22 August 2015

Ms. Carla Delos Santos

16 Annapolis St.
Cubao, Quezon City
Dear Ms. Delos Santos:
Here is the opinion you requested. The facts, gathered from you
and your documents, are as follows:
Your brother, Juanito Delos Santos, was found dead along the
highway of San Pedro City sustaining 17 gunshots, and majority of
which were fatal. Before his death, the mayor as his personal
bodyguard employed him. However, due to unlawful orders being
directed to him by the mayor. You allege basing on your personal
beliefs that the death of your brother was ordered by the mayor.
The principal issue that is being enquired here is which
administrative body has cognizance of the case whether the
Department of Justice or the Ombudsman. The subordinate issue is
whether or not the case may be transferred without the need to refile, in another agency in case the subject matter falls under the
jurisdiction of another.
As for the nature of your complaint, the administrative agency,
which has the jurisdiction over public officers or employees being
criminally charged, are both the Office of the Ombudsman and the
Department of Justice in pursuant to their memorandum agreement
which states that the OMB and DOJ have concurrent jurisdiction over
complaints for crimes involving public officers and employees falling
outside the exclusive jurisdiction of the Sandiganbayan, which
provides that:
Sec. 4 of RA 8249 provides that the Sandiganbayan
shall have original exclusive jurisdiction over:
I.) Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
II.) RA 1379 (Forfeiture of Illegally Acquired Wealth);
III.) Crimes by public officers or employees embraced
in Ch. II, Sec.2 Title
VII, Bk. II of the RPC (Crimes committed by Public
Officers) namely:

a) Direct Bribery under Art. 210 as amended by BP

871, May 29, 1985;
b) Indirect Bribery under Art. 211 as amended by BP
871, May 29, 1985;
c) Qualified Bribery under Art. 211-A as amended by
RA 7659, Dec. 13, 1993;
d) Corruption of public officials under Art. 212

The nature of the crime being alleged in the complaint does not
fall under those crimes within the jurisdiction of Sandiganbayan,
therefore cognizable by the concurrence of Office of the Ombudsman
and the Department of Justice. You may file your complaint in the
Office of the Ombudsman, the office which has the primary
jurisdiction over preliminary investigation, then your complaint may
be referred/endorsed by the Ombudsman to any prosecution office of
the DOJ having jurisdiction of the nature of the complaint. It is
provided in the memorandum of agreement between OMB and DOJ:
3. The OMB and the prosecution officers of the DOJ
shall have concurrent jurisdiction over complaints
for crimes involving public officers and employees
falling outside the exclusive jurisdiction of
the Sandiganbayan: Provided, that the office
where such a complaint is filed for
preliminary
investigation
shall
acquire
jurisdiction over the complainant to the
exclusion of the other: Provided further, that the
OMB may refer/endorse any complaint filed
before it to any prosecution office of the DOJ
having jurisdiction over the complaint.
4. The
Prosecutor
General
or
provincial/city
prosecutors shall resolve cases referred by the
OMB to the DOJ for preliminary investigation
without need of approval from the OMB.
5. In cases where the preliminary investigation was
conducted by the OMB but referred to the DOJ for
prosecution, reinvestigation, if ordered by the court
shall be conducted by the OMB.

It is construed through these provisions of the said agreement

that the complaint filed in any of the two agencies, shall be
concurrent to one another. Be that as it may, it shall be understood
that there is no need to re-file the complaint when transferred to the
other agency.
To answer the follow up questions, on one hand, the cases
under the primary jurisdiction of the Ombudsman are provided under
Administrative Order No. 08 which states that:
A complaint filed in or taken cognizance of by
the Office of the Ombudsman charging any public
officer or employee including those in the
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
failing 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.
On the other hand, cases that fall under the jurisdiction of the
DOJ and the Ombudsman are those complaints for crimes that are
outside the jurisdiction of the Sandiganbayan, which were already
stated above.
My opinion is based on the rules of procedure, administrative
order, and the memorandum agreement applicable to your query.
Please do not hesitate to call me with any questions you may have.
Also, if there are any misstatements of fact in this letter it is
important that you contact me when possible. Again, it was a
pleasure meeting you and I look forward to your call.

Respectfully yours,

Pamela Denise de Vera Hilario

L-150556