GREGORIO B.

HONASAN II, Petitioner,

versus THE PANEL OF INVESTIGATING
PROSECUTORS OF THE DEPARTMENT
OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND
SEBASTIAN F. CAPONONG, JR.), CIDGPNPP/DIRECTOR
EDUARDO
MATILLANO, and HON. OMBUDSMAN
SIMEON V. MARCELO, Respondents.
G.R. No. 159747--February 13 | 200402-13
DECISION
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
Malacaang Compound for "D-DAY", my task
is to switch off the telephone PABX that
serves the Malacaang 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
arguments on the following issues:

oral

1) Whether respondent Department of

Justice Panel of Investigators has jurisdiction

to conduct preliminary investigation over

the charge of coup d'etat against petitioner;

involved therein is determinative of the

validity of the preliminary investigation.

2) Whether Ombudsman-DOJ Circular No.

95-001 violates the Constitution and
Republic Act No. 6770 or Ombudsman Act of
1989; and

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.

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 OMBDOJ 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

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 nonobservance 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 noninvolvement
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 reexamined 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:

No. 1861 as a requirement before the

Ombudsman
can
acquire
primary
jurisdiction on its power to investigate.

'SEC. 4. Jurisdiction. - The Sandiganbayan

shall exercise:

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.

'(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

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
AGAINST
PUBLIC
OFFICERS
EMPLOYEES, THE CONDUCT OF

FILED
AND

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) (signed)

TEOFISTO T. GUINGONA, JR. ANIANO A.

DESIERTO
Secretary Ombudsman
Department of
Ombudsman

Justice

Office

of

the

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
preliminary investigationsThe following
investigations:

may

conduct

to conduct
preliminary

(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 OMBJoint 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 OMBDOJ 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 case[13] 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 OMBDOJ 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 socalled 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.