ZALDIVAR
VS. SANDIGANBAYAN
G.R. Nos. 79690-707, April 27, 1988
Facts:
Petitioner Enrique A. Zaldivar, governor of the province
of Antique, filed a petition for certiorari, prohibition and mandamus under
Rule 65 before the Supreme Court, seeking to restrain the Sandiganbayan and
Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of
criminal cases against him on the ground that said cases were filed by said
Tanodbayan without legal and constitutional authority, since under the 1987
Constitution which took effect on February 2, 1987, it is only the Ombudsman
(not the present or incumbent Tanodbayan) who has the authority to file cases
with the Sandiganbayan. Petitioner also prayed that Tanodbayan Gonzalez be
restrained from conducting preliminary investigations with the Sandiganbayan.
Issue:
Does the Tanodbayan (Special Prosecuter) have the
authority to conduct preliminary investigations and to direct the filing of
criminal cases with the Sandiganbayan?
Held:
No. Under the 1987 Constitution, the Ombudsman (as
distinguished from the incumbent Tanodbayan) is charged with the duty 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 commission appears to be illegal,
unjust, improper, or inefficient (Sec. 13, par. 1)
The Constitution likewise provides that:
The existing Tanodbayan
shall hereafter be known as the office of the Special Prosecutor. It shall
continue to function and exercise its powers as now or hereafter may be
provided by law, contempt except those conferred on the office of the Ombudsman
created under this Constitution. (Art. XI, Section 7).
Now then, inasmuch as the aforementioned duty is given to
the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the
1987 constitution and who is supposed to retain powers and duties NOT GIVEN to
the Ombudsman) is clearly without authority to conduct preliminary
investigations and to direct the filing of criminal cases with the Sandiganbayan,
except upon orders of the Ombudsman. This right to do so was lost effective
February 2, 1987. From that time, he has been divested of such authority.
Under the present Constitution, the Special Prosecutor
(Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can
investigate and prosecute cases only upon the latter's authority or orders.
The Special Prosecutor cannot initiate the prosecution of cases but can only
conduct the same if instructed to do so by the Ombudsman. Even his original
power to issue subpoena, which he still claims under Section 10(d) of PD
1630, is now deemed transferred to the Ombudsman, who may, however,
retain it in the Spedal Prosecutor in connection with the cases he is ordered
to investigate.
It is not correct either to suppose that the Special
Prosecutor remains the Ombudsman as long as he has not been replaced, for the
fact is that he has never been the Ombudsman. The Office of the Ombudsman is a
new creation under Article XI of the Constitution different from the Office of
the Tanodbayan created under PD 1607 although concededly some of the powers of
the two offices are Identical or similar. The Special Prosecutor cannot plead
that he has a right to hold over the position of Ombudsman as he has never held
it in the first place.
WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by petitioner
Zaldivar and hereby NULLIFY the criminal informations filed against him in the
Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to cease and desist
from conducting investigations and filing criminal cases with the Sandiganbayan
or otherwise exercising the powers and function of the Ombudsman.
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