consistently intended by the framers to be independent from executive control or supervision or any form of political influence. At least insofar as these bodies are concerned, jurisprudence is not scarce on how the "independence" granted to these bodies prevents presidential interference.

Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.

In Brillantes, Jr. v. Yorac,46 we emphasized that the Constitutional Commissions, which have been characterized under the Constitution as "independent," are not under the control of the President, even if they discharge functions that are executive in nature. The Court declared as unconstitutional the President’s act of temporarily appointing the respondent in that case as Acting Chairman of the Comelec "however wellmeaning"47 it might have been.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionallygranted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

In Bautista v. Senator Salonga,48 the Court categorically stated that the tenure of the commissioners of the independent Commission on Human Rights could not be placed under the discretionary power of the President: Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the Constitution to be independent – as the Commission on Human Rights – and vested with the delicate and vital functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being antithetical to the

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and corruption is still a major

11

problem for the government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void.

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her Deputies.

The deliberations of the Constitutional Commission on the independence of the Ombudsman fully support this position. Commissioner Florenz Regalado of the Constitutional Commission expressed his apprehension that any form of presidential control over the Office of the Ombudsman would diminish its independence.51 The following exchanges between Commissioners Blas Ople and Christian Monsod further reveal the constitutional intent to keep the Office of the Ombudsman independent from the President: MR. OPLE. xxx

While the preceding discussion already suffices to address this concern, it should be added that this concern stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.

May I direct a question to the Committee? xxx [W]ill the Committee consider later an amendment xxx, by way of designating the office of the Ombudsman as a constitutional arm for good government, efficiency of the public service and the integrity of the President of the Philippines, instead of creating another agency in a kind of administrative limbo which would be accountable to no one on the pretext that it is a constitutional body?

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political independent body mandated by the Constitution to settle judicial and quasijudicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.

MR. MONSOD. The Committee discussed that during our committee deliberations and when we prepared the report, it was the opinion of the Committee — and I believe it still is — that it may not contribute to the effectiveness of this office of the Ombudsman precisely because many of the culprits in inefficiency, injustice and impropriety are in the executive department. Therefore, as we saw the wrong implementation of the Tanodbayan which was under the tremendous influence of the President, it was an ineffectual body and was reduced to the function of a special fiscal. The whole purpose of our proposal is precisely to separate those functions and to produce a vehicle that will give true meaning to the concept of Ombudsman. Therefore, we regret that we cannot accept the proposition.52

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same time, the Court remains consistent with its established rulings - that the independence granted to the Constitutional Commissions bars any undue interference from either the Executive or Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the manner and causes for the removal of non-impeachable officers is not a carte blanch authority Under Section 2, Article XI of the 1987 Constitution,53 Congress is empowered to determine the modes of removal from office of all public officers and employees except the President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman, who are all impeachable officials.

The statements made by Commissioner Monsod emphasized a very logical principle: the Executive power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over them, would result in an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who can remove or suspend its members. Equally relevant is the impression that would be given to the public if the rule were otherwise. A complainant with a grievance against a high-ranking official of the Executive, who appears to enjoy the President’s favor, would be discouraged from approaching the Ombudsman with his complaint; the complainant’s impression (even if misplaced), that the Ombudsman would be susceptible to political pressure, cannot be avoided. To be sure, such an impression would erode the constitutional intent of creating an Office of the Ombudsman as champion of the people against corruption and bureaucracy.

d. The mutual-protection crafting Section 8(2)of RA No. 6770

argument

The intent of the framers of the Constitution in providing that "[a]ll other public officers and employees may be removed from office as provided by law, but not by impeachment" in the second sentence of Section 2, Article XI is to prevent Congress from extending the more stringent rule of "removal only by impeachment" to favored public officers.54 Understandably so, impeachment is the most difficult and cumbersome mode of removing a public officer from office. It is, by its nature, a sui generis politico-legal process55 that signals the need for a judicious and careful handling as shown by the process required to initiate the proceeding;56 the one-year limitation or bar for its initiation;57 the limited grounds for impeachment;58 the defined instrumentality given the power to try impeachment cases;59 and the number of votes required for a finding of guilt.60 All these argue against the extension of this removal mechanism beyond those mentioned in the Constitution.

for

12

On the practical side, our nation has witnessed the complications and problems an impeachment proceeding entails, thus justifying its limited application only to the officials occupying the highest echelons of responsibility in our government. To name a few, some of the negative practical effects of impeachment are: it stalls legislative work; it is an expensive process in terms of the cost of prosecution alone; and, more importantly, it is inherently divisive of the nation.61 Thus, in a cost-benefit analysis of adopting impeachment as a mechanism, limiting Congress’ power to otherwise legislate on the matter is far more advantageous to the country.

channels for external pressures and influence of officialdom and partisan politics. The fear of external reprisal from the very office he is to check for excesses and abuses defeats the very purpose of granting independence to the Office of the Ombudsman. That a judicial remedy is available (to set aside dismissals that do not conform to the high standard required in determining whether a Deputy Ombudsman committed an impeachable offense) and that the President’s power of removal is limited to specified grounds are dismally inadequate when balanced with the constitutional principle of independence. The mere filing of an administrative case against the Deputy Ombudsman and the Special Prosecutor before the OP can already result in their suspension and can interrupt the performance of their functions, in violation of Section 12, Article XI of the Constitution. With only one term allowed under Section 11, a Deputy Ombudsman or Special Prosecutor, if removable by the President, can be reduced to the very same ineffective Office of the Ombudsman that the framers had foreseen and carefully tried to avoid by making these offices independent constitutional bodies.

It is in these lights that the second sentence in Section 2, Article XI of the 1987 Constitution should be read. Contrary to the implied view of the minority, in no way can this provision be regarded as blanket authority for Congress to provide for any ground of removal it deems fit. While the manner and cause of removal are left to congressional determination, this must still be consistent with constitutional guarantees and principles, namely: the right to procedural and substantive due process; the constitutional guarantee of security of tenure; the principle of separation of powers; and the principle of checks and balances.62

At any rate, even assuming that the OP has disciplinary authority over the Deputy Ombudsman, its decision finding Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust is patently erroneous. The OP’s decision perfectly illustrates why the requirement of impeachment-grounds in Section 8(2) of RA No. 6770 cannot be considered, even at a minimum, a measure of protection of the independence of the Office of the Ombudsman.

In short, the authority granted by the Constitution to Congress to provide for the manner and cause of removal of all other public officers and employees does not mean that Congress can ignore the basic principles and precepts established by the Constitution. In the same manner, the congressional determination of the identity of the disciplinary authority is not a blanket authority for Congress to repose it on whomsoever Congress chooses without running afoul of the independence enjoyed by the Office of the Ombudsman and without disrupting the delicate check and balance mechanism under the Constitution. Properly viewed from this perspective, the core constitutional principle of independence is observed and any possible absurdity resulting from a contrary interpretation is avoided. In other words, while the Constitution itself vested Congress with the power to determine the manner and cause of removal of all non-impeachable officials, this power must be interpreted consistent with the core constitutional principle of independence of the Office of the Ombudsman. Our observation in Macalintal v. Comelec63 is apt:

C. The Deputy Ombudsman: The Dismissal Issue

a. The finding has no stand on

Office of legal

of the gross and factual

President’s negligence leg to

The OP’s decision found Gonzales guilty of Gross Neglect of Duty and of Grave Misconduct. The assailed Decision of the OP reads: Upon consideration of the First Report, the evidence and allegations of respondent Deputy Ombudsman himself, and other documentary evidence gathered, this Office finds that the inordinate and unjustified delay in the resolution of Captain Mendoza’s Motion for Reconsideration timely filed on 5 November 2009 xxx amounted to gross neglect of duty and/or inefficiency in the performance of official duty.64

The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be "independent."

b. No gross neglect of duty or inefficiency

While one may argue that the grounds for impeachment under Section 8(2) of RA No. 6770 is intended as a measure of protection for the Deputy Ombudsman and Special Prosecutor – since these grounds are not intended to cover all kinds of official wrongdoing and plain errors of judgment - this argument seriously overlooks the erosion of the independence of the Office of the Ombudsman that it creates. The mere fact that a statutorily-created sword of Damocles hangs over the Deputy Ombudsman’s head, by itself, opens up all the

Let us again briefly recall the facts. 1. November 5, 2009 - Mendoza filed a Motion for Reconsideration of the decision of the Ombudsman,65 which was followed by a Supplement to the Motion for Reconsideration;66

13

2. December 14, 200967 - GIPO Garcia, who was assigned to review these motions and make his recommendation for the appropriate action, received the records of the case;

decision, the period for resolving the case does not cover the period within which it should be reviewed: Section 6. Rendition of decision. – Not later than thirty (30) days after the case is declared submitted for resolution, the Hearing Officer shall submit a proposed decision containing his findings and recommendation for the approval of the Ombudsman. Said proposed decision shall be reviewed by the Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned. With respect to low ranking public officials, the Deputy Ombudsman concerned shall be the approving authority. Upon approval, copies thereof shall be served upon the parties and the head of the office or agency of which the respondent is an official or employee for his information and compliance with the appropriate directive contained therein. [italics and emphases supplied]

3. April 5, 2010 – GIPO Garcia released a draft order to be reviewed by his immediate superior, Dir. Cecilio;68 4. April 27, 2010 – Dir. Cecilio signed and forwarded to Gonzales this draft order;69 5. May 6, 2010 (or nine days after the records were forwarded to Gonzales) – Gonzales endorsed the draft order for the final approval of the Ombudsman.70 Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the case were already pending before Ombudsman Gutierrez.

Thus, the OP’s ruling that Gonzales had been grossly negligent for taking nine days, instead of five days, to review a case was totally baseless.

Gross negligence refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences insofar as other persons may be affected. In the case of public officials, there is gross negligence when a breach of duty is flagrant and palpable.71

c. No actionable failure to supervise subordinates

Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he acted on the case forwarded to him within nine days. In finding Gonzales guilty, the OP72 relied on Section 8, Rule III of Administrative Order No. 7 (or the Rules of Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling that Gonzales should have acted on Mendoza’s Motion for Reconsideration within five days:

The Office of the Ombudsman is not a corner office in our bureaucracy. It handles numerous cases that involve the potential loss of employment of many other public employees. We cannot conclusively state, as the OP appears to suggest, that Mendoza’s case should have been prioritized over other similar cases.

Section 8. Motion for reconsideration or Grounds – Whenever allowable, a motion for or reinvestigation may only be entertained if (10) days from receipt of the decision or order the basis of any of the following grounds:

The OP’s claims that Gonzales could have supervised his subordinates to promptly act on Mendoza’s motion and apprised the Tanodbayan of the urgency of resolving the same are similarly groundless.

The Court has already taken judicial notice of the steady stream of cases reaching the Office of the Ombudsman.73 This consideration certainly militates against the OSG’s observation that there was "a grossly inordinate and inexcusable delay"74 on the part of Gonzales.

reinvestigation: reconsideration filed within ten by the party on

Equally important, the constitutional guarantee of "speedy disposition of cases" before, among others, quasi-judicial bodies,75 like the Office of the Ombudsman, is itself a relative concept.76 Thus, the delay, if any, must be measured in this objective constitutional sense. Unfortunately, because of the very statutory grounds relied upon by the OP in dismissing Gonzales, the political and, perhaps, "practical" considerations got the better of what is legal and constitutional.

a) New evidence had been discovered which materially affects the order, directive or decision; b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest of the movant. Only one motion for reconsideration or reinvestigation shall be allowed, and the Hearing Officer shall resolve the same within five (5) days from the date of submission for resolution. [emphasis and underscore ours]

The facts do not show that Gonzales’ subordinates had in any way been grossly negligent in their work. While GIPO Garcia reviewed the case and drafted the order for more than three months, it is noteworthy that he had not drafted the initial decision and, therefore, had to review the case for the first time.77 Even the Ombudsman herself could not be faulted for acting on a case within four months, given the amount of cases that her office handles.

Even if we consider this provision to be mandatory, the period it requires cannot apply to Gonzales since he is a Deputy Ombudsman whose obligation is to review the case; he is not simply a Hearing Officer tasked with the initial resolution of the motion. In Section 6 of Administrative Order No. 7 on the resolution of the case and submission of the proposed

The point is that these are not inordinately long periods for the work involved: examination of the records, research on the

14

pertinent laws and jurisprudence, and exercise of legal judgment and discretion. If this Court rules that these periods per se constitute gross neglect of duty, the Ombudsman’s constitutional mandate to prosecute all the erring officials of this country would be subjected to an unreasonable and overwhelming constraint. Similarly, if the Court rules that these periods per se constitute gross neglect of duty, then we must be prepared to reconcile this with the established concept of the right of speedy disposition of cases – something the Court may be hard put to justify.

necessarily suffers grave infirmity. Basic strictures of fair play dictate that we can only be held liable for our own misdeeds; we can be made to account only for lapses in our responsibilities. It is notable that of all the officers, it was Gonzales who took the least time — nine days — followed by Cecilio, who took 21 days; Garcia — the writer of the draft — took less than four months, and the Ombudsman, less than four months until the kidnapping incident rendered Mendoza’s motion moot. In these lights, the decision of the OP is clearly and patently wrong. This conclusion, however, does not preclude the Ombudsman from looking into any other possible administrative liability of Gonzales under existing Civil Service laws, rules and regulations.

d. No undue interest The OP also found Gonzales guilty of showing undue interest in Mendoza’s case by having the case endorsed to the Office of the Ombudsman and by resolving it against Mendoza on the basis of the unverified complaint-affidavit of the alleged victim, Kalaw.

D. The Special Prosecutor: The Constitutional Issue The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the

The fact that Gonzales had Mendoza’s case endorsed to his office lies within his mandate, even if it were based merely on the request of the alleged victim’s father. The Constitution empowers the Ombudsman and her Deputies to act promptly on complaints filed in any form or manner against any public official or employee of the government.78 This provision is echoed by Section 13 of RA No. 6770,79 and by Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended.80

Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence.

Moreover, Gonzales and his subordinates did not resolve the complaint only on the basis of the unverified affidavit of Kalaw. Based on the prosecution officer’s recommendations, the finding of guilt on the part of Mendoza, et al. was based on their admissions as well. Mendoza, et al. admitted that they had arrested Kalaw based on two traffic violations and allowed him to stay the whole night until the following morning in the police precinct. The next morning, Kalaw was allowed to leave the precinct despite his failure to show a valid license and based merely on his promise to return with the proper documents.81 These admissions led Gonzales and his staff to conclude that Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper procedure for the apprehension of traffic violators would be to give them a ticket and to file a case, when appropriate.82

Under the 1973 Constitution,84 the legislature was mandated to create the Office of the Ombudsman, known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand Marcos enacted PD No. 1487.85 Under PD No. 1486,86 however, the "Chief Special Prosecutor" (CSP) was given the "exclusive authority" to conduct preliminary investigation and to prosecute cases that are within the jurisdiction of the Sandiganbayan.87 PD No. 1486 expressly gave the Secretary of Justice the power of control and supervision over the Special Prosecutor.88 Consistent with this grant of power, the law also authorized the Secretary of Justice to appoint or detail to the Office of the CSP "any officer or employee of Department of Justice or any Bureau or Office under the executive supervision thereof" to assist the Office of the CSP.

Lastly, we cannot deduce undue interest simply because Gonzales’ decision differs from the decision of the PNP-IAS (which dismissed the complaint against Mendoza). To be sure, we cannot tie the hands of any judicial or quasi-judicial body by ruling that it should always concur with the decisions of other judicial or quasi-judicial bodies which may have also taken cognizance of the case. To do so in the case of a Deputy Ombudsman would be repugnant to the independence that our Constitution has specifically granted to this office and would nullify the very purpose for which it was created.

e. Penalty of dismissal incommensurate with established facts

In December 1978, PD No. 160789 practically gave back to the Tanodbayan the powers taken away from it by the Office of the CSP. The law "created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor" under the Tanodbayan’s control,90 with the exclusive authority to conduct preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who "shall be under the supervision and control of the Chief Special Prosecutor."91 In 1979, PD No. 1630 further amended the earlier decrees by

totally

Given the lack of factual basis for the charges against Gonzales, the penalty of removal imposed by the OP

15

fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in the Executive Department.

transferring the powers previously vested in the Special Prosecutor directly to the Tanodbayan himself.92 This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987 Constitution, an "independent Office of the Ombudsman" is created.93 The existing Tanodbayan is made the Office of the Special Prosecutor, "who shall continue to function and exercise its powers as now 94 or hereafter may be provided by law."95

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the independence of the Office of the Ombudsman itself at risk.

Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the Office of the Ombudsman.96 Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may exercise "such other powers or perform such functions or duties as may be provided by law." Pursuant to this constitutional command, Congress enacted RA No. 6770 to provide for the functional and structural organization of the Office of the Ombudsman and the extent of its disciplinary authority.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of the Ombudsman, the role it performs as an organic component of that Office militates against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials of that Office who act directly as agents of the Ombudsman herself in the performance of her duties.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law requires that the vacancy be filled within three (3) months from occurrence.97

In Acop v. Office of the Ombudsman,106 the Court was confronted with an argument that, at bottom, the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:

The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman himself/herself and his/her deputies.98 Their terms of office,99 prohibitions and qualifications,100 rank and salary are likewise the same.101 The requirement on disclosure102 is imposed on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the President may designate any of the Deputies or the Special Prosecutor as Acting Ombudsman.103 The power of the Ombudsman and his or her deputies to require other government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special Prosecutor.104

Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President. Xxx In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman.

Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman was designed for.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman.107

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the Ombudsman and by granting the Ombudsman control and supervision over that office.105 This power of control and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the

16

Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution. III. SUMMARY OF VOTING In the voting held on January 28, 2014, by a vote of 87,108 the Court resolved to reverse its September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman. However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution. WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of Deputy Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the power of the Ombudsman to conduct an administrative investigation, if warranted, into the possible administrative liability of Deputy Ombudsman Emilio Gonzales III under pertinent Civil Service laws, rules and regulations. SO ORDERED.

17

G.R. No. 108072 December 12, 1995

respondent officials in the separately docketed administrative case.

HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the Visayas, petitioner, vs. HON. MERCEDES GOZO-DADOLE, Presiding Judge, Branch XXVIII, Regional Trial Court, Mandaue City, Mandaue City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod Member RAFAEL MAYOL, respondents.

Aside from opposing the motion for preventive suspension, respondent officials, on 05 August 1992, prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 of the Local Government Code of 1991, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President. In their opposition, filed on 10 August 1992, Dionson and Bercede argued that the Local Government Code of 1991 could not have repealed, abrogated or otherwise modified the pertinent provisions of the Constitution granting to the Ombudsman the power to investigate cases against all public officials and that, in any case, the power of the Ombudsman to investigate local officials under the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of 1991.

VITUG, J.: The determination of whether the Ombudsman under Republic Act ("R.A.") No. 6770,1 otherwise known as the Ombudsman Act of 1989, has been divested of his authority to conduct administrative investigations over local elective officials by virtue of the subsequent enactment of R.A. No. 7160,2 otherwise known as the Local Government Code of 1991, is the pivotal issue before the Court in this petition.

During the hearing on the motion for preventive suspension, the parties were directed by the Deputy Ombudsman to file their respective memoranda.

The petition seeks (a) to annul the writ of preliminary injunction, dated 21 October 1992, issued against petitioner by respondent trial court and (b) to prohibit said court from further proceeding with RTC Case No. MDE-14.3

In his memorandum, Mayor Ouano reiterated that, under Sections 61 and 63 of the Local Government Code of 1991, the Office of the President, not the Office of the Ombudsman, could lawfully take cognizance of administrative complaints against any elective official of a province, a highly urbanized city or an independent component city and to impose disciplinary sanctions, including preventive suspensions, and that there was nothing in the provision of the Constitution giving to the Office of the Ombudsman superior powers than those of the President over elective officials of local governments.

Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica assumed the office of Juan Hagad, now resigned, 4 who took the initiative in instituting this special civil action for certiorari and prohibition. The controversy stemmed from the filing of criminal and administrative complaints, on 22 July 1992, against herein respondents Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were charged with having violated R.A. No. 3019, as amended,5 Articles 1706 and 1717 of the Revised Penal Code; and R.A. No. 6713.8Councilors Dionson and Bercede averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7,000,000.00 without authority from the Sangguniang Panlungsod of Mandaue City. The complaints were separately docketed as Criminal Case No. OMB-VIS-92391 and as Administrative Case No. OMB-VIS-ADM-92-015.

In an Order,9 dated 10 September 1992, the Office of the Deputy Ombudsman denied the motion to dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer Pedro M. Guido, until the administrative case would have been finally resolved by the Ombudsman.10 Respondent officials were formally placed under preventive suspension by the Deputy Ombudsman pursuant to an Order11 of 21 September 1992. On 25 September 1992, a petition for prohibition, with prayer for a writ of preliminary injunction and temporary restraining order, was filed by respondent officials with the Regional Trial Court of Mandaue City. Acting favorably on the pleas of petitioning officials, respondent Judge issued, on even date, a restraining order directed at petitioner, enjoining him ". . . from enforcing and/or implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015."

A day after the filing of the complaints, or on 23 July 1992, a sworn statement was executed by Mandaue City Council Secretary, Atty. Amado C. Otarra, Jr., in support of the accusations against respondent officials. The next day, petitioner ordered respondents, including Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City Budget Officer Pedro M. Guido, to file their counter-affidavits within ten (10) days from receipt of the order. Forthwith, Councilors Dionson and Bercede moved for the preventive suspension of

Petitioner moved to dismiss the petition but it was to no avail. The court a quo, on 15 October 1992, denied the motion to dismiss and issued an Order for the issuance of a writ of preliminary injunction, holding thusly:

18

So by following and applying the wellestablished rules of statutory construction that endeavor should be made to harmonize the provisions of these two laws in order that each shall be effective, it is the finding of this Court that since the investigatory power of the Ombudsman is so general, broad and vague and gives wider discretion to disciplining authority to impose administrative sanctions against a responsible public official or employee while that of Section 60 of the New Local Government Code provides for more well defined and specific grounds upon which a local elective official can be subjected to administrative disciplinary action, that it Could be considered that the latter law could be an exception to the authority and administrative power of the Ombudsman to conduct an investigation against local elective officials and as such, the jurisdiction now to conduct administrative investigation against local elective officials is already lodged before the offices concerned under Section 61 of Republic Act No. 7160.

The general investigatory power of the Ombudsman is decreed by Section 13 (1,) Article XI, of the 1987 Constitution,14 thus: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; while his statutory mandate to act on administrative complaints is contained in Section 19 of R.A. No. 6770 that reads: Sec. 19. Administrative complaints. — The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: 1. Are contrary to law or regulation; 2. Are unreasonable, unfair, oppressive or discriminatory;

xxx xxx xxx WHEREFORE, foregoing premises considered, Order is hereby issued:

3. Are inconsistent with the general course of an agency's functions, though in accordance with law;

1) Expanding the restraining order dated September 25, 1992 issued by the Court into an Order for the issuance of a writ of preliminary injunction upon the posting of the petitioners of the bond in the amount of Fifty thousand pesos (P50,000.00) conditioned that the latter will pay all the costs that may be adjudged to the adverse party and/or damages which he may sustain by reason of the injunction, if the Court will finally adjudge that the petitioners are not entitled thereto, and

4. Proceed from a mistake of law or an arbitrary ascertainment of facts; 5. Are in the exercise of discretionary powers but for an improper purpose; or 6. Are otherwise irregular, immoral or devoid of justification. Section 21 of the same statute names the officials who could be subject to the disciplinary authority of the Ombudsman, viz.:

2) Denying the respondent's Motion to Dismiss dated September 28, 1992 for lack of merit. SO ORDERED.

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (Emphasis supplied)

12

A writ of preliminary injunction was issued on 21 October 1992.13 A motion for reconsideration made by petitioner was denied by the trial court. The instant recourse seeks the nullification of the order of 15 October 1992 and the writ of preliminary injunction of 21 October 1992 both issued by the trial court and prays that respondent judge be directed to desist from further proceeding with RTC Case No. MDE-14.

Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the Office of the

There is merit in the petition.

19

Ombudsman correspondingly has the authority to decree preventive suspension on any public officer or employee under investigation by it. Said section of the law provides:

the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence; Provided, That, any single preventive suspension of local elective officials shall not extend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension.

Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment, the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him.

In his comment, which the Court required considering that any final resolution of the case would be a matter of national concern, the Solicitor-General has viewed the Local Government Code of 1991 as having conferred, but not on an exclusive basis, on the Office of the President (and the various Sanggunians) disciplinary authority over local elective officials. He posits the stand that the Code did not withdraw the power of the Ombudsman theretofore vested under R.A. 6770 conformably with a constitutional mandate. In passing, the Solicitor General has also opined that the appropriate remedy that should have been pursued by respondent officials is a petition for certiorari before this Court rather than their petition for prohibition filed with the Regional Trial Court.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other . Well settled is the rule that repeals of laws by implication are not favored,16 and that courts must generally assume their congruent application.17 The two laws must be absolutely incompatible,18 and a clear finding thereof must surface, before the inference of implied repeal may be drawn.19 The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence.20 The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes.21 Hence, all doubts must be resolved against any implied repeal,22 and all efforts should be exerted in order to harmonize and give effect to all laws on the subject.23

Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman over local officials must be deemed to have been removed by the subsequent enactment of the Local Government Code of 1991 which vests the authority to investigate administrative charges, listed under Section 6015 thereof, on various offices. In the case specifically of complaints against elective officials of provinces and highly urbanized cities, the Code states: Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint against any erring local elective officials shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President.

Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom."24

Thus respondents insist, conformably with Section 63 of the Local Government Code, preventive suspension can only be imposed by: ". . . the President if the respondent is an elective official of a province, a highly urbanized or an independent component city; . . . " under sub-paragraph (b) thereof:

Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel with the provisions then existing under the old code. Section 61 and Section 63 of the precursor local Government Code of 1983, 25 under the heading of "Suspension and Removal," read:

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of

20

Sec. 61. Form and Filing of Complaints. — Verified complaints against local elective officials shall be prepared as follows:

the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence.

(a) Against any elective provincial or city official, before the Minister of Local Government. Sec. 63. Preventive Suspension. — (1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official. (2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension.

Respondent officials, nevertheless, claim that petitioner committed grave abuse of discretion when he caused the issuance of the preventive suspension order without any hearing. The contention is without merit. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner. Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventive suspension would occur prior to any finding of guilt or innocence. In the early case of Nera vs. Garcia,26 reiterated in subsequent cases,27 we have said:

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However, if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension.

In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the charges against him are heard and be given an opportunity to prove his innocence.

The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A. No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant. The Local Government Code of 1991 (R.A. No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President. Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against

Moreover, respondent officials were, in point of fact, put on preventive suspension only after petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier,28 that the evidence of guilt was strong. Petitioner gave his justification for the preventive suspension in this wise:

21

After a careful and honest scrutiny of the evidence submitted on record, at this stage, it is the holding of this office that the evidence of guilt against the respondents in the instant case is strong. There is no question that the charge against the respondents involves dishonesty or gross misconduct which would warrant their removal from the service and there is no gainsaying the fact that the charge for falsification of veritable documents like city ordinances are very serious charges that affect the very foundations of duly established representative governments. Finally, it is likewise the holding of this office at this stage that the continued stay in office of respondents may prejudice the judicious investigation and resolution of the instant case.29

All told, petitioner is plainly entitled to the relief prayed for, and we must, accordingly; grant the petition. WHEREFORE, the questioned writ of preliminary injunction of 21 October 1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14 is hereby ordered DISMISSED. No costs. SO ORDERED.

Finally, it does appear, as so pointed out by the Solicitor General, that respondent official's petition for prohibition, being an application for remedy against the findings of petitioner contained in his 21 September 1992 order, should not have been entertained by the trial court. The proscription in Section 14 of R.A. No. 6770 reads: Sec. 14. Restrictions. — No writ of injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman. No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court, on pure question of law. Likewise noteworthy is Section 27 of the law which prescribes a direct recourse to this Court on matters involving orders arising from administrative disciplinary cases originating from the Office of the Ombudsman; thus: Sec. 27. Effectivity and Finality of Decisions. —... In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court. (Emphasis supplied)

22

[G.R. No. 128055. April 18, 2001]

disqualified aliens knowing fully well that said aliens are disqualified, thereby giving unwarranted benefits to said aliens whose stay in the Philippines was unlawfully legalized by said accused.[1]

SANTIAGO, petitioner, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST DIVISION, respondents.

MIRIAM

DEFENSOR

vs. SANDIGANBAYAN,

Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively, No. 91-94555 and no. 91-94897. Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E. Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00) Pesos.Petitioner posted a cash bail without need for physical appearance as she was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan granted her provisional liberty until 05 June 1991 or until her physical condition would warrant her physical appearance in court. Upon manifestation by the Ombudsman, however, that petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an order setting the arraignment on 27 May 1991.

DECISION VITUG, J.: The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in connection with pending criminal cases filed against her for alleged violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be allowed provisional liberty upon a recognizance.

The instant case arose from complaints filed by a group of employees of the Commission of Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the case from Investigator Gualberto dela Llana after having been constituted by the Deputy Ombudsman for Luzon upon petitioners request, came up with a resolution which it referred, for approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the informations for clearance; approved, forthwith, three informations were filed on even date. In Criminal Case No. 16698 filed Sandiganbayan, petitioner was indicted thusly:

before

On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with Prohibition and Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the petition issued a temporary restraining order. The Sandiganbayan, thus, informed, issued an order deferring petitioners arraignment and the consideration of her motion to cancel the cash bond until further advice from the court. On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the temporary restraining order. The subsequent motion for reconsideration filed by petitioner proved unavailing.

the

That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila, Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM DEFENSOR-SANTIAGO, a public officer, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality in the exercise of her official functions, did then and there willfully, unlawfully and criminally approve the application for legalization of the stay of the following aliens: Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order no. 324 dated April 13, 1988 which prohibits the legalization of said

On 06 July 1992, in the wake of media reports announcing petitioners intention to accept a fellowship from the John F. Kennedy School of Government at Harvard University, the Sandiganbayan issued an order to enjoin petitioner from leaving the country. On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena from the case and to defer her arraignment pending action on her motion to inhibit. On 09 November 1992, her motion was denied by the Sandiganbayan. The following day, she filed anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a motion for bill of particulars with the Sandiganbayan asseverating that the names of the aliens whose applications she purportedly approved and thereby supposedly extended undue advantage were conspicuously omitted in the complaint.

23

The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset petitioners arraignment not later than five days from receipt of notice thereof.

Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the Hon. Secretary of the Senate, for the implementation of the suspension herein ordered. The Secretary of the Senate shall inform this court of the action taken thereon within five (5) days from receipt hereof.

On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to admit thirty-two amended informations. Petitioner moved for the dismissal of the 32 informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the said informations and directed her to post bail on the criminal cases, docketed Criminal Case No. 18371-18402, filed against her.

The said official shall likewise inform this Court of the actual date of implementation of the suspension order as well as the expiry of the ninetieth day thereof so that the same may be lifted at the time.[2]

Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R. No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not to disqualify its Presiding Justice, as well as its 14th March 1993 resolution admitting the 32 Amended Informations, and seeking the nullification thereof.

Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order.

Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena to cease and desist from sitting in the case, as well as from enforcing the 11th March 1993 resolution ordering petitioner to post bail bonds for the 32 amended informations, and from proceeding with her arraignment on 12 April 1993 until the matter of his disqualification would have been resolved by the Court.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. Section 13 of the statute provides:

On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32 informations were consolidated into one information under Criminal Case No. 16698.

SEC. 13. Suspension and loss of benefits. any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

Petitioner, then filed with the Sandiganbayan a Motion to Redetermine probable Cause and to dismiss or quash said information. Pending the resolution of this incident, the prosecution filed on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner. On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995. In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995 motion for the prosecution within fifteen (15) days from receipt thereof.

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. (As amended by BP Blg. 195, March 16, 1982).

On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari, entitled Miriam Defensor-Santiago vs. Sandiganbayan, docketed G.R. No. 123792.

In the relatively recent case Sandiganbayan,[3] the Court reiterated:

of

Segovia

vs.

The validity of Section 13, R.A. 3019, as amended --- treating of the suspension pendente lite of an accused public officer --may no longer be put at issue, having been repeatedly upheld by this Court.

On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend her. On 25 January 1996, the Sandiganbayan resolved:

xxx xxx xxx

WHEREFORE, for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice.

The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service.[4]

24

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it.[5] Explaining the nature of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan[6] observed:

Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.[9]

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.[7]

The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records an other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal procedure.[10]

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear an unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted before it. Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged.Thus, it has been held that the use of the word office would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused.[8]

En passan, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that-

The instant petition is not the first time that an incident relating to petitioners case before the Sandiganbayan has been brought to this Court. In previous occasions, the Court has been called upon the resolve several other matters on the subject. Thus: (1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal case No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,[12] petitioner sought the nullification of the hold departure order issued by the Sandiganbayan via a Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident for Hearing; (3) in Santiago vs. Garchitorena,[13] petitioner sought the nullification of the resolution, dated 03 March 1993, in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualified from acting in said criminal case, and the resolution, dated 14 March 1993, which deemed as filed the 32 amended informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the Sandiganbayan of her motion for her reconsideration from its 03rd August 1995 order allowing the testimony of Pedellaga. In one of these cases,[15] the Court declared:

x x x No specific rules need be laid down for such presuspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the revised Penal Code which would warrant his mandatory suspension from office under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x. xxx xxx xxx Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court.

We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 9928999290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act 3019, or of the provisions on bribery of the revised

25

Petitioner next claims that the Amended informations did not charge any offense punishable under Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of spouses and unmarried, minor children of qualified aliens even though they had arrived in the Philippines after December 31 1983. She concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31).

penalty of suspension, when imposed, should not exceed sixty days is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch.

In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion that: (1) She was a public officer;

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view[19] that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.

(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1, 1984; (3) Those aliens were disqualified; (4) She was cognizant of such fact; and (5) She acted in evident bad faith and manifest partiality in the execution of her official functions. The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.[16] The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension. The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that eachx x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.[17]

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.

The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the house of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr., vs. Sandiganbayan, et al.,[18] the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of congress. The Court ruled:

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner. WHEREFORE, the DISMISSED. No costs.

x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of twothirds of all its Members subject to the qualification that the

SO ORDERED.

26

instant

petition

for certiorari is

is the only program that would solve the ills of society. . . . (Emphasis supplied). G.R. No. 159747

April 13, 2004

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit:

GREGORIO B. HONASAN II, petitioner, vs. THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

1. That I am a member of the Communication – Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major; 2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003; 3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it;

DECISION

AUSTRIA-MARTINEZ, J.:

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest;

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part: …

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located somewhere in San Juan, Metro Manila;

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …

6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns within the framework of NRP and we were likewise served with dinner;

3. … 7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan;

4. The said crime was committed as follows: 4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint.

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan; 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like;

… 4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe

10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect." After a

27

few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions;

the Malacañang complex. I told him that I could not do it. No further conversation ensued and he left; 18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4th meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I";

11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities.

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied)

12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed;

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation. On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion.

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did; 14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "…kaya nating pumatay ng kasamahan";

Respondent Matillano submitted thereto and petitioner filed a reply.

15. That after the rites, the meeting was adjourned and we left the place;

On September 10, 2003, the DOJ Panel issued an Order, to wit:

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community;

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion.

his

comment/opposition

The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case.

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacañang Compound for "D-DAY", my task is to switch off the telephone PABX that serves

In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and

28

controverting evidence on or before September 23, 2003.1

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation.

Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases.

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments.

The arguments of respondent DOJ Panel are: 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513.

The Court heard the parties in oral arguments on the following issues: 1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner;

2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of.

2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office.

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation. After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are:

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion.

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner. 2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary investigation involving Honasan. 3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication, hence null and void.

The arguments of respondent Ombudsman are:

4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the jurisdiction to conduct the preliminary investigation.

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC)

29

may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249.

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis supplied)

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMBDOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

and Section 1 of P.D. 1275, effective April 11, 1978, to wit: SECTION 1. Creation of the National Prosecution

Service; Supervision and Control of the Secretary of Justice. – There is hereby created and established a

National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied)

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to investigate on its own, or on complaint by any

person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides:

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general.

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.

The Court finds the petition without merit.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides:

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; …

and Mabanag vs. Lopez Vito.2 The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz: SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

…

30

does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides:

prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied)

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides: Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases.

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation of such cases. …. (Emphasis supplied)

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court.

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit:

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both.

A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive.3 Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case:

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases.

Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the

The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or

31

state prosecutors and the judges of the municipal trial courts and municipal circuit trial court.

officer or employee as mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A.

In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied)

.........

6770).

Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and honest investigative body, like the Ombudsman, is greatest.6

A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus:

At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and the Deloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate.

As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]).

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary and not an exclusive authority, thus: The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any illegal act or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged."

The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we.

Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the noninvolvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or amended information.

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that have been committed by any

32

In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the investigation.9 (Emphasis supplied)

A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and the penalty prescribed be higher then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held:

Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate.

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former. In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux.

It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same class of persons or things, or object, or cover the same specific or particular subject matter.

These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861. The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied)

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows: 'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise: '(a) Exclusive original jurisdiction in all cases involving: ... (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporation, whether simple or complexed with other crimes, where the penalty prescribed by law is higher that prision correccional or imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court."

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction

33

of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office.

prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees.

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases.

Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized prosecutors of the ombudsman.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.

Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees:

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:

1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman.

OMB-DOJ JOINT CIRCULAR NO. 95-001 Series of 1995 TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.

3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority.

x------------------------------------------------------------------------------------------------------x

4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees.

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon the government prosecutors for assistance in the investigation and

34

Manila, Philippines, October 5, 1995. (signed)

(signed)

TEOFISTO T. GUINGONA, JR. Secretary Department of Justice

ANIANO A. DESIERTO Ombudsman Office of the Ombudsman

on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit: SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations:

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied)

(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.

confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy.

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct

35

preliminary investigation on charges filed against public officers and employees.

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in general.

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation.

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-001 has to be published.14 Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him.

Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit:

The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the presence of other respondents in the subject complaint.

Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty.

SO ORDERED. Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, J., joins J. Ynares-Santiago. Vitug, J., see separate dissenting opinion. Quisumbing, J., joins the dissent. Ynares-Santiago, J., see separate dissenting opinion. Sandoval-Gutierrez, J., see dissenting opinion.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (at page 454. emphasis supplied)

36