BAVIERA v ZOLETA GR No. 169098
However, the next day, September 29, 2003, Raman
12 OCT 2006 Callejo Sr, J.
TOPIC: Review of Decision of OMB Digest By: Manalastas
SUMMARY:
Baviera filed complaints against Standard Chartered Bank directors and
officers for violating several laws with various agencies (SEC, BSP, NLRC,
etc.). A Hold Departure Order was applied for and granted by DOJ Sec. One
of the officers of was nevertheless able to fly out of PH to attend a
conference in Singapore (he came back a few days after) due to authorization
of Acting DOJ Sec (the real DOJ Sec went abroad for work). So Baviera
filed a complaint with Ombudsman assailing action of Acting DOJ Sec
allowing the officer to leave.
DOCTRINE:
The remedy to challenge the Resolution of the Ombudsman at the
conclusion of a preliminary investigation was to file R65.
FACTS:
Manuel V. Baviera filed several complaints against officers or directors of
the Standard Chartered Bank (SCB), including Sridhar Raman, an Indian
national who was CFO of the bank, as respondents with the SEC, BSP,
Anti-Money Laundering Council (AMLC), NLRC, and the DOJ.
Baviera claimed that he was a former employee of the bank, and at the same
time, an investor who was victimized by the officers or directors of SCB, all
of whom conspired with one another in defrauding him as well as the
investing public by soliciting funds in unregistered and unauthorized
foreign stocks and securities.
18 Sept 2003, Baviera requested for a Hold Departure Order (HDO) from
then DOJ Sec Simeon Datumanong against some of the officers and
directors (including Mr. Raman, the indian) of SCB. This was granted.
Meanwhile, Secretary Datumanong went to Vienna, Austria, to attend a
conference. Undersecretary Merceditas Navarro-Gutierrez was designated
as Acting Secretary of the DOJ.
28 Sept 2003, a Sunday, Raman arrived at NAIA for his trip to Singapore
but was apprehended by BI agents and NAIA officials based on the HDO of
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the Secretary of Justice.
was able to leave the country via Singapore Airlines (8am flight.). He was to
attend a conference in Singapore and to return to the Philippines on
October 2, 2003. It turned out that Acting Secretary of Justice Gutierrez
had verbally allowed the departure of Raman. On the same day, Raman,
through counsel, wrote Secretary Datumanong for the lifting of the HDO
insofar as his client was concerned. Acting Secretary Gutierrez issued an
Order allowing Raman to leave the country. In said Order, she stated that
the Chief State Prosecutor had indicated that he interposed no objection to
the travel of Raman to Singapore.
3 Oct 2003, Baviera filed a Complaint-Affidavit with the Office of the
Ombudsman charging Undersecretary Gutierrez for violation of RA 3019.
He alleged that upon verbal instruction of respondent Gutierrez to the BI
agents and NAIA officials, Raman was allowed to leave the country despite
the HDO issued by Secretary Simeon Datumanong. He averred that the
actuations of respondent Gutierrez were illegal, highly irregular. In her
Counter-Affidavit, respondent Gutierrez denied the allegations against her.
She averred that she did not violate any law or rule, in allowing Raman to
leave the country. She merely upheld his rights to travel as guaranteed
under the Constitution. Moreover, the DOJ may allow persons covered by
HDOs to travel abroad, for a specific purpose and for a specific period of
time. So she requested the ombudsman to dismiss the complaint. In his
Reply, Baviera claimed that Acting Sec Gutierrez did not follow procedure
and unduly accommodated the Indian because the proper procedure for
Raman to have travelled would have been to file an MR of the HDO order,
which they only did on.
5 Oct 2003, the officers and officials of SCB, including Raman, through
counsel, filed an MR of HDO praying that the HDO be lifted. It was lifted
as per order of DOJ Sec Datumanong on 17 Oct 2003.
22 June 2004, Graft Investigation and Prosecution Officer Zoleta
recommended the dismissal of the criminal complaint against respondent
Gutierrez for insufficiency of evidence.
The Assistant Ombudsman recommended the approval of the
recommendation (in other words to dismiss); the Deputy Ombudsman
approved the same.
Baviera received a copy of the Resolution on July 26, 2004 and filed an MR
of the resolution on August 2, 2004 (July 31, 2004 was a Saturday). Acting
on the motion, Zoleta issued a Resolution on August 10, 2003, we ruled that appeals from decisions of the Office of the Ombudsman in
recommending its denial for lack of merit. Deputy Ombudsman Orlando administrative disciplinary cases should be taken to the Court of Appeals under
Casimiro again approved the recommendation. Baviera received a copy of Rule 43... ”
the resolution on September 14, 2004.
For a criminal case, particularly those assailing a finding of probable cause
16 Nov 2004, Baviera filed a petition for certiorari under Rule 65 with the or a lack thereof, then such as this the case at bar (CAB), it should be a R65
CA, assailing the resolutions of the Ombudsman. The CA dismissed: to the SC.
a. It should have been a 65 to the SC, not the CA, in accordance with Court
in Enemecio v. Office of the Ombudsman.
b. Petitioner filed an MR, insisting that his remedy was correct (Basis:
Fabian v Desierto). He insisted that the Office of the Ombudsman is a quasi-
judicial agency of the government, and under BP 129, the CA has
concurrent jurisdiction with the Supreme Court over a Rule 65. He asserted
that a Rule 65 with the CA conformed to the hierarchy of courts (People v.
Cuaresma).

20 July 2005, CA denied (Fabian v Desierto only applies when it’s an admin
case). Hence this Rule 45 (filed 18 Aug 2005) to the SC.

ISSUE(S):
W/N R65 to the CA was proper: [NO, in numerous cases and as affirmed
in Pontejos v. Office of the Ombudsman, the SC ruled that the remedy to
challenge the Resolution of the Ombudsman at the conclusion of a
preliminary investigation was to file R65]

HELD:
In 1999, SC ruled in Tirol, Jr. v. Del Rosario that the remedy of the
aggrieved party from a resolution of the Office of the Ombudsman finding
the presence or absence of probable cause in criminal cases was to file a
petition for certiorari under Rule 65 in this Court. The Court reiterated its
ruling in Kuizon v. Desierto and Tirol, Jr. v. Del Rosario. And on February 22,
2006, in Pontejos v. Office of the Ombudsman, the Court ruled that the remedy
to challenge the Resolution of the Ombudsman at the conclusion of a
preliminary investigation was to file a petition for certiorari in this Court
under Rule 65.

This does not violate hierarchy of courts (explained in Estrada v Desierto,

citing Kuizon v Ombudsman): “In dismissing petitioners’ petition for lack of
jurisdiction, the Court of Appeals cited the case of Fabian vs. Desierto. The
appellate court correctly ruled that its jurisdiction extends only to decisions
of the Office of the Ombudsman in administrative cases. In the Fabian case,
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