Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. P-90-412 March 11, 1991
MARISOL C. HIPOLITO, complainant,
vs.
ELMER R. MERGAS, Deputy Sheriff, Regional Trial Court, Branch 46,
Manila, respondent.
RESOLUTION
PER CURIAM:p
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, with acts allegedly amounting to the crime of swindling or
estafa. 1
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 Office of the Court Administrator. 2
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 consideration. 3
On the administrative case, in a resolution of this Court, dated July 9,
1990, 4 respondent was required to comment on the affidavit-complaint filed against
him. On January 26, 1990, respondent filed his comment, 5 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 recommendation. 6
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 detracts from a fair and just
administration of justice. 7
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 exercise in the management of their own affairs. 8
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 efficiency and shall remain
accountable to the people." 9 This is reiterated more emphatically in the 1987
Constitution. 10
 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.
Melencio-Herrera, Paras, Padilla, Sarmiento and Regalado, JJ., concur.
Footnotes
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-50581-50617 January 30, 1982
RUFINO V. NUEZ petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
FERNANDO, C.J.:
In categorical and explicit language, the Constitution provided for but did not create
a special Court, the Sandiganbayan with "jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by public
officers and employees, including those in government-owned or controlled
corporations, in relation to their office as may be determined by law." 1 It came into
existence with the issuance in 1978 of a Presidential Decree. 2 Even under the 1935
Constitution, to be precise, in 1955, an anti-graft statute was passed, 3 to be
supplemented five years later by another act, 4 the validity of which was upheld
in Morfe v. Mutuc, 5 a 1968 decision. As set forth in the opinion of the Court:
"Nothing can be clearer therefore than that the AntiGraft Act of 1960 like the earlier
statute was precisely aimed at curtailing and minimizing the opportunities for official
1 Rollo, 2-4.
2 Ibid., 6.
3 Ibid., 10-13.
4 Ibid., 7.
5 Ibid., 8-9.
6 Ibid., 51.
7 Bareno vs. Cabauatan, etc., 151 SCRA 293 (1987).
8 Pealosa vs. Viscaya, Jr., 84 SCRA 298 (1978).
9 Ganaden vs. Bolasco, 64 SCRA 50 (1975).
10 Section 1, Art. XI provides: "Public office is a public trust. Public officers must at all times
be accountable to the people, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives."
corruption and maintaining a standard of honesty in the public service. It is intended
to further promote morality in public administration. A public office must indeed be a
public trust. Nobody can cavil at its objective; the goal to be pursued commands the
assent of all. The conditions then prevailing called for norms of such character. The
times demanded such a remedial device." 6 It should occasion no surprise,
therefore, why the 1971 Constitutional Convention, with full awareness of the
continuity need to combat the evils of graft and corruption, included the above-cited
provision.
Petitioner in this certiorari and prohibition proceeding assails the validity of the
Presidential Decree creating the Sandiganbayan, He was accused before such
respondent Court of estafa through falsification of public and commercial documents
committed in connivance with his other co-accused, all public officials, in several
cases. 7 The informations were filed respectively on February 21 and March 26,
1979. Thereafter, on May 15 of that year, upon being arraigned, he filed a motion to
quash on constitutional and jurisdictional grounds. 8 A week later. respondent Court
denied such motion. 9 There was a motion for reconsideration filed the next day; it
met the same fate. 10 Hence this petition for certiorari and prohibition It is the claim of
petitioner that Presidential Decree No. 1486, as amended, creating the respondent
Court is violative of the due process, 11 equal protection, 12 and ex post
facto 13 clauses of the Constitution. 14
The overriding concern, made manifest in the Constitution itself, to cope more
effectively with dishonesty and abuse of trust in the public service whether
committed by government officials or not, with the essential cooperation of the
private citizens with whom they deal, cannot of itself justify any departure from or
disregard of constitutional rights. That is beyond question. With due recognition,
however, of the vigor and persistence of counsel of petitioner 15 in his pleadings
butressed by scholarly and diligent research, the Court, equally aided in the study of
the issues raised by the exhaustive memorandum of the Solicitor General, 16 is of
the view that the invalidity of Presidential Decree No, 1486 as amended, creating
respondent Court has not been demonstrated.
The petition then cannot be granted. The unconstitutionality of such Decree cannot
be adjudged.
1. It is to be made clear that the power of the then President and Prime Minister
Ferdinand E. Marcos to create the Sandiganbayan in 1978 is not challenged in this
proceeding. While such competence under the 1973 Constitution contemplated that
such an act should come from the National Assembly, the 1976 Amendments made
clear that he as incumbent President "shall continue to exercise legislative powers
until martial law shall have been lifted. " 17 Thus, there is an affirmation of the ruling
of this Court in Aquino Jr. v. Commission on Elections 18 decided in 1975. In the
language of the ponente, Justice Makasiar, it dissipated "all doubts as to the legality
of such law-making authority by the President during the period of Martial
Law, ... . 19 As the opinion went on to state: "It is not a grant of authority to legislate,
but a recognition of such power as already existing in favor of the incumbent
President during the period of Martial Law. " 20
2. Petitioner in his memorandum invokes the guarantee of equal protection in
seeking to nullify Presidential Decree No. 1486. What does it signify? To quote from
J. M. Tuason & Co. v. Land Tenure Administration: 21 "The Ideal situation is for the
law's benefits to be available to all, that none be placed outside the sphere of its
coverage. Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity which is of the very essence of the
Idea of law." 22 There is recognition, however, in the opinion that what in fact exists
"cannot approximate the Ideal. Nor is the law susceptible to the reproach that it
does not take into account the realities of the situation. The constitutional guarantee
then is not to be given a meaning that disregards what is, what does in fact exist .To
assure that the general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those adversely affected
may under such circumstances invoke the equal protection clause only if they can
show that the governmental act assailed, far from being inspired by the attainment
of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. " 23 Classification is thus not ruled out,
it being sufficient to quote from the Tuason decision anew "that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons
must be treated in the same manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and undue preference
cannot be allowed. For the principle is that equal protection and security shall be
given to every person under circumstances which, if not Identical, are analogous. If
law be looked upon in terms of burden or charges, those that fall within a class
should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest." 24
3. The premise underlying petitioner's contention on this point is set forth in his
memorandum thus: " 1. The Sandiganbayan proceedings violates petitioner's 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 Supreme Court, 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 Court of Appeals and thereafter to the Supreme Court." 25 ,that is hardly
convincing, considering that the classification satisfies the test announced by this
Court through Justice Laurel in People v. Vera 26 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. 27 To repeat, the Constitution specifically
makes mention of the creation of a special court, the Sandiganbayan 4 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. Petitioner, moreover,
cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949
decision, that the general guarantees of the Bill of Rights, included among which are
the due process of law and equal protection clauses must "give way to [a] specific
provision, " in that decision, one reserving to "Filipino citizens of the operation of
public services or utilities." 29 The scope of such a principle is not to be constricted. It
is certainly broad enough to cover the instant situation.
4. The contention that the challenged Presidential Decree is contrary to the ex post
facto provision of the Constitution is similarly premised on the allegation that
"petitioner's right of appeal is being diluted or eroded efficacy wise ... ." 30 A more
searching scrutiny of its rationale would demonstrate the lack of permisiveness of
such an argument. The Kay Villegas Kami 31 decision promulgated in 1970, cited by
petitioner, supplies the most recent and binding pronouncement on the matter. To
quote from the ponencia of Justice Makasiar: "An ex post facto law is one which: (1)
makes criminal an act done before the passage of the law and which was innocent
when done, and punishes such an act; (2) aggravates a crime, or makes it greater
than it was, when committed; (3) changes the punishment and inflicts a greater
punishment than the law annexed to the crime when committed; (4) alters the legal
rules of evidences, and authorizes conviction upon less or different testimony . than
the law required at the time of the commission to regulate civil rights and remedies
only, in effect imposes penalty or deprivation of a right for something which when
done was lawful, and (6) deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty." 32 Even the most careful
scrutiny of the above definition fails to sustain the claim of petitioner. The "lawful
protection" to which an accused "has become entitled" is qualified, not given a broad
scope. It hardly can be argued that the mode of procedure provided for in the
statutory right to appeal is therein embraced. This is hardly a controversial matter.
This Court has spoken in no uncertain terms. In People v. Vilo 33 a 1949 decision,
speaking through the then Justice, later Chief Justice Paras, it made clear that
seven of the nine Justices then composing this Court, excepting only
the ponente himself and the late Justice Perfecto, were of the opinion that Section 9
of the Judiciary Act of 1948, doing away with the requirement of unanimity under
Article 47 of the Revised Penal Code with eight votes sufficing for the imposition of
the death sentence, does not suffer from any constitutional infirmity. For them its
applicability to crimes committed before its enactment would not make the law ex
post facto.
5. It may not be amiss to pursue the subject further. The first authoritative exposition
of what is prohibited by the ex post facto clause is found in Mekin v.
Wolfe, 34 decided in 1903. Thus: "An ex post facto law has been defined as one - (a)
Which makes an action done before the passing of the law and which was innocent
when done criminal, and punishes such action; or (b) Which aggravates a crime or
makes it greater than it was when committed; or (c) Which changes the punishment
and inflicts a greater punishment than the law annexed to the crime when it was
committed; or (d) Which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant. " 35 There is relevance to the next
paragraph of the opinion of Justice Cooper: "The case clearly does not come within
this definition, nor can it be seen in what way the act in question alters the situation
of petitioner to his disadvantage. It gives him, as well as the Government, the
benefit of the appeal, and is intended
First Instance may commit error in his favor and wrongfully discharge him appears
to be the only foundation for the claim. A person can have no vested right in such a
possibility. 36
6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798 decision of the United
States Supreme Court. Even the very language as to what falls with the category of
this provision is well-nigh Identical. Thus: "I will state what laws I consider ex post
facto laws, within the words and the intent of the prohibition. Ist. Every law that
makes an action done before the passing of the law, and which was innocent when
done, criminal; and punishes such action. 2nd. Every law that aggravates a crime,
or makes it greater than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the crime,
when committed. 4th Every law that alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the time of the commission of
the offense, in order to convict the offender. All these, and similar laws, are
manifestly unjust and oppressive." 38 The opinion of Justice Chase who spoke for
the United States Supreme Court went on to state: "The expressions 'ex post
facto laws,' are technical, they had been in use long before the Revolution, and had
acquired an appropriate meaning, by legislators, lawyers, and authors. The
celebrated and judicious Sir William Blackstone in his commentaries, considers an
ex post facto law precisely in the same light I have done. His opinion is confirmed by
his successor, Mr. Wooddeson and by the author of the Federalist, who I esteem
superior to both, for his extensive and accurate knowledge of the true principle of
government. " 39
7. Petitioner relies on Thompson v. Utaha. 40 As it was decided by the American
Supreme Court in April of 1898 - the very same year when the Treaty of Paris, by
virtue of which, American sovereignty over the Philippines was acquired - it is
understandable why he did so. Certainly, the exhaustive opinion of the first Justice
Harlan, as was mentioned by an author, has a cutting edge, but it cuts both ways. It
also renders clear why the obstacles to declaring unconstitutional the challenged
Presidential Decree are well-nigh insuperable. After a review of the previous
pronouncements of the American Supreme Court on this subject, Justice Harlan
made this realistic appraisal: "The difficulty is not so much as to the soundness of
the general rule that an accused has no vested right in particular modes of
procedure as in determining whether particular statutes by their operation take from
an accused any right that was regarded, at the time of the adoption of the
constitution, as vital for the protection of life and liberty, and which he enjoyed at the
time of the commission of the offense charged against him." 41An 1894 decision of
the American Supreme Court, Duncan v. Missouri 42 was also cited by petitioner, The
opinion of the then Chief Justice Fuller, speaking for the Court, is to the same effect.
It was categorically stated that "the prescribing of different modes of procedure and
the abolition of courts and the creation of new ones, leaving untouched all the
substantial protections with which the existing laws surrounds the person accused of
crime, are not considered within the constitutional inhibition." 43
8. Even from the standpoint then of the American decisions relied upon, it cannot be
successfully argued that there is a dilution of the right to appeal. Admittedly under
Presidential Decree No. 1486, there is no recourse to the Court of Appeals, the
review coming from this Court. The test as to whether the ex post facto clause is
disregarded, in the language of Justice Harlan in the just-citedThompson v.
Utah decision taking "from an accused any right that was regarded, at the time of
the adoption of the constitution as vital for the protection of life and liberty, and
which he enjoyed at the time of the commission of the offense charged against him."
The crucial words are "vital for the protection of life and liberty" of a defendant in a
criminal case. Would the omission of the Court of Appeals as an intermediate
tribunal deprive petitioner of a right vital to the protection of his liberty? The answer
must be in the negative. In the first place, his innocence or guilt is passed upon by
the three-judge court of a division of respondent Court. Moreover, a unanimous vote
is required, failing which "the Presiding Justice shall designate two other justices
from among the members of the Court to sit temporarily with them, forming a
division of five justices, and the concurrence of a majority of such division shall be
necessary for rendering judgment. " 44 Then if convicted, this Court has the duty if he
seeks a review to see whether any error of law was committed to justify a reversal of
the judgment. Petitioner makes much, perhaps excessively so as is the wont of
advocates, of the fact that there is no review of the facts. What Cannot be too
sufficiently stressed is that this Court in determining whether or not to give due
course to the petition for review must be convinced that the constitutional
presumption of innocence 45 has been overcome. In that sense, it cannot be said
that on the appellate level there is no way of scrutinizing whether the quantum of
evidence required for a finding of guilt has been satisfied. The standard as to when
there is proof of such weight to justify a conviction is set forth in People v.
Dramayo. 46 Thus: "Accusation is not, according to the fundamental law, as
synonymous with guilt. It is incumbent on the prosecution to demonstrate that
culpability lies. Appellants were not even called upon then to offer evidence on their
behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for
conviction be in existence. Their guilt must be shown beyond reasonable doubt. To
such a standard, this Court has always been committed. There is need, therefore,
for the most careful scrutiny of the testimony of the state, both oral and
documentary, independently of whatever defense, is offered by the accused. Only if
the judge below and thereafter the appellate tribunal could arrive at a conclusion
that the crime had been committed precisely by the person on trial under such an
exacting test should the sentence be one of conviction. It is thus required that every
circumstance favoring his innocence be duly taken into account. The proof against
him must survive the test of reason; the strongest suspicion must not be permitted
to sway judgment. The conscience must be satisfied that on the defendant could be
laid the responsibility for the offense charged: that not only did he perpetrate the act
but that it amounted to a crime. What is required then is moral certainty." 47 This
Court has repeatedly reversed convictions on a showing that this fundamental and
basic right to De presumed innocent has been disregarded. 48 It does seem
farfetched and highly unrealistic to conclude that the omission of the Court of
Appeals as a reviewing authority results in the loss "vital protection" of liberty.
9. The argument based on denial of due process has much less to recommend it. In Constitution. It is true that other Sections of the Decree could have been worded to
the exhaustive forty-two page memorandum of petitioner, only four and a half pages avoid any constitutional objection. As of now, however, no ruling is called for. The
were devoted to its discussion. There is the allegation of lack of fairness. Much is view is given expression in the concurring and dissenting opinion of Justice
made of what is characterized as "the tenor and thrust" of the leading American Makasiar that in such a case to save the Decree from the dire fate of invalidity, they
Supreme Court decision, Snyder v. Massachusetts. 49 Again this citation cuts both must be construed in such a way as preclude any possible erosion on the powers
ways. With his usual felicitous choice of words, Justice Cardozo, who penned the vested in this Court by the Constitution. That is a proposition too plain to be
opinion, emphasized: "The law, as we have seen, is sedulous in maintaining for a contested. It commends itself for approval. Nor should there be any doubt either that
defendant charged with crime whatever forms of procedure are of the essence of an a review by certiorari of a decision of conviction by the Sandiganbayan calls for strict
opportunity to defend. Privileges so fundamental as to be inherent in every concept observance of the constitutional presumption of innocence.
of a fair trial that could be acceptable to the thought of reasonable men will be kept
inviolate and inviolable, however crushing may be the pressure of incriminating WHEREFORE, the petition is dismissed. No costs.
proof. But justice, though due to the accused, is due to the accuser also, The
concept of fairness must not be strained till it is narrowed to a filament. We are to Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana and Escolin, JJ., concur.
keep the balance true." 50 What is required for compliance with the due process
mandate in criminal proceedings? In Arnault v. Pecson, 51 this Court with Justice Concepcion, Jr. and Ericta, JJ., took no part.
Tuason as ponente, succinctly Identified it with "a fair and impartial trial and
reasonable opportunity for the preparation of defense." 52 In criminal proceedings Fernandez, J., concurs and dissent
then, due process is satisfied if the accused is "informed as to why he is proceeded
against and what charge he has to meet, with his conviction being made to rest on
evidence that is not tainted with falsity after full opportunity for him to rebut it and the
sentence being imposed in accordance with a valid law. It is assumed, of course,
that the court that rendered the decision is one of competent jurisdiction." 53 The
Separate Opinions
above formulation is a reiteration of what was decided by the American Supreme
Court in a case of Philippine origin, Ong Chang Wing v. United States 54 decided
during the period of American rule, 1910 to be precise. Thus: "This court has had
frequent occasion to consider the requirements of due process of law as applied to
BARREDO, J., concuring:
criminal procedure, and, generally speaking, it may be said that if an accused has
been heard in a court of competent jurisdiction, and proceeded against under the
I have read with great care the concurring and dissenting opinion of our learned
orderly processes of law, and only punished after inquiry and investigation, upon
colleague, Mr. Justice Makasiar, and I fully agree with the view that P.D. 1606 has
notice to him, with an opportunity to be heard, and a judgment awarded within the
unduly and improperly placed the Sandiganbayan on a higher plane than the
authority of a constitutional law, then he has had due process of law." 55
Supreme Court insofar as the matter of automatic releases of appropriations is
concerned, which definitely should not be the case. I must say emphatically that if
10. This Court holds that petitioner has been unable to make a case calling for a
such a provision was conceived to guarantee the Sandigan's independence, it is
declaration of unconstitutionality of Presidential Decree No. 1486 as amended by
certainly unwise to assume that the Supreme Court's independence is unworthy of
Presidential Decree No. 1606. The decision does not go as far as passing on any
similar protection. Strong as my feeling in this respect is, I am aware that my
question not affecting the right of petitioner to a trial with all the safeguards of the
objection to the provision in question is not ground enough to render the same
unconstitutional. In expressing myself as I do, I am just adding my little voice of
protest in order that hopefully those concerned may hear it loud and clear and thus
give the Supreme Court its deserved superior status over the Sandiganbayan.
I regret, however, I cannot agree with the constitutional structures expressed by
Justice Makasiar. I am more inclined to agree with our honored and distinguished
Chief Justice, whose learning in constitutional law is duly respected here and
abroad, that the arguments against the constitutionality of P.D. 1606 advanced by its
critics lack sufficient persuavity.
It should not be surprising nor unusual that the composition of and procedure in the
Sandiganbayan should be designed and allowed to be different from the ordinary
courts. Constitutionally speaking, I view the Sandiganbayan as sui generis in the
judicial structure designed by the makers of the 1971 Constitution. To be particularly
noted must be the fact that the mandate of the Constitution that the National
Assembly "shall create", it is not under the Article on the Judiciary (Article X) but
under the article on Accountability of Public Officers. More, the Constitution ordains
it to be "a special court." To my mind, such "special" character endowed to the
Sandiganbayan carries with it certain concomittants which compel that it should be
treated differently from the ordinary courts. Of course, as a court it exercises judicial
power, and so under Section 1 of Article X, it must be subordinate to the Supreme
Court. And in this respect, I agree with Justice Makasiar that the rule-making power
granted to it by P.D. 1606 must of constitutional necessity be understood as
signifying that any rule it may promulgate cannot have force and effect unless
approved by the Supreme Court, as if they have originated therefrom. Section 5(5)
of the Constitution empowers the Supreme Court to promulgate rules concerning
pleading, practice and procedure in all courts, and the Sandiganbayan is one of
those courts, "special" as it may be.
I am of the considered opinion, nonetheless, that the special composition of the
Sandiganbayan and the special procedure of appeal provided for it in P.D. 1606
does not infringe the constitutional injunction against ex-post facto laws. The
creation of a special court to take cognizance of, try and decide crimes already
committed is not a constitutional abnormality. Otherwise, there would be chaos in
the prosecution of offenses which in the public interest must be dealt with more
expeditiously in order to curtail any fast surging tide of evil-doing against the social
order.
Since the Sandiganbayan is a collegiate trial court, it is obviously improper to make
appeals therefrom appealable to another collegiate court with the same number of
judges composing it. We must bear in mind that the Sandiganbayan's primary and
primordial reason for being is to insure the people's faith and confidence in our
public officers more than it used to be. We have only to recall that the activism and
restlessness in the later '60's and the early '70's particularly of the youth who are
always concerned with the future of the country were caused by their conviction that
graft and corruption was already intolerably pervasive in the government and
naturally they demanded and expected effective and faster and more expeditious
remedies. Thus, the Tanodbayan or Ombudsman was conceived and as its
necessary counterpart, the Sandiganbayan.
It must be against the backdrop of recent historical events that I feel We must view
the Sandiganbayan. At this point, I must emphasize that P.D. 1606 is a legislative
measure, and the rule-making power of the Supreme Court is not insulated by the
Charter against legislature's attribute of alteration, amendment or repeal. Indeed, it
is the Supreme Court that cannot modify or amend, much less repeal, a rule of court
originated by the legislative power.
Accordingly, the method of appeal provided by P.D. 1606 from decisions of the
Sandiganbayan cannot be unconstitutional. If a new or special court can be
legitimately created to try offenses already committed, like the People's Court of
Collaboration times, I cannot see how the new procedure of appeal from such courts
can be faulted as violative of the Charter.
True, in criminal cases, the Constitution mandates that the guilt of the accused must
be proved beyond reasonable doubt. But once the Sandiganbayan makes such a
pronouncement, the constitutional requirement is complied with. That the Supreme
Court may review the decisions of the Sandiganbayan only on questions of law does
not, in my opinion, alter the fact that the conviction of the accused from the factual
point of view was beyond reasonable doubt, as long as the evidence relied upon by
the Sandiganbayan in arriving at such conclusion is substantial.
Since the creation of the Court of Appeals, the Supreme Court's power of review
over decisions of the former even in criminal cases has been limited statutorily or by
the rules only to legal questions. We have never been supposed to exercise the
power to reweigh the evidence but only to determine its substantiality. If that was
proper and legal, and no one has yet been heard to say the contrary, why should
We wonder about the method of review of the decisions of the Sandiganbayan
under P.D. 1606? With all due respect to the observation of Justice Makasiar, I
believe that the accused has a better guarantee of a real and full consideration of
the evidence and the determination of the facts where there are three judges
actually seeing and observing the demeanor and conduct of the witnesses. It is Our
constant jurisprudence that the appellate courts should rely on the evaluation of the
evidence by the trial judges, except in cases where pivotal points are shown to have
been overlooked by them. With more reason should this rule apply to the review of
the decision of a collegiate trial court. Moreover, when the Court of Appeals passes
on an appeal in a criminal cases, it has only the records to rely on, and yet the
Supreme Court has no power to reverse its findings of fact, with only the usual
exceptions already known to all lawyers and judges. I strongly believe that the
review of the decisions of the Sandiganbayan, whose three justices have actually
seen and observed the witnesses as provided for in P.D. 1606 is a more iron-clad
guarantee that no person accused before such special court will ever be finally
convicted without his guilt appearing beyond reasonable doubt as mandated by the
Constitution.
MAKASIAR, J., concurring and dissenting:
Some provisions in the Sandiganbayan violate not only the constitutional
guarantees of due process as wen as equal protection of the law and against the
enactment of ex post facto laws, but also the constitutional provisions on the power
of supervision of the Supreme Court over inferior courts as well as its rule-making
authority.
All the relevant cases on due process, equal protection of the law and ex post
facto laws, have been cited by the petitioner, the Solicitor General, and the majority
opinion; hence, there is no need to repeat them here.
It should be noted that petitioner does not challenge the constitutionality of P.D. No.
1606 on the ground that it impairs the rule-making authority of the Supreme Court
and its power of supervision over inferior courts.
It should likewise be emphasized that in the opinion of the Writer, the provisions of
P.D. No. 1606 which he does not impugn, remain valid and complete as a statute
and therefore can be given effect minus the challenged portions, which are
separable from the valid provisions.
The basic caveat for the embattled citizen is obsta principiis - resist from the very
beginning any attempt to assault his constitutional liberties.
I
PARAGRAPH 3, SECTION 7 OF P.D. NO. 1606 DENIES PETITIONER DUE
PROCESS AND EQUAL PROTECTION OF THE LAW.
1. Persons who are charged with estafa or malversation of funds not belonging to
the government or any of its instrumentalities or agencies are guaranteed the right
to appeal to two appellate courts - first, to the Court of Appeals, and thereafter to the
Supreme Court. Estafa and malversation of private funds are on the same category
as graft and corruption committed by public officers, who, under the Decree creating
the Sandiganbayan. are only allowed one appeal - to the Supreme Court (par. 3,
Sec. 7, P.D. No. 1606). The fact that the Sandiganbayan is a collegiate trial court
does not generate any substantial distinction to validate this invidious discrimination
Three judges sitting on the same case does not ensure a quality of justice better
than that meted out by a trial court presided by one judge. The ultimate decisive
factors are the intellectual competence, industry and integrity of the trial judge. But a
review by two appellate tribunals of the same case certainly ensures better justice to
the accused and to the people.
It should be stressed that the Constitution merely authorizes the law-making
authority to create the Sandiganbayan with a specific limited jurisdiction only over
graft and corruption committed by officers and employees of the government,
government instrumentalities and government-owned and -controlled corporations.
The Constitution does not authorize the lawmaker to limit the right of appeal of the
accused convicted by the Sandiganbayan to only the Supreme Court. The Bill of
Rights remains as restrictions on the lawmaker in creating the Sandiganbayan
pursuant to the constitutional directive.
It is also clear that paragraph 3, Section 7 of P.D. No. 1606 trenches upon the due
process clause of the Constitution, because the right to appeal to the Court of
Appeals and thereafter to the Supreme Court was already secured under Sections
17 and 29 of the Judiciary Act of 1948, otherwise known as R.A. No. 296, as
amended, and therefore also already part of procedural due process to which the
petitioner was entitled at the time of the alleged commission of the crime charged
against him. (Marcos vs. Cruz, 68 Phil. 96, 104 [1939]; People vs. Moreno, 77 Phil.
548, 555; People vs. Casiano, 1 SCRA 478 [1961]; People vs. Sierra, 46 SCRA 717;
Fernando, Phil. Constitution, 1974 ed., pp. 674-675). This is also reiterated in Our
discussion hereunder concerning the violation of the constitutional prohibition
against the passage of ex post facto laws.
2. Then again, paragraph 3 of Section 7 of P.D. No. 1606, by providing that the
decisions of the Sandiganbayan can only be reviewed by the Supreme Court
through certiorari, likewise limits the reviewing power of the Supreme Court only to
question of jurisdiction or grave abuse of discretion, and not questions of fact nor
findings or conclusions of the trial court. In other criminal cases involving offenses
not as serious as graft and corruption, all questions of fact and of law are reviewed,
first by the Court of Appeals, and then by the Supreme Court. To repeat, there is
greater guarantee of justice in criminal cases when the trial court's judgment is
subject to review by two appellate tribunals, which can appraise the evidence and
the law with greater objectivity, detachment and impartiality unaffected as they are
by views and prejudices that may be engendered during the trial.
3. Limiting the power of review by the Supreme Court of convictions by the
Sandiganbayan only to issues of jurisdiction or grave abuse of discretion, likewise
violates the constitutional presumption of innocence of the accused, which
presumption can only be overcome by proof beyond reasonable doubt (See. 19, Art.
IV, 1973 Constitution).
Even if in certiorari proceedings, the Supreme Court, to determine whether the trial
court gravely abused its discretion, can inquire into whether the judgment of the
Sandiganbayan is supported by the substantial evidence, the presumption of
innocence is still violated; because proof beyond reasonable doubt cannot be
equated with substantial evidence. Because the Supreme Court under P.D. No.
1606 is precluded from reviewing questions of fact and the evidence submitted
before the Sandiganbayan, the Supreme Court is thereby deprived of the
constitutional power to determine whether the guilt of the accused has been
established by proof beyond reasonable doubt - by proof generating moral certainty
as to his culpability -- and therefore subverts the constitutional presumption of
innocence in his favor which is enjoyed by all other defendants in other criminal
cases, including defendants accused of only light felonies, which are less serious
than graft and corruption.
4. Furthermore, the Sandiganbayan is composed of a presiding Justice and 8
associate Justices, sitting in three divisions of 3 Justices each (Sec. 3, P.D. No.
1606). Under Section 5 thereof, the unanimous vote of three Justices in a division
shall be necessary for the pronouncement of the judgment. In the event that the
three Justices do not reach a unanimous vote, the Presiding Justice shall designate
two other Justices from among the members of the Court to sit temporarily with
them, forming a division of five Justices, and the concurrence of the majority of such
division shall be necessary for rendering judgment.
At present, there are only 6 members of the Sandiganbayan or two divisions actually
operating. Consequently, when a member of the Division dissents, two other
members may be designated by the Presiding Justice to sit temporarily with the
Division to constitute a special division of five members. The fact that there are only
6 members now composing the Sandiganbayan limits the choice of the Presiding
Justice to only three, instead of 6 members from whom to select the two other
Justices to compose a special division of five in case a member of the division
dissents. This situation patently diminishes to an appreciable degree the chances of
an accused for an acquittal. Applied to the petitioner, Section 5 of P.D. No. 1606
denies him the equal protection of the law as against those who will be prosecuted
when three more members of the Sandiganbayan will be appointed to complete its
membership of nine.
P.D. No. 1606 therefore denies the accused advantages and privileges accorded to
other defendants indicted before other trial courts.
5. Section 1 of P.D. No. 1606 further displays such arbitrary classification; because it
places expressly the Sandiganbayan on "the same level as the Court of Appeals."
As heretofore stated, the Sandiganbayan is a collegiate trial court and not an
appellate court; its jurisdiction is purely limited to criminal and civil cases involving
graft and corruption as well as violation of the prohibited drug law committed by
public officers and employees of the government, its instrumentalities and
government-owned or -controlled corporations. The Court of Appeals is an appellate
tribunal exercising appellate jurisdiction over all cases - criminal cases, civil cases,
special civil actions, special proceedings, and administrative cases appealable from
the trial courts or quasi-judicial bodies. The disparity between the Court of Appeals
and the Sandiganbayan is too patent to require extended demonstration.
6. Even the Supreme Court is not spared from such odious discrimination as it is
being down-graded by Section 14 of P.D. No. 1606, which effectively makes the
Sandiganbayan superior to the Supreme Court; because said Section 14 expressly
provides that "the appropriation for the Sandiganbayan shall be automatically
released in accordance with the schedule submitted by the Sandiganbayan"
(emphasis supplied). There is no such provision in any law or in the. annual
appropriations act in favor of the Supreme Court. Under the 1982 Appropriations
Act, the funds for the Supreme Court and the entire Judiciary can only be released
by the Budget Ministry upon request therefor by the Supreme Court. Sometimes
compliance with such request is hampered by bureaucratic procedures. Such
discrimination against the Supreme Court - the highest tribunal of the land and the
only other Branch of our modified parliamentary-presidential government - the first
Branch being constituted by the merger or union of the Executive and the Batasang
Pambansa - emphasizes the peril to the independence of the Judiciary, whose
operations can be jeopardized and the administration of justice consequently
obstructed or impeded by the delay or refusal on the part of the Budget Ministry to
release the needed funds for the operation of the courts.
II
P.D. NO. 1606 VIOLATES THE GUARANTEE AGAINST EX POST FACTO LAWS -
1. WE ruled in Kay Villegas Kami (Oct. 22, 1970, 35 SCRA 429) that an ex post
facto law is one which alters the rules of evidence and authorizes conviction upon
less testimony than the law required at the time the crime was committed, or
deprives a person accused of a crime of some lawful protection to which he has
become entitled. The indictment against herein petitioner accused him of graft and
corruption committed "from July 20, 1977 up to and including January 12, 1978"
(Annex A, p. 24, rec.), long before the creation of the Sandiganbayan on December
10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486, the original
charter of the Sandiganbayan promulgated on June 11, 1978.
As heretofore stated, before the creation of the Sandiganbayan on December 10,
1978, all persons accused of malversation of public funds or graft and corruption
and estafa were entitled to a review of a trial court's judgment of conviction by the
Court of Appeals on all questions of fact and law, and thereafter by the Supreme
Court also on both questions of fact and law. This right to a review of the judgment
of conviction by two appellate tribunals on both factual and legal issues, was already
part of the constitutional right of due process enjoyed by the petitioner in 1977. This
vital right of the accused has been taken away on December 10, 1978 by P.D. No.
1606, thus placing herein petitioner under a great disadvantage for crimes he
allegedly committed prior to 1978.
2. As a necessary consequence, review by certiorari impairs the constitutional
presumption of innocence in favor of the accused, which requires proof beyond
reasonable doubt to rebut the presumption (Sec. 19, Art. IV, 1973 Constitution). P.D.
No. 1606 thus in effect reduces the quality and quantity of the evidence requisite for
a criminal conviction.
The conviction of petitioner is thus facilitated or made easier by P.D. No. 1606,
which was not so prior to its promulgation.
The Sandiganbayan could not be likened to the People's Court exclusively trying
cases against national security whose decisions were appealable directly only to the
Supreme Court (Sec. 13, CA 682); because at the time the People's Court Act or
C.A. No. 682 was enacted on September 25. 1945, the Court of Appeals was no
longer existing then as it was abolished on March 10, 1945 by Executive Order No.
37 issued by President Sergio Osmena soon after the Liberation. Consequently, the
People's Court Act could not provide for appeal to the Court of Appeals which was
revived only on October 4, 1946 by R.A. No. 52. But even under Section 13 of the
People's Court Act appeal to the Supreme Court is not limited to the review by
certiorari. The Supreme Court can review all judgments of the People's Court both
on questions of fact and of law.
III
SECTION 9 OF P.D. NO. 1606 CLASHES WITH THE CONSTITUTIONAL RULE-
MAKING AUTHORITY OF THE SUPREME COURT -
Section 9 of P.D. No. 1606 authorizing the Sandiganbayan to promulgate its own
rules of procedure without requiring the approval thereof by the Supreme Court,
collides with the constitutional rule-making authority of the Supreme Court. to pro-
promulgate rules of court for all courts of the land (par. 5, Sec. 5 of Art. X of the New
Constitution).
IV
P.D. NO. 1606 SUBVERTS THE CONSTITUTIONAL POWER OF SUPERVISION
OVER INFERIOR COURTS INCLUDING THE SANDIGANBAYAN -
Section 10 of P.D. No. 1606 authorizing the Sandiganbayan to "administer its own
internal affairs, to adopt such rules governing the constitution of its divisions, the
allocation of cases among them and other matters relating to its business," without
requiring the approval of the Supreme Court also contravenes the constitutional
power of supervision over the Sandiganbayan as an inferior trial court. It cannot be
disputed that the Sandiganbayan is an inferior court.
2. Likewise, Section 12 of P.D. No. 1606 vesting the Sandiganbayan with the power
to select and appoint its personnel including a clerk of court and three deputy clerks
of court and to remove them for cause without reserving to the Supreme Court the
authority to approve or disapprove such appointments and to review such removals,
aggravates the violation of the constitutional power of supervision of the Supreme
Court over inferior courts.
3. Section 13 of P.D. 1606 also contravenes the constitutional power of the Supreme
Court to supervise inferior courts; because said Section 13 requires the
Sandiganbayan to submit an annual report directly to the President without coursing
the same to the Supreme Court for review' and approval.
That the Sandiganbayan is a specially favored court is further shown by the General
Appropriations Act of 1982 which states that "all appropriations provided herein for
the Sandiganbayan shall be administered solely by the Presiding Justice, ..." (par. 1,
Sp. Provisions XXV on the Judiciary, p. 538, Gen. Appropriations Act of 1982). This
particular provision impairs likewise the constitutional power of administrative
supervision vested in the Supreme Court over all inferior courts (Sec. 6, Art. X, 1972
Constitution). It should be emphasized that the same General Appropriations Act of
1982 expressly provides that the disposition of all the appropriations for the Court of
Appeals, Court of Tax Appeals, Circuit Criminal Courts, and the Court of Agrarian
Relations is expressly subject to the approval of the Chief Justice of the Supreme
Court (pp. 539-541, General Appropriations Act of 1982).
The authority delegated expressly by the Constitution to the law-maker to create the
Sandiganbayan does not include the authority to exempt the Sandiganbayan from
the constitutional supervision of the Supreme Court.
All the challenged provisions of P.D. No. 1606, namely, Sections 7 (par. 3), 9, 10, 12
and 13 are separable from the rest of its provisions without affecting the
completeness thereof, and can therefore be declared unconstitutional without
necessarily nullifying the entire P.D. No. 1606. The valid provisions amply determine
what is to be done, who is to do it, and now to do it - the test for a complete and
intelligible law (Barrameda vs. Moir, 25 Phil. 44; Edu vs. Ericta, Oct. 20, 1970, 35
SCRA 481, 496-497). As a matter of fact, Section 15 acknowledges such
separability although under the jurisprudence it is merely a guide for and
persuasive, but not necessarily binding on, the Supreme Court which can declare an
entire law unconstitutional if the challenged portions are inseparable from the valid
portions.
Section1 of P.D. No. 1606 can be considered valid by just considering as not
written therein the phrase "of the same level as the Court of Appeals.
Section 5 of P.D. No. 1606 could likewise be validated by simply appointing three
more members of the Sandiganbayan to complete its membership.
Paragraph 3 of Section 7 of P.D. No. 1606 can be declared unconstitutional without
affecting the completeness and validity of the remaining provisions of P.D. No. 1606;
because in the absence of said Paragraph 3, Section 17 and 29 of the Judiciary Act
of 1984, as amended,can apply.
However, the challenged provisions, especially Sections 9, 10, 12 and 13 could
remain valid provided it is understood that the powers delegated thereunder to the
Sandiganbayan are deemed subject to the approval of the Supreme Court.
Separate Opinions
BARREDO, J., concuring:
I have read with great care the concurring and dissenting opinion of our learned
colleague, Mr. Justice Makasiar, and I fully agree with the view that P.D. 1606 has
unduly and improperly placed the Sandiganbayan on a higher plane than the
Supreme Court insofar as the matter of automatic releases of appropriations is
concerned, which definitely should not be the case. I must say emphatically that if
such a provision was conceived to guarantee the Sandigan's independence, it is
certainly unwise to assume that the Supreme Court's independence is unworthy of
similar protection. Strong as my feeling in this respect is, I am aware that my
objection to the provision in question is not ground enough to render the same
unconstitutional. In expressing myself as I do, I am just adding my little voice of
protest in order that hopefully those concerned may hear it loud and clear and thus
give the Supreme Court its deserved superior status over the Sandiganbayan.
I regret, however, I cannot agree with the constitutional structures expressed by
Justice Makasiar. I am more inclined to agree with our honored and distinguished
Chief Justice, whose learning in constitutional law is duly respected here and
abroad, that the arguments against the constitutionality of P.D. 1606 advanced by its
critics lack sufficient persuavity.
It should not be surprising nor unusual that the composition of and procedure in the
Sandiganbayan should be designed and allowed to be different from the ordinary
courts. Constitutionally speaking, I view the Sandiganbayan as sui generis in the
judicial structure designed by the makers of the 1971 Constitution. To be particularly
noted must be the fact that the mandate of the Constitution that the National
Assembly "shall create", it is not under the Article on the Judiciary (Article X) but
under the article on Accountability of Public Officers. More, the Constitution ordains
it to be "a special court." To my mind, such "special" character endowed to the
Sandiganbayan carries with it certain concomittants which compel that it should be
treated differently from the ordinary courts. Of course, as a court it exercises judicial
power, and so under Section 1 of Article X, it must be subordinate to the Supreme
Court. And in this respect, I agree with Justice Makasiar that the rule-making power
granted to it by P.D. 1606 must of constitutional necessity be understood as
signifying that any rule it may promulgate cannot have force and effect unless
approved by the Supreme Court, as if they have originated therefrom. Section 5(5)
of the Constitution empowers the Supreme Court to promulgate rules concerning
pleading, practice and procedure in all courts, and the Sandiganbayan is one of
those courts, "special" as it may be.
I am of the considered opinion, nonetheless, that the special composition of the
Sandiganbayan and the special procedure of appeal provided for it in P.D. 1606
does not infringe the constitutional injunction against ex-post facto laws. The
creation of a special court to take cognizance of, try and decide crimes already
committed is not a constitutional abnormality. Otherwise, there would be chaos in
the prosecution of offenses which in the public interest must be dealt with more
expeditiously in order to curtail any fast surging tide of evil-doing against the social
order.
Since the Sandiganbayan is a collegiate trial court, it is obviously improper to make
appeals therefrom appealable to another collegiate court with the same number of
judges composing it. We must bear in mind that the Sandiganbayan's primary and
primordial reason for being is to insure the people's faith and confidence in our
public officers more than it used to be. We have only to recall that the activism and
restlessness in the later '60's and the early '70's particularly of the youth who are
always concerned with the future of the country were caused by their conviction that
graft and corruption was already intolerably pervasive in the government and
naturally they demanded and expected effective and faster and more expeditious
remedies. Thus, the Tanodbayan or Ombudsman was conceived and as its
necessary counterpart, the Sandiganbayan.
It must be against the backdrop of recent historical events that I feel We must view
the Sandiganbayan. At this point, I must emphasize that P.D. 1606 is a legislative
measure, and the rule-making power of the Supreme Court is not insulated by the
Charter against legislature's attribute of alteration, amendment or repeal. Indeed, it
is the Supreme Court that cannot modify or amend, much less repeal, a rule of court
originated by the legislative power.
Accordingly, the method of appeal provided by P.D. 1606 from decisions of the
Sandiganbayan cannot be unconstitutional. If a new or special court can be
legitimately created to try offenses already committed, like the People's Court of
Collaboration times, I cannot see how the new procedure of appeal from such courts
can be faulted as violative of the Charter.
True, in criminal cases, the Constitution mandates that the guilt of the accused must
be proved beyond reasonable doubt. But once the Sandiganbayan makes such a
pronouncement, the constitutional requirement is complied with. That the Supreme
Court may review the decisions of the Sandiganbayan only on questions of law does
not, in my opinion, alter the fact that the conviction of the accused from the factual
point of view was beyond reasonable doubt, as long as the evidence relied upon by
the Sandiganbayan in arriving at such conclusion is substantial.
Since the creation of the Court of Appeals, the Supreme Court's power of review
over decisions of the former even in criminal cases has been limited statutorily or by
the rules only to legal questions. We have never been supposed to exercise the
power to reweigh the evidence but only to determine its substantiality. If that was
proper and legal, and no one has yet been heard to say the contrary, why should
We wonder about the method of review of the decisions of the Sandiganbayan
under P.D. 1606? With all due respect to the observation of Justice Makasiar, I
believe that the accused has a better guarantee of a real and full consideration of
the evidence and the determination of the facts where there are three judges
actually seeing and observing the demeanor and conduct of the witnesses. It is Our
constant jurisprudence that the appellate courts should rely on the evaluation of the
evidence by the trial judges, except in cases where pivotal points are shown to have
been overlooked by them. With more reason should this rule apply to the review of
the decision of a collegiate trial court. Moreover, when the Court of Appeals passes
on an appeal in a criminal cases, it has only the records to rely on, and yet the
Supreme Court has no power to reverse its findings of fact, with only the usual
exceptions already known to all lawyers and judges. I strongly believe that the
review of the decisions of the Sandiganbayan, whose three justices have actually
seen and observed the witnesses as provided for in P.D. 1606 is a more iron-clad
guarantee that no person accused before such special court will ever be finally
convicted without his guilt appearing beyond reasonable doubt as mandated by the
Constitution.
MAKASIAR, J., concurring and dissenting:
Some provisions in the Sandiganbayan violate not only the constitutional
guarantees of due process as wen as equal protection of the law and against the
enactment of ex post facto laws, but also the constitutional provisions on the power
of supervision of the Supreme Court over inferior courts as well as its rule-making
authority.
All the relevant cases on due process, equal protection of the law and ex post
facto laws, have been cited by the petitioner, the Solicitor General, and the majority
opinion; hence, there is no need to repeat them here.
It should be noted that petitioner does not challenge the constitutionality of P.D. No.
1606 on the ground that it impairs the rule-making authority of the Supreme Court
and its power of supervision over inferior courts.
It should likewise be emphasized that in the opinion of the Writer, the provisions of
P.D. No. 1606 which he does not impugn, remain valid and complete as a statute
and therefore can be given effect minus the challenged portions, which are
separable from the valid provisions.
The basic caveat for the embattled citizen is obsta principiis - resist from the very
beginning any attempt to assault his constitutional liberties.
 I Fernando, Phil. Constitution, 1974 ed., pp. 674-675). This is also reiterated in Our
PARAGRAPH 3, SECTION 7 OF P.D. NO. 1606 DENIES PETITIONER DUE
PROCESS AND EQUAL PROTECTION OF THE LAW.
1. Persons who are charged with estafa or malversation of funds not belonging to
the government or any of its instrumentalities or agencies are guaranteed the right
to appeal to two appellate courts - first, to the Court of Appeals, and thereafter to the
Supreme Court. Estafa and malversation of private funds are on the same category
as graft and corruption committed by public officers, who, under the Decree creating
the Sandiganbayan. are only allowed one appeal - to the Supreme Court (par. 3,
Sec. 7, P.D. No. 1606). The fact that the Sandiganbayan is a collegiate trial court
does not generate any substantial distinction to validate this invidious discrimination
Three judges sitting on the same case does not ensure a quality of justice better
than that meted out by a trial court presided by one judge. The ultimate decisive
factors are the intellectual competence, industry and integrity of the trial judge. But a
review by two appellate tribunals of the same case certainly ensures better justice to
the accused and to the people.
It should be stressed that the Constitution merely authorizes the law-making
authority to create the Sandiganbayan with a specific limited jurisdiction only over
graft and corruption committed by officers and employees of the government,
government instrumentalities and government-owned and -controlled corporations.
The Constitution does not authorize the lawmaker to limit the right of appeal of the
accused convicted by the Sandiganbayan to only the Supreme Court. The Bill of
Rights remains as restrictions on the lawmaker in creating the Sandiganbayan
pursuant to the constitutional directive.
It is also clear that paragraph 3, Section 7 of P.D. No. 1606 trenches upon the due
process clause of the Constitution, because the right to appeal to the Court of
Appeals and thereafter to the Supreme Court was already secured under Sections
17 and 29 of the Judiciary Act of 1948, otherwise known as R.A. No. 296, as
amended, and therefore also already part of procedural due process to which the
petitioner was entitled at the time of the alleged commission of the crime charged
against him. (Marcos vs. Cruz, 68 Phil. 96, 104 [1939]; People vs. Moreno, 77 Phil.
548, 555; People vs. Casiano, 1 SCRA 478 [1961]; People vs. Sierra, 46 SCRA 717;
discussion hereunder concerning the violation of the constitutional prohibition
against the passage of ex post facto laws.
2. Then again, paragraph 3 of Section 7 of P.D. No. 1606, by providing that the
decisions of the Sandiganbayan can only be reviewed by the Supreme Court
through certiorari, likewise limits the reviewing power of the Supreme Court only to
question of jurisdiction or grave abuse of discretion, and not questions of fact nor
findings or conclusions of the trial court. In other criminal cases involving offenses
not as serious as graft and corruption, all questions of fact and of law are reviewed,
first by the Court of Appeals, and then by the Supreme Court. To repeat, there is
greater guarantee of justice in criminal cases when the trial court's judgment is
subject to review by two appellate tribunals, which can appraise the evidence and
the law with greater objectivity, detachment and impartiality unaffected as they are
by views and prejudices that may be engendered during the trial.
3. Limiting the power of review by the Supreme Court of convictions by the
Sandiganbayan only to issues of jurisdiction or grave abuse of discretion, likewise
violates the constitutional presumption of innocence of the accused, which
presumption can only be overcome by proof beyond reasonable doubt (See. 19, Art.
IV, 1973 Constitution).
Even if in certiorari proceedings, the Supreme Court, to determine whether the trial
court gravely abused its discretion, can inquire into whether the judgment of the
Sandiganbayan is supported by the substantial evidence, the presumption of
innocence is still violated; because proof beyond reasonable doubt cannot be
equated with substantial evidence. Because the Supreme Court under P.D. No.
1606 is precluded from reviewing questions of fact and the evidence submitted
before the Sandiganbayan, the Supreme Court is thereby deprived of the
constitutional power to determine whether the guilt of the accused has been
established by proof beyond reasonable doubt - by proof generating moral certainty
as to his culpability -- and therefore subverts the constitutional presumption of
innocence in his favor which is enjoyed by all other defendants in other criminal
cases, including defendants accused of only light felonies, which are less serious
than graft and corruption.
4. Furthermore, the Sandiganbayan is composed of a presiding Justice and 8
associate Justices, sitting in three divisions of 3 Justices each (Sec. 3, P.D. No.
1606). Under Section 5 thereof, the unanimous vote of three Justices in a division
shall be necessary for the pronouncement of the judgment. In the event that the
three Justices do not reach a unanimous vote, the Presiding Justice shall designate
two other Justices from among the members of the Court to sit temporarily with
them, forming a division of five Justices, and the concurrence of the majority of such
division shall be necessary for rendering judgment.
At present, there are only 6 members of the Sandiganbayan or two divisions actually
operating. Consequently, when a member of the Division dissents, two other
members may be designated by the Presiding Justice to sit temporarily with the
Division to constitute a special division of five members. The fact that there are only
6 members now composing the Sandiganbayan limits the choice of the Presiding
Justice to only three, instead of 6 members from whom to select the two other
Justices to compose a special division of five in case a member of the division
dissents. This situation patently diminishes to an appreciable degree the chances of
an accused for an acquittal. Applied to the petitioner, Section 5 of P.D. No. 1606
denies him the equal protection of the law as against those who will be prosecuted
when three more members of the Sandiganbayan will be appointed to complete its
membership of nine.
P.D. No. 1606 therefore denies the accused advantages and privileges accorded to
other defendants indicted before other trial courts.
5. Section 1 of P.D. No. 1606 further displays such arbitrary classification; because it
places expressly the Sandiganbayan on "the same level as the Court of Appeals."
As heretofore stated, the Sandiganbayan is a collegiate trial court and not an
appellate court; its jurisdiction is purely limited to criminal and civil cases involving
graft and corruption as well as violation of the prohibited drug law committed by
public officers and employees of the government, its instrumentalities and
government-owned or -controlled corporations. The Court of Appeals is an appellate
tribunal exercising appellate jurisdiction over all cases - criminal cases, civil cases,
special civil actions, special proceedings, and administrative cases appealable from
the trial courts or quasi-judicial bodies. The disparity between the Court of Appeals
and the Sandiganbayan is too patent to require extended demonstration.
6. Even the Supreme Court is not spared from such odious discrimination as it is
being down-graded by Section 14 of P.D. No. 1606, which effectively makes the
Sandiganbayan superior to the Supreme Court; because said Section 14 expressly
provides that "the appropriation for the Sandiganbayan shall be automatically
released in accordance with the schedule submitted by the Sandiganbayan"
(emphasis supplied). There is no such provision in any law or in the. annual
appropriations act in favor of the Supreme Court. Under the 1982 Appropriations
Act, the funds for the Supreme Court and the entire Judiciary can only be released
by the Budget Ministry upon request therefor by the Supreme Court. Sometimes
compliance with such request is hampered by bureaucratic procedures. Such
discrimination against the Supreme Court - the highest tribunal of the land and the
only other Branch of our modified parliamentary-presidential government - the first
Branch being constituted by the merger or union of the Executive and the Batasang
Pambansa - emphasizes the peril to the independence of the Judiciary, whose
operations can be jeopardized and the administration of justice consequently
obstructed or impeded by the delay or refusal on the part of the Budget Ministry to
release the needed funds for the operation of the courts.
II
P.D. NO. 1606 VIOLATES THE GUARANTEE AGAINST EX POST FACTO LAWS -
1. WE ruled in Kay Villegas Kami (Oct. 22, 1970, 35 SCRA 429) that an ex post
facto law is one which alters the rules of evidence and authorizes conviction upon
less testimony than the law required at the time the crime was committed, or
deprives a person accused of a crime of some lawful protection to which he has
become entitled. The indictment against herein petitioner accused him of graft and
corruption committed "from July 20, 1977 up to and including January 12, 1978"
(Annex A, p. 24, rec.), long before the creation of the Sandiganbayan on December
10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486, the original
charter of the Sandiganbayan promulgated on June 11, 1978.
As heretofore stated, before the creation of the Sandiganbayan on December 10,
1978, all persons accused of malversation of public funds or graft and corruption
and estafa were entitled to a review of a trial court's judgment of conviction by the
Court of Appeals on all questions of fact and law, and thereafter by the Supreme
Court also on both questions of fact and law. This right to a review of the judgment
of conviction by two appellate tribunals on both factual and legal issues, was already
part of the constitutional right of due process enjoyed by the petitioner in 1977. This
vital right of the accused has been taken away on December 10, 1978 by P.D. No.
1606, thus placing herein petitioner under a great disadvantage for crimes he
allegedly committed prior to 1978.
2. As a necessary consequence, review by certiorari impairs the constitutional
presumption of innocence in favor of the accused, which requires proof beyond
reasonable doubt to rebut the presumption (Sec. 19, Art. IV, 1973 Constitution). P.D.
No. 1606 thus in effect reduces the quality and quantity of the evidence requisite for
a criminal conviction.
The conviction of petitioner is thus facilitated or made easier by P.D. No. 1606,
which was not so prior to its promulgation.
The Sandiganbayan could not be likened to the People's Court exclusively trying
cases against national security whose decisions were appealable directly only to the
Supreme Court (Sec. 13, CA 682); because at the time the People's Court Act or
C.A. No. 682 was enacted on September 25. 1945, the Court of Appeals was no
longer existing then as it was abolished on March 10, 1945 by Executive Order No.
37 issued by President Sergio Osmena soon after the Liberation. Consequently, the
People's Court Act could not provide for appeal to the Court of Appeals which was
revived only on October 4, 1946 by R.A. No. 52. But even under Section 13 of the
People's Court Act appeal to the Supreme Court is not limited to the review by
certiorari. The Supreme Court can review all judgments of the People's Court both
on questions of fact and of law.
III
SECTION 9 OF P.D. NO. 1606 CLASHES WITH THE CONSTITUTIONAL RULE-
MAKING AUTHORITY OF THE SUPREME COURT -
Section 9 of P.D. No. 1606 authorizing the Sandiganbayan to promulgate its own
rules of procedure without requiring the approval thereof by the Supreme Court,
collides with the constitutional rule-making authority of the Supreme Court. to pro-
promulgate rules of court for all courts of the land (par. 5, Sec. 5 of Art. X of the New
Constitution).
IV
P.D. NO. 1606 SUBVERTS THE CONSTITUTIONAL POWER OF SUPERVISION
OVER INFERIOR COURTS INCLUDING THE SANDIGANBAYAN -
Section 10 of P.D. No. 1606 authorizing the Sandiganbayan to "administer its own
internal affairs, to adopt such rules governing the constitution of its divisions, the
allocation of cases among them and other matters relating to its business," without
requiring the approval of the Supreme Court also contravenes the constitutional
power of supervision over the Sandiganbayan as an inferior trial court. It cannot be
disputed that the Sandiganbayan is an inferior court.
2. Likewise, Section 12 of P.D. No. 1606 vesting the Sandiganbayan with the power
to select and appoint its personnel including a clerk of court and three deputy clerks
of court and to remove them for cause without reserving to the Supreme Court the
authority to approve or disapprove such appointments and to review such removals,
aggravates the violation of the constitutional power of supervision of the Supreme
Court over inferior courts.
3. Section 13 of P.D. 1606 also contravenes the constitutional power of the Supreme
Court to supervise inferior courts; because said Section 13 requires the
Sandiganbayan to submit an annual report directly to the President without coursing
the same to the Supreme Court for review' and approval.
That the Sandiganbayan is a specially favored court is further shown by the General
Appropriations Act of 1982 which states that "all appropriations provided herein for
the Sandiganbayan shall be administered solely by the Presiding Justice, ..." (par. 1,
Sp. Provisions XXV on the Judiciary, p. 538, Gen. Appropriations Act of 1982). This
particular provision impairs likewise the constitutional power of administrative
supervision vested in the Supreme Court over all inferior courts (Sec. 6, Art. X, 1972
Constitution). It should be emphasized that the same General Appropriations Act of
1982 expressly provides that the disposition of all the appropriations for the Court of
Appeals, Court of Tax Appeals, Circuit Criminal Courts, and the Court of Agrarian
Relations is expressly subject to the approval of the Chief Justice of the Supreme Fernandez, J., concurs and dissent
Court (pp. 539-541, General Appropriations Act of 1982).
Footnotes
1 Article XIII, Section 5 of the Constitution.
The authority delegated expressly by the Constitution to the law-maker to create the 2 Presidential Decree No. 1486 as amended by Presidential Decree No. 1606, both issued in 1978,
Sandiganbayan does not include the authority to exempt the Sandiganbayan from 3 Republic Act No. 1379.
the constitutional supervision of the Supreme Court. 4 Republic Act No. 3019 (1960).
5 L-20387, January 31, 1968, 22 SCRA 424.
6 Ibid, 435.
All the challenged provisions of P.D. No. 1606, namely, Sections 7 (par. 3), 9, 10, 12 7 Petition, par. 2, enumerating such criminal cases as 027, 029, 054, 055, 059, 062, 067, 111,
119,120,124-126,130,131,139,141,142,145,153,154,157,160,161,163,
and 13 are separable from the rest of its provisions without affecting the 165,167,168,171,175,179 and 186. Cf. Section 4, Presidential Decree No. 1605.
completeness thereof, and can therefore be declared unconstitutional without 8 Ibid, par. 3.
9 Ibid, par. 4.
necessarily nullifying the entire P.D. No. 1606. The valid provisions amply determine 10 Ibid, par. 5.
what is to be done, who is to do it, and now to do it - the test for a complete and 11 Article IV, Section 1 of the Constitution provides: "No person shag be deprived of life, liberty, or
property without due process of law, nor shag any person be denied the equal protection of
intelligible law (Barrameda vs. Moir, 25 Phil. 44; Edu vs. Ericta, Oct. 20, 1970, 35
the laws. "
SCRA 481, 496-497). As a matter of fact, Section 15 acknowledges such 12 Ibid.
separability although under the jurisprudence it is merely a guide for and 13 Ibid, Sec. 12, Memorandum of Petitioner. 1.
15 Attorney Raymundo A. Armovit.
persuasive, but not necessarily binding on, the Supreme Court which can declare an 16 Solicitor General Estelito Mendoza was assisted by Assistant Solicitor General Reynato Puno and
entire law unconstitutional if the challenged portions are inseparable from the valid Trial Attorney Patria Manalastas.
17 1976 Amendments, par. 5.
portions. 18 L-40004, January 31, 1975, 62 SCRA 275.
19 Ibid, 298.
20 Ibid, 298-299.
Section- 1 of P.D. No. 1606 can be considered valid by just considering as not
21 L-21064, February 18, 1970, 31 SCRA 413.
written therein the phrase "of the same level as the Court of Appeals. 22 Ibid, 434-435.
23 Ibid, 435.
24 Ibid.
Section 5 of P.D. No. 1606 could likewise be validated by simply appointing three 25 Memorandum of Petitioner, 7-8.
more members of the Sandiganbayan to complete its membership. 26 65 Phil. 56 (1937).
27 Ibid, 126.
28 83 Phil. 242.
Paragraph 3 of Section 7 of P.D. No. 1606 can be declared unconstitutional without 29 Ibid, 251.
affecting the completeness and validity of the remaining provisions of P.D. No. 1606; 30 Memorandum of Petitioner, 7-9, 36.
31 In re: Kay Villegas Kami, Inc. L-32485, October 22,1970, 35 SCRA 429.
because in the absence of said Paragraph 3, Section 17 and 29 of the Judiciary Act 32 Ibid, 431.
of 1984, as amended,can apply. 33 82 Phil. 524. It is worthy of mention that the then Justice Paras was the sole member of the Court
relying on the 1908 decision, United States v. Gomez, 12 Phil. 279, cited by petitioner.
34 2 Phil. 74.
However, the challenged provisions, especially Sections 9, 10, 12 and 13 could 35 Ibid, 77-78.
36 Ibid, 78.
remain valid provided it is understood that the powers delegated thereunder to the 37 3 Dallas 386.
Sandiganbayan are deemed subject to the approval of the Supreme Court. 38 Ibid 390-391.
39 Ibid, 391.
40 170 US 343 (1898).
Teehankee and De Castro, JJ., concur. 41 Ibid, 352.
42 152 US 377.
43 Ibid, 382.
44 Section 5, Presidential Decree No. 1606.
45 According to Article IV, Section 19 insofar as pertinent: "In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is proved, * * *. "
46 L-21325, October 29, 1971, 42 SCRA 59.
47 Ibid, 64.
48 To speak of 1981 decisions alone, the judgment of acquittal was handed down in the following cases:
People v. Novales L-47400, Jan. 19, 1981, 102 SCRA 86: People v. Mendoza, L- 48275, Feb.
24, 1981, 103 SCRA 122: People v. Duero, L-52016, May 13, 1981, 104 SCRA 379; People v.
Tabayoyong, L-31084, May 29,1981, 104 SCRA 724; Perez v. People, L-43548, June 29,
1981: People v. Anggot, L-38l0l-02, June 29, 1981; People v. Utrela, L-38172, July 15, 1981;
People v. Francisco, L-43789, July 15, 1981; People v. Cuison, L-51363, July 25, 1981;
People v. Pisaivo, L-32886, Oct. 23, 1981; People v. Verges, L-36436, Oct. 23, 1981; People
EN BANC
[G.R. No. 108431. July 14, 2000]
OSCAR G. RARO, petitioner, vs. THE HONORABLE SANDIGANBAYAN, (Second Division), THE
HONORABLE OMBUDSMAN and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
YNARES-SANTIAGO, J.:
The issue in this special civil action of certiorari and prohibition is whether or not the Sandiganbayan
gravely abused its discretion in denying a motion to quash an information on the ground that
the preliminary investigation allegedly violated the right of the accused to due process of law.
Petitioner Oscar G. Raro, a lawyer, was the Corporate Secretary of the Philippine Charity Sweepstakes
Office (PCSO). As such, petitioner was the Acting Manager of the Special Projects
Department that was in charge of the experimental Small Town Lottery (STL), which under
PCSO Resolution No. 118, dated April 1987, was to be operated in certain areas of the
country. On July 30, 1987, the PCSO, through Atty. Reynaldo E. Ilagan of the Special
Projects Department, authorized Elmec Trading and Management Corporation (ELMEC) to
operate the STL in the province of Camarines Norte. ELMEC in turn employed Luis (Bing)
F. Abao, a resident of Daet, Camarines Norte, as Provincial Manager of the experimental
STL in said province.[1] Abao allegedly invested P100,000.00 in the STL operation in that
province.
In a complaint that he filed with the Tanodbayan in Manila on May 20, 1988, Abao alleged that
petitioner, in his capacity as PCSO Corporate Secretary, personally and directly intervened in
the operation of said lottery to his financial benefit and advantage by committing the
following acts:
(1) Causing the employment of members of his family in the experimental STL project that was
under his supervision, in violation of Section 3 (d) of the Anti-Graft Law;
(2) Deciding on the dismissal of certain lottery employees and in bad faith driving Abao to sever
from the management of lottery which at that time was grossing about P250,000.00 daily
under a profit-sharing agreement, thus causing Abao damage and injury in the amount of
P1,300,000.00, in violation of Section 3 (e) of the Anti-Graft Law; and
(3) Regularly demanding from Abao amounts totaling more than P100,000.00 as his share in the
experimental lottery, in violation of Section 3 (h) of the Anti-Graft Law.
Abao maintained further that petitioner got mad at him when he gave petitioner a check instead of
cash, which petitioner later used to accuse Abao of issuing a bouncing check
notwithstanding that the check was not encashed. Abao added that petitioner was not only
dishonest but displayed such dishonesty.[2] The complaint filed by Abaos counsel was
verified and subscribed before a notary public,[3] and docketed in the Office of the
Ombudsman as OSP-88-01263.
Overall Ombudsman Jose G. Colayco, on July 1, 1988, endorsed the complaint to the National Bureau
of Investigation (NBI).[4] On May 11, 1989, NBI-LED Officer-in-Charge Gerarda G. Galang
v. Tapao, L-41704, Oct. 23, 1981; People v. Delmendo, L-32146, Nov. 23, 1981; People v.
Orpilla, L-30621, Dec. 14, 1981; People v. Marquez, L-31403, Dec. 14, 1981; People v.
Rosales, L-31694, Dec. 14, 1981; People v. Felipe, L-54335, Dec. 14, 1981. In People v.
Corpus, L-36234, Feb. 10, 1981, 102 SCRA 674, of the 10 accused, three were acquitted.
49 291 US 97 (1934).
50 Ibid, 122.
51 87 Phil. 418 (1950).
52 Ibid, 422.
53 Cf. Vera v. People, L-31218, Feb. 18, 1970, 31 SCRA 711, 717.
54 218 US 272.
55 Ibid, 279-280.
submitted a report stating that the investigation conducted by NBI Senior Agent Salvador A.
Duka yielded the following findings:
(a) On the charge of employment of relatives, Abao charged that petitioner asked him to appoint
his (petitioners) brother as station manager of the lottery in Labo, Camarines Norte. Likewise
according to Abao, petitioner imposed on him the appointment of petitioners sister, Marissa
Raro- Remigio as the STL provincial cashier. Per the joint affidavit of Yoly Malubay, Ruben
Galeon, Rosalio Poblete and Francisco Villaluz, petitioners brother named Antonio, the
lottery station manager, signed payrolls, vouchers and other pertinent papers using the name
Joel Remigio, Marissas husband. In 1988, Antonio Raro was appointed Assistant Provincial
Operations Manager of the STL in Camarines Norte. On the other hand, Marissa Raro-
Remigio claimed that it was ELMEC that offered her the position of treasurer of the STL and
that on January 27, 1988, ELMEC terminated the employment of Abao and the employees
he had hired. However, the circumstances surrounding ELMECs employment of petitioners
brother and sister were not verified from the owners of ELMEC.
(b) With respect to the charge that petitioner demanded from Abao the total amount of
P100,000.00, no receipt was shown to prove petitioners having in fact received that sum
although Ruidera and Galeon, in their affidavits, confirmed that said amount was given to
petitioner and to Atty. Ilagan. Since the sworn statements of Ilagan and Cordez and those of
Fernando Carrascoso and Rustico Manalo, who allegedly received 25% of the proceeds of
the STL, had not yet been taken, there were certain aspects of the charge that should be
considered. Hence, no definite conclusion could be made thereon.
(c) The subject of dismissal of employees was not yet covered by the investigation.
With these findings, Galang recommended that further investigation be conducted and that a copy of the
evaluation comment be furnished the Ombudsman with the information that further
investigation (was) still being conducted on some aspects of the case.[5] Accordingly, NBI
Director J. Antonio M. Carpio endorsed on May 11, 1989 the evaluation comment and the
NBI agents report to the Ombudsman.[6]
On July 12, 1989, NBI Agent Duka submitted a Disposition Form stating that per the joint affidavit of Yolly
Manubay, Ruben Galeon, Rosario Poblete and Francisco Villaluz, petitioners brother, Antonio
Raro signed numerous vouchers, payrolls and other papers in the name of Joel Remigio.
The sworn statement of Teddy Aguirre and xerox copies of vouchers supported this. However,
the original copies of the vouchers could not be secured on account of the cessation of
operation of the STL in Camarines Norte since July 1988. Neither could the sworn statement
of Antonio Raro be secured. Thus, NBI Agent Duka recommended that further investigation
be conducted in coordination with LUCSO in Lucena City.[7]
Ombudsman Graft Investigation Officer II (GIO II) Theresa Medialdea-Caraos submitted to Ombudsman
Conrado Vasquez a Memorandum dated March 15, 1990, with the following recommendation:
RECOMMENDED ACTION: The initial report of the NBI points only to the anomalies allegedly
committed by the respondents brother, Antonio. The appointment of his sister which was
 supposedly imposed on the complainant is not supported by evidence other than the mere
allegation of the latter.
The misdeeds committed by respondent were not based on facts as presented by NBI.
It is therefore recommended that further investigation by NBI be conducted in order to determine the
veracity of the charges.
The Memorandum was recommended for approval by Acting Director Gualberto J. de la Llana and
approved on March 22, 1990 by Ombudsman Vasquez.[8]
On September 19, 1990, the NBI recommended the prosecution of petitioner based on Abaos
complaint.[9] Thus, on May 14, 1991, GIO II Caraos formally directed petitioner to file his
counter-affidavit and controverting evidence to the complaint of May 6, 1988, with a warning
that his failure to do so shall be construed as a waiver of his right to be heard and the
preliminary investigation shall proceed accordingly.[10] On petitioners motion, the
Ombudsman granted him until September 7, 1991 within which to file his counter-
affidavit. On September 7, 1991, petitioner sought another extension within which to file his
counter-affidavit.[11]
Petitioner filed his counter-affidavit on October 25, 1991.[12] He asserted that he removed some
employees from the lottery to avoid undue injury to the government. He denied that he hired
or caused to be hired his brother and sister in the experimental lottery research as they
maintained their affairs without his interference. He also denied demanding or receiving any
amount from Abao or from the lottery operator as it was impossible for him to demand bribe
money in the form of a check. He claimed that Abaos complaint was a desperate effort to
malign him.[13]
On November 29, 1991, GIO II Caraos issued a Resolution stating that:
Evaluating the complaint, as well as the controverting evidence presented by the respondent, we find
prima facie case against herein respondent for Violation of R.A. 3019.
At the outset, it must be stressed that in a preliminary investigation, it is not required that all reasonable
doubts on the accuseds guilt must be removed; what is required only is that evidence be
sufficient to establish probable cause that the accused committed the offense charged.
Moreover, as between the positive assertions of complainant Abano and the mere denials of
the respondent, the former deserves more credence as it is acknowledged that the same has
greater evidentiary value than the latter. Probable cause has been established by the clear
and positive testimonies of the complainant and his witnesses pointing to the herein
respondent as responsible for various acts relative to the operation of the lottery in Violation
of the Anti-Graft law specifically Sec. 3 (a), (b), (c), (h) and (k). Such finding is duly supported
by the recommendation of the NBI report which also recommended the filing of proper
criminal charge against the respondent.
Furthermore, most of the allegations of the respondents as contained in his counter-affidavit are
matters of defense which can be best ventilated in court during trial. In fact, the other
allegations of respondents which are mere insinuations as to the motive of the complainant in
filing the case, only deserve scant consideration.
Wherefore, all legal premises considered, let an information be filed before the proper court against
respondent Raro.
SO RESOLVED.[14]
Director Cesar T. Palana recommended approval of the above Resolution on December 5, 1991.
[15]
However, on January 27, 1992, Assistant Ombudsman Abelardo L. Aportadera, Jr., who
reviewed the Resolution, recommended its disapproval and the dismissal of the complaint, on
the ground that the NBI report was based merely on testimonial evidence that would not
suffice to establish a prima facie case against herein petitioner. He averred that more than
oral evidence should support the charge of extortion and that petitioners witnesses had
amply clarified the charge of nepotism.[16]
On June 11, 1992, Special Prosecution Officer I (SPO I) Wendell E. Barreras-Sulit, after reviewing the
Resolution of GIO II Caraos, issued a Memorandum finding that said Resolution did not fully
discuss the evidence that would support the particular charges recommended to be filed
against petitioner. After analyzing each of the charges, SPO I Barreras-Sulit concluded that
petitioner should only be charged with violation of Section 3 (b) of R.A. 3019 as there was
prima facie case that petitioner received the total amount of P116,000.00 on four different
occasions. Attached to the Memorandum was the information charging petitioner with
violation of Section 3 (b) of Republic Act No. 3019.[17]
SPO I Barreras-Sulits Memorandum was approved by Deputy Special Prosecutor Jose De G. Ferrer,
Special Prosecutor Aniano A. Desierto and Ombudsman Vasquez.[18] Hence, on July 2, 1992,
an information dated May 19, 1992 prepared by SPO I Barreras-Sulit was filed with the
Sandiganbayan,[19] accusing petitioner with violation of Section 3 (b) of Republic Act No. 3019
committed as follows:
That on or about the period from October, 1987 to January 1988, in Daet, Camarines Norte, Manila and
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above named
accused, a public officer being then the Corporate Secretary and Acting Department Manager
of the Special Projects Department of the Philippine Charity Sweepstakes Office (PCSO),
San Marcelino, Malate, Metro Manila, tasked to monitor and oversee the Small Town Lottery
Experimental Project of the PCSO in certain areas including Camarines Norte, taking
advantage of his said public position and while in the performance of his official duties as
such, did then and there, wilfully, unlawfully and criminally demand and receive on four
different occasions the amount totalling to ONE HUNDRED SIXTEEN THOUSAND SEVEN
HUNDRED NINETY NINE PESOS and NINETY NINE CENTAVOS (P116,799.99), Philippine
Currency, from Mr. Luis Bing F. Abao, Provincial Manager of the STL operations in
Camarines Norte, as his share in the net proceeds of the said STL which was not authorized
under the law but which amount was given to and received by him in his capacity as overseer
and monitoring arm of the PCSO in the Small Town Lottery operation in Camarines Norte.
CONTRARY TO LAW.
On July 6, 1992, the Sandiganbayan issued an order for petitioners arrest and fixed bail in the amount
of P12,000.00.[20] On the same day, petitioner applied for bail before the Regional Trial Court
of Cabanatuan City, Branch 26,[21] which forthwith approved the application.[22] On July 8,
1992, petitioner filed with the Sandiganbayan a manifestation and motion for the lifting of the
order of arrest.[23] Accordingly, the Sandiganbayan recalled its order of arrest the following
day.[24]
Petitioner subsequently filed with the Sandiganbayan a motion for the reinvestigation of the Resolution of
the Ombudsman dated 11 June 1992,[25] alleging that:
1. The prejudicial and indecent delay in the preliminary investigation violated his rights to due process
of law and to speedy disposition of the case because while the complaint was filed on May
20, 1988, the information against him was filed more than four (4) years later.
2. Despite the delay in filing the information, hastiness attended the proceedings in that he was not
furnished a copy of the resolution on which the information was based. Moreover, the
information was dated May 19, 1992 or even before the resolution that gave rise to it was
finished on June 11, 1992. There was a need for a reinvestigation to protect him from hasty,
malicious and oppressive prosecution.
3. The resolution of June 11, 1992 was a picture of legal and factual infirmities. While no evidence
supported the complaint other than the reports of NBI Agents Duka and Lasala and the
affidavits dated June 30, 1988 of Rene Ruidera and Ben Galeon, these bases for the
information were worthless pieces of documents. Moreover, he was not furnished a copy of
the NBI report showing that he received P116,000.00 from the proceeds of the STL operation,
and the NBI never conducted a reinvestigation as required by NBI Director Carpio.
4. The complaint was based solely on the affidavit of Abao and those of Ruidera and Galeon who were
mere hearsay witnesses. The allegations in the complaint were facts to be established
(factum probandum) requiring further evidentiary facts (factum probans). The only source of
the charges, therefore, were the bare assertions of Abao who was not a credible witness. He
 was consumed by vengeance, because petitioner had him audited for unexplained
disposition of STL funds during Abaos campaign for mayor of Daet. Hence, to get back at
petitioner, Abao circulated fabrications and fairy tale against him even before the
Sandiganbayan.
After hearing, the Sandiganbayan granted the petitioners motion for reinvestigation in a Resolution
dated July 28, 1992, and ordered the defense to file a motion for reconsideration and/or
reinvestigation with the Office of the Ombudsman within ten (10) days from July 29, 1992,
and the prosecution to conduct such reinvestigation and to terminate it on or before August
31, 1992. Likewise, the Sandiganbayan required the prosecution to furnish petitioner a copy
of the NBI Report of September 18, 1990, and reset the arraignment to September 8, 1992 at
8:30 a.m. The Sandiganbayans directives were based on the following findings:
We have gone over the grounds and arguments alleged in accuseds aforesaid motion and We do not
subscribe to the claim that there was prejudicial and indecent delay in the preliminary
investigation, considering that the initial complaint filed by complainant Luis F. Abalo (sic) on
May 20, 1988 had been referred to the National Bureau of Investigation on July 1, 1988 and
the report of the latter agency was only submitted on September 18, 1990. Thereafter, Graft
Investigator II Theresa M. Caraos conducted a preliminary investigation, wherein accused
submitted his counter-affidavit denying the charges levelled against him, culminating in the
issuance of a resolution dated November 29, 1991, recommending the filing of the proper
information with this Court.
The Caraos (sic) resolution was reviewed by proper officials in the Office of the Ombudsman, the latest
of which was made by Special Prosecution Officer I Wendell E. Barreras-Sulit, who adopted
the recommendation for the filing only of a charge under Section 3(b) of R.A. 3019 in her
resolution of June 11, 1992. However, the information, as prepared by Atty. Barreras-Sulit, is
dated May 19, 1992 and approved by Ombudsman Conrado M. Vasquez on June 25, 1992
and filed with this Court on July 2, 1992. On this score, We find nothing irregular with respect
to the afore-cited dates, despite the contention of the accused that there was hastiness
despite delay. Moreover, the doctrines enunciated in Tatad (159 SCRA 70) are not entirely on
all fours with the situation depicted in the case at bar, having been modified in Lecaroz (G.R.
Nos. 918223-35, promulgated June 7, 1990) and Gonzales (199 SCRA 298).
On the other hand, there appears to be some semblance of validity to accuseds other grounds, to wit,
that he was not furnished a copy of the NBI report during the preliminary investigation, hence,
he was not able to refute the allegations contained therein and (2) (sic) that he was not
furnished a copy of the resolution upon which the information was based before the filing
thereof, thus, he was deprived of his right to file a motion for reconsideration. Under
Administrative Order No. 09, issued by the Ombudsman on October 15, 1991, which
amended Rule II, Section 7 of Rep. Act No. 6770 (sic), a respondent has five (5) days from
receipt of the resolution finding a prima facie case against him within which to file a motion for
reconsideration. Likewise, under Section 7 of Rule II, supra, he may move for a
reinvestigation based on errors or irregularities during the preliminary investigation or on
newly-discovered evidence.[26]
Petitioner filed with the Sandiganbayan a motion for extension of time to file his motion for
reinvestigation,[27] which was granted on August 13, 1992.[28]
On August 12, 1992, complainant Abao wrote a letter addressed to Special Prosecution Officer III (SPO
III) Roger Berbano, Sr. of the Sandiganbayan, alleging that:
(1) Petitioner was not able to refute the charges against him of violation of Section 3 (a), (b), (c),
(h) and (k) of Republic Act No. 3019 except to discredit the truth about the P116,000.00 he
demanded and got from me;
(2) Petitioner admitted in a press conference the existence of a check in the amount of
P51,799.00 but his claim that it bounced was not true because the check with Atty. Reynaldo
Ilagan as payee was in his (Abaos) possession;
(3) The bribe money was good to the exact centavo because it was 25% of the daily gross
earnings of the lottery;
(4) He was not a dismissed employee of ELMEC because he financed and managed the STL
operation upon the prodding of PCSO through Atty. Raro and he received commissions and
percentages as late as March 1988 as shown by vouchers signed by Marissa Raro-Remigio;
(5) His candidacy for mayor in the January 18, 1988 elections was never affected by allegations
of mismanagement; he stayed as the general manager of ELMEC until March 1988; and
(6) The findings of Senator Maceda of the Senate Committee on Games and Amusement that the
operation of the STL was the source of corruption and milking cow of corrupt PCSO officials
and hence, its discontinuance upon the order of the President, was the best evidence of
corruption perpetrated by petitioner.
On August 14, 1992, SPO III Berbano issued an Order stating that the grounds and issues raised in
petitioners motion for reinvestigation were clearly matters of defense to be ventilated during
the trial of the case on the merits. Hence, he recommended the denial of the motion for
reinvestigation, which recommendation was approved by the Ombudsman, Conrado M.
Vasquez, on August 26, 1992.[29]
In the meantime, on August 18, 1992, petitioner filed with the Office of the Ombudsman a motion for the
reconsideration of the Ombudsmans Resolution of June 11, 1992. He asserted that SPO I
Barreras-Sulit based her Resolution on the NBI Report of September 18, 1990 and the
affidavits dated June 30, 1988 of Rene Ruidera and Ben Galeon, all of which had no
evidentiary value because they are hearsay and basically based on information furnished
them by Abao. According to petitioner, the said Report was incomplete and inconclusive
because the findings therein needed further investigation. Reiterating his arguments
that factum probans is required during a preliminary investigation and that Abao is not a
credible witness, petitioner contended that he should be spared from the trouble, expense
and anxiety as well as the stigma resulting from an open and public accusation of a crime.[30]
Subsequently, petitioner also filed with the Tanodbayan a Motion for a Last Review of the Special
Prosecutors Order of August 14, 1992. He alleged that the Office of the Special Prosecutor
(OSP) failed to take into consideration the very motion for reconsideration that should have
been the subject of that Order. He contended that the OSP might not have been aware of
the motions he filed for extension of time within which to file the motion for reconsideration,
and the OSPs preparation of the Order of August 14, 1992 before it received the motion for
reconsideration constituted a gross procedural defect. Petitioner further asserted that the
minimum requirement for a meaningful determination of probable cause should take into
consideration the strength of the evidence of the accused and the inherent baselessness of
the complainants. He thus prayed that the Resolution of June 11, 1992 recommending the
filing of an information against him be reversed, the complaint dismissed, and the information
filed with the Sandiganbayan withdrawn.[31]
The scheduled arraignment of petitioner on September 8, 1992 was cancelled considering that the
reinvestigation ordered by the Sandiganbayan had not yet been terminated. The
Sandiganbayan granted SPO III Berbano a twenty-day extension within which to resolve the
motion for reconsideration, and reset the arraignment for October 2, 1992.[32]
On September 24, 1992, SPO III Berbano denied petitioners motion for reconsideration and the motion
for a last review, upon a finding that the November 21, 1991 Resolution of GIO II Caraos and
the Memorandum of SPO I Barreras-Sulit, both of which bore the imprimatur of the
Ombudsman, simply signify that there exists a prima facie case or probable cause against
petitioner. Hence, he reiterated that the issues raised were evidentiary in nature and should
be resolved by the Sandiganbayan.[33]
Petitioner did not appear at his arraignment on October 2, 1992. Hence, upon motion of the prosecution,
a warrant for his arrest was issued. However, petitioners counsel arrived late and undertook
to bring the proper medical certificate showing that petitioner was ill. The Sandiganbayan
reset the arraignment for October 12, 1992.[34] Later, petitioner sought the reconsideration of
 the Order for his arrest on the ground that he was then suffering from viral influenza and
submitted a medical certificate to that effect.[35] The Sandiganbayan considered that incident
closed and terminated, and directed that the arraignment should proceed on October 12,
1992.[36]
On that date, petitioner filed with the Sandiganbayan a motion to quash the information,[37] on the ground
that the court did not acquire jurisdiction in view of violations of accuseds constitutional rights
during the preliminary investigation. He argued that the determination of probable cause by
the prosecuting officer does not preclude the courts from demanding further proof
thereon. Citing Brocka v. Enrile[38] where this Court held that a sham and hastily conducted
preliminary investigation may be lawfully enjoined, petitioner pointed out the following as
indicia of the falsity and hastiness of the proceedings before the Ombudsman:
1. While the Resolution recommending the filing of an information was issued on June 11, 1992, the
information was already prepared on May 19, 1992 thereby showing that said Resolution was
no more than a formality. For petitioner, the situation was akin to birth preced(ing)
pregnancy.
2. SPO III Berbano denied the motion for reconsideration in his Order of August 14, 1992 or four (4)
days before he filed the motion for reconsideration on August 18, 1992 thereby showing that
the prosecutors were hell-bent and determined, come high or low waters, reason or no
reason, to proceed with their determination to prosecute him. That procedure also made a
mockery of the Sandiganbayans Resolution of July 28, 1992 directing the Ombudsman to
conduct a reinvestigation of the case.
3. At the hearing on September 8, 1992, SPO III Berbano confided to his counsel, Atty. Tomas Z. Roxas,
Jr., that on August 14, 1992, Abao had sent him a letter with the admonition that Berbano
should not be like petitioners U.P. fraternity brothers who would cover up petitioners corrupt
and foul deeds. Berbano was pressured by said letter as indicated by his denial on August
14, 1992 of the motion for reconsideration yet to be filed on 18 August 1992. After all,
Berbano was aspiring for the Bench and it was not a far-flung conclusion that a favorable
consideration of said motion for reconsideration may prompt Abao to accuse him of
partiality, Berbano being the UP fraternity brother of the accused. Berbano in fact admitted to
Roxas that he was being pressured to deny petitioners motion for reconsideration.
4. Because the crime charged was for violation of Section 3 (b) of Republic Act No. 3019, Abao should
be charged as the briber. Abao never applied for immunity from prosecution because his
testimony was uncorroborated on material points. Moreover, while petitioner was deprived
information on what was happening with the case, Abao was regularly furnished with
progress reports thereon. Abao publicized such reports in Camarines Norte in clear violation
of P.D. No. 749 mandating that proceedings in preliminary investigations shall be strictly
confidential to protect the reputation of the official involved.
Petitioner alleged further that there was a jurally and constitutionally defective determination of probable
cause as the complainant and his witnesses were never personally examined by any of the
officers at the Offices of the Ombudsman and the Special Prosecutor. Neither was the
complaint ever sworn to before them. He argued once again on the failure of the NBI to
conduct a reinvestigation of the case and the hearsay nature of the affidavits of Ruidera and
Galeon.
On November 19, 1992, SPO III Berbano filed an opposition to the motion to quash, arguing that all the
pleadings filed by petitioner were duly considered, as shown by the Orders of August 14,
1992 and September 24, 1992, both of which were approved by his superiors, including the
Ombudsman. While Atty. Roxas is himself a Fraternity Brod of the Alpha Phi Beta Fraternity
of UP, Berbano denied that he was ever pressured into denying petitioners motion for
reconsideration. Furthermore, Berbano averred that petitioners ground for the motion to
quash, i.e., that the Sandiganbayan never acquired jurisdiction over an information that was
the result of a highly anomalous preliminary investigation, may only be inferred from Section
3 (b) of Rule 117 of the 1985 Rules on Criminal Procedure requiring the court to have
jurisdiction over the offense charged or over the person of the accused. By filing a motion to
quash, petitioner was deemed to have admitted the allegations in the information and hence,
there was only one way clear under the circumstances, and that was to proceed with the
trial of the case.[39]
The Sandiganbayan[40] denied the motion to quash for lack of merit. It found no persuasive reason to
depart from its earlier holding in the Resolution of July 28, 1992 that there was no indecent
delay in the manner by which the preliminary investigation was held. It ruled that the long
period of time that the preliminary investigation took was not meant to persecute petitioner.
Neither was there clear and convincing proof that SPO III Berbano succumbed to pressure
and considered petitioners pleadings with partiality. The Sandiganbayan stressed that its
authority to determine probable cause is limited only for the purpose of issuing a warrant of
arrest, and not for the purpose of justifying the filing or non-filing of the Information. It found
no compelling justification to disturb the findings made by the prosecution of the existence of
probable cause that caused it to file the information, and that the objections raised by
accused-movant on this point involve matters which could be best passed upon by this Court
during trial on the merits. Thus, the Sandiganbayan set petitioners arraignment on
November 23, 1992.[41]
Petitioners counsel once again moved for the resetting of the scheduled arraignment on the ground that
he was filing a motion for the reconsideration of the Resolution denying his motion to
quash. The Sandiganbayan gave him fifteen (15) days within which to file the motion for
reconsideration and the prosecution ten (10) days from receipt of said motion within which to
comment. Meanwhile, the arraignment was reset to January 11, 1993.[42]
Petitioners motion for reconsideration was filed on December 8, 1992. He reiterated therein that the
preliminary investigation conducted was sham and attended by irregularities amounting to
violation of the very purpose for which preliminary investigation was instituted in our statute
books. He emphasized that SPO III Berbano was indeed pressured into denying his motions
because of his application for judgeship. He claimed that the Sandiganbayan erred when it
ruled that the courts power to examine the conclusions drawn by the prosecutor after the
preliminary investigation is only for the purpose of determining the existence of just and
proper cause to issue a warrant of arrest. Relying on the ruling in Salonga v. Cruz
Pao[43] wherein this Court reviewed the prosecutions findings of a prima facie case against
Salonga, petitioner averred that it is infinitely more important than conventional adherence to
general rules of criminal procedure to respect the citizens right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious prosecution.
The prosecution did not file a comment or opposition to the motion for reconsideration. On January 5,
1993, the Sandiganbayan issued a Resolution denying said motion for lack of merit and
setting petitioners arraignment on January 11, 1993. The Sandiganbayan held that
petitioners allegations that the preliminary investigation was sham and that SPO III Berbano
was partial are not supported by competent proof. Brushing aside said allegations as mere
speculations, the Sandiganbayan found no reason to depart from its earlier conclusion that
there was no compelling justification to disturb the prosecutions finding of a probable cause.
[44]
Hence, the instant petition for certiorari and prohibition with application for the issuance of a temporary
restraining order to enjoin respondents Sandiganbayan, the Ombudsman and the People of
the Philippines from proceeding with Criminal Case No. 17800. On February 4, 1993, this
Court denied the prayer for temporary restraining order and required respondents to
comment on the petition.[45] Petitioners arraignment proceeded on February 19, 1993, where
he entered a plea of not guilty to the crime charged.[46] On September 21, 1993, after
respondents filed their comment and petitioner his reply thereto, this Court gave due course
to the instant petition and required the parties to file their respective memoranda.
[47]
Meanwhile, the Sandiganbayan suspended proceedings in Criminal Case No. 17800 on
account of the pendency of the instant petition.[48]
Petitioner alleges in this petition for certiorari and prohibition that: (a) the determination of probable
cause in Criminal Case No. 17800 was constitutionally defective because the Ombudsman,
before filing the information, and the Sandiganbayan, before issuing the warrant of arrest,
failed to examine the complainant under oath; (b) the preliminary investigation was hasty,
malicious, persecutory and based on inadmissible evidence thereby violating his right to due
process of law, and (c) the unexplained 4-year delay in resolving the preliminary investigation,
coupled with the favorable consideration of the complaint albeit manifestly false and politically
motivated, violated his constitutional rights to speedy trial and to due process of law. [49]
At the outset, it is settled that a special civil action for certiorari and prohibition is not the proper remedy
to assail the denial of a motion to quash an information. This is succinctly underscored
in Quion v. Sandiganbayan as follows:
The special civil action of certiorari or prohibition is not the proper remedy against interlocutory orders
such as those assailed in these proceedings; i.e., an order denying a motion to quash the
information, and one declaring the accused to have waived his right to present evidence and
considering the case submitted for decision. As pointed out by the Office of the Solicitor
General (citing Nierras v. Dacuycuy, 181 SCRA 1 [1990]), and Acharon v. Purisima, et al., 13
SCRA 309; People v. Madaluyo, 1 SCRA 990), the established rule is that when such an
adverse interlocutory order is rendered, the remedy is not to resort forthwith to certiorari or
prohibition, but to continue with the case in due course and, when an unfavorable verdict is
handed down to take an appeal in the manner authorized by law. It is only where there are
special circumstances clearly demonstrating the inadequacy of an appeal that the special civil
action of certiorari or prohibition may exceptionally be allowed. The Court has been cited to
no such special circumstances in the cases at bar.[50]
In the case at bar, there is no showing of such special circumstances. The jurisdiction of the
Ombudsman over the complaint is not even questioned by petitioner[51] as his motion to quash
the information is based on the allegedly highly anomalous preliminary investigation that
amounted to a denial of his rights to due process and to speedy disposition of the charge
against him. However, an incomplete preliminary investigation[52]or the absence
thereof[53] may not warrant the quashal of an information. In such cases, the proper procedure
is for the Sandiganbayan to hold in abeyance any further proceedings conducted and to
remand the case to the Ombudsman for preliminary investigation or completion
thereof. However, granting arguendo that the preliminary investigation was sham and highly
anomalous in this case, that defect was cured when the above procedure was in fact
observed by the Sandiganbayan. Hence, on the issue alone of the propriety of the remedy
sought by petitioner, the instant petition for certiorari and prohibition must fail. However, in
the interest of justice, we shall resolve the issue of whether or not the Ombudsman
conducted the preliminary investigation erroneously and irregularly.
Petitioner contends that both the Ombudsman and the Sandiganbayan failed to examine the
complainant personally to determine the existence of probable cause that would warrant the
filing of an information against him and, consequently, the issuance of a warrant of arrest. He
rues the fact that the complaint filed by Abao against him was subscribed to before an
ordinary notary public and that the sworn statements of witnesses against him were sworn to
before a provincial fiscal, not deputized by the Ombudsman, but acting merely as an officer
authorized to administer oaths.[54]
Article XI, Section 12 of the 1987 Constitution, which was in force and effect when Abao filed the
complaint against petitioner, provides:
Sec. 12. 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 cases, notify the complainants of
the action taken and the result thereof. (Underscoring supplied.)
The mandate to act promptly on complaints filed in any form or manner against officers or employees of
the Government is restated in Section 13 of Republic Act No. 6770 (The Ombudsman Act of
1989), approved into law on November 17, 1989. The same authority to act on complaints in
any form, either verbal or in writing, is also reiterated in Rule 1, Section 3 of the Rules of
Procedure of the Office of the Ombudsman, which is embodied in Administrative Order No.
07 dated April 10, 1990, issued pursuant to the rule-making power of the Ombudsman under
Section 13 (8) of the 1987 Constitution and Sections 18, 23 and 27 of The Ombudsman Act
of 1989.
In accordance with the foregoing constitutional and statutory provisions, this Court, in Diaz v.
Sandiganbayan,[55] held valid charges that were not made in writing or under oath. This Court
found as sufficient basis the Solicitor Generals sworn testimony at the joint fact-finding
investigation conducted by the Senate Blue Ribbon Committee and the Ombudsman for the
latter to conduct an investigation. On the other hand, in Olivas v. Office of the Ombudsman,
[56]
where the complaint against petitioner was initiated by anonymous letters, this Court held
that the PCGG, to whom the letters were addressed and who became the complainant in the
proceedings, should have reduced the evidence it had gathered into affidavits. The
submission of affidavits, provided for in Rule II, Section 4 (a) of Administrative Order No. 07,
is also required by due process in adversary proceedings.[57] However, the submission of
affidavits is not mandatory and jurisdictional. Rule 1, Section 3 of the same administrative
order merely states that it is preferable that the complaint be in writing and under oath for
its speedier disposition. Clearly in consonance with the provision that the complaint may be
in any form, the Ombudsman Rules of Procedure does not require that the complaint be
subscribed only before the Ombudsman or his duly authorized representative. In any event,
the issue of the sufficiency in form of the complaint was rendered moot and academic by
petitioners filing of a counter-affidavit wherein he controverted the allegations in the
complaint.[58]
The referral of the complaint to the NBI does not mean that the Ombudsman abdicated its constitutional
and statutory duty to conduct preliminary investigations. Article XI, Section 13 of the 1987
Constitution vests in the Ombudsman the powers, functions and duties to:
(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. (Underscoring supplied.)
Thus, by referring Abanos complaint to the NBI, the Ombudsman did not thereby delegate the conduct
of the preliminary investigation of the case to that investigative bureau. What was delegated
was only the fact-finding function, preparatory to the preliminary investigation still to be
conducted by the Ombudsman.[59] Notably, under Rule II, Section 2 (d) of Administrative Order
No. 07, the investigating officer has the option to forward the complaint to the appropriate
office or official for fact-finding investigation. While Administrative Order No. 07 took effect in
mid-1990[60] or after the complaint in this case was referred to the NBI, the inclusion of that
constitutionally sanctioned practice in the Ombudsman Rules of Procedure lends validity to
the Ombudsmans action in this case.
Under the circumstances of this case, the Ombudsmans failure to personally administer oath to the
complainant does not mean that the Ombudsman did not personally determine the existence
of probable cause to warrant the filing of an information.
Neither did the Sandiganbayan violate petitioners right to due process of law by its failure to personally
examine the complainant before it issued the warrant of arrest. In a preliminary
examination for the issuance of a warrant of arrest, a court is not required to review in detail
 the evidence submitted during the preliminary investigation. What is required is that the judge
personally evaluates the report and supporting documents submitted by the prosecution in
determining probable cause.[61] In the absence of evidence that the Sandiganbayan did
not personally evaluate the necessary records of the case, the presumption of regularity in
the conduct of its official business shall stand.
At this juncture, it is apropos to state once again the nature of a preliminary investigation. In Cruz, Jr. v.
People, the Court said:
It must be stressed that a preliminary investigation is merely inquisitorial, and it is often the only means
of discovering the persons who may be reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information. It is not a trial of the case on the merits
and has no purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof, and it does not
place the persons against whom it is taken in jeopardy.
The established rule is that a preliminary investigation is not the occasion for the full and exhaustive
display of the parties evidence; it is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof.
xxx xxx x x x.
The main function of the government prosecutor during the preliminary investigation is merely to
determine the existence of probable cause, and to file the corresponding information if he
finds it to be so. And, probable cause has been defined as the existence of such facts and
circumstances as would excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for which he
was prosecuted.[62]
In determining probable cause, an inquiry into the sufficiency of evidence to warrant conviction is not
required. It is enough that it is believed that the act or omission complained of constitutes the
offense charged. The trial of a case is conducted precisely for the reception of evidence of the
prosecution in support of the charge.[63] In the performance of his task to determine probable
cause, the Ombudsmans discretion is paramount. Thus, in Camanag v. Guerrero, this Court
said:
x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of
preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of
discretion in the exercise of determination of what constitutes sufficient evidence as will
establish probable cause for filing of information against the supposed offender.[64]
Neither is there merit in petitioners contention that the preliminary investigation conducted by the
Ombudsman was hasty, malicious and persecutory and that it was based on inadmissible
evidence.
Petitioner emphasizes the fact that while the Resolution recommending the filing of the information was
issued on June 11, 1992, the information was already prepared almost a month earlier on
May 19, 1992.[65] This may show oversight in the handling of the documents pertinent to this
case considering that the date of the information should have been corrected to conform to
the date of the resolution where its filing was approved by the prosecutors
superiors. However, such faux pas did not violate petitioners substantive rights. The error in
the date of the information did not affect its validity, especially since the recommendation to
file it was with the imprimatur of the Ombudsman himself.
With respect to the denial by SPO III Berbano of the motion for reinvestigation on August 14, 1992 or
prior to petitioners filing of his motion for reconsideration on August 18, 1992, the record
shows that petitioner filed two motions for extension of time to file the motion for
reinvestigation without the knowledge of SPO III Berbano. What the latter resolved on August
14, 1992 was petitioners motion for reinvestigation before the Sandiganbayan. Likewise,
petitioners allegation that SPO III Berbano was not an impartial prosecutor cannot be given
credence for lack of sufficient proof thereon. SPO III Berbano is presumed to have issued the
Resolution denying the motion for reinvestigation in the regular performance of his duties.
Neither is there factual support to petitioners claim that the 4-year delay in the completion of the
preliminary investigation is unexplained. The record clearly shows that the Ombudsman
exerted utmost effort to determine the veracity of Abaos allegations against petitioner. That
it took the NBI almost two years to complete its report on the matter does not mean that
petitioners right to speedy disposition of the charge was brushed aside. If delay may be
imputed in the proceedings, the same should be reckoned only from October 25, 1991 when
petitioner filed his counter-affidavit.[66] Thirty-six (36) days thereafter or on November 29,
1991, GIO II Caraos issued the Resolution recommending the filing of the information.
Further delay, if indeed it could be called one, was caused by the review of GIO II Caraos
recommendation by her superiors. Some seven and a half months later, or on June 11, 1992,
the information was filed with the Sandiganbayan. There is thus no reason to conclude that
the Ombudsman ran roughshod over the petitioners right to a speedy preliminary
investigation. In the determination of whether or not that right has been violated, the factors
that may be considered and weighed are the length of delay, the reasons for such delay, the
assertion or failure to assert such right by the accused, and the prejudice caused by the
delay.[67]
The length of time it took before the conclusion of the preliminary investigation may only be attributed to
the adherence of the Ombudsman and the NBI to the rules of procedure and the rudiments of
fair play. The allegations of Abaos complaint had to be verified; the Ombudsman did not
believe the same hook, line and sinker. Recently, the Court held that while the Rules of Court
provides a ten-day period from submission of the case within which an investigating officer
must come out with a resolution, that period of time is merely directory. Thus:
The Court is not unmindful of the duty of the Ombudsman under the Constitution and Republic Act No.
6770 to act promptly on Complaints brought before him. But such duty should not be
mistaken with a hasty resolution of cases at the expense of thoroughness and correctness.
Judicial notice should be taken of the fact that the nature of the Office of the Ombudsman
encourages individuals who clamor for efficient government service to freely lodge their
Complaints against wrongdoings of government personnel, thus resulting in a steady stream
of cases reaching the Office of the Ombudsman.[68]
Finally, there is no ground to give credence to petitioners claim that the complainant should be charged
as a briber on account of his admission that he gave petitioner some sum of money; or that
evidence presented during the preliminary investigation, specifically the affidavits of
witnesses, were hearsay and inadmissible. As we stated earlier, this Court cannot supplant
the Ombudsmans discretion in the determination of what crime to charge an accused.
All told, this Court finds no reason to reverse the assailed Resolutions of the
Sandiganbayan. Petitioners insinuation that he was subjected to the proceedings before the
Ombudsman and the Sandiganbayan for politically motivated reasons, has not been
established with sufficient evidence. In the absence of any imputation that public
respondents were impelled by ill-motive in filing the case against him, it is presumed that
there is no such motive and that public respondents merely filed the case to correct a public
wrong.[69]
WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED for lack of merit. The
assailed Resolutions of the Sandiganbayan are hereby AFFIRMED. The Sandiganbayan is
DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No. 17800.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
 [41]
Rollo, pp. 168-175.
[42]
[1]
Rollo, p. 70. Record, p. 160.
[43]
[2]
Ibid., pp. 52-53. 219 Phil. 402 (1985).
[44]
[3]
Ibid., p. 54. Rollo, pp. 189-192.
[45]
[4]
Ibid., p. 56. Ibid., p. 203.
[46]
[5]
Ibid., pp. 56-58. Record, p. 199.
[47]
[6]
Ibid., p. 55. Rollo, p. 260.
[48]
[7]
Ibid., pp. 59-61. Record., p. 224.
[49]
[8]
Ibid., pp. 62-63. Petition, pp. 15-16.
[50]
[9]
Ibid. 338 Phil. 290, 309 (1997).
[51]
[10]
Ibid., p. 65. See: Velasco v. Casaclang (G.R. No. 111130, August 19, 1998, 294 SCRA 394, 409) where the Court
[11]
Ibid., p. 213. held that the Deputy Ombudsman did not err in denying the motion to quash and the motion
[12]
Ibid. for reconsideration because he acted in accordance with the Revised Rules of Court and
[13]
Record of Crim. Case No. 17800, p. 10. Section 4 (d) of Administrative Order No. 07 of the Ombudsman that disallows a motion to
[14]
Ibid., pp. 9-11. quash (or dismiss) except on the ground of lack of jurisdiction.
[52]
[15]
Ibid., p. 11. Torralba v. Sandiganbayan, G.R. No. 101421, February 10, 1994, 230 SCRA 33, 41.
[53]
[16]
Rollo, p. 66. Doromal v. Sandiganbayan, G.R. No. 85468, September 7, 1989, 177 SCRA 354, 361.
[54]
[17]
Ibid., pp. 70-74. Petition, p. 19.
[55]
[18]
Ibid., p. 75. G.R. No. 101202, March 8, 1993, 219 SCRA 675, 686.
[56]
[19]
Record, pp. 1-2. G.R. No. 102420, December 20, 1994, 239 SCRA 283.
[57]
[20]
Ibid., p. 12. Ibid., at p. 295.
[58]
[21]
Ibid., p. 17, presided by Judge Lino L. Diamsay. See: Bautista v. Sandiganbayan, G.R. No. 126082, May 12, 2000.
[59]
[22]
Record., p. 25. Rule II, Section 3 of Administrative Order No. 07 states that the following may conduct preliminary
[23]
Ibid., p. 13. investigation: (1) Ombudsman Investigators; (2) Special Prosecuting Officers; (3) Deputized
[24]
Ibid., p. 26, per the Second Division of the Sandiganbayan composed of Associate Justice Romeo M. Prosecutors; (4) Investigating Officials authorized by law to conduct preliminary investigation;
Escareal as Chairman and Associate Justices Augusto M. Amores and Sabino R. de Leon, or (5) Lawyers in government service, so designated by the Ombudsman.
[60]
Jr., as Members. Rule V, Section 4 of Administrative Order No. 07 provides that it shall take effect upon completion of
[25]
Rollo, pp. 76-94. publication in the Official Gazette or in three (3) newspapers of general circulation. The
[26]
Rollo, pp. 96-98. administrative order was published in the May 1, 1990 issue of the Manila Bulletin
[27]
Record, pp. 67 & 70. (RODRIGUEZ, THE SANDIGANBAYAN, THE OMBUDSMAN, THE PCGG, THE ANTI-
[28]
Ibid., p. 73. GRAFT LAWS AND THE CODE OF CONDUCT FOR PUBLIC OFFICIALS, 3rd ed., p. 128).
[61]
[29]
Ibid., p. 103. Cruz, Jr. v. People, G.R. No. 110436, June 27, 1994, 233 SCRA 439, 455 citing Enrile v. Salazar, G.R.
[30]
Ibid., pp. 105-126. No. 92163, June 5, 1990, 186 SCRA 217.
[62]
[31]
Ibid., pp.127-132. Supra, at pp. 458-459.
[63]
[32]
Record, p. 92. Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993, 221 SCRA 349, 360.
[64]
[33]
Rollo, p. 134-135. 335 Phil. 945, 969 (1997).
[65]
[34]
Record., p. 96. Petition, p. 23.
[66]
[35]
Ibid., p. 97. Under Rule 112, Sec. 3 of the Rules of Court, the preliminary investigation shall be deemed concluded
[36]
Ibid., p. 102.36 after the respondent shall have submitted his counter-affidavit and supporting evidence,
[37]
Rollo, pp. 136-167. and/or after hearing where clarificatory questions propounded by the investigating officer
[38]
G.R. Nos. 69863-65, December 10, 1990, 192 SCRA 183. shall have been answered.
[67]
[39]
Record, pp. 155-158. Alvizo v. Sandiganbayan, G.R. No. 101689, March 17, 1993, 220 SCRA 55, 63-64.
[68]
[40]
With Associate Justice Augusto M. Amores as Chairman and Associate Justices Romeo M. Escareal Dansal v. Hon. Fernandez, G.R. No. 126814, March 2, 2000.
[69]
and Narciso T. Atienza as Members. See: Santiago v. Vasquez, G.R. Nos. 99289-90, January 13, 1992, 205 SCRA 162,169.

Republic of the Philippines CHIEF SUPT. ROMEO ACOP and SENIOR SUPT. FRANCISCO G. ZUBIA, petitioners,
SUPREME COURT vs.
Manila THE OFFICE OF THE OMBUDSMAN and HON. MANUEL B. CASACLANG, in his
FIRST DIVISION capacity as the Deputy Ombudsman for the Military, respondents.
G.R. No. 120428 September 27, 1995
G.R. No. 120422 September 27, 1995 P/CHIEF SUPT. PANFILO M. LACSON, P/CHIEF INSP. MICHAEL RAY B. AQUINO, P/SR. INSP.
BASILIO LUCERO, JR., P/SR. INSP. ROLANDO B. MENDOZA, P/INSP. GIL B. LAGMAN,
 P/INSP. MANUEL BUKARNO B. ALVAREZ, and OTHER TASK FORCE HABAGAT
PERSONNEL CHARGED BEFORE THE OMBUDSMAN IN OMB-AFP-CRIM-95-
0084, petitioners,
vs.
BGEN. MANUEL B. CASACLANG, in his capacity as the Deputy Ombudsman for the
Military, P/CHIEF SUPT. JOB A. MAYO, JR., MYRNA ABALORA, NENITA G. ALAP-AP,
and IMELDA PANCHO MONTERO,respondents.
DAVIDE, JR., J.:
These cases, both filed under Rule 65 of the Rules of Court, were consolidated as they arose from the
same factual milieu. At the oral arguments on 5 July 1995, the Court defined the common
issues within which the parties agreed to limit their arguments:
1. Whether it is the Office of the Ombudsman or the Office of the Special Prosecutor which has
jurisdiction over the complaint in question; and
2. Whether or not public respondent Deputy Ombudsman for Military Manuel Casaclang committed
grave abuse of discretion when he set the case for preliminary investigation and required the
petitioners to submit their counter-affidavits before any preliminary evaluation of the complaint
as required by Section 2, Rule II of Administrative Order No. 07 of the Office of the
Ombudsman.
The first is the kernel issue raised in G.R. No. 120422 and the petitioners therein pray that this Court re-
examine the holding in Zaldivar vs. Sandiganbayan. 1 Provoked during oral arguments was
the corollary issue of whether the Deputy Ombudsman for the Military can conduct
investigations involving civilian personnel of the Government.
The undisputed facts which gave rise to this controversy are summarized in the Consolidated Comment
of the Office of the Solicitor General as follows:
On May 18, 1995, eleven (11) suspected members of the notorious robbery gang, "Kuratong Baleleng,"
were killed in an alleged shootout with composite teams of the National Capital Regional
Command (NCRC), Traffic Management Command (TMC), Presidential Anti-Crime
Commission (PACC), Central Police District Command (CPDC) and Criminal Investigation
Command (CIC).
On May 22, 1995, Senior Police Officer (SPO) 2 Eduardo de los Reyes of the Central Intelligence
Command (CIC) made an expose', stating that there was no shootout. De los Reyes stated
that the eleven (11) suspected members of the "Kuratong Baleleng" gang were victims of
summary execution. The following day, he executed a sworn statement to this effect. . . .
On May 24, 1995, the Commission on Human Rights (CHR) received the separate sworn statements of
Myrna Abalora, Nenita G.
Alap-ap and Imelda Pancho Montero are relatives of the slain suspected gang members,
accusing the PACC, NCRC, TMC, CIC and CPDC of murder.
On May 26, 1995, Acting Ombudsman Francisco A. Villa, in a handwritten note, directed public
respondent Deputy Ombudsman Casaclang to monitor the investigations being conducted by
the Commission on Human Rights, the Senate Committee on Justice and Human Rights, and
the Philippine National Police (PNP) Director for Investigation regarding the alleged
shootout. . . .
In response to the above directive, public respondent Casaclang issued on the same date Office Order
No. 95-17, Series of 1995, directing Ombudsman Investigator Bienvenido C. Blancaflor and
Associate Graft Investigation Officers Richard U. Correos and Ricardo A. Sullano to monitor
the investigations being conducted by the above-mentioned agencies. . . . .
On May 29, 1995, public respondent Casaclang sent written requests to Senator Raul Roco, Chairman
of the Senate Committee on Justice and Human Rights, and Hon. Sedfrey Ordoez,
Chairman of the Commission on Human Rights, for documents relative to the May 18, 1995,
alleged shootout incident. . . .
On May 30, 1995, the CHR, through Commissioner Narciso Monteiro, furnished public respondent
Casaclang with copies of the
sworn statements of the relatives of the slain suspected "Kuratong Baleleng" gang. . . .
On May 30, 1995, SPO2 Corazon de la Cruz appeared and testified before the Joint Senate Committee
conducting a legislative inquiry into the May 18, 1995 incident. SPO2 De la Cruz corroborated
the statements of SPO2 De los Reyes stating that no shootout had taken place and that the
eleven (11) slain suspected "Kuratong Baleleng" gang members were summarily executed by
the composite teams. . . .
On June 1, 1995, public respondent Casaclang issued Office Order No. 95-18, creating a panel of
investigators with Ombudsman Investigator Bienvenido Blancaflor as head of the panel and
Investigators Avelino C. Macamus, Jr. and Domingo Doctor Jr. as members. . . .
On the same date, respondent P/Chief Supt. Job A. Mayo, Jr., in a letter-complaint addressed to the
Ombudsman, charged petitioners and several others with murder in connection with the
killing of the eleven (11) suspected "Kuratong Baleleng" gang members. He attached to his
letter-complaint the Investigation Report dated May 31, 1995, signed by him in his capacity as
Chairman of the Special Investigating Committee, PNP. . . .
The letter-complaint was docketed at the Office of the Ombudsman as case OMB-AFP-CRIM-95-0084.
On June 2, 1995, respondent Casaclang directed the Panel of Investigator[s] to terminate the
investigation and submit its resolution within 60 days from receipt of his order. . . .
On June 5, 1995, public respondent Casaclang was furnished by the Senate Committee on Justice and
Human Rights with copies of various documents, as well as transcripts of its proceedings,
relative to its investigation of the May 18, 1995 incident. Respondents undertake to submit
the documents and transcripts if this Honorable Court so requires as they are voluminous and
reproduction and sorting thereof will take time.
On June 7, 1995, respondent Casaclang issued a subpoena duces tecum/ad testificandumaddressed to
PNP Director General Recaredo Sarmiento, directing him or his duly authorized
representative to appear before the Panel of Investigators and to submit the "After Operations
Report" of the PNP relative to the operations which resulted in the May 18, 1995, incident. . . .
On June 8, 1995, the Panel of Investigators submitted their Evaluation Report in OMB-AFP-CRIM-95-
0084 to public respondent Casaclang. The report recommended that a preliminary
investigation be conducted against herein petitioners and all the participating personnel of the
NCRC, PACC, CIC, TMC and CPDC listed in the After Operations Report of the PNP. . . .
On June 13, 1995, respondent Mayo, in behalf of the PNP Director General, submitted to the,
Ombudsman the required After Operations Report of the PNP. The report contained the list of
personnel and officers involved in the May 18, 1995, operations against the "Kuratong
Baleleng" gang. . . .
On June 14, 1995, public respondent Casaclang issued the questioned order directing petitioner[s] and
nine others to submit their counter-affidavits and controverting evidence within ten days from
receipt thereof. . . . 2
The petitioners did not comply with the 14 June 1995 order, neither did they move for reconsideration.
Instead, the petitioners questioned the conduct of the preliminary investigation without the
required preliminary evaluation in their respective petitions filed with this Court on: 19 June
1995 in G.R. No. 120422; 20 June 1995 in G.R. No. 120428; and on 3 July 1995, a
supplemental petition in G.R. No. 120428.
After the oral arguments on 5 July 1995, we ordered the parties to submit their respective memoranda.
The petitioners in G.R. No. 120422 complied on 17 July 1995, while the petitioners in G.R.
No. 120428 and the public respondents on 19 July 1995. On 17 July 1995, we required the
respondents in G.R. No. 120428 to comment on the supplemental petition filed therein.
Further developments in G.R. No. 120428 which lead to the status quo are as follows: On 26 July 1995,
Acting Ombudsman Francisco Villa ordered the petitioners in G.R. No. 120428 to file their
counter-affidavits to the complaint within ten days from notice. Consequently, on 27 July
1995, the petitioners filed a motion with this Court to cite Acting Ombudsman Villa in
 contempt of court. The petitioners contended that the 26 July 1995, order preempted this
Court from ruling on the issue regarding the Ombudsman's jurisdiction to conduct a
preliminary investigation on the complaint filed against the petitioners. Thus, the petitioners
concluded, the order contravened Section 3 (a), (c), and (d), Rule 71 of the Rules of Court
and prayed that Villa be cited in contempt and a temporary restraining order be issued to
enjoin him from implementing his order.
Anent the turn of events in G.R. No. 120422, the progress of the case may be traced in this wise: On 23
June 1995, the petitioners filed a motion with respondent Casaclang to suspend the
preliminary investigation against them pending resolution of the petition for certiorari filed with
the Supreme Court. On 28 June 1995, respondent Casaclang granted the motion, only to be
reversed by Acting Ombudsman Villa. In a memorandum dated 21 July 1995, Acting
Ombudsman Villa took over "the direct supervision and control of the preliminary
investigation" and subsequently issued the questioned 26 July 1995 order.
In a Manifestation and Omnibus Motion filed with this Court on 28 July 1995, the petitioners in G.R. No.
120422 challenged the take-over, asserting: First, that it violated Section 3, Rule II of
Administrative Order No. 07 issued by the Ombudsman. The petitioners emphasized that the
enumeration in the said Section does not include the Ombudsman himself nor the Acting
Ombudsman among those authorized to conduct preliminary investigations. Second, that in
so doing, Villa effectively denied the petitioners the different appellate levels within the Office
of the Ombudsman. And third, that Villa's take-over and order in question prejudged the very
issues pending before the Supreme Court and was, therefore, contemptuous. Hence, the
petitioners in G.R. No. 120422 joined cause with the prayer of the petitioners in G.R. No.
120428.
On 31 July 1995, we required the respondents to comment on the motions for contempt, and in
compliance, Acting Ombudsman Villa filed his comment on 7 August 1995. He asserted that
pursuant to Peza vs. Alikpala, 3 the mere pendency of a special civil action for certiorari before
this Court, commenced in relation to a case pending before a lower court, does not interrupt
the latter's course when no writ of injunction restraining it has been issued as in the
present case. The public respondents filed their Comment on 15 August 1995.
I MR. REGALADO:
As to the first issue, the petitioners in G.R. No. 120422 concede that in the light of this Court's decision
in Zaldivar,4 it is the Ombudsman, and not the Office of the Special Prosecutor, which has
jurisdiction to conduct the preliminary investigation on the complaint filed against them. The
petitioners plead, however, for this Court re-examine the conclusion reached in Zaldivar, i.e.,
that under the 1987 Constitution, the Tanodbayan no longer has the authority to conduct
preliminary investigations except upon order of the Ombudsman. Said conclusion, the
petitioners assert, "is based on a wrong premise."
In substance, the petitioners forward two propositions in support of their plea: First, the petitioners posit
that the Ombudsman's "duty to investigate on its own or on complaint of any person" 5 is
separate and distinct from "the power to conduct preliminary investigations," 6 and maintain
that the latter "remains with the Tanodbayan, now the Special Prosecutor"; and second, that
based on the pertinent provisions of the 1987 Constitution, it is erroneous to conclude that the
Special Prosecutor is a subordinate of or may be subsumed by the Ombudsman under the
Constitution. 7
As to the first proposition, the petitioners refer to the Record of the Constitutional Commission of 1986
(hereinafter Commission) on the debates relative to the powers of the Ombudsman proposed
by the Committee on Accountability of Public Officers. The petitioners extensively quote the
admissions of Commissioners Christian S. Monsod and Jose S. Colayco (Chairman and
Vice-Chairman, respectively, of the Committee) during the interpellations to the effect that it
was the intention of the Committee not to grant to the proposed Ombudsman prosecutorial
powers which would, instead, be left to the proposed Office of the Special Prosecutor. Thus:
MR. MONSOD: (sponsorship speech)
xxx xxx xxx
With respect to the Sandiganbayan and the Tanodbayan, the Committee decided to make a distinction
between the purely prosecutory function of the Tanodbayan and the function of a pure
Ombudsman who will use the prestige and persuasive powers of his office. To call the
attention of government officials to any impropriety, misconduct or injustice, we conceive the
Ombudsman as a champion of the citizens. . . The concept of the Ombudsman here is
admittedly a little bit different from the 1973 concept. . . 8
xxx xxx xxx
MR. RODRIGO:
I noticed that the proposed provisions of 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 of legal forms, but I would like
to ask Commissioner Nolledo to explain this in detail. 9
MR. RODRIGO:
So, the Ombudsman does not have a prosecutory function nor punitive powers.
MR. COLAYCO:
None.
MR. RODRIGO:
All that he relies upon is his persuasive power.
MR. COLAYCO:
Yes. Persuasive power plus the ability to require that the proper legal steps be taken to compel the
officer to comply.
MR. RODRIGO:
Yes, but what is meant by "required" is that the Ombudsman cannot compel. 10
Then Commissioner, now a highly respected Member of the Court, Florenz D. Regalado, also remarked:
In connection also with that concern of Commissioner Rodrigo regarding the Ombudsman being merely
a duplication, I have here the records of the former Ombudsman to show that one of the
reasons he could not function in his administrative or recommendatory capacity was the
number of cases for prosecution which took almost all his time. So I believe that there should
really be an Ombudsman to take care of the recommendatory, policy-determining, policy-
suggesting or administrative aspect of his position. The whole task of prosecution should be
left to a regular Tanodbayan. 11
The petitioners hardly persuade us on this matter. While the intention to withhold prosecutorial powers
from the Ombudsman was indeed present, 12 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:
Sec. 12. The Office of the Ombudsman shall have the following powers, functions and duties:
xxx xxx xxx
(6) To exercise such powers and perform such functions or duties as may be provided by Law. 13
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:
Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx xxx xxx
(8) Promulgate its rules of 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 Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee.
Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We
Commissioner Rodrigo: wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers,
MR. RODRIGO: and also a chance to really function as a champion of the citizen.
Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit
that: may have to give additional powers to the Ombudsman; we want to give the concept of a
The Tanodbayan. . . . shall continue to function end exercise its powers as provided by law, except those pure Ombudsman a chance under the Constitution.
conferred on the office of the Ombudsman created under this Constitution. MR. RODRIGO:
The powers of the Ombudsman are enumerated in Section 12. Madam President, what I am worried about is, if we create a constitutional body which has neither
MR. COLAYCO: punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes
They are not exclusive. of our people too much and then disappoint them.
MR. RODRIGO: MR. MONSOD:
So, these powers can also be exercised by the Tanodbayan? I agree with the Commissioner.
MR. COLAYCO: MR. RODRIGO:
No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. Anyway, since we state that the powers of the Ombudsman can later on be implemented by the
MR. RODRIGO: legislature, why not leave this to the legislature?
Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise MR. MONSOD:
such powers or perform such functions or duties as may be provided by law." So, the Yes, because we want to avoid what happened in 1973. I read the committee report which
legislature may vest him with powers taken away from the Tanodbayan, may it not? recommended the approval of the 27 resolutions for the creation of the office of the
MR. COLAYCO: Ombudsman; but notwithstanding the explicit purpose enunciated in that report, the
Yes. implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it
MR. MONSOD: created the Tanodbayan. 14 (emphasis supplied).
Yes. xxx xxx xxx
MR. RODRIGO: MR. MONSOD (reacting to statements of Commissioner Blas Ople):
And it is possible that pretty soon the Tanodbayan will be a useless appendage and will lose all his May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist
powers. position. The Ombudsman is seen as a civil advocate or a champion of the citizens against
MR. COLAYCO: the bureaucracy, not against the President. On one hand, we are told he has no teeth and he
No. I am afraid the Gentleman has the wrong perception of the system. We are leaving to the lacks other things. On the other hand, there is the interpretation that he is a competitor to the
Tanodbayan the continuance of his functions and the exercise of the jurisdiction given to him President, as if he is being brought up to the same level as the President.
pursuant to. . . . With respect to the argument that he is a toothless animal, we would like to say that we are promoting
MR. RODRIGO: the concept in its form at the present, but we are also saying that he can exercise such
Law. powers and functions as may be provided by law in accordance with the direction of the
MR. COLAYCO: thinking of Commissioner Rodrigo. We do not think that at this time we should prescribe this,
No. Pursuant first to the Constitution and the law which mandated the creation of the office. but we leave it up to Congress at some future time if it feels that it may need to designate
MR. RODRIGO: what powers the Ombudsman need in order that he be more effective. This is not foreclosed.
Madam President. Section 5 reads: "The Tanodbayan shall continue to function and exercise its powers So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability. 15 (emphasis
as provided by law." supplied)
MR. COLAYCO: In view of the foregoing, it is evident that the petitioners have not borne out any distinction between "the
That is correct, because it is under P. D. No. 1630. duty to investigate" and "the power to conduct preliminary investigations"; neither have the
MR. RODRIGO: petitioners established that the latter remains with the Tanodbayan, now the Special
So, if it is provided by law, it can be taken away by law, I suppose. Prosecutor. Thus, this Court can only reject the petitioners' first proposition.
MR. COLAYCO: At bottom, the second proposition raised by the petitioners in G.R. No. 120422 is that the Office of the
That is correct. Special Prosecutor is not a subordinate agency to the Ombudsman and is, in fact, separate
MR. RODRIGO: and distinct from the Ombudsman. The petitioners call this Court's attention to the fact that,
And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman on one hand, the former is not at all mentioned in Section 5, Article XI of the Constitution,
are "such functions or duties as may be provided by law." The sponsors admitted that the while Sections 6, 8, 9, 10, 11, and 12 thereof only speak of the Ombudsman and his deputies
legislature later on might remove some powers from the Tanodbayan and transfer these to (with the composition of the Office of the Ombudsman enumerated in Section 5). On the other
the Ombudsman. hand, the petitioners note, Section 7 recognizes the continued existence of the Tanodbayan,
MR. COLAYCO: thereafter known as the Office of the Special Prosecutor. Thus, the petitioners deduce that
Madam President, that is correct. Section 7 does not imply that the Office of the Special Prosecutor is absorbed by subsumed
MR. MONSOD: under the Office of the Ombudsman. 16
By way of elaboration, the petitioners contend further that the intent of the framers of the 1987
Constitution was to place the Office of the Special Prosecutor under the Office of the
President, as shown by the following excerpts of the proceedings of the Commission:
THE PRESIDENT:
May the Chair inquire from the Chairman of the Committee what office would have administrative
supervision now over the Tanodbayan? Is there any office that would have administrative
supervision over the Tanodbayan, as described in Section 5?
MR. ROMULO:
Madam President, as the decree now reads, no one has jurisdiction over the Tanodbayan. He may be
removed by the President for a cause.
THE PRESIDENT:
So he is directly under the Office of the President?
MR. ROMULO:
Yes, because it is the President who may remove him for a cause. In effect, he comes under the Office
of the President. 17
For these reasons, the petitioners conclude that the inclusion of the Office of the Special Prosecutor as
among the offices under the Office of the Ombudsman in Section 3 18 of R.A. No. 6770 ("An
Act Providing for the Functional and Structural Organization of the Office of the Ombudsman
and for Other Purposes") is unconstitutional and void.
The contention is not impressed with merit. Firstly, the petitioners misconstrue Commissioner Romulo's
statement as authority to advocate that the intent of the framers of the 1987 Constitution was
to place the Office of the Special Prosecutor under the Office of the President. The said
statement obviously referred to the Tanodbayan under P.D. No. 1630 note how specific the
erstwhile Commissioner was in stating: ". . . as the decree now reads. . . ." Further, in
complete contrast to the petitioners' stand, one of the principal reasons for the proposal to
withhold prosecutorial powers from the Ombudsman was precisely to remove the office from
presidential control. This was explained by then Commissioner Florenz D. Regalado as
follows:
MR. REGALADO:
xxx xxx xxx
In other words, Madam President, what actually spawned or caused the failure of the justices of the
Tanodbayan insofar as monitoring and fiscalizing the government offices are concerned was
due to two reasons: First, almost all their time was taken up by criminal cases; and second,
since they were under the Office of the President, their funds came from that office. I have a
sneaking suspicion that they were prevented from making administrative monitoring because
of the sensitivity of the then head of that office, because if the Tanodbayan would make the
corresponding reports about failures, malfunctions or omissions of the different ministries,
then that would reflect upon the President who wanted to claim the alleged confidence of the
people.
xxx xxx xxx
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger. That is not
necessarily so. If he is toothless, then let us give him a little more teeth by making him
independent of the Office of the President because it is now a constitutional creation, so that
the insidious tentacles of politics, as has always been our problem, even with PARGO,
PCAPE and so forth, will not deprive him of the opportunity to render service to Juan dela
Cruz. . . . . 19 (emphasis supplied).
In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be
henceforth known as the Office of the Special Prosecutor, "shall continue to function and
exercise its powers as now or hereafter may be provided by law, except those conferred on
the Office of the Ombudsman created under this Constitution." The underscored phrase
evidently refers to the Tanodbayan's powers under P.D. No. 1630 orsubsequent amendatory
legislation. It follows then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers
conferred by the Constitution on the Office of the Ombudsman.
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.
Through the said law, the Office of the Special Prosecutor was made an organic component of the Office
of the Ombudsman, 20 while the Ombudsman was granted the following powers, 21 among
others:
(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 its primary jurisdiction, it may take over, at any stage,
from any investigatory agency of Government, the investigation of such cases;
xxx xxx xxx
(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall
ensure the effective exercise or performance of the powers, functions, and duties herein or
herein after provided.
Likewise, R.A. No. 6770 authorized the office of the Special Prosecutor, under the supervision and
control and upon the authority of the Ombudsman, to:
(a) [C]onduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan;
(b) [E]nter into plea bargaining agreements; and
(c) [P]erform such other duties assigned to it by the Ombudsman. 22 (emphasis supplied)
In fine, this Court holds that the plea to re-examine Zaldivar vs. Sandiganbayan is bereft of merit and
deserves no further consideration.
II.
Before we enter into a discussion of the second principal issue raised in these cases, the corollary issue
of whether respondent Casaclang as Deputy Ombudsman for Military Affairs has the authority
to conduct a preliminary investigation involving civilian personnel of the Government must
first be resolved.
In view of Section 6, Article XVI of the Constitution 23 and the law implementing it, R.A. No. 6975, 24 the
petitioners, who are officers of the Philippine National Police (PNP), are civilian personnel of
the Government. 25 It is thus suggested that the Deputy Ombudsman for Military Affairs does
not have jurisdiction over them, for by the description of his office, his authority is or must be
confined to the military. At first blush, the suggestion seems logical.
The proposal to have a separate Deputy Ombudsman for the military establishment came by way of an
amendment by Commissioner Blas Ople. This was introduced during the period of individual
amendments at the time the Commission deliberated on the proposed Article on
Accountability of Public Officers Commissioner Ople's original idea was to authorize the
Ombudsman to designate the said deputy; however, the amendment to the amendment
introduced by this writer, who was then a member of the Commission, was to authorize the
President to appoint the said deputy. Thus:
MR. OPLE:
With the indulgence of Commissioner Rodrigo and of the Committee, may I proceed to read the
amendment which is to add a last sentence to Section 11, line 21: THE OMBUDSMAN MAY
DESIGNATE A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT, so that the
entire Section 11 will now read as follows: "The Ombudsman and his Deputies, as champions
 of the people, shall act promptly on the complaints filed, in any form or manner, against public
officials or employees of the government, including government-owned corporations,
agencies or instrumentalities, and shall notify the complainants of the action taken and the
results thereof. THE OMBUDSMAN MAY DESIGNATE A SEPARATE DEPUTY FOR THE
MILITARY ESTABLISHMENT.
May I state a brief reason for this amendment, Madam President.
THE PRESIDENT:
The Commissioner has five minutes to explain his proposed amendment.
MR. OPLE:
Thank you.
The original Ombudsman was created in Sweden in 1810 and has survived practically unchanged for
over 170 years. The military Ombudsman appeared for the first time in history in Norway in
1952 and in West Germany in 1956. In Norway, the military Ombudsman, known
as Ombudsmannen for forsvaret, was superimposed on an existing structure of enlisted
spokesmen chosen by each unit of the Norwegian Armed Forces.
In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an
informal grievance machinery against injustices to the rank and file soldiery and perceive
graft in higher rank[s] and neglect of the needs of troops in combat zones. The Reform the
Armed Forces Movement or RAM has kept precincts for pushing logistics to the field, the
implied accusation being that most of the resources are used up in Manila instead of sent to
soldiers in the field. The Guardians, the El Diablo and other organizations dominated by
enlisted men function, more or less, as grievance collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference.
The Ombudsman can designate a deputy to help the ordinary foot soldier get through with his
grievance to higher authorities. This deputy will, of course, work in close cooperation with the
Minister of National Defense and the Armed Forces of the Philippines' Chief of Staff because
of the necessity to maintain the integrity of the chain of command. Ordinary soldiers, when
they know they can turn to a military Ombudsman for their complaints, may not have to fall
back on their own informal devices to obtain redress for their grievances. The Ombudsman
will help raise troop morale in accordance with a major professed goal of the President and
the military authorities themselves. I seek the Committee's kind concurrence to this proposal.
xxx xxx xxx
THE PRESIDENT:
Commissioner Davide is recognized.
MR. DAVIDE:
I would have no objection to the proposed amendment, but it should not be on Section 11. It should be
placed on Section 6 because if we put it here, the appointing authority will no longer be the
President but the Ombudsman, and that is not, I think, the philosophy of the provision.
So it should also be covered by the manner by which an appointment may be extended to it. So I would
propose that it be transferred principally to Section 6.
MR. OPLE:
The Committee has no jurisdiction; personally, I have no objection, Madam President.
MR. DAVIDE:
But I would propose that the wording would be: A SEPARATE DEPUTY FOR THE MILITARY
ESTABLISHMENT MAY BE APPOINTED, after "Mindanao" on Section 6, line 16, page 3.
MR. OPLE:
I accept the amendment, Madam President.
THE PRESIDENT:
Commissioner Ople has accepted the amendment. How about the Committee?
MR. MONSOD:
We accept, Madam President.
xxx xxx xxx
THE PRESIDENT:
May we have the amendment now as phrased by the Committee.
MR. MONSOD:
May we ask Commissioner Davide to restate the amendment, as amended.
THE PRESIDENT:
Commissioner Davide is recognized.
MR. DAVIDE:
Madam President, on line 61 page 3, add a new sentence after the period (.) following "Mindanao" to
read as follows: A SEPARATE DEPUTY FOR THE MILITARY ESTABLISHMENT MAY
LIKEWISE BE APPOINTED.
VOTING
THE PRESIDENT:
Those in favor of this particular amendment, as amended, please raise their hand. (Several Members
raised their hand.)
xxx xxx xxx
The results show 22 votes in favor and 11 against; the proposed amendment, jointly submitted by
Commissioners Ople and Davide and accepted by the Committee, is approved. 26
The approved amendment is now found in Section 5, Article XI of the Constitution, which reads:
Sec. 5. There is hereby created the independent Office of the Ombudsman to be known as Tanodbayan,
one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed. (emphasis
supplied).
The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such
deputy is prohibited from performing other functions or duties affecting non-military personnel.
On the contrary, a review of the relevant Constitutional provisions reveals otherwise.
As previously established, the Ombudsman "may exercise such other powers or perform such functions
or duties"27 as Congress may prescribe through legislation. Therefore, nothing can prevent
Congress from giving the Ombudsman supervision and control over the Ombudsman's
deputies, one being the deputy for the military establishment. 28 In this light, Section 11 of R.A.
No. 6770 provides:
Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of
the Office of the Ombudsman and for the discharge of its powers and functions shall be
vested in the Ombudsman, who shall have supervision and control of the said Office.
While Section 31 thereof declares:
Sec. 31. Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of
his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or deputized to assist him herein
provided shall be under his supervision and control.
Accordingly, the Ombudsman may refer cases involving non-military personnel for investigation by the
Deputy for Military Affairs. In these cases at bench, therefore, no irregularity attended the
referral by the Acting Ombudsman of the Kuratong Baleleng case to respondent Casaclang
who, in turn, created a panel of investigators.
III
We will now address the second principal issue.
We do not share the petitioners' view that respondent Casaclang set the case for preliminary
investigation and required the petitioners to file their counter-affidavits without the conduct of
a preliminary evaluation of the complaint as required by the Rules, of the Office of the
Ombudsman. In the case before us, no evidence to that effect was adduced. On the contrary,
as shown by the summary of antecedent facts earlier quoted, the Panel of Investigators
 submitted its evaluation report on 8 June 1995, and it was only on 14 June 1995 that
respondent Casaclang issued the questioned order. Section 2, Rule II of Administrative Order
No. 07 of the Office of the Ombudsman (Rules of Procedure of the Office of the
Ombudsman), on the process and nature of the evaluation required, reads as follows:
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether
it may be
(a) dismissed outright for want of palpable merit;
(b) referred to respondent for comment;
(c) indorsed to the proper government office or agency which has jurisdiction over the case;
(d) forward to the appropriate office or official for fact-finding investigation;
(e) referred for administrative adjudication; or
(f) subjected to a preliminary investigation.
It cannot be denied that the evaluation required is merely preliminary in nature and scope, not a detailed
inquiry. Likewise, the conduct of such evaluation involves the exercise of discretion which has
not been shown to be abused in the instant case.
IN VIEW OF THE FOREGOING, these two petitions and the motion to cite Acting Ombudsman
Francisco Villa in contempt of court are DENIED for want of merit. This decision is
immediately executory.
Costs against the petitioners.
SO ORDERED.
Padilla, Bellosillo and Kapunan, JJ., concur.
Hermosisima, Jr., is on leave.
Footnotes
1 160 SCRA 843 [1988].
2 Rollo, 265-271.
3 160 SCRA 31 [1988].
4 Supra note 1.
5 Paragraph 1, Section 13, Article XI, 1987 Constitution.
6 Sections 10(e) and 17, P.D. No. 1630.
7 Rollo, 402-403.
8 Record of the Constitutional Commission, vol. 2, 265 (hereinafter 2 Record).
EN BANC
[G.R. No. 90591. November 21, 1990.]
GOVERNOR AMOR D. DELOSO, Petitioner, v. HON. MANUEL C. DOMINGO, in his
capacity as Deputy Ombudsman for Luzon and PC/INP/CIS , Respondents.
Angara, Abello, Concepcion, Regala & Cruz for Petitioner.
SYLLABUS
1. POLITICAL LAW; PUBLIC OFFICE; OFFICE OF THE OMBUDSMAN; ACT OR OMISSION THAT
MAY BE INVESTIGATED, NOT REQUIRED TO BE RELATED TO, CONNECTED WITH, OR
ARISE FROM, THE PERFORMANCE OF OFFICIAL DUTY. 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 . . . any act or
omission of any public official . . . when such act or omission appears to be illegal, unjust,
improper or inefficient." (Sec. 13 [1].) The Ombudsman is also empowered to "direct the
9 Id., 268.
10 2 Record, 270.
11 Id., 274. See also, 295-297 for a Longer disquisition on his thesis.
12 Id., 266, 268, 284, 295, and 317, wherein the Commission originally envisioned the adoption of the
traditional Ombudsman as known in Europe.
13 2 Record, 264.
14 2 Record, 270-271.
15 Id., 295.
16 Rollo, 17-18.
17 2 Record, 336.
18 It provides:
Sec. 3. Office of the Ombudsman. The Office of the Ombudsman shall include the Office of the overall
Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for Visayas, the Office of
the Deputy for Mindanao, the office of the Deputy for the Armed Forces, and the Office of the
Special Prosecutor. The President may appoint the Deputies as the necessity for it may arise,
as recommended by the Ombudsman.
19 2 Record, 295-296.
20 Section 3.
21 Section 15.
22 Section 11(4).
23 The Provision reads, in part:
Sec. 6. The State shall establish and maintain one police force, which shall be national in scope
and civilian in character. . . . (emphasis supplied)
24 Entitled, "An Act Establishing the Philippine National Police Under a Reorganized Department of the
Interior and Local Government and For Other Purposes," otherwise know as the Department
of the Interior and Local Government Act of 1990.
25 See Republic vs. Asuncion, 231 SCRA 211 [1994].
26 2 Record, 317-320.
27 Paragraph 8, Section 13, Article XI, 1987 Constitution.
28 Section 5, Id., Id.
officer concerned," in this case the Special Prosecutor, "to take appropriate action against a
public official . . . 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). The murder of three persons, is,
without any doubt, an illegal act. Since it was allegedly committed by the petitioner as
provincial governor of Zambales, the crime lies within the pale of the Ombudsmans
investigative authority.

2. ID.; ID.; ID.; VESTED WITH PRIMARY JURISDICTION OVER CASE COGNIZABLE BY
THE SANDIGANBAYAN; MURDER CHARGE INCLUDED THEREIN. The Ombudsman
Act of 1989 which took effect on December 7, 1989 (Sec. 15, R.A. 6770) vests in the
Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The
Sandiganbayan has jurisdiction over offenses committed by public officials when the penalty
prescribed by law for the offense is higher than prision correccional (Sec. 4, subpar. (c), P.D.
1606). The murder charge against the petitioner carries the penalty of reclusion temporal in
its maximum period to death (Art. 248, Revised Penal Code), hence, it is cognizable by the
Sandiganbayan, and the Ombudsman has primary jurisdiction to investigate it. 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 in the investigation of the latter where the need for an
independent, fearless, and honest investigative body, like the Ombudsman, is greatest.
DECISION
GRIO-AQUINO, J.:
By this petition for certiorari and prohibition Governor Amor D. Deloso of Zambales seeks to stop
respondent Manuel C. Domingo, Deputy Ombudsman for Luzon, from conducting a
preliminary investigation of the charge against him of multiple murder in IBP Case No. OSP-
88-01770, entitled "PC/INP/CIS v. Governor Amor Deloso," on the grounds that:chanrob1es
virtual 1aw library
1. The Ombudsman has no jurisdiction to investigate the murder charge against the petitioner
for its jurisdiction is confined to the investigation only of acts or omissions that are connected
with the performance of his duties as governor; and
2. For the same reason, the Tanodbayan (Special Prosecutor) has no jurisdiction to prosecute
the murder case against the petitioner.
Upon receipt of the petition, the Court issued a temporary restraining order on November 7,
1989 (p. 49, Rollo).chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
The case began in the evening of April 22, 1988, when Governor Deloso attended a
basketball victory party in Cabangan, Zambales. From the party, he proceeded to a pre-
wedding celebration in Danacbunga, Botolan, Zambales. He left Danacbunga at 1:30 A.M.,
April 23, 1988, on board his service car, and accompanied by his security force of
military/police/civilian escorts on board two other motor vehicles.
While travelling on the barangay road a few kilometers from the venue of the pre-wedding
celebration, the convoy of three (3) motor vehicles, with the governors car in the middle, was
allegedly ambushed. Governor Deloso jumped out of his car and took cover behind it. During
a lull in the shooting, he was allegedly rushed home by his official staff. Later, he learned that
three supposed ambushers Patrolman Alberto Dullas, Jr., Don Dullas, and Edgar Vinco, Jr.
were killed. His own group suffered no casualties.
Based, however, on the testimonies of eyewitnesses, the PC/INP/CIS investigators reported
that the Governors group was not ambushed, but was the ambusher. The report
stated:jgc:chanrobles.com.ph
"This case was prefaced by the report of Governor Amor Deloso of Zambales that on the
morning of April 23, 1988, at about 1:30 oclock in the morning, he and his escorts were
ambushed by the group of Pat. Alberto Dullas, Jr. along the Provincial Road of Danacbunga,
Botolan, Zambales. However, in the course of the investigation, it was established, through
the testimonies of eyewitnesses, that it was the group of Pat. Dullas, Don Dullas and Edgar
Vinco, Jr., then riding in a Toyota Corolla car with Plate No. CAG 419, who were ambushed
by the group of Governor Deloso and his escorts, numbering more or less fifteen (15). Initial
witnesses positively identified the military/police escorts of Governor Deloso as CIC Pacifico
Uy, CIC Leonito Bandala PC, Cpl Cesar Madoh PC, Cpl Elpidio Manding PC, Pat Pedro
Dolojan INP and Pat Florante Dimaguibo INP. The above-named escorts were already
charged of Multiple Murder before the Regional Staff Judge Advocate (RSJA), Regional
Command (RECOM) No. 3, on May 5, 1988, pursuant to PD 1850. Said witnesses further
identified the civilian escorts/companions of Governor Deloso at the time of the incident as
Eto Epan, Dennis Reyes, Arthur Menes and Jaime Detona, Et Al., who were, likewise,
charged of the same offense before the Office of the Provincial Fiscal of Zambales on May 6,
1988, docketed under I.S. No. 88-100-1.
"Follow-up investigation of this case further established the identities of the other
military/police escorts of Governor Deloso who were also implicated in the said shooting
incident, namely: Pat Warlito Quinto, Mario Dial, Jr., Crisostomo Diomino, Jr., Sarito
Dedicatoria, Ernesto Isidoro, Delfin Deliquina, Ramon Pangilinan, Alex de Leon and Carlos
Yabut. Consequently, these personalities had already been included as respondents in the
original complaint earlier filed with RSJA, Recom 3, on June 27, 1988.
"Relevantly, the testimonies of additional witnesses, particularly those of the spouses Honorio
and Araceli Dullas strongly inculpated Governor Amor Deloso of Zambales in the commission
of the crime. On the other hand, Governor Deloso, when invited to give his version of the
incident, opted instead in submitting a nineteen (19) page photocopy of his letter dated May
30, 1988 to Justice Secretary Sedfrey Ordonez." (pp. 63-64, Rollo.)
The military servicemen in the Governors security force were charged with murder in the
Judge Advocate Generals Office, while his civilian security men were investigated by the
Provincial Fiscal of Zambales. The Governor was charged with multiple murder before the
Special Prosecutor, Raul M. Gonzales, who, without a referral from the Ombudsman,
supposedly handpicked prosecutor Juan Templonuevo to conduct the preliminary
investigation of the case.
On February 20, 1989, Governor Deloso filed a motion to dismiss the case on the grounds
that:chanrob1es virtual 1aw library
1) The Office of the Special Prosecutor has no jurisdiction over the subject matter of the case;
2) The said office is without authority to conduct the preliminary investigation of the case; and
3) The preliminary investigation of Governor Deloso was prohibited by law in view of the
Barangay Elections scheduled on 28 March 1989.

Albeit reluctantly, it may be imagined, Special Prosecutor Gonzales referred the case to the
Ombudsman for preliminary investigation.
On June 19, 1989, respondent Manuel C. Domingo, Deputy Ombudsman for Luzon, issued
an order denying Governor Delosos motion to dismiss because "the Constitution empowers
the Ombudsman to investigate any act or omission of any public official . . . without any
qualification that said act or omission must have been committed or incurred in relation to his
office." (p. 8, Rollo)
After the denial of his motion for reconsideration, Governor Deloso filed this petition
for certiorari, reiterating the grounds of his motion to dismiss.
After careful consideration, the Court finds the petition to be without merit.
Sections 12 and 13, Article XI of the 1987 Constitution provide:jgc:chanrobles.com.ph
"SEC. 12. 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 cases, notify the complainants of
the action taken and the result thereof."cralaw virtua1aw library
"SEC. 13. The office of the Ombudsman shall have the following powers, functions, and
duties:jgc:chanrobles.com.ph
"(1) investigate on its own, or on complaint by any person, any act or omission of any public
official, employees, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
"x x x"
(Emphasis supplied; pp. 9-10, Rollo.)
The petitioner admits that "the office of the Ombudsman was created under the authority of
the Constitution and was mandated to act as a champion of the citizens, the watchdog of the
people, the official critic of public officials and the government mobilizer." (p. 9, Rollo.) But he
theorizes that "the framers of our Constitution . . . intended to limit the powers of the
Ombudsman to crimes related to or connected with an officials discharge of his public
functions." (p. 15, Rollo.) Hence, the lone issue presented by the petition is whether or not the
Ombudsman has jurisdiction to investigate the charge of multiple murder allegedly committed
by the petitioner as provincial governor. The answer is yes.
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 . . . any act or omission of any public official . . . 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 . . . 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.chanrobles
virtual lawlibrary
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).
The murder of three persons, is, without any doubt, an illegal act. Since it was allegedly
committed by the petitioner as provincial governor of Zambales, the crime lies within the pale
of the Ombudsmans investigative authority.
The Ombudsman Act of 1989 which took effect on December 7, 1989 (Sec. 15, R.A. 6770)
vests in the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan.
"SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:chanrob1es virtual 1aw library
(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." (p. 74, Rollo.)
The Sandiganbayan has jurisdiction over offenses committed by public officials when the
penalty prescribed by law for the offense is higher than prision correccional (Sec. 4, subpar.
(c), P.D. 1606). The murder charge against the petitioner carries the penalty of reclusion
temporal in its maximum period to death (Art. 248, Revised Penal Code), hence, it is
cognizable by the Sandiganbayan, and the Ombudsman has primary jurisdiction to
investigate it.
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 in the investigation of the latter where the need for an
independent, fearless, and honest investigative body, like the Ombudsman, is
greatest.chanrobles virtual lawlibrary
WHEREFORE, the petition for certiorari and prohibition is dismissed for lack of merit. Costs
against the petitioner.

SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr ., Cruz, Paras, Gancayco, Padilla,
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 Tanodbayan-Ombudsman
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 "Tanodbayan-Ombudsman" 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)
Bidin, Sarmiento, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.
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.L-Nos. 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,
contemptexcept 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 SO ORDERED.
only conduct the same if instructed to do so by the Ombudsman. Even his original power to Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed Bidin and Cortes, and Grio-Aquino, JJ., concur.
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 Separate Opinions
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 SARMIENTO, J., concurring:
of the Tanodbayan created under PD 1607 although concededly some of the powers of the I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059, that the 1987
two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to Constitution took effect on February 11, 1987.
hold over the position of Ombudsman as he has never held it in the first place. Separate Opinions
WHEREFORE, We hereby: SARMIENTO, J., concurring:
(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059, that the 1987
informations filed against him in the Sandiganbayan; and Constitution took effect on February 11, 1987.
(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.