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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 Oakwood on the 27th 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
Malacañang Compound for "D-DAY", my task is to switch off the telephone PABX that
serves the Malacañang complex. I told him that I could not do it. No further conversation
ensued and he left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the
screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and
some others who were present during the June 4th meeting that I attended, having a
press conference about their occupation of the Oakwood Hotel. I also saw that the letter
"I" on the arm bands and the banner is the same letter "I" in the banner which was
displayed and on which we pressed our wound to leave the imprint of the letter "I";
19. That this Affidavit is being executed in order to attest the veracity of the foregoing
and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX
TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO
GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the
offense of "coup d'etat". (Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating
Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner
for preliminary investigation.

On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion
for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed
acts were committed in relation to his public office, it is the Office of the Ombudsman, not the
DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should
the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take
cognizance of the case considering that he belongs to the group of public officials with Salary
Grade 31; and praying that the proceedings be suspended until final resolution of his motion.

Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply.

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

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

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

In the meantime, in view of the submission by complainant of additional


affidavits/evidence and to afford respondents ample opportunity to controvert the same,
respondents, thru counsel are hereby directed to file their respective counter-affidavits
and controverting evidence on or before September 23, 2003.1

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

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ


Panel, and Director Matillano submitted their respective comments.

The Court heard the parties in oral arguments on the following issues:

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to


conduct preliminary investigation over the charge of coup d'etat against petitioner;

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

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion


in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the
claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary
investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of
petitioner are:
1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation
over all public officials, including petitioner.

2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint
Circular No. 95-001 to conduct the preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ
Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the
powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of
publication, hence null and void.

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

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 investigation vested on the Ombudsman is exclusive.3

Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman
Act, the Court held in said case:

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

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

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

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

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

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant
to it of broad investigative authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals' offices, and others involved in
the prosecution of erring public officials, and through the exertion of official pressure and
influence, quash, delay, or dismiss investigations into malfeasances and misfeasances
committed by public officers. It was deemed necessary, therefore, to create a special
office to investigate all criminal complaints against public officers regardless of whether
or not the acts or omissions complained of are related to or arise from the performance
of the duties of their office. The Ombudsman Act makes perfectly clear that the
jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance,
and non-feasance that have been committed by any officer or employee as mentioned
in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770).

.........

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

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

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman
has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the
authority of the Ombudsman to investigate is merely a primary and not an exclusive authority,
thus:

The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to
investigate and prosecute any illegal act or omission of any public official. However as
we held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority "is not
an exclusive authority but rather a shared or concurrent authority in respect of the offense
charged."

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

In fact, other investigatory agencies of the government such as the Department of


Justice in connection with the charge of sedition, and the Presidential
Commission on Good Government, in ill gotten wealth cases, may conduct the
investigation.9 (Emphasis supplied)

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

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs.
Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the
need for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan
since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by
the former.

In the process, we shall observe how the policy of the law, with reference to the subject
matter, has been in a state of flux.

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

The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to


read as follows:

'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:

'(a) Exclusive original jurisdiction in all cases involving:

...

(2) Other offenses or felonies committed by public officers and


employees in relation to their office, including those employed in
government-owned or controlled corporation, whether simple or
complexed with other crimes, where the penalty prescribed by law is
higher that prision correccional or imprisonment for six (6) years, or a fine
of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned
in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or a fine
of P6,000 shall be tried by the proper Regional Trial Court, Metropolitan
Trial Court, Municipal Trial Court and Municipal Circuit Trial Court."

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

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

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

It is axiomatic in statutory construction that a statute must be interpreted, not only


to be consistent with itself, but also to harmonize with other laws on the same
subject matter, as to form a complete, coherent and intelligible system. The rule
is expressed in the maxim, "interpretare et concordare legibus est optimus
interpretandi," or every statute must be so construed and harmonized with other
statutes as to form a uniform system of jurisprudence. Thus, in the application
and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and
the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into
consideration. It must be assumed that when the 1987 Constitution was written,
its framers had in mind previous statutes relating to the same subject matter. In
the absence of any express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in accord with existing statute, specifically,
Pres. Decree No. 1861.12 (Emphasis supplied)

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861)
likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and
(c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed
by public officers or employees in relation to their office.

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

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

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

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE


OFFICE OF THE OMBUDSMAN

ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS,


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

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

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the


DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of
the supreme court on the extent to which the ombudsman may call upon the government
prosecutors for assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do so. Also discussed
was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and
structural organization of the sandiganbayan, amending for the purpose presidential
decree no. 1606, as amended" and its implications on the jurisdiction of the office of the
Ombudsman on criminal offenses committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions


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

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

1. Preliminary investigation and prosecution of offenses committed by public officers and


employees in relation to office whether cognizable by the sandiganbayan or the regular
courts, and whether filed with the office of the ombudsman or with the office of the
provincial/city prosecutor shall be under the control and supervision of the office of the
ombudsman.

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

3. Preparation of criminal information shall be the responsibility of the investigating officer


who conducted the preliminary investigation. Resolutions recommending prosecution
together with the duly accomplished criminal informations shall be forwarded to the
appropriate approving authority.

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

Manila, Philippines, October 5, 1995.

(signed) (signed)

TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO


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

Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes


cognizable by the proper court in their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating


prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution
and information, He shall certify under oath in the information that he, or as shown by
the record, an authorized officer, has personally examined the complainant and his
witnesses; that there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction. They shall act on the resolution within ten (10) days from their
receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating


prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.

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

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

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

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

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

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on


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

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

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

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

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable
Court ruled that:

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither
is publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. (at page 454. emphasis supplied)

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

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No.
95-001 has to be published.14

Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation
because petitioner is a public officer with salary Grade 31 so that the case against him falls
exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the
DOJ has concurrent jurisdiction to investigate charges against public officers, the fact that
petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the
authority to investigate the charge of coup d'etat against him.

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

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