Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 79690-707 April 27, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
THE HONORABLE SANDIGANBAYAN AND HONORABLE RAUL M. GONZALEZ,
CLAIMING TO BE AND ACTING AS TANODBAYAN-OMBUDSMAN UNDER THE
1987 CONSTITUTION, respondents.
G.R. No. L-80578 April 27, 1988
ENRIQUE A. ZALDIVAR, petitioner,
vs.
HON. RAUL M. GONZALEZ, claiming to be and acting as TanodbayanOmbudsman under the 1987 Constitution, respondent.
Francisco Carreon and Nestor C. Lumba for petitioner.
The Solicitor General for respondent.

PER CURIAM:
In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule
65," petitioner Enrique A. 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 Nos. 12159 to 12161 and 12163-12177 on
the ground thatsaid cases were filed by said Tanodbayan without legal and
constitutional authority, since under the 1987 Constitution which took effect on February
2, 1987, it is only the Ombudsman (not the present or incumbent Tanodbayan) who has
the authority to file cases with the Sandiganbayan. The complete prayer of the petition
reads:
WHEREFORE, it is respectfully prayed that pending the final disposition of
this petition or until further orders of the Honorable Court, a writ of
preliminary injunction issue upon the filing of a bond in such amount as

may be fixed by the Honorable Court, restraining the Honorable

Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to
12161, and 12163 to 12177 insofar as petitioner Enrique A. Zaldivar is
concerned and from hearing and resolving the special prosecutor's motion
to suspend (Annex J) and thereafter, final judgment be rendered:
(1) ordering that the amended informations in the above-mentioned
crimininal cases be or issuing a writ of mandamus commanding and
ordering the respondent Sandiganbayan to do so and, in consequence,
prohibiting and restraining the respondent Sandigan-bayan from
proceeding to hear and try the abovementioned criminal cases or making
the temporary preliminary injunction permanent;
(2) declaring the acts of respondent Gonzalez as "TanodbayanOmbudsman" after 2 February 1987 relating to these cases as anullity and
without legal effect, particularly, the promulgation of Tanodbayan
resolution of 5 February 1987, the filing of the original informations on 3
March 1987 and the amended ones on 4 June 1987, and the filing of the
Motion for Suspension Pendente Lite.
PETITIONER prays for such other and further relief as may be deemed
proper in the premises, with costs against the respondents.
Manila, Philippines, September 9, 1987.
(pp. 45-47, Rollo)
In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as
the first petition, prays that Tanodbayan Gonzalez be restrained from conducting
preliminary investigations and similar cases with the Sandiganbayan. The prayer reads:
WHEREFORE, it is respectfully prayed that pending the final disposition of
this petition or until further orders of this Honorable court, a writ of
preliminary injunction issue restraining the respondent from further acting
in TBP CASE NO. 87-01304 and, particularly, from filing the criminal
Information consequent thereof-, and from conducting preliminary
investigations in, and filing criminal informations for, such other
complaints/ cases now pending or which may hereafter be filed against
petitioner with the Office of the respondent.

It is likewise prayed that the present petition be consolidated with G.R.LNos. 79690-79707.
After proper proceedings, it is prayed that final judgment be rendered
annulling the acts of respondent Gonzalez as "Tanodbayan- Ombudsman"
after 2 February 1987 relating to the investigation of complaints against
petitioner, particularly:
(1) Annulling, for absolute want of jurisdiction, the preliminary investigation
conducted, and the Resolution rendered, by respondent in TBP CASE NO.
87-01304;
(2) Prohibiting and restraining the respondent from filing any criminal
Information as a consequence of the void preliminary investigation he
conducted in TBP CASE NO. 87-01304, or annulling the criminal
Information in the said case which may, in the meantime, have already
been filed;
(3) Prohibiting and restraining the respondent from conducting preliminary
investigations in, and filing criminal informations for, such other
complaints/cases now pending or which may hereafter be filed against
petitioner with the Office of the respondent.
PETITIONER further prays for such other and further reliefs as may be
deemed proper in the proper with costs against the respondent.
Manila, Philippines, November 18,1987
(pp. 24-25, Rollo)
We issued the restraining orders prayed for.
After a study of the petitions, We have decided to give due course to the same; to
consider the comments of the Solicitor-General and of Tanodbayan Gonzalez as their
Answers thereto; and to forthwith decide the petitions.
We find the petitions impressed with merit.
Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent
Tanodbayan) is charged with the duty 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
commission appears to be illegal, unjust, improper, or inefficient (Sec. 13,
par. 1)
The Constitution likewise provides that:
The existing Tanodbayan shall hereafter be known as the office of the
Special Prosecutor. It shall continue to function and exercise its powers as
now or hereafter may be provided by law, contempt except those
conferred on the office of the Ombudsman created under this Constitution.
(Art. XI, Section 7) (Emphasis ours).
Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the
incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who
is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly
without authority to conduct preliminary investigations and to direct the filing of criminal
cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do
so was lost effective February 2, 1987. From that time, he has been divested of such
authority.
Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere
subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases
only upon the latter's authority or orders. The Special Prosecutor cannot initiate the
prosecution of cases but can only conduct the same if instructed to do so by the
Ombudsman. Even his original power to issue subpoena, which he still claims under
Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may,
however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to
investigate.
It is not correct either to suppose that the Special Prosecutor remains the Ombudsman
as long as he has not been replaced, for the fact is that he has never been the
Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the
Constitution different from the Office of the Tanodbayan created under PD 1607
although concededly some of the powers of the two offices are Identical or similar. The
Special Prosecutor cannot plead that he has a right to hold over the position of
Ombudsman as he has never held it in the first place.
WHEREFORE, We hereby:

(1) GRANT the consolidated petitions filed by petitioner Zaldivar and

hereby NULLIFY the criminal informations filed against him in the
Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to cease and desist from
conducting investigations and filing criminal cases with the
Sandiganbayan or otherwise exercising the powers and function of the
Ombudsman.
SO ORDERED.
Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin and Cortes, and Grio-Aquino, JJ., concur.

Separate Opinions

SARMIENTO, J., concurring:

I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No.
78059, that the 1987 Constitution took effect on February 11, 1987.
Separate Opinions
SARMIENTO, J., concurring:
I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No.
78059, that the 1987 Constitution took effect on February 11, 1987.