Hipolito vs Mergas Respondent, Elmer R.

Mergas, a deputy sheriff of the Regional Trial Court, Branch 46, Manila was charged by herein complainant Marisol C. Hipolito, an applicant for a small scale mining permit, on January 4, 1990 in the Office of the Prosecutor, Province of Tarlac, 1 with acts allegedly amounting to the crime of swindling or estafa. On January 18, 1990, a copy of an affidavit complaint, dated January 4, 1990, charging herein respondent with grave misconduct and involving the same facts subject of the aforesaid criminal case, together with its corresponding attachments, was received in the 2 Office of the Court Administrator. In a resolution of April 30, 1990 in I.S. No. 90-010 of the office of the aforesaid provincial prosecutor, the charge for estafa was dismissed on the theory that the evidence shows that there was no unfaithfulness or abuse of confidence on the part of respondent, and the issue of falsification was not ruled upon since no evidence proving the same was submitted for proper appreciation and 3 consideration. On the administrative case, in a resolution of this Court, dated July 4 9, 1990, respondent was required to comment on the affidavitcomplaint filed against him. On January 26, 1990, respondent filed 5 his comment, together with his counter-affidavit and those of two of his witnesses which were allegedly the same documents filed with the provincial prosecutor of Tarlac in I.S. No. 90-010. The Court noted that the acts complained of appear to have been committed by respondent over a period of at least four (4) months, presumably even during office hours, and it does not appear that he was granted any leave of absence therefor from his official station. Hence, on October 1, 1990, the Court resolved to refer the administrative case to Judge Bernardo P. Pardo, Executive Judge of the Regional Trial Court of Manila, for investigation, report and 6 recommendation. On January 22, 1991, the investigating judge submitted his report and recommendation, with the following findings of fact which are borne out by the evidence: 1. Elmer R. Mergas, at all times material hereto, has been a deputy sheriff of the Regional Trial Court of Manila, Branch 46, duly appointed and performing his duties as such. 2. Sometime in September, 1989, a certain Mirasol (sic) Hipolito, together with Abel Mergas, respondent's brother, approached him and asked (for) his help in connection with her application with the Bureau of Mines for a small scale mining permit for pumice. 3. Although such undertaking was not part of his work as deputy sheriff, respondent acceded to the request. 4. Consequently, on September 22, 1989, respondent deputy sheriff caused the filing of an application for small scale mining permit for pumice in behalf of Marisol Hipolito with the Bureau of Mines, Regional Office, San Fernando, Pampanga. 5. However, the site applied for was claimed by another person and the respondent suggested another site. This second site was not acceptable to the applicant and the applicant submitted a plan for still another site in San Luis, Tarlac, Tarlac which was covered by an application of another person. Consequently, the application could not be given due course. 6. In connection with such application, respondent sheriff received from Marisol Hipolito the sum of P14,200.00 which was spent for the following: P4,500.00, for the survey conducted on September 16 & 17,1989 P600.00, for filing fee of the application P4,000.00, for project information filed on October 17, 1989

P3,000.00, for verification fee of the site on November 28, 1989 P3,500.00, for the survey of another site on December 7-8, 1989 P2,000.00, for travelling expenses, food and other expenses in following up the application. Respondent claims that Marisol Hipolito still owes him P3,400.00. 7. On January 4, 1990, Mirasol Hipolito filed with the Provincial Prosecutor of Tarlac a complaint for estafa against respondent deputy sheriff. 8. In his resolution dated April 30, 1990, Assistant Provincial Prosecutor Gregorio R. Bautista found that "complainant delivered sums of money to the respondent that involves the duty for the respondent to help her work for her application and approval of a small scale mining permit with the Bureau of Mines" but "there was no unfaithfulness or abuse of confidence that is the essence of swindling and deceit". Consequently, the Assistant Prosecutor recommended that the case be dismissed which was duly approved by the Provincial Prosecutor. The investigating judge submitted that the acts of respondent deputy sheriff are improper and not conducive to the best interest of the service. Respondent was held to have committed acts which may be called "moonlighting" and which are contrary to civil service rules and regulations. He observed that respondent is not supposed to be following up extraneous matters outside Manila, in other government offices and for private individuals, to the prejudice of his work in the judiciary as a deputy sheriff of the Regional Trial Court of Manila. Consequently, his Honor recommended the penalty of suspension from office for a period of six (6) months without pay effective immediately. Respondent failed to refute the fact that he was indeed involved in the work and processes involved in the application for the small scale mining permit for complainant Marisol C. Hipolito. This clearly shows that respondent failed to observe and maintain that degree of dedication to the duties and responsibilities required of him as a deputy sheriff. Thus, it bears mention at this juncture that although he appears to have been exonerated by the prosecutor of the criminal charges proffered against him, such absolution is not per se a bar to administrative sanctions where called for by the malfeasance, misfeasance or nonfeasance of a public officer. A deputy sheriff, as an officer of the court whose duties form an integrated part of the administration of justice, may be properly punished, even with a penalty short of dismissal or suspension from office, by this tribunal which exercises administrative supervision over the judicial branch of the Government, for an action committed in violation of the Rules of Court and which impedes and 7 detracts from a fair and just administration of justice. While "moonlighting" is not normally considered as a serious misconduct, nonetheless, by the very nature of the position held by respondent, it obviously amounts to a malfeasance in office. In sum, he is bound, virtute officii, to bring to the discharge of his duties that prudence, caution and attention which careful men usually 8 exercise in the management of their own affairs. Finally, public service requires utmost integrity and strictest discipline. A public servant must exhibit at all times the highest sense of honesty and integrity. This yardstick has been imprinted in the 1973 Constitution under Section 1 of Article XIII, thus: "Public office is a public trust. Public officers and employment shall serve with the highest degree of responsibility, integrity, loyalty and 9 efficiency and shall remain accountable to the people." This is 10 reiterated more emphatically in the 1987 Constitution. WHEREFORE, as correctly evaluated and recommended by the investigating judge, the Court finds respondent Deputy Sheriff Elmer R. Mergas guilty of serious misconduct in office or conduct prejudicial to the best interest of the service. He is hereby SUSPENDED from office for a period of six (6) months without pay effective immediately. Let a copy of this resolution be entered in the personal records of respondent. It is so ordered.

Romulo v Yniguez FACTS- Petitioners, more than 1/5 of all members of theBatasan, filed Resolution No. 644 calling for theimpeachment of President Marcos, w/ a verifiedcomplaint for impeachment. The Speaker referred thematter to the Committee on Justice, Human Rights andGood Government. The Committee found the complaintinsufficient in form and substance, disapproved theResolution and dismissed all charges.- Ramon Mitra filed a motion praying for recall from thearchives of the Resolution and verified complaint.Motion was disapproved by the Batasan.Petitioners also claim that sections of the Rules onImpeachment are violative of the Constitution bec:- they empower smaller body to supplant complaintto impeach endorsed by 1/5 of all members of Batasan- they vest in Committee the power to impeach/notto impeach when such is vested only in the Batasan ISSUES:Procedural -WON SC can order Committee to recall fr the archivesthe Resolution and complaint Substantive-WON Sections 4, 5, 6, 8 of Batasan Rules onImpeachment is unconstitutional and WON theCommittee Report dismissing the Resolution should bedeclared null and void HELD:Procedural -No.- Resolution of the constitutionality of the questionedprovisions of the Rules is not even necessary. Whatpetitioners want is for SC to compel Batasan to hear theimpeachment case.- When Batasan denied motion of Mitra to recall fr thearchives, it in effect confirmed the action of theCommittee. It follows that a majority vote of themembers of Batasan confirming the act of theCommittee makes impossible the required at least 2/3vote of all members to support conviction.Dismissal by the Batasan is beyond the power of SC toreview. SC cant also order the Committee bec an orderto the Committee is an order to the Batasan itself. Substantive-No.- The Batasan pursuant to its power to adopt rules of proceedings may adopt rules of procedure onimpeachment proceedings. These rules are notinconsistent with the Constitutional provisions.- Also, while the Batasan assigned to the Committee thetask of determining whether petition is sufficient, theCommittee is still required to submit its report to theBatasan. The report may be approved or not.- That the rules on impeachment of the Interim Batasanare better is no argument against the validity of theRules on Impeachment of the Batasan. The Rules arealways within the power of the Batasan to modify. These are merely procedural and not substantive. Also,generally, courts may not take cognizance of matters regarding rules of public deliberative bodies.Petition is dismissed. In re Gonzales 1988 The Court CONSIDERED the 1st Indorsement dated 16 March 1988 from Mr. Raul M. Gonzalez, "Tanodbayan/Special; Prosecutor" forwarding to Mr. Justice Marcelo B. Fernan a "letter-complaint, dated 14 December 1987 with enclosure of the Concerned Employees of the Supreme Court," together with a telegram of Miguel Cuenco, for "comment within ten (10) days from receipt hereof." Mr. Justice Fernan had brought this 1st Indorsement to the attention of the Court en banc in view of the important implications of policy raised by said 1st Indorsement. The mentioned 1st Indorsement has two (2) attachments. First, an anonymous letter by "Concerned Employees of the Supreme Court" addressed to Hon. Raul M. Gonzalez referring to charges for disbarment brought by Mr. Miguel Cuenco against Mr. Justice Marcelo B. Fernan and asking Mr. Gonzalez "to do something about this." The second attachment is a copy of a telegram from Mr. Miguel Cuenco addressed to Hon. Raul M. Gonzalez, where Mr. Cuenco refers to pleadings he apparently filed on 29 February 1988 with the Supreme Court in Administrative Case No. 3135, which, in the opinion of Mr. Cuenco, made improper any "intervention" by Mr. Raul Gonzalez. Mr. Cuenco, nonetheless, encourages Mr. Gonzalez "to file responsive pleading Supreme Court en banc to comply with Petition Concerned Employees Supreme Court asking Tanodbayan's intervention.

The Court DIRECTED the Clerk of Court to FURNISH Mr. Raul M Gonzales a copy of the per curiam Resolution, dated 17 February 1988 of the Court in Administrative Case No. 3135 entitled "Miguel Cuenco v. Honorable Marcelo B. Fernan" in which Resolution, the Court Resolved to dismiss the charges made by complaint Cuenco against Mr.Justice Fernan for utter lack of merit. In the same Resolution, the Court Resolved to require complainant Cuenco to show cause why he should not be administratively dealt with for making unfounded serious accusations against Mr. Justice Fernan. Upon request of Mr. Cueco, the Court had granted him an extension of up to 30 March 1988, Mr. Cuenco filed a pleading which appears to be an omnibus pleading relating to, inter alia, Administrative Case No. 3135. Insofar as Administrative Case No. 3135 is concerned, the Court treated this pleading as a Motion for Reconsideration. By a per curiam Resolution dated 15 April 1988, the Court denied with finality Mr Cuenco's Motion for Reconsideration. It is important to underscore the rule of constitution law here involved. This principle may be succinctly formulated in the following terms. A public officer who under the Constitution is required to be a Member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer. Further, such public officer, during his incumbency, cannot be charged criminally before the Sandiganbayan or any other court with any offence which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office. The Court dealt with this matter in its Resolution of 17 February 1988 in Administrative Case No. 3135 in the following terms: There is another reason why the complaining for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7) (1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member's incumbency, would in effect be to circumbent and hence to run afoul of the constitutional mandate theat Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], Id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], Id. and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1][1], Id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied) This is not the first time the Court has had occasion to rule on this 1 matter. In Lecaroz v. Sandiganbayan, the Court said: The broad power of the New Constitution vests the respondent court with jurisdiction over "public officers and employees, including those in government-owned or controlled corporations." There are exceptions, however, like constitutional officers, particularly those declared to be removed by impeachment. Section 2, Article XIII of the 1973 Constitution provides: Sec. 2 The President, the Members of the Supreme Court, and the Members of the Constitutional Commissions shall be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, other high crimes, or graft and corruption." Thus, the above provision proscribes removal from office of the aforementioned constitutional officers by any other method; otherwise, to allow a public officer who may be removed solely by impeachment to be charged criminally while holding his office, would be violative of the clear mandate of the fundamental law. Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New Constitution, states that "judgement in cases of impeachment shall be limited to removal from office and disqualification to hold any office of honor, trust, or profit under the Republic of the Philippines, but the party convicted shall

nevertheless be liable and subject to prosecution trial, and punishment, in accordance with law. The above provision is a reproduction of what was found in the 1935 Constitution. It is quite apparent from the explicit character of the above provision that the effect of impeachment is limited to the loss of position and disqualification to hold any office of honor, trust or profit under the Republic. It is equally manifest that the party this convicted may be proceeded against, tried and thereafter punished in accordance with law. There can be no clearer expression of the constitutional intent as to the scope of the impeachment process (The Constitution f the Philippines, pp. 465-466)." The clear implication is, the party convicted in the impeachment proceeding shall nevertheless be liable and subject of prosecution, trial and punishment according to law; and that if the same does not result in a conviction and the official is not thereby removed, the filing of a 2 criminal action "in accordance with law" may not prosper. The provisions of the 1973 Constitution we referred to above in Lecaroz v. Sandiganbayan are substantially reproduced in Article XI of the 1987 Constitution: Sec. 2 The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Sec. 3 xxx xxx xxx (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. It is important to make clear that the Court is not here saying that it Members or the other constitutional officers we referred to above are entitled to immunity from liability for possibly criminal acts or for alleged violation of the Canons of Judicial Ethics or other supposed misbehavior. What the Court is saying is that there is a fundamental procedural requirements that must be observed before such liability may be determined and enforced. A Member of the Supreme Court must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Supreme Court Justice be thus terminated by impeachment, he may then be held to answer either criminally or administratively (by disbarment proceedings) for any wrong or misbehavior that may be proven against him in appropriate proceedings. The above rule rests on the fundamental principles of judicial independence and separation of powers. The rule is important because judicial independence is important. Without the protection of this rule, Members of the Supreme Court would be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court.It follows from the foregoing that a fiscal or other prosecuting officer should forthwith and motu proprio dismiss any charges brought against a Member of this Court. The remedy of a person with a legitimate grievance is to file impeachment proceedings. The Clerk of Court is hereby DIRECTED to serve a copy of this Resolution upon Hon. Raul M. Gonzales and Mr Miguel Cuenco. Francisco Vs. House Of Representatives [415 SCRA 44; G.R. No. 160261; 10 Nov 2003] Facts: Impeachment proceedings were filed against Supreme Court Chief Justice Hilario Davide. The justiciable controversy poised in front of the Court was the constitutionality of the subsequent filing of a second complaint to controvert the rules of impeachment provided for by law. Issue: Whether or Not the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the

Constitution and whether the resolution thereof is a political question has resulted in a political crisis. Held: In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution.In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. There exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained. This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator. Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one

year period. The Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life.Thus, the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr is barred under paragraph 5, section 3 of Article XI of the Constitution. Rufino Nuez vs Sandiganbayan & the People of the Philippines Facts:Nuez assails the validity of the PD 1486 creating the Sandiganbayan as amended by PD 1606. He was accused before the Sandiganbayan of estafa through falsification of public and commercial documents committed in connivance with his other coaccused, all public officials, in several cases. It is the claim of Nuez that PD1486, as amended, is violative of the due process, equal protection, and ex post facto clauses of the Constitution. He claims that the Sandiganbayan proceedings violates Nuezs right to equal protection, because appeal as a matter of right became minimized into a mere matter of discretion; appeal likewise was shrunk and limited only to questions of law, excluding a review of the facts and trial evidence; and there is only one chance to appeal conviction, by certiorari to the SC, instead of the traditional two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the CA and thereafter to the SC. ISSUE: Whether or not the creation of Sandiganbayan violates equal protection insofar as appeals would be concerned. HELD: The SC ruled against Nuez. The 1973 Constitution had provided for the creation of a special court that shall have original jurisdiction over cases involving public officials charged with graft and corruption. The constitution specifically makes mention of the creation of a special court, the Sandiganbayan, precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Further, the classification therein set forth met the standard requiring that it must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. Further still, decisions in the Sandiganbayan are reached by a unanimous decision from 3 justices - a showing that decisions therein are more conceivably carefully reached than other trial courts. FRANCISCO M. LECAROZ and LENLIE LECAROZ v. SANDIGANBAYANand PEOPLE OF THE PHILIPPINES FACTS:Red filed with the Office of the Ombudsman several criminalcomplaints against Lecaroz father and son arising from the refusal of the twoofficials to let him assume the position of KB sectoral representative.Lecaroz father and son, were convicted by

the Sandiganbayan of 13 counts of estafa through falsification of public documents. They now seek a review of their conviction as they insist on their innocence. ISSUES:1) WON Red had validly and effectively assumed the office of KBFederation President by virtue of his oath taken before then AssemblywomanReyes; 2) WON the tenure of accused Lenlie as president of the KB and hiscoterminous term of office as KB representative to the SB had accordinglyexpired; If yes - WON Lenlie could no longer occupy the office despite thevacancy therein, in a holdover capacity; 3) WON under Sec. 2 of the FreedomConstitution and pursuant to the provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenliewas legally entitled and even mandated to continue in office in a holdovercapacity; if not WON accused Lenlie acted in good faith and committedmerely an error of judgment, without malice and criminal intent; 4) WON theaccused had committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been convicted required criminal intent and maliceas essential elements HELD:Petition is meritorious. 1) NO. Red had not validly and effectivelyassumed the office of KB Federation President by virtue of his oath takenbefore then Assemblywoman Reyes on 27 September 1985. Under theprovisions of the Administrative Code then in force, members of the thenBatasang Pambansa were not authorized to administer oaths. It was only after the effectivity of RA No. 6733 that members of both Houses of Congresswere vested for the first time with the general authority to administer oaths.Clearly, under this circumstance, the oath of office taken by Red before amember of the Batasang Pambansa who had no authority to administeroaths, was invalid and amounted to no oath at all.2) The tenure of accused Lenlie as president of the KB and his coterminousterm of office as KB representative to the SB had expired. However, Lenliecould occupy the office as president of the KB and his coterminous term of office as KB representative to the SB in a holdover capacity. The concept of holdover when applied to a public officer implies that the office has a fixedterm and the incumbent is holding onto the succeeding term. It is usuallyprovided by law that officers elected or appointed for a fixed term shallremain in office not only for that term but until their successors have beenelected and qualified. Where this provision is found, the office does notbecome vacant upon the expiration of the term if there is no successorelected and qualified to assume it, but the present incumbent will carry overuntil his successor is elected and qualified, even though it be beyond theterm fixed by law. It is thus clear in the present case that since Red neverqualified for the post, petitioner Lenlie remained KB representative to theSanggunian, albeit in a carry over capacity, and was in every aspect a de jureofficer, or at least a de facto officer entitled to receive the salaries and all theemoluments appertaining to the position.3) The pertinent provisions of the Freedom Constitution and theimplementing MILG Circulars confirmed the right of incumbent KB FederationPresidents to hold and maintain their positions until duly replaced either bythe President herself or by the Interior Ministry.4) Prudence and good faith impelled Mayor Lecaroz to take the necessarysteps to verify the legitimacy of Red's appointment to the Sanggunian. Zaldivar vs SB 1988 Facts: Enrique Zaldivar, governor of the province of Antique Sought to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez From proceeding with the prosecution and hearing of criminal cases filed against him On the ground that said cases were filed by the Tanodbayan. The 1987 Consti provided that it is only the Ombudsman who has the authority to file cases wit the Sandiganbayan. Issue: WON Tanodbayan had authority to file those cases for Sandiganbayan to prosecute andhear.

Held: NO-Ratio:1. Under the 1987 Consti, the Ombudsman (distinguished from Tanodbayan) is charged with theduty to:Section 13, par 1: Investigate on its own, or on complaint by any person, any act or omission ofany public officer, employee, office or agency, when such act or omission appears to be illegal,unjust, improper, or inefficient.2. The Tanodbayan of the 1973 Consti became the Office of the Special prosecutor that shallcontinue to function and exercise it powers as now or hereafter may be provided by law, exceptthose conferred on the Office of the Ombudsman created under the Consti. (article 11, section 7)3. Thus, beginning on February 2, 1987, the authority to conduct preliminary investigations and direct the filing of criminal cases with the Sandiganbayan was vested on the Ombudsman.4. The Tanodbayan is now the subordinate of the Sandiganbayan and it can investigate and prosecute cases only upon the latters authority or orders. BIR vs Ombudsman Graft Investigation Officer II Christopher S. Soquilon of the Office of the Ombudsman (OMBUDSMAN, for brevity) received information from an informer-for-reward regarding allegedly anomalous grant of tax refunds to Distillera Limtuaco & Co., Inc. (Limtuaco, for brevity) and La Tondea Distilleries, Inc. Upon [1] receipt of the information, Soquilon recommended to then Ombudsman Conrado M. Vasquez that the case be docketed and [2] subsequently assigned to him for investigation. On November 29, 1993, the Ombudsman issued a [3] subpoena duces tecum addressed to Atty. Millard Mansequiao of the Legal Department of the Bureau of Internal Revenue (BIR) ordering him to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted to Limtuaco and La Tondea. The BIR, through Assistant Commissioner for Legal Service Jaime M. Maza, asked that it be excused from complying with the subpoena duces tecum because (a) the Limtuaco case was pending investigation by Graft Investigation Officer II Napoleon S. Baldrias; and (b) the investigation thereof and that of La Tondea was [4] mooted when the Sandiganbayan ruled in People v. Larin that the legal issue was no longer in question since the BIR had ruled that the ad valorem taxes were erroneously paid and could [5] therefore be the proper subject of a claim for tax credit. Without resolving the issues raised by the BIR, the Ombudsman issued another subpoena duces tecum, dated December 9, 1993, addressed to BIR Commissioner Liwayway Vinzons-Chato ordering her to appear before the Ombudsman and to bring the complete original case dockets of the refunds granted [6] to Limtuaco and La Tondea. The BIR moved to vacate the subpoena duces tecum arguing that (a) the second subpoena duces tecum was issued without first resolving the issues raised in its Manifestation and Motion dated December 8, 1993; (b) the documents required to be produced were already submitted to Graft Investigation Officer II Baldrias; (c) the issue of the tax credit of ad valorem taxes has already been resolved as proper by the Sandiganbayan; (d) the subpoena duces tecum partook of the nature of an omnibus subpoena because it did not specifically described the particular documents to be produced; (e) there was no clear showing that the tax case dockets sought to be produced contained evidence material to the inquiry; (f) compliance with the subpoena duces tecum would violate Sec. [7] 269 of the National Internal Revenue Code (NLRC) on [8] unlawful divulgence of trade secrets and Sec. 277 on procuring unlawful divulgence of trade secrets; and (g) Limtuaco and La Tondea had the right to rely on the correctness and conclusiveness [9] of the decisions of the Commissioner of Internal Revenue. The Ombudsman denied the Motion to Vacate the Subpoena Duces Tecum, pointing out that the Limtuaco tax refund case then assigned to Baldrias was already referred to the FactFinding and Investigation Bureau of the Ombudsman for consolidation with Case No. OMB-0-93-3248. The Ombudsman also claimed that the documents submitted by the BIR to Baldrias were incomplete and not certified. It insisted that the issuance of the subpoena duces tecum was not a fishing expedition considering that the documents required for production were clearly and particularly specified.
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The BIR moved to reconsider the respondents Order dated February 15, 1994 alleging that (a) the matter subject of the investigation was beyond the scope of the jurisdiction of the Ombudsman; (b) the subpoena duces tecum was not properly issued in accordance with law; and (c) non-compliance thereto was justifiable. The BIR averred it had the exclusive authority whether to grant a tax credit and that the jurisdiction to review the same was lodged with the Court of Tax Appeals and not with the Ombudsman. According to the BIR, for a subpoena duces tecum to be properly issued in accordance with law, there must first be a pending action because the power to issue a subpoena duces tecum is not an independent proceeding. The BIR noted that the Ombudsman issued the assailed subpoena duces tecum based only on the information obtained from an informer-for-reward and the report of Asst. Comm. Imelda L. Reyes. The BIR added that the subpoena duces tecum suffered from a legal infirmity for not specifically describing the documents sought to be produced. Finding no valid reason to reverse its Order dated February 15, 1994, the Ombudsman denied the motion for reconsideration and reiterated its directive to the BIR to produce the [12] documents. Instead of complying, the BIR manifested its [13] intention to elevate the case on certiorari to this Court. The Ombudsman thus ordered Asst. Comm. Maza to show cause why he should not be cited for contempt for contumacious refusal to [14] comply with the subpoena duces tecum. However, before the expiration of the period within which Asst. Comm. Maza was required to file a reply to the show cause order of the Ombudsman, the BIR filed before this Court the instant Petition for Certiorari, Prohibition and Preliminary Injunction and [15] Temporary Restraining Order. Petitioner BIR insists that the investigative power of the Ombudsman is not unbridled. Particularly on the issue of tax refunds, the BIR maintains that the Ombudsman could validly exercise its power to investigate only when there exists an appropriate case and subject to the limitations provided by [16] law. Petitioner opines that the fact-finding investigation by the Ombudsman is not the proper case as it is only a step preliminary to the filing of recovery actions on the tax refunds granted to Limtuaco and La Tondea. This Court is not persuaded. No less than the 1987 Constitution enjoins that the Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate case, notify the complainants of the action taken and [17] the result thereof. Clearly, there is no requirement of a pending action before the Ombudsman could wield its investigative power. The Ombudsman could resort to its investigative prerogative on its [18] own or upon a complaint filed in any form or manner. Even when the complaint is verbal or written, unsigned or unverified, the [19] Ombudsman could, on its own, initiate the investigation. Thus There can be no objection to this procedure in the Office of the Ombudsman where anonymous letters suffice to start an investigation because it is provided in the Constitution itself. In the second place, it is apparent that in permitting the filing of complaints in any form and manner, the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is different from other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against them. On the other hand complainants are more often than not [20] poor and simple folk who cannot afford to hire lawyers. The term in an appropriate case has already been clarified [21] by this Court in Almonte v. Vasquez, thus Rather than referring to the form of complaints, therefore, the phrase in an appropriate case in Art. XI, 12 means any case

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concerning official act or omission which is alleged to be illegal, unjust, improper, or inefficient, The phrase subject to such limitations as may be provided by law refers to such limitations as may be provided by Congress or, in the absence thereof, to such limitations as may be imposed by courts. Plainly, the pendency of an action is not a prerequisite before the Ombudsman can start its own investigation. Petitioner next avers that the determination of granting tax refunds falls within its exclusive expertise and jurisdiction and that its findings could no longer be disturbed by the Ombudsman purportedly through its investigative power as it was a valid exercise of discretion. Petitioner suggests that what respondent should have done was to appeal its decision of granting tax credits to Limtuaco and La Tondea to the Court of Tax Appeals since it is the proper forum to review the decisions of the Commissioner of Internal Revenue. This contention of the BIR is baseless. The power to investigate and to prosecute which was granted by law to the [22] Ombudsman is plenary and unqualified. The Ombudsman Act makes it perfectly clear that the jurisdiction of the Ombudsman encompasses all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee [23] xxx during his tenure of office. Concededly, the determination of whether to grant a tax refund falls within the exclusive expertise of the BIR. Nonetheless, when there is a suspicion of even just a tinge of impropriety in the grant of the same, the Ombudsman could rightfully ascertain whether the determination was done in accordance with law and identify the persons who may be held responsible thereto. In that sense, the Ombudsman could not be accused of unlawfully intruding into and intervening with the BIRs exercise of discretion. As correctly posited by the Office of the Solicitor General xxx (T)he Ombudsman undertook the investigation not as an appellate body exercising the power to review decisions or rulings rendered by a subordinate body, with the end view of affirming or reversing the same, but as an investigative agency tasked to [24] discharge the role as protector of the people pursuant to his authority to investigate xxx any act or omission of any public official, employee, office or agency, when such act or omission [25] appears to be illegal, unjust, improper or inefficient. The OSG insists that the mere finality of petitioners ruling on the subject of tax refund cases is not a legal impediment to the exercise of respondents investigative authority under the Constitution and its Charter (RA 6770) which xxx is so encompassing as to include all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee during his tenure of [26] office. Indeed, 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 [27] official duty. Petitioner fears that the fact-finding investigation being conducted by respondent would only amount to a general inquisitorial examination on the case dockets with a view to search [28] through them to gather evidence considering that the subpoena duces tecum did not describe with particularity the documents sought to be produced. This Court is unimpressed. We agree with the view taken by the Solicitor General that the assailed subpoena duces tecum indeed particularly and sufficiently described the records to be produced. There is every indication that petitioner knew precisely what records were being referred to as it even suggested that the tax dockets sought to be produced may not contain evidence material to the inquiry and that it has already submitted the same to Baldrias. The records do not show how the production of the subpoenaed documents would necessarily contravene Sec. [29] 269 of the National Internal Revenue Code (NIRC) on unlawful

divulgence of trade secrets and Sec. 277 of the same Code on procuring unlawful divulgence of trade secrets. The documents sought to be produced were only the case dockets of the tax refunds granted to Limtuaco and La Tondea which are public records, and the subpoena duces tecum were directed to the public officials who have the official custody of the said records. We find no valid reason why the trade secrets of Limtuaco and La Tondea would be unnecessarily disclosed if such official records, subject of the subpoena duces tecum, were to be produced by the petitioner BIR to respondent Office of the Ombudsman. Assuming, for the sake of argument, that the case dockets of the tax refunds which were granted to Limtuaco and La Tondea contain trade secrets, that fact, however, would not justify their non-production before the Ombudsman. As this Court has [31] underscored in Almote v. Vasquez At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights xxx In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of EIB. Indeed, EIIBs function is the gathering and evaluation of intelligence reports and information regarding illegal activities affecting the national economy, such as, but not limited to economic sabotage, smuggling, tax evasion, dollar salting. Consequently, while in cases which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military maters without compelling production, no similar excuse can be made for a privilege resting on other consideration. Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would only justify ordering their inspection in camera but not their nonproduction xxx Besides, under the facts of this case, petitioner should not have concerned itself with possibly violating the pertinent provisions of the NLRC on unlawful divulgence or unlawful procurement of trade secrets considering Rule V of the Rules of [32] Procedure of the Office of the Ombudsman which provides that (a) Any person whose testimony or production of documents or other evidence is necessary to determine the truth in any inquiry, hearing, or proceeding being conducted by the Office of the Ombudsman or under its authority in the performance or furtherance or its constitutional functions and statutory objectives, including preliminary investigation, may be granted immunity from criminal prosecution by the Ombudsman, upon such terms and conditions as the Ombudsman may determine, taking into account the pertinent provisions of the Rules of Court xxx With regard to the manner in which the investigation was conducted, petitioner asserts that the investigation conducted by the Office of the Ombudsman violated due process, inasmuch as it commenced its investigation by issuing the subpoena duces tecum without first furnishing petitioner with a summary of the [33] complaint and requiring it to submit a written answer. The Ombudsman labels this assertion of the BIR as premature maintaining that it is only when the Ombudsman finds reasonable ground to investigate further that it is required to furnish respondent with the summary of the complaint. The Ombudsman insists that in the instant case, it has yet to make that determination. On this score, we rule in favor of petitioner BIR. Records show that immediately upon receipt of the information from an informer-for-reward, Graft Investigator Soquilon, in a Memorandum dated November 26, 1993 addressed to then Ombudsman Conrado M. Vasquez, requested that the case be docketed and assigned to him for a full-blown fact-finding [34] investigation. In his Memorandum, Soquilon averred that he is

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certain that these refunds can be recovered by reason of the Tanduay precedent xxx and using the power of this Office, we will not only bring back to the government multi-million illegal refunds but, like the Tanduay case, we will be establishing graft and [35] corruption against key BIR officials. In a marginal note dated [36] November 26, 1993, Ombudsman Vasquez approved the docketing of the case and its assignment to Soquilon. Likewise, in [37] the Preliminary Evaluation Sheet of the Office of the Ombudsman, the Fact Finding Investigation Bureau of the Ombudsman was named as complainant against Concerned High Ranking and Key Officials of the Bureau of Internal Revenue who granted multi-million tax refunds to Limtuaco and La Tondea Distilleries for alleged violation of RA 3019. On November 29, 1993 and December 9, 1993 Soquilon issued the assailed subpoena duces tecum requiring the concerned BIR officials to appear before the Ombudsman and to bring with them the complete case dockets of the tax refunds granted to Limtuaco and La Tondea. It is our view and we hold that the procedure taken by the respondent did not comply with the safeguards enumerated in Sec. 26, (2) of RA 6770 or the Ombudsman Act of 1989, which clearly provides that (2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefore. If it finds a reasonable, ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt hereof. If the answer is found satisfactory, it shall dismiss the case. The procedure which was followed by the respondent likewise contravened the Rules of Procedure of the Office of the [38] Ombudsman, Sec. 4, Rule 11 of which provides that (a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complaint or supporting witnesses to execute affidavits to substantiate the complaints. (b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits xxx It is clear from the initial comments of Soquilon in his Memorandum to Ombudsman Vasquez that he undoubtedly found reasonable grounds to investigate further. In fact, he recommended that the case be docketed immediately and assigned to him for a full-blown fact-finding investigation. Even during that initial stage, Soquilon was convinced that the granting of the tax refunds was so anomalous that he assured Ombudsman Vasquez of the eventual recovery of the tax refunds and the prosecution and conviction of key BIR officials for graft and corruption. We commend the graft investigators of the Office of the Ombudsman in their efforts to cleanse our bureaucracy of scalawags. Sometimes, however, in their zeal and haste to pin down the culprits they tend to circumvent some procedures. In this case, Graft Investigation Officer Soquilon forgot that there are always two (2) sides to an issue and that each party must be given every opportunity to air his grievance or explain his side as the case may be. This is the essence of due process. The law clearly provides that if there is a reasonable ground to investigate further, the investigator of the Office of the Ombudsman shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof. In the instant case, the BIR officials concerned were never furnished by the respondent with a summary of the complaint and were not given the opportunity to submit their counter-affidavits

and controverting evidence. Instead, they were summarily ordered to appear before the Ombudsman and to produce the case dockets of the tax refunds granted to Limtuaco and La Tondea. They are aggrieved in that, from the point of view of the respondent, they were already deemed probably guilty of granting anomalous tax refunds. Plainly, respondent Office of the Ombudsman failed to afford petitioner with the basics of due process in conducting its investigation. WHEREFORE, the petition is GRANTED. The respondent Office of the Ombudsman is prohibited and ordered to desist from proceeding with Case No. OMB-0-93-3248; and its Orders dated November 29, 1993, December 9, 1993 and February 15, 1994 are hereby ANNULLED and SET ASIDE. Laurel vs. Desierto [GR 145368, April 12, 2002] Facts: Petitioner is the Chair of the National Centennial Commission (NCC), tasked to take charge of the nationwide preparations for the National Celebration of the Philippine Centennial of the Declaration of Philippine Independence and the Inauguration of the Malolos Congress.Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation (Expocorp) was created and Petitioner was elected Expocorp Chief Executive Officer.An investigation of the anomalies in the construction and operation of the centennial projects was effected and the Senate Blue Ribbon Committee filed with the Secretary of the Senate its Committee Final Report recommending for the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public bidding, in violation of the anti-graft law.The Evaluation and Preliminary Investigation Bureau issued a resolution finding probable cause to indict petitioner before the Sandiganbayan for conspiring to violate Section 3(e) of Republic Act No. 3019, in relation to Republic Act No. 1594.Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a public officer because he, both as chairman of the NCC and of the EXPOCORP was not a public officer. Issue: WON petitioner, as Chair of the NCC, was not a public officer. Held: No. A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer (Mechem).The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.Certainly, the law did not delegate upon the NCC functions that can be described as legislative or judicial. We hold that the NCC performs executive functions. The executive power is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. The executive function, therefore, concerns the implementation of the policies as set forth by law.The Constitution provides in Article XIV (Education, Science and Technology, Arts, Culture, and Sports) thereof:Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall conserve, promote, and popularize the nations historical and cultural heritage and resources, as well as artistic creations. In its preamble, A.O. No. 223 states the purposes for the creation of the Committee for the National Centennial Celebrations in 1998:Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the centennial presents an important vehicle for fostering nationhood and a strong sense of Filipino identity;Whereas, the centennial can effectively showcase Filipino heritage and thereby strengthen Filipino values;Whereas, the success of the Centennial Celebrations may be insured only through long-range planning and continuous developmental programming;Whereas, the active participation of the private

sector in all areas of special expertise and capability, particularly in communication and information dissemination, is necessary for long-range planning and continuous developmental programming;Whereas, there is a need to create a body which shall initiate and undertake the primary task of harnessing the multisectoral components from the business, cultural, and business sectors to serve as effective instruments from the launching and overseeing of this long-term project;Hence, the NCC performs sovereign functions. It is, therefore, a public office, and petitioner, as its Chair, is a public officer. Camanag vs. Guerrero This case asks for and includes: (1) a Petition for Declaratory Relief under Rule 64 of the Revised Rules of Court which seeks the declaration of nullity of Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770), insofar as it empowers the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions; (2) a Petition forCertiorari to declare as null and void, for allegedly having been rendered with grave abuse of discretion, the Resolution dated June 21, 1995 rendered in I.S. No. 95-D-12930 by respondent Assistant City Prosecutor Nestor D. Gonzales and approved by respondent City Prosecutor Jesus F. Guerrero; (3) a Petition for Mandamus to compel respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation on the complaint for Falsification of Public Documents filed against petitioner; and (4) a Petition for Prohibition to enjoin respondent judge of the City of Manila from further proceeding with the cases stemming from the information charging petitioner with three (3) counts of falsification lodged with the trial court and to order the dismissal thereof. The facts, as summarized in the Comment of the Office of the Solicitor General, are as follows: "On August 2, 1993, the Professional Regulations Commission (PRC) issued the Table of Results of those who failed the May, 1993 Certified Public Accountant (CPA) Licensure Examinations. On Page 11 thereof, Sequence No. 493, petitioner Olivia B. Camanag was listed as having failed with a general average of 50.00% (Annex "1"). However, on December 15, 1993, petitioner in accomplishing her Personal Data sheet (CSC form No. 212) as employee of the Bureau of Internal Revenue (BIR) indicated under question No. 18 that she passed the May, 1993 Board Examinations with a rating of 75.42% (Annex "2"). On July 4, 1994, an anonymous letter was sent to PRC Chairman Hermogenes P. Pobre 'claiming that certain BIR employees allegedly passed the CPA Licensure Exams under anomalous circumstances' (Annex "3"). Still, on July 28, 1994, petitioner claimed to have received what was purportedly a 'Certified True Copy' of her passing rating sheet, allegedly signed by PRC Acting Assistant Chief Leandro O. Ordenes (Mr. Leandro O. Ordenes is actually the Records Officer of the PRC) (Pet., Annex "C"). On August 24, 1994, PRC Chairman Pobre wrote Ombudsman Conrado Vasquez that BIR employees Marilyn Lee, Connie Dimapilis, Eilene Purification, Elenita Villamor, Lodiminda Crizaldo, petitionerOlivia Camanag and Maria Rosario de los Reyes, did not actually pass the CPA licensure examinations (Annex "3"). On October 5, 1994, Associate Ombudsman Investigator (AOI) Joaquin S. Bumanlag set the fact-finding investigation of the matter on October 11, 1994 at 10:00 a.m. He also issued a Subpoena Duces Tecum to the Chief of the BIR Personnel Division (Annex "4"). On December 1, 1994, AOI Bumanglag concluded his fact-finding investigation with a Report finding probable cause against petitioner for violation of Article 171(4) of the Revised Penal Code. AOI Bumanglag recommended a preliminary investigation (Annex "5") to be conducted on the case, and at the same time, he executed under oath the corresponding affidavit-complaint against petitioner (Annex "6").

On December 19, 1994, Ombudsman Investigator (OI) Rainier C. Almazan, acting on the said affidavit-complaint, directed petitioner to submit her counter-affidavit (Annex "7"). On January 13, 1995, petitioner submitted her counter-affidavit with annexes alleging that she passed the CPA licensure examinations with a grade of 75.42% (Annex "8"). On January 31, 1995, PRC Records Section Chief Leandro O. Ordenes, issued a Certification, stating that petitioner failed in the CPA licensure examinations (Annex "9"). On February 27, 1995, OI Almazan issued a Resolution, finding '. . . sufficient ground to engender a well-founded belief that the crimes of falsification of public documents . . . have been committed . . .' (Petition, Annex "F"). Under a 1st Indorsement of even date, Deputy Ombudsman for the Armed Forces of the Philippines (AFP) Manuel B. Casaclang deputized respondent City Prosecutor of Manila Jesus Guerrero to file the corresponding charges against petitioner and to handle the prosecution of the cases (Annex "10"). On April 11, 1995, the Office of the City Prosecutor of Manila docketed the case as IS No. 95-D-12930 and herein respondent Nestor Gonzales, Assistant City Prosecutor of Manila, set it for another round of preliminary investigation on May 5 and 12, 1995 (Annex "11"). While the preliminary investigation was ongoing before the City Prosecutor, petitioner filed a motion to reset preliminary investigation (Annexes "11-A" and "12"), Motion to Issue Subpoena and Subpoena Duces Tecum to Leandro Ordenes [OIC, Records Section] and Ernesto Jaurique [Exec. Director] (Petition, Annex "G"); and a Comment/Manifestation stating, among others, that 'another round of preliminary investigation should be conducted by the City Prosecutor.' Why petitioner should demand another round of preliminary investigation while one was already on-going is not clear on record. At any rate, the preliminary investigation conducted by the City Prosecutor yielded additional evidence of falsification against petitioner, to wit: Ordenes' Certification (Annex "9"), and the Table of Results-Failed, CPA Licensure Exams (Annex "1"), both submitted by the PRC showing that petitioner did flunk the CPA Licensure Exam of May, 1993. On June 21, 1995, respondent City Prosecutor issued the questioned Resolution, 'x x x finding sufficient ground to hold petitioner for trial' and ordering the filing of the Information in court (Pet., Annex "I"). On July 17, 1995, three (3) Informations for falsification of public documents were filed against petitioner docketed as Criminal Cases No. 95-143922-24. The cases were raffled off to the sala of respondent Judge Marino M. dela Cruz, Regional Trial Court, Branch 22, Manila (Annex "13-A" - "13-C"). On July 25, 1995, petitioner filed a Motion to Reduce Bail Bond (Annex "14"). But even before respondent judge could act on his motion to reduce bail bond, petitioner filed the instant petition. Thereafter, petitioner posted her cash bond with 'Waiver' viz: "'Pursuant to Letter of Instructions No. 40 dated November 10, 1972, issued by the President of the Philippines, following annotation is hereby incorporated in the CASH BOND posted for the account in the above-entitled cases. The herein accused hereby agreed that in case she jumps bail or fails to appear for trial/arraignment despite due notice to her counsel, her right to be present is deemed waived, which failure shall to all intents and purposes authorize the Court to proceed [1] with the hearing as if she were personally present."

The issues raised in the instant case are the following: I "WHETHER OR NOT SECTIONS 15 AND 17 OF REPUBLIC ACT 6770 WHICH EMPOWERS (SIC) THE OMBUDSMAN TO CONDUCT PRELIMINARY INVESTIGATIONS OF MATTERS AND/OR REFERRED TO IT IS (SIC) NULL AND VOID FOR BEING CONTRARY TO AND VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION. II "WHETHER OR NOT UNDER THE CIRCUMSTANCES OBTAINING IN THE INSTANT CASE, THE HONORABLE PUBLIC RESPONDENTS CITY PROSECUTOR AND ASSISTANT CITY PROSECUTOR ARE DUTY BOUND AS SUCH TO BE DIRECTED TO CONDUCT THE REQUISITE PRELIMINARY INVESTIGATION OF THE ANONYMOUS COMPLAINT FILED AGAINST HEREIN PETITIONER. III WHETHER OR NOT THE INFORMATIONS FILED BEFORE THE SALA OF THE HONORABLE RESPONDENT JUDGE WITHOUT THE BENEFIT OF A PRELIMINARY INVESTIGATION CONDUCTED BY RESPONDENT CITY PROSECUTOR ARE CHARACTERIZED BY SUCH FATAL DEFECTS AS TO WARRANT A WRIT OF PROHIBITION TO ENJOIN RESPONDENT JUDGE FROM TAKING ANY FURTHER ACTION THEREON EXCEPT TO ORDER THE OUTRIGHT DISMISSAL THEREOF." I As to the first issue, petitioner assails as unconstitutional Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770) insofar as it empowers the Office of the Ombudsman to conduct preliminary investigation and to directly undertake criminal prosecutions on three grounds: (1) such grant of powers to the Office of the Ombudsman has no constitutional basis and runs directly counter to the intent of the framers of the Constitution; (2) it violates the principle of separation of powers; and (3) it is in direct contravention of Article XI, Section 7 of the Constitution. The assailed provisions of the Ombudsman Act read: "SEC. 15. Powers, functions and duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; xxx xxx xxx

documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: Provided, That no person shall be prosecuted criminally for or on account of any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise. Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceedings being conducted by the Ombudsman or under its authority, in the performance of or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt and removal of the immunity from criminal prosecution." The Ombudsman Act, petitioner concedes, clearly empowers the Office of the Ombudsman to conduct preliminary investigation and to prosecute individuals on matters and/or complaints referred to it or filed before the said government agency. But, the vesting of powers to the Office of the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions, petitioner argues, is totally bereft of any constitutional basis. In support of this stand, petitioner cites that, under the 1987 Philippine Constitution, specifically in Section 13, Article XI, entitled "Accountability of Public Officers," the only powers of the present day Ombudsman are enumerated as follows: "Section 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. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct, any abuse or impropriety in the performance of duties. (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. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in government and make recommendation for their elimination and the observance of high standards of ethics and efficiency.

(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 of any 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 ground for disciplinary action against said officer." xxx xxx xxx

"SEC. 17. Immunities. In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary investigations of offenses, no person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the testimony or evidence,

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Emphasis supplied). From the above-quoted provision of the 1987 Philippine Constitution, petitioner claims that the powers of the Ombudsman are clearly defined or delineated. More particularly, petitioner alleges that the extent of the power of the Ombudsman, insofar as criminal prosecutions are concerned, is clearly spelled out in paragraphs (1) and (3) as emphasized. But while, petitioner alleges, Section 13, paragraph (1) of the aforecited Article XI of the Constitution duly empowers the Ombudsman to conduct investigations, the power to directly undertake criminal prosecutions has been clearly withheld by the framers of the Constitution from the Ombudsman in no uncertain terms under paragraph (3) of the aforecited article, which merely empowers the Office of the Ombudsman "to direct the officer concerned to take appropriate action and recommend prosecution". Thus, according to petitioner, while it is clear that the Office of the Ombudsman has no power to directly undertake criminal prosecutions, there is a question as to whether the power lodged in it to investigate under paragraph (1) is tantamount to a grant of power to conduct preliminary investigations. Petitioner submits that consonant to the withholding of the power to directly undertake criminal proceedings, the Ombudsman does not possess the power to conduct formal preliminary investigation proceedings for the simple reason that formal preliminary investigation proceedings constitute an integral part of the process of criminal prosecutions. This is so, according to petitioner, inasmuch as the term prosecution is defined by Black's Law Dictionary as: "x x x (a) criminal action: a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime x [2] x x" More precisely, petitioner continues, "to prosecute" has been [3] defined as "to begin and to carry on a legal proceeding," and "it marks the commencement of a criminal prosecution and precedes [4] and determines the filing of an information." Additionally, petitioner asserts that the unqualified grant of prosecutorial powers to the Ombudsman runs directly against the intent of the framers of the Constitution, particularly, to lodge prosecutorial powers in other governmental officers, i.e., the public prosecutors. In further support of this argument, petitioner relies heavily on the records of the proceedings of the Constitutional Commission of 1986, particularly, on the debates and interpellations of the Committee on Accountable Officers which drafted Section 13, Article XI of the 1987 Philippine Constitution. Indeed, the proceedings so indicate: "MR.. RODRIGO: The President: Madam President. Commissioner (Francisco A.) Rodrigo is recognized.

'The Tanodbayan created pursuant to the mandate of Section 6 of Article XIII of the Constitution 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.' This means that we are removing the second part of the functions of the Tanodbayan and vesting the same in the office of the Ombudsman; and therefore, the Tanodbayan shall continue to discharge his functions under the first party merely as prosecutor, like a fiscal, of anti-graft cases, which are filed with the Anti-Graft Court. MR. RODRIGO: So, the Ombudsman cannot prosecute? MR. NOLLEDO: No, he cannot. He can refer the cases that should be prosecuted to the appropriate official he may be the Tanodbayan or he may be the ordinary fiscal. MR. RODRIGO: Has the Ombudsman any power to compel the prosecuting arm to prosecute or can he only recommend? MR. NOLLEDO: He can direct. MR. RODRIGO: Can he command? MR. NOLLEDO: That is equivalent to commanding the fiscal if the fiscal refuses to file the case. And then in that case, if the fiscal refuses, then there are available remedies. He may appeal to the Ministry of Justice. MR. RODRIGO: Can the Ombudsman act on his own? MR. NOLLEDO: Yes, even without a complaint. MR. RODRIGO: If the fiscal refuses to file the information, can the Ombudsman file the information? MR. NOLLEDO: No. I understand he will appeal to the Minister of Justice and the Ministry of Justice will correspondingly decide on the appeal. If the Ministry of Justice, for example, upholds the Ombudsman, there is no question about that. But if the Ministry of Justice does not uphold him, the Ombudsman perhaps, based on the presidential form of government, may appeal to the President. And the President, where the Ministry of Justice is merely his alter ego, may overrule the [5] Minister of Justice . . . .xxx." In view of the above-quoted records of the proceedings of the Constitutional, Commission, it is clear, petitioner argues, that the power of the Ombudsman is limited to the mere issuance of the directives to the appropriate officer, i.e., the Prosecutor, to cause the filing of the information and the prosecution thereof. This allegedly clearly portrays the intent of the Constitutional Commission members to withhold prosecutorial powers from the Ombudsman and to lodge it with other governmental officers. Anent the second ground, petitioner argues that the unqualified grant of prosecutorial powers to the Office of the Ombudsman violates the principle of separation of powers enshrined in the Constitution. This, inasmuch as, according to petitioner, the Office of the Ombudsman is a constitutional body, and is a part neither of the legislative, executive nor judiciary branches. As such, petitioner claims, in the absence of an express constitutional provision to the contrary, it is not empowered to conduct preliminary investigations, as these pertain exclusively to the executive branch. Anent the third ground, which petitioner claims as perhaps the strongest argument against the constitutionality of R.A. No. 6770, petitioners argues that the unqualified grant of prosecutorial powers on the Office of the Ombudsman is in direct contravention of Article XI, Section 7 of the 1987 Philippine Constitution. Article XI, Section 7 of the 1987 Philippine Constitution reads: "Section 7. The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its power as now or hereafter may be provided by law, except those conferred on the office of the Ombudsman created under this Constitution." In support of this argument, petitioner claims that in the interpretation of this particular provision and those pertaining to

MR. RODRIGO: I noticed that the proposed provisions on the Ombudsman retain the Tanodbayan, and there seems to be an overlapping in the functions of the Tanodbayan and the Ombudsman. What is the clear-cut dividing line between the functions of the Ombudsman and the Tanodbayan, so that our people will know when to go to the Tanodbayan and when to go to the Ombudsman? MR. MONSOD: Madam President, essentially, the difference lies in one being a prosecutory arm and the other a champion of the citizen who is not bound by legal technicalities or legal forms, but I would like to ask Commissioner Nolledo to explain this in detail. MR. NOLLEDO: If we go over the provision of P.D. No. 1607, which amended P.D. No. 1487, creating the Office of the Tanodbayan, also called by Mr. Marcos as Ombudsman, there are two parts in the functions of the Tanodbayan: First, to act as prosecutor of anti-graft cases, and to entertain complaints from the public. The second part constitutes the basic function of the Ombudsman. And if we turn to page 3 of the report of the Committee, Section 5 provides and I quote:

the office of the Ombudsman, Fr. Joaquin Bernas, an eminent authority on constitutional law and a member of the 1986 Constitutional Commission, had occasion to write: "The 1973 Constitution also enjoined the Batasang Pambansa to create an office of the Ombudsman or Tanodbayan. Again the Batasang Pambansa was anticipated by the President in P.D. 1630 creating the office then of Tanodbayan. The broad discretion of the legislative authority to expand or contract the power of the Tanodbayan under the 1973 Constitution was recognized in Inting v. Tanodbayan. The 1987 Constitution changed much of that. The title Tanodbayan has been retained for the Ombudsman. He has also been given one over-all deputy and at least one deputy each for Luzon, Visayas, and Mindanao. He retains the functions of the Tanodbayan of the 1973 Constitution except the prosecutorial functions. The Ombudsman and his deputies are appointed by the President from a list of nominees presented by the judicial and Bar Council and they have rank of Chairman and Member respectively of the Constitutional Commissions. They serve for a term of seven years. The prosecutorial functions have been given over to a Special Prosecutor from the Ombudsman. (The Constitution of the Republic of the Philippines, Bernas, Joaquin, Vol. II, 1990 p. 408) [emphasis [6] supplied]" If prosecutorial functions have in fact been retained by the Office of the Special Prosecutor, petitioner opines, the unqualified grant of power to exercise such prosecutorial functions given by R.A. No. 6770 to the office of the Ombudsman invariably diminishes the authority and power lodged in the office of the Special Prosecutor. In this light, petitioner argues, R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions to the office of the Ombudsman, infringes on Section 7, Article XI of the fundamental law, and is hence, unconstitutional. We are visibly impressed by the ratiocinations of petitioner, but, unfortunately, we are bound by stare decisis. I Anent petitioner's contention that the vesting of prosecutorial powers to the Ombudsman finds no basis in the 1987 Constitution and that it runs counter to the intent of the framers of the Constitution to withhold such powers from the Ombudsman, suffice it to state that a similar contention had already been overruled by [7] this Court in the case of Acop v. Office of the Ombudsman. In upholding the validity of the grant of prosecutorial powers on the Ombudsman, notwithstanding the intent of the framers of the 1987 Constitution to withhold such powers from him, this Court declared, that: "xxx (w)hile the intention to withhold prosecutorial powers from the Ombudsman was indeed present, the Commission did not hesitate to recommend that the Legislature could, through statute, prescribe such other powers, functions and duties to the Ombudsman. Paragraph 6, Section 12 of the original draft of the proposed Article on Accountability of Public Officers, which the Committee recommended for incorporation in the Constitution, reads: xxx xxx xxx

Promulgate its rules and procedure and exercise such other functions or duties as may be provided by law. (emphasis supplied) Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by Commissioner Rodrigo: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that: The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan? MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last enumerated functions of the Ombudsman is: 'to exercise such powers or perform such functions or duties as may be provided by law. 'So, the legislature may vest him with powers taken away from the Tanodbayan, may it not? MR. COLAYCO: Yes. MR. MONSOD: Yes. MR. RODRIGO: And it is possible that pretty soon the Tanodbayan will be a useless appendage and will lose all his powers. MR. COLAYCO: No. I am afraid the Gentleman has the wrong perception of the system. We are leaving to the Tanodbayan the continuance of his functions and the exercise of the jurisdiction given to him pursuant to . . . MR. RODRIGO: Law. MR. COLAYCO: No. Pursuant first to the Constitution and the law which mandated the creation of the office. MR. RODRIGO: Madam President. Section 5 reads: 'The Tanodbayan shall continue to function and exercise its powers as provided by law.' MR. COLAYCO: That is correct, because it is under P.D. No. 1630. MR. RODRIGO: So, if it is provided by law, it can be taken away by law, I suppose. MR. COLAYCO: That is correct.

(6) To exercise such powers and perform such functions or duties as may be provided by law (2 Record, 264). As finally approved by the Commission after several amendments, this is now embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution, which provides: Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx

MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are 'such functions or duties as may be provided by law.' The sponsors admitted

that the legislature later on might remove some powers from the Tanodbayan and transfer these to the Ombudsman. MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature? MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan, (2 record, 270-271. ) (Emphasis supplied) xxx xxx xxx

investigate and prosecute individuals on matters and/or complaints referred or filed before it.Sdaad II Turning now to the second ground, petitioner contends that the Office of the Ombudsman, being a constitutional body, cannot exercise executive functions, such as conducting preliminary investigation in criminal cases. The contention is devoid of merit. As conceded by the petitioner, the Office of the Ombudsman is a distinct constitutional body whose duties and functions are provided for by the Constitution itself. Considering that the power of the Ombudsman to investigate and prosecute criminal cases emanates as it does from the Constitution itself, particularly, under paragraph 8, Section 13, Article XI as above-quoted, which empowers the Ombudsman to "exercise such other powers or perform such other functions or duties" as Congress may prescribe through legislation, it cannot be logically argued that such power or the exercise thereof is unconstitutional or violative of the principle of separation of powers enshrined in the Constitution. Equally devoid of merit is the contention of petitioner that R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions on the Ombudsman, infringes on Section 7, Article XI of the Constitution, in that it invariably diminishes the authority and power lodged in the Office of the Special Prosecutor. This ground relied upon by petitioner, like the first ground, has also been extensively dealt with and answered in, the aforecited case of Acop [10] v. Office of the Ombudsman. Addressing the contention raised by petitioners that the Office of the Special Prosecutor is not subordinate to the Ombudsman and is, in fact, separate and distinct from the Ombudsman, such that Congress may not, under the present Constitution, validly place the Office of the Special Prosecutor under the Office of the Ombudsman, this court has upheld not only the power of Congress to so place the Office of the Special Prosecutor under the Ombudsman, but also the power of the Congress to remove some of the powers granted to the then Tanodbayan, now Office of the Special Prosecutor, under P.D. 1630, and transfer them to the Ombudsman. Thus, this Court said: "xxx 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. No. 1630 or grant it other powers, except those powers conferred by the [11] Constitution on the Office of the Ombudsman." Continuing, this Court further said: "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. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770" [12] (Emphasis supplied). III The other question raised herein pertains to whether or not under the circumstances obtaining in the instant case, public respondents City Prosecutor and Assistant City Prosecutor are duty bound to conduct another preliminary investigation of the anonymous complaint filed against herein petitioner. Substantially, petitioner alleges that, inasmuch as the refusal by respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation was predicated on the assumption that R.A. No. 6770 duly empowers the Office of the Ombudsman to conduct a preliminary investigation, which petitioner asserts is unconstitutional, said respondents are compellable by mandamus

MR. MONSOD: (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, his is a reversible disability, unlike that of a eunuch; it is not an [8] irreversible disability (Emphasis supplied)." The inevitable conclusion is that the Ombudsman, under the 1987 Constitution, particularly under paragraph 8, Section 13, [9] Article XI, may be validly empowered with prosecutorial functions by the legislature, and this the latter did when it passed R.A. No. 6670, which gave the Ombudsman, among others, the power to

to conduct their own preliminary investigation, and their refusal to a preliminary investigation of the charges against petitioner is tantamount to a denial of due process. Additionally, petitioner alleges that the conduct of a preliminary investigation is mandated further by the inherent weakness in complainant's case These contentions of petitioner are devoid of merit. Firstly, as have been extensively discussed above, petitioner's attack on the validity or constitutionality of R.A. No. 6770 is without merit. Thus, there is no more question on the validity or constitutionality of the power of the Ombudsman to conduct the preliminary investigation of the charges against respondent. It is not pretended further by petitioner that the Ombudsman did not actually conduct a preliminary investigation of the charges against her, although petitioner alleged certain defects in the conduct of the preliminary investigation. In the second place, as correctly observed by the Office of the Solicitor General in its Comment, there is sufficient showing that another round of preliminary investigation, apart from the one conducted by the Office of the Ombudsman, was actually conducted by the Office of the City Prosecutor of Manila in the cases a quo. Thus, on record are petitioner's various Motions filed [13] before the City Prosecutor to reset preliminary investigation and [14] to subpoena a certain witness. Petitioner had likewise filed her comment on the cases against her then pending with the City [15] Prosecutor. Complainant PRC also submitted evidence against petitioner in the same proceedings. Finally, a memo of preliminary investigation conducted by the City Prosecutor was attached to the Informations eventually filed against petitioner before the [16] Ombudsman. These pieces of evidence clearly indicate that a second round of preliminary investigation was conducted by the City Prosecutor. There is no basis, therefore, to petitioner's allegations, and petitioner cannot validly claim, that she had been denied due process either by the Office of the Ombudsman or by the City Prosecutor. Neither is the alleged inherent weakness of complainant' s case, a ground to compel the City Prosecutor to conduct another preliminary investigation, apart from the one already conducted and the one conducted earlier by the Ombudsman. On this score, suffice it to state that this Court has adopted a policy of noninterference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitute sufficient evidence as will establish "probable cause" for filing of information against a supposed offender. In Tabujara v. Office of the Special [17] Prosecutor, it was ruled that: "Courts cannot interfere with the discretion of the (fiscal) Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may xxx proceed with the investigation of the complaint if it is, in his view, in due and proper form. xxx xxx xxx

without the benefit of a preliminary investigation conducted by respondent City Prosecutor, are characterized by such fatal defects that would warrant a writ of prohibition to enjoin respondent judge from taking any further action thereon except to order the case's outright dismissal, suffice it to state that the pronouncements of this court aforesaid, for obvious reasons, no longer need a discussion as to the merit or the lack thereof. Besides, petitioner's prayer for injunction to restrain the criminal action against her is not legally permissible: "xxx an injunction will not generally lie to restrain a criminal action (Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enriel, 192 SCRA 183 [1990]; Crespo v. Mogul, 151 SCRA 462 [1987]). In the Brocka case, we laid the following exceptions to the rule (1) when the injunction is necessary to afford adequate protection to the constitutional rights of the accused; (2) when it is necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question which is subjudice; (4) when the acts of the officer are without or in excess of authority; (5) where the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) where the Court has no jurisdiction over the offense; (8) where it is a case of persecution rather than prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima facie case against the accused and a motion to quash on that ground has been [20] denied." Petitioner has not shown that her case falls within any of the recognized exceptions. Perforce, her prayer for injunction to restrain the criminal actions against her must be denied. WHEREFORE, for lack of merit, the instant Petition is DENIED.

Azarcon v. Sandiganbayan FACTS:Alfredo Azarcon owned and operated a hauling business. Occasionally, he engagedthe services of sub-contractors like Jaime Ancla whose trucks were left at the formerspremises A Warrant of Distraint of Personal Property was issued by the Main Office of the BIRaddressed to the Regional Director or his authorized representative of Revenue Region 10,Butuan City commanding the latter to distraint the goods, chattels or effects and otherpersonal property of Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to Azarcon ordering him to transfer, surrender,transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla.Azarcon, in signing the Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue, assumed the undertakings specified in the receipt.Subsequently, however, Ancla took out the distrained truck from Azarcons custody. For thisreason, Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised PenalCode. Can Azarcon be considered a public officer by reason of his being designated by theBIR as a depositary of distrained property? HELD:Article 223 of the RPC defines a public officer as any person who, by directprovision of the law,popular election, or appointment by competent authority,shall take part in the performance of public functions in the Government of the PhilippineIslands, or shall perform in said Government or in any of its branches public duties as anemployee, agent, or subordinate official, of any rank or classes. Azarcon obviously may notbe deemed authorized by popular election. Neither can his designation by the BIR as acustodian of distrained property qualifies as appointment by direct provision of law, or bycompetent authority. While it is true that Sec. 206 of the NIRC, as pointed out by theprosecution, authorizes the BIR to effect a constructive distraint by requiring any person topreserve a distrained property there is no provision in the NIRC constituting such person apublic officer by reason of such requirement. The BIRs power authorizing a privateindividual to act as a depositary cannot be stretched to include the power to appoint him asa public officer. The charge against Azarcon should forthwith be dismissed.

"The Ombudsman x x x is the proper adjudicator of the question as to the existence of a case warranting the filing of information in [18] court." As this Court held in the case of Cruz, Jr. v. People, "(t)he rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant." IV With respect to the issue as to whether or not the Informations filed before the sala of respondent judge, allegedly
[19]

GR no. 159747 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: 2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who occupied th Oakwood on the 27 day of July 2003 and Senator Gregorio "Gringo"Honasan, II 3. 4. The said crime was committed as follows: 4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint. 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 is the only program that would solve the ills of society. . . . (Emphasis supplied). The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit: 1. That I am a member of the Communication Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major; 2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003; 3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it; 4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest; 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; 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; 7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan; 8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan; 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like; 10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I

raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect." After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions; 11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities. 12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed; 13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did; 14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "kaya nating pumatay ng kasamahan"; 15. That after the rites, the meeting was adjourned and we left the place; 16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community; 17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacaang Compound for "DDAY", my task is to switch off the telephone PABX that serves the Malacaang 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 th present during the June 4 meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I"; 19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation. On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion. Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply. On September 10, 2003, the DOJ Panel issued an Order, to wit: On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion. The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case. In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and 1 controverting evidence on or before September 23, 2003. Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation. Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments. The Court heard the parties in oral arguments on the following issues: 1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner; 2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and 3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation. After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are: 1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner. 2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication, hence null and void. 4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the jurisdiction to conduct the preliminary investigation. 5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation. 6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases. The arguments of respondent DOJ Panel are: 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513. 2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of. 3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office. 4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion. The arguments of respondent Ombudsman are: 1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249. 2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770. 4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general. The Court finds the petition without merit. The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides: Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions: (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis supplied) and Section 1 of P.D. 1275, effective April 11, 1978, to wit: SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied) Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. and Mabanag vs. Lopez Vito.
2

The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz: SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides: (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides: Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation of such cases. . (Emphasis supplied) Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit: A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both. For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases. The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases. That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court. In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared: A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary 3 investigation vested on the Ombudsman is exclusive. Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case: Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial court. In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in 4 the exercise of his primary jurisdiction. (Emphasis supplied) A little over a month later, the Court, in Deloso vs. 5 Domingo, pronounced that the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus: As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]). The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we. The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others

involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770). ......... Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and honest investigative body, 6 like the Ombudsman, is greatest. At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate. In 1993, the Court held in Sanchez vs. Demetriou, 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 8 years ago in the case of Aguinaldo vs. Domagas, this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the 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. 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 9 gotten wealth cases, may conduct the investigation. (Emphasis supplied) In Natividad vs. Felix, a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held: The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the
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history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former. In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux. These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861. The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows: "SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows: 'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise: '(a) Exclusive original jurisdiction in all cases involving: ... (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporation, whether simple or complexed with other crimes, where the penalty prescribed by law is higher thatprision 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 ofP6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court." 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 11 six (6) years, or a fine of P6,000.00. Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate. It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same class of persons or things, or object, or cover the same specific or particular subject matter. It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to the same subject matter. In the absence of any

express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with existing 12 statute, specifically, Pres. Decree No. 1861. (Emphasis supplied) R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office. In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage. Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit: OMB-DOJ JOINT CIRCULAR NO. 95-001 Series of 1995 TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE. SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS. x------------------------------------------------------------------------------------------------------x In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees. Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the

preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized prosecutors of the ombudsman. Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees: 1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman. 2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality. 3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. 4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. Manila, Philippines, October 5, 1995. (signed) ANIANO A. DESIERTO Ombudsman Office of the Ombudsman

complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied) confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy. Next, petitioner contends that under OMB-Joint Circular No. 95001, there is no showing that the Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him. We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against public officers and employees. To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the

O T. GUINGONA, JR. y ent of Justice

A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ. Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit: SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the

government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code 13 which had been held in the Natividad case as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit: Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published. As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMBDOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty. What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (at page 454. emphasis supplied) OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in general. Accordingly, there is no merit to petitioner's submission that OMB14 DOJ Joint Circular No. 95-001 has to be published. Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him. The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the presence of other respondents in the subject complaint. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. Garcia vs Miro

A special civil action for certiorari, prohibition, and mandamus is before us. The facts are fairly simple. Petitioner Alvin B. Garcia, as then mayor of Cebu City, signed a contract with F.E. Zuellig on May 7, 1998. F.E. Zuellig is the Philippine distributor of Bitumex, a brand name of an asphalt product. The contract essentially provided that F.E. Zuellig shall be the exclusive supplier of asphalt for the citys asphalt batching plant for a period of three years, from 1998 to 2001, with the initial delivery of asphalt in September, 1998. Subsequently, petitioner was elected to a new term as mayor. The respondent Deputy Ombudsman for the Visayas thereafter sought to hold him administratively liable on the aforesaid contract and ordered him preventively suspended for six months. Petitioner came to us in an earlier petition alleging grave abuse of discretion. In Garcia v. Mojica, we held for petitioner, stating that the sixmonth suspension period was no longer necessary, as respondent had sufficient time to gather evidence without petitioners intervention during his nearly one-month suspension. Furthermore, 2 we ruled that as pronounced in Salalima v. Guingona, an officials reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline committed during the previous term. Newspaper accounts of the alleged anomalies on the subject contract started to surface in the local media in March of 1999. Respondent Deputy Ombudsman, in a letter dated March 30, 1999, required the Director of the Commission on Audit (COA) of Region VII to conduct a special audit. On the same day, it likewise requested the City Administrator of the Office of the Mayor to submit documents pertaining to the asphalt supply of the city and a copy of the subject contract. Special Prosecution Officer Jesus Rodrigo T. Tagaan of the Office of the Ombudsman was assigned to conduct the inquiry docketed as 3 INQ-VIS-99-0132. In his report, Special Prosecution Officer Tagaan recommended that a criminal and an administrative complaint be filed against petitioner Garcia and several others. On June 21, 1999, 4 Tagaan filed an affidavit with the Graft Investigation Office against petitioner Garcia and others for violation of Section 3(g) of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act. On August 16, 1999, the Office of the City Auditor filed with the Deputy Ombudsman its report which was prepared by State Auditors Hilario S. Cabreros and Sulpicio C. Quejada, Jr. The COA Special Audit Report concluded: xxx IN SUM, the propriety of the foregoing transactions is highly questionable in view of the fact that payment[s] were made even if the items were not yet delivered which is a clear case of ADVANCE 5 PAYMENT in violation of existing law, rules and regulations. xxx State Auditors Cabreros and Quejada thereafter submitted a joint affidavit dated September 29, 1999 on their findings. The relevant portions of the joint affidavit are as follows: xxx c. That by virtue of SP Resolution No. 3167 and adopting the Committee on Awards Resolution series of 1997, a three (3) year contract was made and executed by and between the City of Cebu represented by Hon. Alvin B. Garcia hereinafter referred to as the "buyer" and F.E. Zuellig Inc. represented by its General Manager, Michel Miloda hereinafter referred to as the "Seller"; d. That said three (3) year contract was VOID since there was no available appropriation/ funds to cover the proposed expenditures at the time of the execution of the contract in violation of Section
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85 and 86 of PD 1445 otherwise known as the State Audit [C]ode of the Philippines. Consequently, the officers entering into the contract shall be liable to the government as provided for in Section 87 of the same code. Moreover, the execution by the City Mayor of a three (3) year contract exceeded the authority granted to him by the Sangguniang Panlungsod per SP Resolution No. 3167; xxx g. That the City of Cebu is obligated to pay F.E. Zuellig Inc. a fixed amount in dollar ($443.18) per metric ton but payable in Philippine Peso which situation is disadvantageous to the City in view of the fluctuating valuation of the Philippine Peso vis a vis the US Dollar. As a result, the City will get only the equivalent quantity of Bitumen depending upon the prevailing rate of Philippine Peso at the time of payment. And besides, Sections 45 and 47 of COA Circular No. 92386 provide: that the price must be certain and definite in amount and must be in Philippine Currency specially so that the contracting party is a firm operating in the Philippines; h. That the price offered by F.E. Zuellig Inc. to sell its product in Bitucontainers was at P17, 727.20 per metric ton which purportedly it (sic) included the technology but the very same product could be purchased at a lower price in the local market at P8,975.00 per metric ton. As a consequence, the City Government had to pay the amount of P19,417,918.00 just for the use of Bitucontainers alone. The reasonableness therefore of the price paid is HIGHLY DOUBTFUL; i. That before the execution by the City Mayor of a three (3) year contract, the City Government had already purchased Asphalt 85/100 Penetration Grade Bulk from F.E. Zuellig Inc. per Purchase Order Nos. 3164, 1453, and 1948; j. That the transactions mentioned in the immediately preceding paragraph were HIGHLY QUESTIONABLE in view of the fact that full payments were made even if the items were not yet delivered, whereas PO No. 695 subject of the inquiry (under contract) calls for the delivery of 600 metric tons of Asphalt 85/100 at P17,727.20 or a total amount of P10,636,320.00 [and these] were not delivered at all in spite of full payment made all of which [are] in violation of 6 Section 338 of RA 7160 and Section 88 of PD1445; xxx The State Auditors later filed a supplemental joint affidavit dated April 18, 2000, wherein they disclosed other details such as the 7 alleged ghost deliveries of asphalt. Special Prosecution Officer Tagaan resigned from office in January, 2000 and his name was subsequently dropped as complainant. Hence, during the joint clarificatory hearing and preliminary conference before the Deputy Ombudsman on September 12, 2000, the counsel of respondents therein averred that the dropping of the name of Special Prosecution Officer Tagaan as complainant in the 8 case deprived them of the right to confront their accusers. On October 3, 2000, the Deputy Ombudsman issued an Order requiring petitioner Garcia to submit his counter-affidavit pursuant to the conduct of a preliminary investigation, thus: xxxxxxxxx WHEREFORE, and pursuant to Sec. 4, Paragraph B, Rule II and Section 5, Paragraph A, Rule III of Administrative Order No. 7 issued by the Office of the Ombudsman, you are hereby ordered to file your counter-affidavit to the herein attached fact-finding inquiry report of the Complainant, COMMISSION ON AUDIT-Region VII, Cebu City, together with the Joint Statement of State Auditors Hilario Cabreros and Sulpicio Quejada, Jr., as well as their Supplemental Joint Affidavit to the said COA report, within TEN (10) DAYS from receipt hereof with proof of service thereof to the complainant/s who may file his/her/their reply-affidavit within TEN (10) DAYS from receipt of such counter-affidavit. Your failure to file your counter-affidavit and other controverting evidence/s will mean a waiver on your part to refute the charges against you and the case 9 will be resolved on the evidence/s on record.

xxxxxxxxx Petitioner Garcia did not comply with the said Order and instead filed, on November 22, 2000, a Motion to be Furnished a Copy of the Complaint-Affidavit and Motion to Suspend Implementation of the Order dated October 3, 2000. In a second Order dated December 26, 2000, respondent Deputy Ombudsman denied the Motion and gave petitioner Garcia another period of ten days within which to file his counter-affidavit. Petitioner again refused to comply and filed a Motion for Reconsideration dated January 17, 2001 and a Supplemental Manifestation with a Motion to Dismiss on the Ground of Lack of Jurisdiction dated February 1, 2001. On June 18, 2001, the Deputy Ombudsman issued a third Order stating in part that: xxx To avoid further delay in the resolution of this case, which may prejudice other respondents who have timely filed their counteraffidavits, this Office resolves to consider the Motions, Manifestations and Supplemental Motions of respondent Garcia which now formed part of the records of the case as his ANSWER to the complaint pursuant to Section 4(c), Rule II of Administrative Order No. 7 of the Office of the Ombudsman. WHEREFORE, premises considered, the preliminary investigation of this case is now considered TERMINATED and this Office will now proceed to resolve the same on the basis of the evidence on 10 record. xxx Seeking now to dismiss the criminal investigation before the Ombudsman, docketed as OMB-VIS-CRIM-99-0546, and to restrain respondents from proceeding with the preliminary investigation on the matter, petitioner has filed the present case. Petitioner raises the following questions: I. DOES THE COA SPECIAL AUDIT REPORT CONSTITUTE A VALID COMPLAINT THAT IS SUFFICIENT TO SUPPORT A CRIMINAL PROCEEDING? II. DID RESPONDENTS ACT WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION BY UNILATERALLY CONVERTING A MERE COA FACT-FINDING REPORT INTO A COMPLAINT AND IN REQUIRING PETITIONER TO SUBMIT A 11 COUNTER-AFFIDAVIT IN RESPONSE TO THE SAME? We start with the rules. Sections (2) and (4), Rule II of Administrative Order No. 7 or the Rules of Procedure of the Office of the Ombudsman provide: xxx Sec. 2. Evaluation Upon evaluating the complaint, the investigating officer shall recommend whether or not it may be: a) dismissed outright for want of palpable merit: b) referred to respondent for comment; c) endorsed to the proper government office or agency which has jurisdiction over the case; d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or f) subjected to a preliminary investigation xxx Sec. 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and the Regional Trial Court shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following provisions: a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaints. b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits. c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of particulars be entertained. If respondent desires any matter in the complaints affidavit to be clarified, the particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph (f) of this section. e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on record.1awphi1.nt f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to be the case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be required to answer the same in writing and under oath.1vvphi1.nt g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the case together with his resolution to the designated authorities for their appropriate action thereon. No information may be filed and no complaint may be dismissed without the written authority or approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or the proper Deputy Ombudsman in all other cases. xxx We recognize the importance of the complainant submitting his affidavit and the affidavits of his witnesses. The reason is that after the Ombudsman and his deputies have gathered evidence, their investigation ceases to be general and exploratory, and the 12 proceedings take on an adversarial nature. Petitioner argues that the Ombudsman cannot compel him to file a counter-affidavit because no valid complaint exists against him. He claims that the COA Special Audit Report and the supporting affidavits submitted by State Auditors Cabreros and Quejada do not

constitute a valid complaint. Petitioner cites Duterte v. 13 Sandiganbayan wherein we held that a COA Special Audit Report is not equivalent to the affidavits required under Section 4, Rule II of A.O. No. 7. Petitioners reliance on Duterte is misplaced. When petitioners therein were asked to file a comment on a COA Special Audit Report, they were already being subjected to a preliminary investigation without being so informed. They were directed to submit a point-by-point comment under oath on the mere allegations in a civil case before the Regional Trial Court which had already been dismissed and on the COA Special Audit Report. Moreover, said petitioners were not furnished a single affidavit of any person charging them of any offense. In this case, the Deputy Ombudsmans Order dated October 3, 2000 requiring petitioner to submit his counter-affidavit was accompanied by the COA Special Audit Report and the joint affidavit and supplemental joint affidavit of State Auditors Cabreros and Quejada. Petitioner does not deny his receipt of these documents, but he argues that the joint affidavits accompanying the COA Special Audit Report do not comply with the specific legal standards by which the sufficiency of a complaint is judged. He cites Matilde, Jr. v. 14 Jabson and contends that the complaint filed against him prior to his filing his counter-affidavit must allege the acts complained of as constituting an offense. He further maintains that these allegations must be in an ordinary and concise language to enable a person of common understanding to know what offense is intended to be charged and the court to render proper judgment. It should be noted that in Matilde, the assailed informations not only uniformly charged the accused for simple theft but also alleged that the accused were working in the company to whom the stolen articles belonged and that these accused were "working on or using or producing" the stolen articles as employees of the company. The lower court therein found the accused guilty under Presidential Decree No. 133 which carried a higher penalty than that of simple theft. Hence, this Court ruled that the informations violated the accused persons right to be informed of the accusations against them. The complaint being referred to by petitioner is the complaint filed in court in a criminal case. For purposes of initiating a preliminary investigation before the Office of the Ombudsman, a complaint "in any form or manner" is sufficient. Section 12, Article XI of the Constitution states that the Ombudsman and his Deputies, as protectors of the people, shall act promptly on "complaints filed in any form or manner against public 15 officials or employees of Government." In Almonte v. Vasquez, we held that even unverified and anonymous letters may suffice to start an investigation. In permitting the filing of complaints "in any form or manner," the framers of the Constitution took into account the well-known reticence of the people which keep them from complaining against official wrongdoings. The Office of the Ombudsman is different from the other investigatory and prosecutory agencies of the government because those subject to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or dismiss investigations held against 16 them. 1a\^/phi1.net In any case, the joint affidavits submitted by State Auditors Cabreros and Quejada contain allegations specific enough for petitioner to prepare his evidence and counter-arguments. For instance, the affidavits attest that the subject contract was entered into with no available funds appropriated to cover the expenditure, in violation of Sections 85 and 86 of Presidential Decree 1445 or the State Audit Code of the Philippines, making the officers who entered into such a contract liable under Section 87 of the same law. Said affidavits clearly state that petitioner Garcia, by entering into a three-year contract with F.E. Zuellig, exceeded the authority granted to him by the Sangguniang Panlungsod (SP) in SP Resolution No. 3167. The affidavits also outline how the subject contract is allegedly manifestly disadvantageous to the city, in violation of the 17 Anti-Graft and Corrupt Practices Act. All these are serious and

specific allegations under oath that warrant asking petitioner to submit a counter-affidavit to present his side. Finally, the fact that Special Prosecution Officer Tagaan already resigned from his office and that his name was withdrawn as complainant from the case is of no fatal consequence. First, Tagaans report and affidavit still form part of the records of the case. He could still be called by subpoena if necessary. Second, we agree with the Solicitor General that Tagaan was a nominal party, whose duty as special prosecutor was to investigate the commission of crimes and file the corresponding complaint whenever 18 warranted. Since the illegal acts imputed are public offenses, the real complainant is the State, which is represented by the remaining complainants. WHEREFORE, premises considered, the petition is DISMISSED. No costs. Caasi vs. Comelec (EN BANC, G.R. No. 88831 November 8, 1990) Facts: Merito Miguel was sought to be disqualified for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of 18 January 1988, under Section 68 of the Omnibus Election Code, and on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on 2 February 1987 for the ratification of the 1987 Constitution, and the congressional elections on 18 May 1987. The COMELEC with the exception of Commissioner Anacleto Badoy, Jr. held that the possession of a green card by Miguel does not sufficiently establish that he has abandoned his residence in the Philippines. Issue: Whether a green card is proof that the holder is a permanent resident of the United States Held: Miguels immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrants (not a visitors or tourists) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently (See Question 21 of Miguels application). To be qualified to run for elective office in the Philippines, the law requires that the candidate who is a green card holder must have waived his status as a permanent resident or immigrant of a foreign country. Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was disqualified to run for any elective office. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on 18 January 1988, he was disqualified to run for said public office, hence, his election thereto was null and void.