KHAN VS. OMBUDSMAN
G.R. No. 125296, July 20, 2006
FACTS:
Petitioners Ismael G. Khan, Jr. and Wenceslao
L. Malabanan, former officers of Philippine Airlines (PAL), were charged before
the Deputy Ombudsman (Visayas) with violation of RA 3019 (the Anti-Graft and
Corrupt Practices Act) for using their positions in PAL to secure a contract
for Synergy Services Corporation, a corporation engaged in hauling and
janitorial services in which they were shareholders.
Petitioners filed an omnibus motion to dismiss
the complaint on the following grounds: (1) the Ombudsman had no jurisdiction
over them since PAL was a private entity and (2) they were not public officers,
hence, outside the application of RA 3019.
The Deputy Ombudsman denied petitioners'
omnibus motion to dismiss, ruling that although PAL was originally organized as
a private corporation, its controlling stock was later acquired by the
government through the GSIS. Therefore, it became a government-owned or
controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan. The Deputy
Ombudsman also held that petitioners were public officers within the definition
of RA 3019, Section 2 (b). Under that provision, public officers included
"elective, appointive officials and employees, permanent or temporary,
whether in the classified or unclassified or exempt service receiving
compensation, even nominal, from the Government."
Petitioners appealed the order to the
Ombudsman which affirmed the decision of the Deputy Ombudsman.
Petitioners, thus, filed a petition for
certiorari before the Supreme Court. Petitioners argue that: (1) the
Ombudsman's jurisdiction only covers GOCCs with original charters and these do
not include PAL, a private entity created under the general corporation law;
(2) Quimpo does not apply to the case at bar and (3) RA 3019 only concerns
"public officers," thus, they cannot be investigated or prosecuted
under that law.
ISSUE:
1. Whether or not the Ombudsman has
jurisdiction over GOCC without original charter
2. Whether or not the Quimpo case apply to
the case at bar
3. Whether or not petitioners PAL officers are
public officers
HELD:
1.
Jurisdiction of the ombudsman over GOCCS is confined only to those with
original charters
Article XI, Section 13(2) of the 1987
Constitution provides:
Sec. 13.
The Office of the Ombudsman shall have the following powers, functions, and
duties:
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(2)
Direct, upon complaint or at its own instance, any public official or employee
of the Government, or any subdivision, agency or instrumentality thereof, as
well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties. (italics supplied)
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Based on the foregoing provision, the Office
of the Ombudsman exercises jurisdiction over public officials/ employees of
GOCCs with original charters. This being so, it can only investigate and
prosecute acts or omissions of the officials/employees of government
corporations. Therefore, although the government later on acquired the
controlling interest in PAL, the fact remains that the latter did not have an
"original charter" and its officers/employees could not be
investigated and/or prosecuted by the Ombudsman.
In Juco v. National Labor Relations
Commission, we ruled that the phrase "with original charter" means
"chartered by special law as distinguished from corporations organized
under the Corporation Code." PAL, being originally a private
corporation seeded by private capital and created under the general corporation
law, does not fall within the jurisdictional powers of the Ombudsman under
Article XI, Section 13(2) of the Constitution. Consequently, the latter is
devoid of authority to investigate or prosecute petitioners.
2. Quimpo
Not Applicable to the Case at Bar
Quimpo is not applicable to the case at bar.
In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the
Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the
dismissal of the case on the ground that the Tanodbayan had no jurisdiction
over them as officers/employees of a private company. The Court declared that
the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a
private entity when Philippine National Oil Corporation (PNOC) acquired its
shares.
In hindsight, although Quimpo appears, on
first impression, relevant to this case (like PETROPHIL, PAL's shares were also
acquired by the government), closer scrutiny reveals that it is not actually on
all fours with the facts here.
In Quimpo, the government acquired PETROPHIL
to "perform functions related to government programs and policies on
oil." The fact that the purpose in acquiring PETROPHIL was for it to
undertake governmental functions related to oil was decisive in sustaining the
Tanodbayan's jurisdiction over it. This was certainly not the case with
PAL. The records indicate that the government acquired the controlling interest
in the airline as a result of the conversion into equity of its unpaid loans
in GSIS. No governmental functions at all were involved.
Furthermore, Quimpo was decided prior to
the 1987 Constitution. In fact, it was the 1973 Constitution which the Court
relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's
accused officers, particularly Article XIII, Section 6. The term
"government-owned or controlled corporations" in the 1973
Constitution was qualified by the 1987 Constitution to refer only to those with
original charters.
3. Petitioners,
as then Officers of PAL, were not Public Officers
Neither the 1987 Constitution nor RA 6670
(The Ombudsman Act of 1989) defines who "public officers" are.
Instead, its varied definitions and concepts are found in different statutes
and jurisprudence. Usually quoted in our decisions is Mechem, a recognized
authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court
extensively quoted his exposition on the term "public officers":
A public office is the right, authority and
duty, created and conferred by law, by which, for a given period, either fixed
by law or enduring at the pleasure of the creating power, an individual is
invested with some portion of the sovereign functions of the government, to be
exercised by him for the benefit of the public. The individual so invested is a
public officer.
The characteristics of a public office,
according to Mechem, include the delegation of sovereign functions, its
creation by law and not by contract, an oath, salary, continuance of the
position, scope of duties, and the designation of the position as an office.
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Mechem describes the delegation to the
individual of the sovereign functions of government as "[t]he most
important characteristic" in determining whether a position is a public
office or not.
The most important characteristic which
distinguishes an office from an employment or contract is that the creation and
conferring of an office involves a delegation to the individual of some of
the sovereign functions of government to be exercised by him for the benefit of
the public; − that some portion of the sovereignty of the country, either
legislative, executive, or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred are of this
nature, the individual is not a public officer.
From the foregoing, it can be reasonably
inferred that "public officers" are those endowed with the
exercise of sovereign executive, legislative or judicial functions. The
explication of the term is also consistent with the Court's pronouncement in
Quimpo that, in the case of officers/employees in GOCCs, they are deemed
"public officers" if their corporations are tasked to carry out
governmental functions.
WHEREFORE, the petition is hereby GRANTED.
Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are
restrained from proceeding with the investigation or prosecution of the
complaint against petitioners for violation of RA 3019. Accordingly, their
assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE
and ANNULLED.
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