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.