G.R. No. 147188. September 14, 2004

FIRST DIVISION

COMMISSIONER OF INTERNAL REVENUE, petitioner, vs. THE ESTATE OF BENIGNO P. TODA, JR., Represented by Special Co-administrators Lorna Kapunan and Mario Luza Bautista, respondents.

D E C I S I O N

DAVIDE, JR., C.J.:

This Court is called upon to determine in this case whether the tax planning scheme adopted by a corporation constitutes tax evasion that would justify an assessment of deficiency income tax.

The petitioner seeks the reversal of the Decision of the Court of Appeals of 31 January 2001 in CA-G.R. SP No. 57799 affirming the 3 January 2000 Decision of the Court of Tax Appeals (CTA) in C.T.A. Case No. 5328, which held that the respondent Estate of Benigno P. Toda, Jr. is not liable for the deficiency income tax of Cibeles Insurance Corporation (CIC) in the amount of P79,099,999.22 for the year 1989, and ordered the cancellation and setting aside of the assessment issued by Commissioner of Internal Revenue Liwayway Vinzons-Chato on 9 January 1995.

The case at bar stemmed from a Notice of Assessment sent to CIC by the Commissioner of Internal Revenue for deficiency income tax arising from an alleged simulated sale of a 16-storey commercial building known as Cibeles Building, situated on two parcels of land on Ayala Avenue, Makati City.

On 2 March 1989, CIC authorized Benigno P. Toda, Jr., President and owner of 99.991% of its issued and outstanding capital stock, to sell the Cibeles Building and the two parcels of land on which the building stands for an amount of not less than P90 million.

On 30 August 1989, Toda purportedly sold the property for P100 million to Rafael A. Altonaga, who, in turn, sold the same property on the same day to Royal Match Inc. (RMI) for P200 million. These two transactions were evidenced by Deeds of Absolute Sale notarized on the same day by the same notary public.

For the sale of the property to RMI, Altonaga paid capital gains tax in the amount of P10 million.

On 16 April 1990, CIC filed its corporate annual income tax return for the year 1989, declaring, among other things, its gain from the sale of real property in the amount of P75,728.021. After crediting withholding taxes of P254,497.00, it paid P26,341,207 for its net taxable income of P75,987,725.

On 12 July 1990, Toda sold his entire shares of stocks in CIC to Le Hun T. Choa for P12.5 million, as evidenced by a Deed of Sale of Shares of Stocks. Three and a half years later, or on 16 January 1994, Toda died.

On 29 March 1994, the Bureau of Internal Revenue (BIR) sent an assessment notice and demand letter to the CIC for deficiency income tax for the year 1989 in the amount of P79,099,999.22.

The new CIC asked for a reconsideration, asserting that the assessment should be directed against the old CIC, and not against the new CIC, which is owned by an entirely different set of stockholders; moreover, Toda had undertaken to hold the buyer of his stockholdings and the CIC free from all tax liabilities for the fiscal years 1987-1989.

On 27 January 1995, the Estate of Benigno P. Toda, Jr., represented by special co-administrators Lorna Kapunan and Mario Luza Bautista, received a Notice of Assessment dated 9 January 1995 from the Commissioner of Internal Revenue for deficiency income tax for the year 1989 in the amount of P79,099,999.22, computed as follows:

Income Tax 1989

Net Income per return P75,987,725.00

Add: Additional gain on sale

of real property taxable under

ordinary corporate income

but were substituted with

individual capital gains

(P200M 100M) 100,000,000.00

Total Net Taxable Income P175,987,725.00

per investigation

Tax Due thereof at 35% P 61,595,703.75

Less: Payment already made

1. Per return P26,595,704.00

2. Thru Capital Gains

Tax made by R.A.

Altonaga 10,000,000.00 36,595,704.00

Balance of tax due P 24,999,999.75

Add: 50% Surcharge 12,499,999.88

25% Surcharge 6,249,999.94

Total P 43,749,999.57

Add: Interest 20% from

4/16/90-4/30/94 (.808) 35,349,999.65

TOTAL AMT. DUE & COLLECTIBLE P 79,099,999.22

============

The Estate thereafter filed a letter of protest.

In the letter dated 19 October 1995, the Commissioner dismissed the protest, stating that a fraudulent scheme was deliberately perpetuated by the CIC wholly owned and controlled by Toda by covering up the additional gain of P100 million, which resulted in the change in the income structure of the proceeds of the sale of the two parcels of land and the building thereon to an individual capital gains, thus evading the higher corporate income tax rate of 35%.

On 15 February 1996, the Estate filed a petition for review with the CTA alleging that the Commissioner erred in holding the Estate liable for income tax deficiency; that the inference of fraud of the sale of the properties is unreasonable and unsupported; and that the right of the Commissioner to assess CIC had already prescribed.

In his Answer and Amended Answer, the Commissioner argued that the two transactions actually constituted a single sale of the property by CIC to RMI, and that Altonaga was neither the buyer of the property from CIC nor the seller of the same property to RMI. The additional gain of P100 million (the difference between the second simulated sale for P200 million and the first simulated sale for P100 million) realized by CIC was taxed at the rate of only 5% purportedly as capital gains tax of Altonaga, instead of at the rate of 35% as corporate income tax of CIC. The income tax return filed by CIC for 1989 with intent to evade payment of the tax was thus false or fraudulent. Since such falsity or fraud was discovered by the BIR only on 8 March 1991, the assessment issued on 9 January 1995 was well within the prescriptive period prescribed by Section 223 (a) of the National Internal Revenue Code of 1986, which provides that tax may be assessed within ten years from the discovery of the falsity or fraud. With the sale being tainted with fraud, the separate corporate personality of CIC should be disregarded. Toda, being the registered owner of the 99.991% shares of stock of CIC and the beneficial owner of the remaining 0.009% shares registered in the name of the individual directors of CIC, should be held liable for the deficiency income tax, especially because the gains realized from the sale were withdrawn by him as cash advances or paid to him as cash dividends. Since he is already dead, his estate shall answer for his liability.

In its decision of 3 January 2000, the CTA held that the Commissioner failed to prove that CIC committed fraud to deprive the government of the taxes due it. It ruled that even assuming that a pre-conceived scheme was adopted by CIC, the same constituted mere tax avoidance, and not tax evasion. There being no proof of fraudulent transaction, the applicable period for the BIR to assess CIC is that prescribed in Section 203 of the NIRC of 1986, which is three years after the last day prescribed by law for the filing of the return. Thus, the governments right to assess CIC prescribed on 15 April 1993. The assessment issued on 9 January 1995 was, therefore, no longer valid. The CTA also ruled that the mere ownership by Toda of 99.991% of the capital stock of CIC was not in itself sufficient ground for piercing the separate corporate personality of CIC. Hence, the CTA declared that the Estate is not liable for deficiency income tax of P79,099,999.22 and, accordingly, cancelled and set aside the assessment issued by the Commissioner on 9 January 1995.

In its motion for reconsideration, the Commissioner insisted that the sale of the property owned by CIC was the result of the connivance between Toda and Altonaga. She further alleged that the latter was a representative, dummy, and a close business associate of the former, having held his office in a property owned by CIC and derived his salary from a foreign corporation (Aerobin, Inc.) duly owned by Toda for representation services rendered. The CTA denied the motion for reconsideration, prompting the Commissioner to file a petition for review with the Court of Appeals.

In its challenged Decision of 31 January 2001, the Court of Appeals affirmed the decision of the CTA, reasoning that the CTA, being more advantageously situated and having the necessary expertise in matters of taxation, is better situated to determine the correctness, propriety, and legality of the income tax assessments assailed by the Toda Estate.

Unsatisfied with the decision of the Court of Appeals, the Commissioner filed the present petition invoking the following grounds:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT COMMITTED NO FRAUD WITH INTENT TO EVADE THE TAX ON THE SALE OF THE PROPERTIES OF CIBELES INSURANCE CORPORATION.

II. THE COURT OF APPEALS ERRED IN NOT DISREGARDING THE SEPARATE CORPORATE PERSONALITY OF CIBELES INSURANCE CORPORATION.

III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE RIGHT OF PETITIONER TO ASSESS RESPONDENT FOR DEFICIENCY INCOME TAX FOR THE YEAR 1989 HAD PRESCRIBED.

The Commissioner reiterates her arguments in her previous pleadings and insists that the sale by CIC of the Cibeles property was in connivance with its dummy Rafael Altonaga, who was financially incapable of purchasing it. She further points out that the documents themselves prove the fact of fraud in that (1) the two sales were done simultaneously on the same date, 30 August 1989; (2) the Deed of Absolute Sale between Altonaga and RMI was notarized ahead of the alleged sale between CIC and Altonaga, with the former registered in the Notarial Register of Jocelyn H. Arreza Pabelana as Doc. 91, Page 20, Book I, Series of 1989; and the latter, as Doc. No. 92, Page 20, Book I, Series of 1989, of the same Notary Public; (3) as early as 4 May 1989, CIC received P40 million from RMI, and not from Altonaga. The said amount was debited by RMI in its trial balance as of 30 June 1989 as investment in Cibeles Building. The substantial portion of P40 million was withdrawn by Toda through the declaration of cash dividends to all its stockholders.

For its part, respondent Estate asserts that the Commissioner failed to present the income tax return of Altonaga to prove that the latter is financially incapable of purchasing the Cibeles property.

To resolve the grounds raised by the Commissioner, the following questions are pertinent:

1. Is this a case of tax evasion or tax avoidance?

2. Has the period for assessment of deficiency income tax for the year 1989 prescribed? and

3. Can respondent Estate be held liable for the deficiency income tax of CIC for the year 1989, if any?

We shall discuss these questions in seriatim.

Is this a case of tax evasion

or tax avoidance?

Tax avoidance and tax evasion are the two most common ways used by taxpayers in escaping from taxation. Tax avoidance is the tax saving device within the means sanctioned by law. This method should be used by the taxpayer in good faith and at arms length. Tax evasion, on the other hand, is a scheme used outside of those lawful means and when availed of, it usually subjects the taxpayer to further or additional civil or criminal liabilities.

Tax evasion connotes the integration of three factors: (1) the end to be achieved, i.e., the payment of less than that known by the taxpayer to be legally due, or the non-payment of tax when it is shown that a tax is due; (2) an accompanying state of mind which is described as being evil, in bad faith, willfull,or deliberate and not accidental; and (3) a course of action or failure of action which is unlawful.

All these factors are present in the instant case. It is significant to note that as early as 4 May 1989, prior to the purported sale of the Cibeles property by CIC to Altonaga on 30 August 1989, CIC received P40 million from RMI, and not from Altonaga. That P40 million was debited by RMI and reflected in its trial balance as other inv. Cibeles Bldg. Also, as of 31 July 1989, another P40 million was debited and reflected in RMIs trial balance as other inv. Cibeles Bldg. This would show that the real buyer of the properties was RMI, and not the intermediary Altonaga.

The investigation conducted by the BIR disclosed that Altonaga was a close business associate and one of the many trusted corporate executives of Toda. This information was revealed by Mr. Boy Prieto, the assistant accountant of CIC and an old timer in the company.  But Mr. Prieto did not testify on this matter, hence, that information remains to be hearsay and is thus inadmissible in evidence. It was not verified either, since the letter-request for investigation of Altonaga was unserved, Altonaga having left for the United States of America in January 1990. Nevertheless, that Altonaga was a mere conduit finds support in the admission of respondent Estate that the sale to him was part of the tax planning scheme of CIC. That admission is borne by the records. In its Memorandum, respondent Estate declared:

Petitioner, however, claims there was a change of structure of the proceeds of sale. Admitted one hundred percent. But isnt this precisely the definition of tax planning? Change the structure of the funds and pay a lower tax. Precisely, Sec. 40 (2) of the Tax Code exists, allowing tax free transfers of property for stock, changing the structure of the property and the tax to be paid. As long as it is done legally, changing the structure of a transaction to achieve a lower tax is not against the law. It is absolutely allowed.

Tax planning is by definition to reduce, if not eliminate altogether, a tax. Surely petitioner [sic] cannot be faulted for wanting to reduce the tax from 35% to 5%. [Underscoring supplied].

The scheme resorted to by CIC in making it appear that there were two sales of the subject properties, i.e., from CIC to Altonaga, and then from Altonaga to RMI cannot be considered a legitimate tax planning. Such scheme is tainted with fraud.

Fraud in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in the damage to another, or by which an undue and unconscionable advantage is taken of another.

Here, it is obvious that the objective of the sale to Altonaga was to reduce the amount of tax to be paid especially that the transfer from him to RMI would then subject the income to only 5% individual capital gains tax, and not the 35% corporate income tax. Altonagas sole purpose of acquiring and transferring title of the subject properties on the same day was to create a tax shelter. Altonaga never controlled the property and did not enjoy the normal benefits and burdens of ownership. The sale to him was merely a tax ploy, a sham, and without business purpose and economic substance. Doubtless, the execution of the two sales was calculated to mislead the BIR with the end in view of reducing the consequent income tax liability.

In a nutshell, the intermediary transaction, i.e., the sale of Altonaga, which was prompted more on the mitigation of tax liabilities than for legitimate business purposes constitutes one of tax evasion.

Generally, a sale or exchange of assets will have an income tax incidence only when it is consummated. The incidence of taxation depends upon the substance of a transaction. The tax consequences arising from gains from a sale of property are not finally to be determined solely by the means employed to transfer legal title. Rather, the transaction must be viewed as a whole, and each step from the commencement of negotiations to the consummation of the sale is relevant. A sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title. To permit the true nature of the transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.

To allow a taxpayer to deny tax liability on the ground that the sale was made through another and distinct entity when it is proved that the latter was merely a conduit is to sanction a circumvention of our tax laws. Hence, the sale to Altonaga should be disregarded for income tax purposes. The two sale transactions should be treated as a single direct sale by CIC to RMI.

Accordingly, the tax liability of CIC is governed by then Section 24 of the NIRC of 1986, as amended (now 27 (A) of the Tax Reform Act of 1997), which stated as follows:

Sec. 24. Rates of tax on corporations. (a) Tax on domestic corporations.- A tax is hereby imposed upon the taxable net income received during each taxable year from all sources by every corporation organized in, or existing under the laws of the Philippines, and partnerships, no matter how created or organized but not including general professional partnerships, in accordance with the following:

Twenty-five percent upon the amount by which the taxable net income does not exceed one hundred thousand pesos; and

Thirty-five percent upon the amount by which the taxable net income exceeds one hundred thousand pesos.

CIC is therefore liable to pay a 35% corporate tax for its taxable net income in 1989. The 5% individual capital gains tax provided for in Section 34 (h) of the NIRC of 1986 (now 6% under Section 24 (D) (1) of the Tax Reform Act of 1997) is inapplicable. Hence, the assessment for the deficiency income tax issued by the BIR must be upheld.

Has the period of assessment prescribed?

No. Section 269 of the NIRC of 1986 (now Section 222 of the Tax Reform Act of 1997) read:

Sec. 269. Exceptions as to period of limitation of assessment and collection of taxes.-(a) In the case of a false or fraudulent return with intent to evade tax or of failure to file a return, the tax may be assessed, or a proceeding in court after the collection of such tax may be begun without assessment, at any time within ten years after the discovery of the falsity, fraud or omission: Provided, That in a fraud assessment which has become final and executory, the fact of fraud shall be judicially taken cognizance of in the civil or criminal action for collection thereof .

Put differently, in cases of (1) fraudulent returns; (2) false returns with intent to evade tax; and (3) failure to file a return, the period within which to assess tax is ten years from discovery of the fraud, falsification or omission, as the case may be.

It is true that in a query dated 24 August 1989, Altonaga, through his counsel, asked the Opinion of the BIR on the tax consequence of the two sale transactions. Thus, the BIR was amply informed of the transactions even prior to the execution of the necessary documents to effect the transfer. Subsequently, the two sales were openly made with the execution of public documents and the declaration of taxes for 1989. However, these circumstances do not negate the existence of fraud. As earlier discussed those two transactions were tainted with fraud. And even assuming arguendo that there was no fraud, we find that the income tax return filed by CIC for the year 1989 was false. It did not reflect the true or actual amount gained from the sale of the Cibeles property. Obviously, such was done with intent to evade or reduce tax liability.

As stated above, the prescriptive period to assess the correct taxes in case of false returns is ten years from the discovery of the falsity. The false return was filed on 15 April 1990, and the falsity thereof was claimed to have been discovered only on 8 March 1991. The assessment for the 1989 deficiency income tax of CIC was issued on 9 January 1995. Clearly, the issuance of the correct assessment for deficiency income tax was well within the prescriptive period.

Is respondent Estate liable

for the 1989 deficiency

income tax of Cibeles

Insurance Corporation?

A corporation has a juridical personality distinct and separate from the persons owning or composing it. Thus, the owners or stockholders of a corporation may not generally be made to answer for the liabilities of a corporation and vice versa. There are, however, certain instances in which personal liability may arise. It has been held in a number of cases that personal liability of a corporate director, trustee, or officer along, albeit not necessarily, with the corporation may validly attach when:

1. He assents to the (a) patently unlawful act of the corporation, (b) bad faith or gross negligence in directing its affairs, or (c) conflict of interest, resulting in damages to the corporation, its stockholders, or other persons;

2. He consents to the issuance of watered down stocks or, having knowledge thereof, does not forthwith file with the corporate secretary his written objection thereto;

3. He agrees to hold himself personally and solidarily liable with the corporation; or

4. He is made, by specific provision of law, to personally answer for his corporate action.

It is worth noting that when the late Toda sold his shares of stock to Le Hun T. Choa, he knowingly and voluntarily held himself personally liable for all the tax liabilities of CIC and the buyer for the years 1987, 1988, and 1989. Paragraph g of the Deed of Sale of Shares of Stocks specifically provides:

g. Except for transactions occurring in the ordinary course of business, Cibeles has no liabilities or obligations, contingent or otherwise, for taxes, sums of money or insurance claims other than those reported in its audited financial statement as of December 31, 1989, attached hereto as Annex B and made a part hereof. The business of Cibeles has at all times been conducted in full compliance with all applicable laws, rules and regulations. SELLER undertakes and agrees to hold the BUYER and Cibeles free from any and all income tax liabilities of Cibeles for the fiscal years 1987, 1988 and 1989. [Underscoring Supplied].

When the late Toda undertook and agreed to hold the BUYER and Cibeles free from any all income tax liabilities of Cibeles for the fiscal years 1987, 1988, and 1989, he thereby voluntarily held himself personally liable therefor. Respondent estate cannot, therefore, deny liability for CICs deficiency income tax for the year 1989 by invoking the separate corporate personality of CIC, since its obligation arose from Todas contractual undertaking, as contained in the Deed of Sale of Shares of Stock.

WHEREFORE, in view of all the foregoing, the petition is hereby GRANTED. The decision of the Court of Appeals of 31 January 2001 in CA-G.R. SP No. 57799 is REVERSED and SET ASIDE, and another one is hereby rendered ordering respondent Estate of Benigno P. Toda Jr. to pay P79,099,999.22 as deficiency income tax of Cibeles Insurance Corporation for the year 1989, plus legal interest from 1 May 1994 until the amount is fully paid.

Costs against respondent.

SO ORDERED.

Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Tax Digest: CIR v. Estate of Benigno Toda Jr. (2004)

CIR v. Estate of Benigno Toda Jr.
G.R. No. 147188. September 14, 2004
DAVIDE, JR., C.J.

Lessons Applicable:  Tax evasion v. Tax avoidance

Laws Applicable:

FACTS:

• March 2, 1989: Cibeles Insurance Corp. (CIC) authorized Benigno P. Toda Jr., President and Owner of 99.991% of outstanding capital stock, to sell the Cibeles Building and 2 parcels of land which he sold to Rafael A. Altonaga on August 30, 1987 for P 100M who then sold it on the same day to Royal Match Inc. for P 200M.
• CIC included gains from sale of real property of P 75,728.021 in its annual income tax return while Altonaga paid a 5% capital gains tax of P 10M
• July 12, 1990: Toda sold his shares to Le Hun T. Choa for P 12.5M evidenced by a deed of ale of shares of stock which provides that the buyer is free from all income tax liabilities for 1987, 1988 and 1989.  
• Toda Jr. died 3 years later.  
• March 29, 1994: BIR sent an assessment notice and demand letter to CIC for deficiency of income tax of P 79,099, 999.22 
• January 27, 1995: BIR sent the same to the estate of Toda Jr. 
• Estate filed a protest which was dismissed - fraudulent sale to evade the 35% corporate income tax for the additional gain of P 100M and that there is in fact only 1 sale.
• Since it is falsity or fraud, the prescription period is 10 years from the discovery of the falsity or fraud as prescribed under Sec. 223 (a) of the NIRC
• CTA: No proof of fraudulent transaction so the applicable period is 3 years after the last day prescribed by law for filing the return 
• CA: affirmed 
• CIR appealed

ISSUE: W/N there is falsity or fraud resulting to tax evasion rather than tax avoidance so the period for assessment has not prescribed.

HELD: YES.  Estate shall be liable since NOT yet prescribed.

• Tax avoidance and tax evasion are the two most common ways used by taxpayers in escaping from taxation. ax avoidance is the tax saving device within the means sanctioned by law. This method should be used by the taxpayer in good faith and at arms length. Tax evasion, on the other hand, is a scheme used outside of those lawful means and when availed of, it usually subjects the taxpayer to further or additional civil or criminal liabilities.
• Tax evasion connotes the integration of three factors: 
• (1) the end to be achieved, i.e., the payment of less than that known by the taxpayer to be legally due, or the non-payment of tax when it is shown that a tax is due
• (2) an accompanying state of mind which is described as being evil, in bad faith, willfull,or deliberate and not accidental; and
• (3) a course of action or failure of action which is unlawful.
• All are present in this case.  The trial balance showed that RMI debited P 40M as "other-inv. Cibeles Building" that indicates RMI Paid CIC (NOT Altonaga)
• Fraud in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in the damage to another, or by which an undue and unconscionable advantage is taken of another. 
• Here, it is obvious that the objective of the sale to Altonaga was to reduce the amount of tax to be paid especially that the transfer from him to RMI would then subject the income to only 5% individual capital gains tax, and not the 35% corporate income tax. 
• Generally, a sale of or exchange of assets will have an income tax incidence only when it is consummated but such tax incidence depends upon the substance of the transaction rather them mere formalities.  

Crim Law 1 Case Digest: Diego v. Castillo 2004

Diego v. Castillo

A.M. No. RTJ-02-1673  August 11, 2004

Lessons Applicable: malice, bigamy

Laws Applicable: Article 204[7] RPC,

FACTS:

·         January 9, 1965: Crescencia Escoto contracted marriage with Jorge de Perio, Jr., both Filipinos, solemnized before then Mayor Liberato Reyna of Dagupan City

·         February 15, 1978: Jorge filed a Decree of Divorce in Texas

·         June 4, 1987: Crescencia Escoto using the name Lucena Escoto married Manuel P. Diego before the Rev. Fr. Godoy, parish priest of Dagupan City

·         The sister of Manuel P. Diego filed a criminal case of bigamy against Escoto

·         RTC: Acquittal since state failed to prove guilt beyond whisper of a doubt and gave credence to the defense of the accused that she acted without any malicious intent for believing in good faith that her marriage was already annulled by a foreign judgment

·         An administrative case is filed against Judge Silverio Q. Castillo for Knowingly rendering an unjust judgment under Article 204[7] of the Revised Penal Code

ISSUE: W/N Castillo should be liable against Article 204[7] of the Revised Penal Code

HELD: NO. Regional Trial Court Judge Silverio Q. Castillo is FINED P10,000 with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely

·         The law requires that

o    (a) the offender is a judge;

o    (b) he renders a judgment in a case submitted to him for decision;

o    (c) the judgment is unjust;

o    (d) he knew that said judgment is unjust

·         even assuming that a judge erred in acquitting an accused, he still cannot be administratively charged lacking the element of bad faith, malice or corrupt purpose

·         As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. 

·         Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge.

·         error committed by respondent Judge being gross and patent, the same constitutes ignorance of the law of a nature sufficient to warrant disciplinary action

Jurisprudence: A.M. No. RTJ-02-1673 August 11, 2004

A.M. No. RTJ-02-1673  August 11, 2004

EDUARDO P. DIEGO, complainant, vs. JUDGE SILVERIO Q. CASTILLO, Regional Trial Court, Dagupan City, Branch 43, respondent.

D E C I S I O N

AZCUNA, J.:

This is an administrative complaint against Regional Trial Court Judge Silverio Q. Castillo for allegedly knowingly rendering an unjust judgment in a criminal case and/or rendering judgment in gross ignorance of the law.

The facts and circumstances of the criminal case are summarized, as follows:

a) On January 9, 1965, accused Lucena Escoto contracted marriage with Jorge de Perio, Jr., solemnized before then Mayor Liberato Reyna of Dagupan City.  The couple were both Filipinos.  In the marriage contract, the accused used and adopted the name Crescencia Escoto, with a civil status of single;

b) In a document dated February 15, 1978, denominated as a “Decree of Divorce” and purportedly issued to Jorge de Perio as petitioner by the Family District Court of Harris County, Texas (247th Judicial District), it was “ordered, adjudged and decreed, that the bonds of matrimony heretofore existing between Jorge de Perio and Crescencia de Perio are hereby Dissolved, Cancelled and Annulled and the Petitioner is hereby granted a Divorce.”

c) Subsequently, on June 4, 1987, the same Crescencia Escoto contracted marriage with herein complainant’s brother, Manuel P. Diego, solemnized before the Rev. Fr. Clemente T. Godoy, parish priest of Dagupan City.  The marriage contract shows that this time, the accused used and adopted the name Lucena Escoto, again, with a civil status of single.[1]

After trial of the criminal case for bigamy, respondent Judge promulgated a decision, on February 24, 1999, the dispositive part of which stated:

WHEREFORE, for failure of the STATE to prove accused’s guilt beyond whisper of doubt, the COURT hereby orders her ACQUITTAL with costs de oficio.

SO ORDERED.[2]

The decision states that the main basis for the acquittal was good faith on the part of the accused.  Respondent Judge gave credence to the defense of the accused that she acted without any malicious intent.  The combined testimonial and documentary evidence of the defense was aimed at convincing the court that accused Lucena Escoto had sufficient grounds to believe that her previous marriage to Jorge de Perio had been validly dissolved by the divorce decree and that she was legally free to contract the second marriage with Manuel P. Diego.

In rendering the decision, respondent Judge reasoned, thus:

While it is true that in our jurisdiction the matrimonial bond between Jorge de Perio and the accused are not yet annulled, it remains undisputed that cessation of the same was decreed in the Family District Court of Harris County, Texas, 247th Judicial District, effective February 15, 1978.

x x x

The CHARGE filed against the accused is categorized as Mala en se (sic) which requires the indispensable presence of criminal intent/dolo.

The felony on BIGAMY as defined and penalized by the Revised Penal Code explicitly mandates that it must be committed with criminal intent. In other words, there must be an unquestionable demonstration on the part of the perpetrator that he/she criminally, willfully and unlawfully contracted a second marriage despite knowledge that his/her first marriage is still existing.

As borne out by the evidence adduced, the accused contracted the second marriage after she was informed and furnished of the Divorce Decree which was granted by the Family District Court of Harris County Texas in her favor.

As an ordinary laywoman accused being a recipient of a divorce decree, she entertains the impression that she can contract a subsequent marriage which she did when she married the late Manuel Diego.

To the honest evaluation of the Court the act complained of against the accused is not patently illegal for the reason that she acted in good faith believing that her marriage was already annulled by a foreign judgment.[3]

Complainant herein alleges that the decision rendered by the respondent Judge is manifestly against the law and contrary to the evidence.  He questions the evidentiary weight and admissibility of the divorce decree as a basis for the finding of good faith.  In addition, complainant stresses that the evidence on record negates respondent Judge’s finding of good faith on the part of the accused.  Thus, complainant urges this Court to impose sanctions upon respondent Judge as, according to complainant, these acts amount to knowingly rendering an unjust judgment and/or gross ignorance of the law.

In his comment, respondent Judge explains that what was in issue was the criminal culpability of the accused under Article 349 of the Revised Penal Code.  Respondent Judge does not dispute that the second marriage was bigamous because at the time it was contracted, the first marriage was still subsisting since divorce is not recognized in our country and because the accused’s first husband was still alive.  Respondent Judge, however, maintains that what was controlling was whether by virtue of the divorce decree the accused honestly believed, albeit mistakenly, that her first marriage had been severed and she could marry again.  According to respondent Judge, the same is a state of mind personal to the accused. He further stressed that knowledge of the law should not be exacted strictly from the accused since she is a lay person, and that ineptitude should not be confused with criminal intent.

By separate manifestations, both parties agreed to submit the case for resolution based on the pleadings.

The Disputed Decision

A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case.

In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.”

This Court, in People v. Bitdu,[4] carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability.  Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act.  This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.[5]

Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, [6] where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

These findings notwithstanding, the issue before us is whether or not respondent Judge should be held administratively liable for knowingly rendering an unjust judgment and/or gross ignorance of the law.

Knowingly Rendering an Unjust Judgment

Knowingly rendering an unjust judgment is a criminal offense defined and penalized under Article 204[7] of the Revised Penal Code.  For conviction to lie, it must be proved that the judgment is unjust and that the judge knows that it is unjust.  Knowingly means consciously, intelligently, willfully or intentionally.  It is firmly established in this jurisdiction that for a judge to be held liable for knowingly rendering an unjust judgment, it must be shown that the judgment is unjust as it is contrary to law or is not supported by the evidence, and that the same was made with conscious and deliberate intent to do an injustice.[8]

The law requires that (a) the offender is a judge; (b) he renders a judgment in a case submitted to him for decision; (c) the judgment is unjust; (d) he knew that said judgment is unjust.[9] This Court reiterates that in order to hold a judge liable, it must be shown that the judgment is unjust and that it was made with conscious and deliberate intent to do an injustice.  That good faith is a defense to the charge of knowingly rendering an unjust judgment remains the law.[10]

As held in Alforte v. Santos,[11] even assuming that a judge erred in acquitting an accused, she still cannot be administratively charged lacking the element of bad faith, malice or corrupt purpose.  Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the part of the complainant to prove the same warrants the dismissal of the administrative complaint.[12]

There is, therefore, no basis for the charge of knowingly rendering an unjust judgment.

Gross Ignorance of the Law

Anent the charge of gross ignorance of the law, Mañozca v. Domagas,[13] is instructive.  Therein respondent judge was charged with gross ignorance of the law resulting in a manifestly unjust judgment for granting a demurrer to the evidence in a bigamy case.  The grant of the demurrer to the evidence was based on the judge’s finding of good faith on the part of the accused, anchored upon a document denominated as a “Separation of Property with Renunciation of Rights.” This Court stated that said act of the judge exhibited ignorance of the law, and accordingly he was fined in the amount of P5,000.

Also, in Guillermo v. Reyes, Jr.,[14] where therein respondent judge was given a reprimand with a stern warning of a more severe penalty should the same or similar act be committed in the future, this Court explained:

We have heretofore ruled that a judge may not be held administratively accountable for every erroneous order or decision he renders.  To unjustifiably hold otherwise, assuming that he has erred, would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment.  The error must be gross or patent, malicious, deliberate or in evident bad faith.  It is only in this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative sanctions are called for as an imperative duty of this Court.

As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous.  Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge.  It does not mean, however, that a judge, given the leeway he is accorded in such cases, should not evince due care in the performance of his adjudicatory prerogatives.

Furthermore, in Wingarts v. Mejia,[15] where therein respondent judge, although absolved of any guilt for the charge of knowingly rendering an unjust judgment, was still imposed sanctions by this Court, thus:

In any event, respondent judge deserves to be appropriately penalized for his regrettably erroneous action in connection with Criminal Case No. 2664 of his court.  We have repeatedly stressed that a municipal trial judge occupies the forefront of the judicial arm that is closest in reach to the public he serves, and he must accordingly act at all times with great constancy and utmost probity. Any kind of failure in the discharge of this grave responsibility cannot be countenanced, in order to maintain the faith of the public in the judiciary, especially on the level of courts to which most of them resort for redress.[16]

Applying these precedents to the present case, the error committed by respondent Judge being gross and patent, the same constitutes ignorance of the law of a nature sufficient to warrant disciplinary action.

Penalty

After evaluation of the merits of the case, the Office of the Court Administrator (OCA) recommended that respondent Judge be reprimanded with a stern warning of a more severe penalty in the future.

The act of respondent Judge in rendering the decision in question took place on February 24, 1999 or before the effectivity, on October 1, 2001, of A.M. No. 01-8-10-SC which classified gross ignorance of the law as a serious charge and penalized the offense with a fine of not less than P20,000 but not more than P40,000.

Applying the rule as then prevailing,[17] and in line with applicable jurisprudence,[18] the sanction on respondent Judge should be a fine in the amount of P10,000.

WHEREFORE, Regional Trial Court Judge Silverio Q. Castillo is hereby FINED in the amount of Ten Thousand Pesos (P10,000) with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Carpio, JJ., concur.

Consti Persons Case Digest: Honasan v The Panel of Investigating Prosecutor of the Department of Justice

Gregorio Honasan II petitioner vs.

The Panel of Investigating Prosecutors

Of the Department of Justice

G.R.No. 159747 April 13,2004

Lessons Applicable: Rule on Interpretative Regulations (persons), Powers of the Ombudsman (consti), concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation (consti)

Law Applicable: Section 13, Article XI of the Constitution, Art. 2 Civil Code

Facts:

·         August 4, 2003: CIDG-PNP/P Director Edguardo Matillano  filed an affidavit-complaint with the Department of Justice (DOJ) which contains the following in part:

o   July 27, 2003: crime of coup d’ etat  was committed by military personnel who occupied Oakwood and Senator Gregorio “Gringo” Honasan, II

o   On or about 11 p.m. June 4,2003: A meeting was held and presided by Senator Honasan in a house located in San Juan, Metro Manila

o   Early morning of July 27, 2003: Capt. Gerardo Gambala, in behalf of the military rebels occupying Oakwood, made a public statement aired on national television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo. Willing to risk their lives to achieve the National Recovery Agenda (NRA) of Senator Honasan which they believe is the only program that would solve the ills of society.

·         Sworn statement of AFP Major Perfecto Ragil stated that:

o   June 4, 2003 about 11 pm: Senator Gregorio “Gringo” Honasan arrived with Capt. Turinga to hold the NRP meeting where they concluded the use of force, violence and armed struggle to achieve the vision of NRP where a junta will be constituted which will run the new government. They had a blood compact and that he only participated due to the threat made by Senator Honasan when he said “Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil.”

o   July 27, 2003: He saw on TV that Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the NRP meeting he attended, having a press conference about their occupation of the Oakwood Hotel.  He saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner is the same as their blood compact wound. 

·         August 27, 2003: Senator Honasan appeared with counsel at the DOJ to file a a Motion for Clarification questioning DOJ's jurisdiction over the case since the imputed acts were committed in relation to his public office  by a group of public officials with Salary Grade 31 which should be handled by the Office of the Ombudsman and the Sandiganbayan

·         Senator Honasan then filed a petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 directing him to file his respective counter-affidavits and controverting evidence on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation

Issues:

1. Whether in regards to Ombudsman-DOJ Circular no. 95-001, the office of the Ombudsman should deputize the prosecutors of the DOJ to conduct the preliminary investigation.
2. Whether the Ombudsman-DOJ Joint Circular no. 95-001 is ineffective on the ground that it was not published
3. Whether the Ombudsman has jurisdiction to conduct the preliminary investigation because the petitioner is a public officer with salary grade 31 (Grade 27 or Higher) thereby falling within the jurisdiction of the Sandigan Bayan.

Held: Wherefore, the petition for certiorari is DISMISSED for lack of merit

1.      No.

• Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute
• The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors.
• circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ
• The Constitution, The Ombudsman Act of 1989, Administrative order no. 8 of the office of the Ombudsman. The prevailing jurisprudence and under the Revised Rules on Criminal Procedure, All recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against public officers and employees.
• The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation.

2.      No.

·         In the case of People vs. Que Po Lay, 94 Phil. 640 (1954). The only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective.

·         In the case of Taňada V. Tuvera, 146 Scra 453 (1986), The Honorable Court rules that:

o   Interpretative regulations and those merely internal in nature, that is regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so called letters of instructions issued by the administrative superiors concerning the rules on guidelines to be followed by their subordinates in performance of their duties.

• OMB-DOJ Joint Circulars no. 95-001 is merely an internal circular between the DOJ and the office of the Ombudsman, Outlining authority and responsibilities among prosecutors of the DOJ and of the office of the Ombudsman in the conduct of preliminary investigation. It does not regulate the conduct of persons or the public, in general.

3.      No. Whether or not the offense is within exclusive jurisdiction or not will not resolve the present petition so as not to pre-empt the result of the investigation conducted by the DOJ Panel.

Jurisprudence: G.R. No. 159747

EN BANC

G.R. No. 159747             April 13, 2004

GREGORIO B. HONASAN II, petitioner,

vs.

THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part:

…

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by military personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio "Gringo"Honasan, II …

3. …

4. The said crime was committed as follows:

4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint.

…

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe is the only program that would solve the ills of society. . . . (Emphasis supplied).

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit:

1. That I am a member of the Communication –Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major;

2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest;

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located somewhere in San Juan, Metro Manila;

6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns within the framework of NRP and we were likewise served with dinner;

7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan;

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan;

9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like;

10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect." After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions;

11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities.

12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed;

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did;

14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "…kaya nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place;

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacañang Compound for "D-DAY", my task is to switch off the telephone PABX that serves the Malacañang complex. I told him that I could not do it. No further conversation ensued and he left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others who were present during the June 4th meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I";

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied)

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

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

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

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

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

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

In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter-affidavits and controverting evidence on or before September 23, 2003.1

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

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments.

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

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner;

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

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are:

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner.

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

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

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

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases.

The arguments of respondent DOJ Panel are:

1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513.

2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a sufficient ground to engender a well founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion.

The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249.

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general.

The Court finds the petition without merit.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides:

Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; …

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the following powers and functions:

…

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; (Emphasis supplied)

and Section 1 of P.D. 1275, effective April 11, 1978, to wit:

SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. – There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

and Mabanag vs. Lopez Vito.2

The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides:

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof provides:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of the government, the investigation of such cases.

…. (Emphasis supplied)

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both.

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases.

The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigating agency of the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared:

A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is exclusive.3

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

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

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

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

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

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

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

. . . . . . . . .

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

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

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

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

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

In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the investigation.9 (Emphasis supplied)

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

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

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

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

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

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows:

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

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

. . .

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

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

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

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

It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with existing statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied)

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

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

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

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

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN

ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE.

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

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

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

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

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

1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman.

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

3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority.

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

Manila, Philippines, October 5, 1995.

(signed)

TEOFISTO T. GUINGONA, JR.

Secretary

Department of Justice

(signed)

ANIANO A. DESIERTO

Ombudsman

Office of the Ombudsman

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

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

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

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

(c) National and Regional State Prosecutors; and

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

Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

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

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.

Davide, Jr., C.J., Panganiban, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Puno, J., joins J. Ynares-Santiago.

Vitug, J., see separate dissenting opinion.

Quisumbing, J., joins the dissent.

Ynares-Santiago, J., see separate dissenting opinion.

Sandoval-Gutierrez, J., see dissenting opinion.

SEPARATE OPINION

VITUG, J.:

Preliminary investigation is an initial step in the indictment of an accused; it is a substantive right, not merely a formal or a technical requirement,1 which an accused can avail himself of in full measure. Thus, an accused is entitled to rightly assail the conduct of an investigation that does not accord with the law. He may also question the jurisdiction or the authority of the person or agency conducting that investigation and, if bereft of such jurisdiction or authority, to demand that it be undertaken strictly in conformity with the legal prescription.2

The Ombudsman is empowered3 to, among other things, 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, at any stage, take over from any agency of Government the investigation of such cases. This statutory provision, by and large, is a restatement of the constitutional grant to the Ombudsman of the power to investigate and prosecute "any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal x x x."4

The Panel of Investigating Prosecutors of the Department of Justice, in taking cognizance of the preliminary investigation on charges of coup d'etat against petitioner Gregorio Honasan, relies on OMB-DOJ Circular No. 95-001. That joint circular must be understood as being merely a working arrangement between the Office of the Ombudsman (OMB) and the Department of Justice (DOJ) that must not be meant to be such a blanket delegation to the DOJ as to generally allow it to conduct preliminary investigation over any case cognizable by the OMB.

While Section 31 of Republic Act No. 6770 states that the Ombudsman may "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," the provision cannot be assumed, however, to be an undefined and broad entrustment of authority. If it were otherwise, it would be unable to either withstand the weight of burden to be within constitutional parameters or the proscription against undue delegation of powers. The deputized fiscal, state prosecutor or government lawyer must in each instance be named; the case to which the deputized official is assigned must be specified; and the investigation must be conducted under the supervision and control of the Ombudsman. The Ombudsman remains to have the basic responsibility, direct or incidental, in the investigation and prosecution of such cases.

The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction over offenses or felonies, whether simple or complexed with other crimes, committed by the public officials, including members of Congress, in relation to their office. The crime of coup d'etat, with which petitioner, a member of the Senate, has been charged, is said to be closely linked to his "National Recovery Program," a publication which encapsules the bills and resolutions authored or sponsored by him on the senate floor. I see the charge as being then related to and bearing on his official function.

On the above score, I vote to grant the petition.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

The first question to answer is which court has jurisdiction to try a Senator who is accused of coup d'etat. Behind the simple issue is a more salient question - Should this Court allow an all too restrictive and limiting interpretation of the law rather than take a more judicious approach of interpreting the law by the spirit, which vivifies, and not by the letter, which killeth?

The elemental thrust of the Majority view is that the Department of Justice (DOJ), not the Office of the Ombudsman, has the jurisdiction to investigate the petitioner, a Senator, for the crime of coup d'etat pursuant to Section 4 of Presidential Decree No. 1606 as amended by Republic Act No. 8249 (Sandiganbayan Law). The Majority maintains that since the crime for which petitioner is charged falls under Section 4, paragraph (b) of the Sandiganbayan Law, it is imperative to show that petitioner committed the offense in relation to his office as Senator. It reasoned that since petitioner committed the felonious acts, as alleged in the complaint, not in connection with or in relation to his public office, it is the DOJ, and not the Office of the Ombudsman, which is legally tasked to conduct the preliminary investigation.

In light of the peculiar circumstances prevailing in the instant case and in consideration of the policies relied upon by the Majority, specifically, the Sandiganbayan Law and Republic Act No. 6770 (The Ombudsman Act of 1989), I submit that the posture taken by the Majority seriously deviates from and renders nugatory the very intent for which the laws were enacted.

The crime of coup d'etat, if committed by members of Congress or by a public officer with a salary grade above 27, falls within the exclusive original jurisdiction of the Sandiganbayan. Section 4 of P.D. 1606, as amended, provides:

Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

x x x        x x x x x x

(2) Members of Congress and officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989;

x x x x x x x x x.

In the case of Lacson v. Executive Secretary,1 we clarified the exclusive original jurisdiction of the Sandiganbayan pursuant to Presidential Decree ("PD") No. 1606, as amended by Republic Act ("RA") Nos. 7975 and 8249, and made the following definitive pronouncements:

Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is not paragraph but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's official functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender – that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan.

As worded, the Sandiganbayan Law requires that for a felony, coup d'etat in this case, to fall under the exclusive jurisdiction of the Sandiganbayan, two requisites must concur, namely: (1) that the public officer or employee occupies the position corresponding to Salary Grade 27 or higher; and (2) that the crime is committed by the public officer or employee in relation to his office. Applying the law to the case at bar, the Majority found that although the first requirement has been met, the second requirement is wanting. I disagree.

Following its definition, coup d'etat can only be committed by members of the military or police or holding any public office or employment, with or without civilian support. Article 134-A of the Revised Penal Code states:

Article 134-A. Coup d'etat. – How committed. – The crime of coup d'etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office or employment, with or without civilian support or participation for the purpose of seizing or diminishing state power.

A coup consists mainly of the military personnel and public officers and employees seizing the controlling levers of the state, which is then used to displace the government from its control of the remainder. As defined, it is a swift attack directed against the duly constituted authorities or vital facilities and installations to seize state power. It is therefore inherent in coup d'etat that the crime be committed "in relation to" the office of a public officer or employee. The violence, intimidation, threat, strategy or stealth which are inherent in the crime can only be accomplished by those who possess a degree of trust reposed on such person in that position by the Republic of the Philippines. It is by exploiting this trust that the swift attack can be made. Since the perpetrators take advantage of their official positions, it follows that coup d'etat can be committed only through acts directly or intimately related to the performance of official functions, and the same need not be proved since it inheres in the very nature of the crime itself.

It is contended by public respondent that the crime of coup d'etat cannot be committed "in relation" to petitioner's office, since the performance of legislative functions does not include its commission as part of the job description. To accommodate this reasoning would be to render erroneous this Court's ruling in People v. Montejo2 that "although public office is not an element of the crime of murder in [the] abstract," the facts in a particular case may show that ". . . the offense therein charged is intimately connected with [the accuseds'] respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions." Simply put, if murder can be committed in the performance of official functions, so can the crime of coup d'etat.

The Ombudsman is wrong when he says that legislative function is only "to make laws, and to alter and repeal them." The growing complexity of our society and governmental structure has so revolutionized the powers and duties of the legislative body such that its members are no longer confined to making laws. They can perform such other functions, which are, strictly speaking, not within the ambit of the traditional legislative powers, for instance, to canvass presidential elections, give concurrence to treaties, to propose constitutional amendments as well as oversight functions. As an incident thereto and in pursuance thereof, members of Congress may deliver privilege speeches, interpellations, or simply inform and educate the public in respect to certain proposed legislative measures.

The complaint alleges that the meeting on June 4, 2003 of the alleged coup plotters involved a discussion on the issues and concerns within the framework of the National Recovery Program (NRP), a bill which petitioner authored in the Senate. The act of the petitioner in ventilating the ails of the society and extolling the merits of the NRP is part of his duties as legislator not only to inform the public of his legislative measures but also, as a component of the national leadership, to find answers to the many problems of our society. One can see therefore that Senator Honasan's acts were "in relation to his office."

It is true that not every crime committed by a high-ranking public officer falls within the exclusive original jurisdiction of the Sandiganbayan. It is also true that there is no public office or employment that includes the commission of a crime as part of its job description. However, to follow this latter argument would mean that there would be no crime falling under Section 4, paragraph (b) PD No. 1606, as amended. This would be an undue truncation of the Sandiganbayan's exclusive original jurisdiction and contrary to the plain language of the provision.

Only by a reasonable interpretation of the scope and breadth of the term "offense committed in relation to [an accused's] office" in light of the broad powers and functions of the office of Senator, can we subserve the very purpose for which the Sandiganbayan and the Office of the Ombudsman were created.

The raison d' etre for the creation of the Office of the Ombudsman in the 1987 Constitution and for the grant of its 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.3

In similar vein, the Constitution provides for the creation of the Sandiganbayan to attain the highest norms of official conduct required of public officers and employees. It is a special court that tries cases involving public officers and employees that fall within specific salary levels. Thus, section 4 of the Sandiganbayan Law makes it a requirement that for offenses to fall under the exlusive jurisdiction of the Sandiganbayan, the public officer involved must occupy a position equivalent to Salary Grade 27 or higher. This salary grade requirement is not a product of whim or an empty expression of fancy, but a way to ensure that offenses which spring from official abuse will be tried by a judicial body insulated from official pressure and unsusceptible to the blandishments, influence and intimidation from those who seek to subvert the ends of justice.

If we were to give our assent to respondent's restrictive interpretation of the term "in relation to his office," we would be creating an awkward situation wherein a powerful member of Congress will be investigated by the DOJ which is an adjunct of the executive department, and tried by a regular court which is much vulnerable to outside pressure. Contrarily, a more liberal approach would bring the case to be investigated and tried by specialized Constitutional bodies and, thus ensure the integrity of the judicial proceedings.

Second, the "primary jurisdiction" of the Office of the Ombudsman to conduct the preliminary investigation of an offense within the exclusive original jurisdiction of the Sandiganbayan operates as a mandate on the Office of the Ombudsman, especially when the person under investigation is a member of Congress. The Ombudsman's refusal to exercise such authority, relegating the conduct of the preliminary investigation of I.S. No. 2003-1120 to the respondent Investigating Panel appointed by the Department of Justice ("DOJ") under DOJ Department Order No. 279, s. 2003, is a dereliction of a duty imposed by no less than the Constitution.

Insofar as the investigation of said crimes is concerned, I submit that the same belongs to the primary jurisdiction of the Ombudsman. R.A. No. 6770 or the Ombudsman Act of 1989, empowers the Ombudsman to conduct the investigation of cases involving illegal acts or omissions committed by any public officer or employee. Section 15, paragraph (1) of the Ombudsman Act of 1989 provides:

SECTION 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the following powers, functions and duties:

1. Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x.4

In Uy v. Sandiganbayan,5 the extent and scope of the jurisdiction of the Office of the Ombudsman to conduct investigations was described as:

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee.

The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15 (1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11 (4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases.

The "primary jurisdiction" of the Office of the Ombudsman in cases cognizable by the Sandiganbayan was reiterated in Laurel v. Desierto:6

Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.

"Primary Jurisdiction" usually refers to cases involving specialized disputes where the practice is to refer the same to an administrative agency of special competence in observance of the doctrine of primary jurisdiction. This Court has said that it cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative tribunal before the question is resolved by the administrative tribunal, where the question demands the exercise of sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters of fact, and a uniformity of ruling is essential to comply with the premises of the regulatory statute administered.7 The objective of the doctrine of primary jurisdiction is "to guide a court in determining whether it should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court."8 It applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative body; in such case, the judicial process is suspended pending referral of such issues to the administrative body for its view.9

Where the concurrent authority is vested in both the Department of Justice and the Office of the Ombudsman, the doctrine of primary jurisdiction should operate to restrain the Department of Justice from exercising its investigative authority if the case will likely be cognizable by the Sandiganbayan. In such cases, the Office of the Ombudsman should be the proper agency to conduct the preliminary investigation over such an offense, it being vested with the specialized competence and undoubted probity to conduct the investigation.

The urgent need to follow the doctrine is more heightened in this case where the accused is a member of Congress. The DOJ is under the supervision and control of the Office of the President; in effect, therefore, the investigation would be conducted by the executive over a member of a co-equal branch of government. It is precisely for this reason that the independent constitutional Office of the Ombudsman should conduct the preliminary investigation. Senator Honasan is a member of the political opposition. His right to a preliminary investigation by a fair and uninfluenced body is sacred and should not be denied. As we stated in the Uy case:

The prosecution of offenses committed by public officers and employees is one of the most important functions of the Ombudsman. In passing RA 6770, the Congress deliberately endowed the Ombudsman with such power to make him a more active and effective agent of the people in ensuring accountability n public office. A review of the development of our Ombudsman laws reveals this intent.

These pronouncements are in harmony with the constitutional mandate of he Office of the Ombudsman, as expressed in Article XI of the Constitution.

SECTION 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 agency, subdivision or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the actions taken and the result thereof. (Underscoring supplied.)

SECTION 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. x x x.

Coupled with these provisions, Section 13 of the Ombudsman Act of 1989 provides:

SECTION 13. Mandate. – The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people. (Underscoring supplied)

The Constitution and the Ombudsman Act of 1989 both mention, unequivocally, that the Office of the Ombudsman has the duty and mandate to act on the complaints filed against officers or employees of the Government. It is imperative that this duty be exercised in order to make real the role of the Office of the Ombudsman as a defender of the people's interest specially in cases like these which have partisan political taint.

For the foregoing reasons, I vote to GRANT the petition.

DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

I am constrained to dissent from the majority opinion for the following reasons: (1) it evades the consequence of the statutory definition of the crime of coup d'etat; (2) it violates the principle of stare decisis without a clear explanation why the established doctrine has to be re-examined and reversed; and (3) it trivializes the importance of two constitutional offices – the Ombudsman and the Senate – and in the process, petitioner's right to due process has been impaired.

I

It is an established principle that an act no matter how offensive, destructive, or reprehensible, is not a crime unless it is defined, prohibited, and punished by law. The prosecution and punishment of any criminal offense are necessarily circumscribed by the specific provision of law which defines it.

Article 134-A of the Revised Penal Code defines coup d'etat, thus:

"Article 134-A. Coup d'etat. – How committed. – The crime of coup d'etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office or employment with or without civilian support or participation for the purpose of seizing or diminishing state power."

There is no question that Senator Honasan, herein petitioner, holds a high public office. If he is charged with coup d'etat, it has to be in his capacity as a public officer committing the alleged offense in relation to his public office.

The complaint filed with the Department of Justice alleges the events supposedly constituting the crime of coup d'etat, thus:

1. On 04 June 2003, Senator Honasan presided over a meeting held "somewhere in San Juan, Metro Manila."

2. After dinner, Senator Honasan, as presiding officer, "discussed the NRP (National Recovery Program), the graft and corruption in the government, including the military institutions, the judiciary, the executive department, and the like."

3. "The discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. x x x Senator Honasan countered that 'we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests to protect.' x x x Senator Honasan replied 'kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil.' x x x."

4. In the course of the meeting, Senator Honasan presented the plan of action to achieve the goals of the NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted to run the new government.

5. The crime of coup d'etat was committed on 27 July 2003 by military personnel who occupied Oakwood. Senator Honasan and various military officers, one member of his staff, and several John Does and Jane Does were involved in the Oakwood incident.

The above allegations determine whether or not petitioner committed the alleged crime as a public officer "in relation to his office." If it was in relation to his office, the crime falls under the exclusive original jurisdiction of the Sandiganbayan. It is the Ombudsman who has the primary jurisdiction to investigate and prosecute the complaint for coup d'etat, thus:

Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan as follows:

"SECTION 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

"a. Violations of Republic No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensations and Position Classification Act of 1989 (Republic Act No. 67 58), specifically including:

(a) Provincial governors, vice-governors, members of the Sangguniang Panlalawigan, and provincial treasurers , assessors, engineers, and other provincial department heads;

(b) City mayors, vice-mayors, members of the Sangguniang Panlungsod, city treasurers, assessors, engineers, and other city department heads;

(c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine Army and air force colonels, naval captains, and all officers of higher rank;

(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;

(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;

(2) Members of Congress or officials thereof classified as Grade '27' and up under the Compensation and Position Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution;

(5) All other national and local officials classified as Grade '27' or higher under the Compensation and Position Classification Act of 1989.

"b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office.

"c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986."

Section 15 of Republic Act 6770, or the Ombudsman Act of 1989, provides:

"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 his primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x" (Emphasis supplied)

Under the above provisions, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender, that is, whether he is one of those public officers enumerated therein.

Petitioner, being a Senator, occupies a government position higher than Grade 27 of the Compensation and Position Classification Act of 1989. In fact, he holds the third highest position and rank in the Government. At the apex, the President stands alone. At the second level, we have the Vice-President, Speaker of the House, Senate President and Chief Justice. Clearly, he is embraced in the above provisions.

Following the doctrine of "primary jurisdiction," it is the Ombudsman who should conduct the preliminary investigation of the charge of coup d'etat against petitioner. The DOJ should refrain from exercising such function.

The crux of the jurisdiction of the DOJ lies in the meaning of "in relation to their office."

The respondents start their discussion of "in relation to public office" with a peculiar presentation. They contend that the duties of a Senator are to make laws, to appropriate, to tax, to expropriate, to canvass presidential elections, to declare the existence of a state war, to give concurrence to treaties and amnesties, to propose constitutional amendments, to impeach, to investigate in aid of legislation, and to determine the Senate rules of proceedings and discipline of its members. They maintain that the "alleged acts done to overthrow the incumbent government and authorities by arms and with violence" cannot be qualified as "acts reminiscent of the discharge of petitioner's legislative duties as Senator."1

The allegations in the complaint and in the pleadings of the DOJ, the Solicitor General, and the Ombudsman (who is taking their side) charging petitioner with coup d'etat show hat he was engaged in a discussion of his National Recovery Program (NRP), corruption in government, and the need for reform. The NRP is a summary of what he has introduced and intended to introduce into legislation by Congress. There is no doubt, therefore, that the alleged coup d'etat was committed in relation to the performance of his official duty as a Senator.

II

The ponencia is a departure or reversion from established doctrine. Under the principle of stare decisis, the Court should, for the sake of certainty, apply a conclusion reached in one case to decisions which follow, if the facts are substantially similar. As stated in Santiago vs. Valenzuela2, stare decisi et non quieta movere. Stand by the decisions and disturb not what is settled.

In Deloso vs. Domingo3, where the Governor of Zambales and his military and police escorts ambushed the victims who were passing by in a car, we held that the multiple murders were committed in relation to public office. In Cunanan vs. Arceo4, the mayor ordered his co-accused to shoot the victims. We ruled that the murder was in relation to public office. In Alarilla vs. Sandiganbayan5, the town mayor aimed a gun and threatened to kill a councilor of the municipality during a public hearing. We concluded that the grave threats were in relation to the mayor's office. Following these precedents, I am convinced that petitioner's discourse on his National Recovery Program is in relation to his office.

III

The respondents state that the DOJ is vested with jurisdiction to conduct all investigations and prosecution of all crimes. They cite PD 1275, as amended by PD 1513, and the Revised Administrative Code of 1987 as the source of this plenary power.

While the DOJ has a broad general jurisdiction over crimes found in the Revised Penal Code and special laws, however, this jurisdiction is not plenary or total. Whenever the Constitution or statute vests jurisdiction over the investigation and prosecution of certain crimes in an office, the DOJ has no jurisdiction over those crimes. In election offenses, the Constitution vests the power to investigate and prosecute in the Commission on Elections.6 In crimes committed by public officers in relation to their office, the Ombudsman is given by both the Constitution and the statute the same power of investigation and prosecution.7 These powers may not be exercised by the DOJ.

The DOJ cannot pretend to have investigatory and prosecutorial powers above those of the Ombudsman. The Ombudsman is a constitutional officer with a rank equivalent to that of an Associate Justice of this Court. The respondent's Prosecution Office investigates and prosecutes all kinds of offenses from petty crimes, like vagrancy or theft, to more serious crimes, such as those found in the Revised Penal Code. The Ombudsman, on the other hand, prosecutes offenses in relation to public office committed by public officers with the rank and position classification of Grade 27 or higher. It is a special kind of jurisdiction which excludes general powers of other prosecutory offices.

I agree with the petitioner that a becoming sense of courtesy, respect, and propriety requires that the constitutional officer should conduct the preliminary investigation and prosecution of the complaint against him and not a fifth assistant city prosecutor or even a panel of prosecutors from the DOJ National Prosecution Service.

I do not believe that a mere agreement, such as OMB-DOJ Joint Circular No. 95-001, can fully transfer the prosecutory powers of the Ombudsman to the DOJ without need for deputization in specific cases. As stated by the petitioner, the DOJ cannot be given a roving commission or authority to investigate and prosecute cases falling under the Ombudsman's powers anytime the DOJ pleases without any special and explicit deputization. On this point, I agree with Justice Jose C. Vitug that the Joint Circular must be understood as a mere working arrangement between the Office of the Ombudsman and the DOJ that must not be meant to be such a blanket delegation to the DOJ as to generally allow it to conduct preliminary investigation over any case cognizable by the Ombudsman.

Petitioner further raises a due process question. He accuses the DOJ of bias, partiality, and prejudgment. He states that he has absolutely no chance of being cleared by the respondent DOJ panel because it has already decided, before any presentation of proof, that he must be charged and arrested without bail.

As stated by the petitioner, there are precedents to the effect that where bias exists, jurisdiction has to be assumed by a more objective office. In Panlilio vs. Sandiganbayan,8 we recognized that the PCGG has the authority to investigate the case, yet we ordered the transfer of the case to the Ombudsman because of the PCGG's "marked bias" against the petitioner.

In Conjuangco vs. PCGG,9 we held that there is a denial of due process where the PCGG showed "marked bias" in handling the investigation. In Salonga vs. Cruz Paño,10 where the preliminary investigation was tainted by bias and partiality, we emphasized the right of an accused to be free, not only from arbitrary arrest and punishment but also from unwarranted and biased prosecution.

The petitioner's pleadings show the proofs of alleged bias. They may be summarized as follows:

First, on July 27, 2003 when the Oakwood incident was just starting, DILG Secretary Lina and National Security Adviser Roilo Golez went on a media barrage accusing petitioner of complicity without a shred of evidence.

Second, petitioner was approached by Palace emissaries, Velasco, Defensor, Tiglao, and Afable to help defuse the incident and ask mutineers to surrender. Then the request was distorted to make it appear that he went there to save his own skin.

Third, even before any charge was filed, officials of the DOJ were on an almost daily media program prematurely proclaiming petitioner's guilt. How can the DOJ conduct an impartial and fair investigation when it has already found him guilty?

Fourth, petitioner was given five days to answer Matillano's complaint but later on, it was shortened to three days.

Fifth, petitioner filed a 30 page Reply but the DOJ Order was issued at once, or only after two days, or on Sept. 10, 2003. The Order did not discuss the Reply, but perfunctorily glossed over and disregarded it.

The petitioner states that the DOJ is constitutionally and factually under the control of the President. He argues that:

"No questionable prosecution of an opposition Senator who has declared himself available for the Presidency would be initiated without the instigation, encouragement or approval of officials at the highest levels of the Administration. Justice requires that the Ombudsman, an independent constitutional office, handle the investigation and prosecution of this case. The DOJ cannot act fairly and independently in this case. In fact, all of the actions the DOJ has taken so far have been marked by bias, hounding and persecution.

And finally, the charges laid against Senator Honasan are unfounded concoctions of fertile imaginations. The petitioner had no role in the Oakwood mutiny except the quell and pacify the angry young men fighting for a just cause. Inspiration perhaps, from his National Recovery Program, but no marching orders whatsoever."

Prosecutors, like Caesar's wife, must be beyond suspicion. Where the test of the cold neutrality required of them cannot be met, they must yield to another office especially where their jurisdiction is under question. The tenacious insistence of respondents in handling the investigation of the case and their unwillingness to transfer it to the Ombudsman in the face of their questionable jurisdiction are indications of marked bias.

WHEREFORE, I vote to GRANT the petition and to order the Department of Justice to refrain from conducting preliminary investigation of the complaint for coup d'etat against petitioner for lack of jurisdiction.