Property Case Digests

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Ombudsman vs. CSC

OMBUDSMAN VS. CIVIL SERVICE COMMISSION

G.R. No. 162215, July 30, 2007

Facts:

Ombudsman Simeon V. Marcelo wrote a letter dated July 28, 2003 to the Civil Service Commission (CSC), requesting the approval of the amendment of qualification standards for Director II positions in the Central Administrative Service and Finance and Management Service of the Office of the Ombudsman.   The CSC issued Opinion No. 44, s. 2004 disapproving the request on the ground that Director II position, being third level eligibility, is covered by the Career Executive Service. The Office of the Ombudsman, thus, filed a petition for certiorari seeking to set aside and nullify CSC Opinion No. 44, s. 2004.

The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional and statutory power as an independent constitutional body to administer and supervise its own officials and personnel, including the authority to administer competitive examinations and prescribe reasonable qualification standards for its own officials, cannot be curtailed by the general power of the CSC to administer the civil service system. Any unwarranted and unreasonable restriction on its discretionary authority, such as what the CSC did when it issued Opinion No. 44, s. 2004, is constitutionally and legally infirm.

Issue:

1. Whether or not the Director II positions in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman are covered by the CES

Held:

1. No. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 292, otherwise known as “The Administrative Code of 1987,” provides:

SECTION 7.  Career Service. – The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.

The Career Service shall include:

(1)   Open Career positions for appointment to which prior qualification in an appropriate examination is required;

(2)   Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;

(3)  Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;

x x x          x x x          x x x (emphasis supplied)

Thus, the CES covers presidential appointees only.

2.  Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.

To classify the positions of Director II in the Central Administrative Service and the Finance and Management Service of the Office of the Ombudsman as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code.

Section 6, Article XI of the Constitution provides:

Sec. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman according to the Civil Service Law.

  

This is complemented by Sec. 11 of RA 6770, otherwise known as “The Ombudsman Act of 1989.”

Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of this independence, the Ombudsman has the power to appoint all officials and employees of the Office of the Ombudsman, except his deputies.This power necessarily includes the power of setting, prescribing and administering the standards for the officials and personnel of the Office.

To further ensure its independence, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This includes the authority to organize such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approve its position structure and staffing pattern. Necessarily, it also includes the authority to determine and establish the qualifications, duties, functions and responsibilities of the various directorates and allied services of the Office. This must be so if the constitutional intent to establish an independent Office of the Ombudsman is to remain meaningful and significant.

Qualification standards are used as guides in appointment and other personnel actions, in determining training needs and as aid in the inspection and audit of the personnel work programs. They are intimately connected to the power to appoint as well as to the power of administrative supervision. Thus, as a corollary to the Ombudsman’s appointing and supervisory powers, he possesses the authority to establish reasonable qualification standards for the personnel of the Office of the Ombudsman.

Since the responsibility for the establishment, administration and maintenance of qualification standards lies with the concerned department or agency, the role of the CSC is limited to assisting the department or agency with respect to these qualification standards and approving them. The CSC cannot substitute its own standards for those of the department or agency, specially in a case like this in which an independent constitutional body is involved.

Petition GRANTED and Opinion No. 44, s. 2004 SET ASIDE.

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Orcullo vs Gervacio

ORCULLO VS. GERVACIO

G.R. No. 134104.  September 14, 1999

Facts:

Petitioner Nenita R. Orcullo was elected City Councilor of the Second District of Davao City in 1995.  She was chair of the Committee of Women Welfare and Development of the Sangguniang Panlungsod.

In September, 1995, the City Government of Davao City, represented by the Vice-Mayor, named respondent Virginia Yap Morales as team leader of a study group in the conduct of the Action Study Towards Policy Formulation on the Welfare and Development of Women, in aid of legislation.

In 1996, due to financial constraints, Orcullo caused the suspension of the project. In 1997, Morales wrote the Office of the Ombudsman for Mindanao "requesting for assistance" to collect back wages. 

On March 20, 1997, petitioner having been furnished a copy of  the above letter, replied thereto.  She said that respondent Virginia Yap Morales was among women activists who volunteered to work for the codification of the Women Code, and she was endorsed to head the study team.  Acting thereon, on September 15, 1995, the Vice Mayor of Davao City, appointed respondent team leader of a study group for an action study towards policy formulation on women's welfare and development, in aid of proposed legislation.  As there was no budget for the project, petitioner recommended her appointment as technical assistant in the City Council of Davao City.  On October 24, 1995, respondent accepted the appointment and signed a contract of service with the City of Davao, represented by the Vice-Mayor, enforceable for the period October 1, 1995 to December 31, 1995, and upon expiration thereof, she was named as clerk II in the office of petitioner.  She received all salaries due her even during the time the work was suspended for three months, until the suspension of the project due to financial constraints.

In 1998, respondent Margarito P. Gervacio, Jr., Deputy Ombudsman for Mindanao issued an order directing Orcullo to pay respondent Morales back wages.

Orcullo filed a motion for reconsideration on the ground that the award of back wages was improper as there was no employer-employee relationship between her and respondent Morales, and that the office of the Ombudsman was without authority to issue such an order. Gervacio denied the motion for reconsideration.

On April 15, 1998, graft investigator Marilou B. Unabia issued a memorandum terminating the request for assistance of Morales and recommending that a case for violation of Section 3 (e), R.A. No. 3019 be filed against Orcullo before the Office of the Deputy Ombudsman for Mindanao. Gervacio, Jr. approved the recommendation. Hence, Orcullo filed special civil action for certiorari.

Issue:

Whether or not respondent Deputy Ombudsman for Mindanao acted without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in ordering petitioner personally to pay back wages to respondent Morales, who was named as team leader of a study group for a project of the Sangguniang Panlungsod of Davao City, in aid of legislation.

Held:

No. The Deputy Ombudsman for Mindanao has no authority or jurisdiction over the subject matter of the claim. As a money claim against petitioner personally, the claim is within the jurisdiction of a court of proper jurisdiction (depending on the amount of the claim).  If the money claim is against the City government of Davao City, the claim is within the jurisdiction of the City Council (Sangguniang Panlungsod), or other proper government agency, but not the office of the Ombudsman.

The respondent Deputy Ombudsman for Mindanao cannot invoked Section 15 (5) of R.A. No. 6770, which provides:

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

“x x x

“(5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents;”

The above quoted provision does not vest the Ombudsman with authority to order a public official to pay a money claim of an aggrieved party. The provision authorizes the Office of the Ombudsman to request any government agency for assistance and information necessary in the discharge of its responsibilities. It does not authorize the Ombudsman to directly order the payment of claims for wages, salaries or compensations of aggrieved parties.

What is more, respondent Deputy Ombudsman for Mindanao abused the functions of his office by approving a recommendation of a graft investigator to file with his own office an anti-graft case against petitioner for violation of Section 3 (e), R.A. No. 3019, who was just exercising the duties of her office as an elected local legislator of the City of Davao.  Petitioner could not be personally liable for the payment of the wages, salary or  honorarium of a "team leader" assisting her as local legislator of Davao City in crafting a piece of legislation on women's code.  She was not even the one who hired respondent to undertake the project.  Petitioner's refusal to pay was not in bad faith, much less evident bad faith.  Hence, she could not be liable for violation of Section 3 (e) of R.A. No. 3019, as amended.

"Any further prosecution then of petitioner was pure harassment."

Consequently, the Deputy Ombudsman for Mindanao acted without or in excess of jurisdiction, or with grave abuse of discretion, in issuing the questioned orders.  Although petitioner could have elevated the ruling of the Deputy Ombudsman for Mindanao to the Ombudsman in Manila, the threat of prosecution of petitioner before the Deputy Ombudsman’s own office created an immediate urgency for judicial relief.

Petition granted. Orders of the Deputy Ombudsman for Mindanao annulled. Graft Investigation Officer Unabia enjoined to desist from further acting on the case.

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Calingin vs Desierto

CALINGIN VS. DESIERTO

G.R. Nos. 145743-89, August 10, 2007, 529 SCRA 720

Facts:

Petitioner Antonio P. Calingin is a former mayor of Claveria, Misamis Oriental. During his incumbency, the municipality undertook a low-cost housing project. The Commission on Audit (COA) of Region X, Cagayan de Oro City conducted a special audit of the housing project for calendar years 1995 and 1996. The members of the COA Special Audit Team executed a Joint Affidavit embodying their findings for the purpose of filing criminal charges against Calingin and other public officials. They then submitted their Audit Report and Joint Affidavit to the Office of the Deputy Ombudsman for Mindanao.

In a Resolution dated December 2, 1998, Graft Investigation Officer Jocelyn R. Araune of the Office of the Deputy Ombudsman for Mindanao recommended the filing of criminal charges against the petitioner and co-accused for violation of Section 3(e) and 3(h) of R.A. No. 3019, otherwise known as Anti-Graft and Corrupt Practices, and for violation of Article 220 of the Revised Penal Code. Upon review, however, Special Prosecution Officer Alberto B. Sipaco, Jr., Office of the Ombudsman for Mindanao recommended that the said Resolution be disapproved and the charges be dismissed for insufficiency of evidence. On August 13, 1999, then Ombudsman Aniano A. Desierto, respondent, disapproved the Memorandum of Sipaco and approved the Resolution of Araune.

Consequently, 47 Informations for violation of Section 3 (e) and (h) of R.A. No. 3019 and Article 220 of the Revised Penal Code were filed with the Sandiganbayan against Calingin and his co-accused.

Calingin filed a motion for reinvestigation which was granted by the Sandiganbayan. It then ordered the Office of the Special Prosecutor to reinvestigate the cases.

In a Resolution dated July 20, 2000, Special Prosecutor Norberto B. Ruiz recommended the dismissal of all the cases against all the accused for lack of probable cause.  In a Memorandum dated August 10, 2000, the Chief of the Office of Legal Affairs, Office of the Ombudsman, reversed the Ruiz Resolution and recommended that Calingin and his co-accused be prosecuted. The Ombudsman approved the recommendation.

Hence, Calingin filed a petition for certiorari, contending that the Office of Legal Affairs which recommended his prosecution has no authority to review the findings and recommendation of the Office of the Special Prosecutor since the latter is not subject to the control and supervision of the Ombudsman. 

Issue:

Whether respondent Ombudsman acted with grave abuse of discretion amounting to lack or excess of jurisdiction in disapproving the recommendation of the Office of the Special Prosecutor to dismiss all the charges against herein petitioner and his co-accused. Is the Special Prosecutor co-equal to the Ombudsman or to his deputies?

Held:

No. The Office of the Ombudsman and the Office of the Special Prosecutor are creatures of the 1987 Constitution as provided by Sections 5, 7 and 13 of Article XI.

In Zaldivar v. Sandiganbayan, the Court ruled that under the Constitution, the Special Prosecutor is a mere subordinate of the Ombudsman and can investigate and prosecute cases only upon the latter’s authority or orders.

R.A. No. 6770, also known as the Ombudsman Act of 1989, provides that the Special Prosecutor has the power and authority, under the supervision and control of the Ombudsman, to conduct preliminary investigation and prosecute criminal cases before the Sandiganbayan and perform such other duties assigned to him by the Ombudsman.

Verily, the Office of the Special Prosecutor is but a mere subordinate of the Ombudsman and is subject to his supervision and control. In Perez v. Sandiganbayan, this Court held that control means “the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.” Clearly, in disapproving the recommendation of the Office of the Special Prosecutor to dismiss all the charges against petitioner and his co-accused, respondent Ombudsman did not act with grave abuse of discretion.

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Zaldivar vs Sandiganbayan

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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Orap vs. Sandiganbayan

ORAP VS. SANDIGANBAYAN

G.R. Nos. L-50508-11,  October 11, 1985

Facts:

Tanodbayan Special Prosecutor Rodolfo B. Aquino filed four informations before the Sandiganbayan charging petitioner Vicente S. Orap Presiding Judge of the Municipal Court of Mangatarem, Pangasinan, with violation of Section 3(e) of Rep. Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. The gravamen of all these charges was to the effect that the accused on different occasions unlawfully and feloniously received and took various sums of money from several persons in connection with a criminal case pending before his sala.

Before his arraignment, petitioner filed a motion to quash the informations on the ground that the officer who signed the same had no authority to do so and that, corollarily, the Sandiganbayan did not acquire jurisdiction over the offenses charged. The respondent court denied the motion to quash. Petitioner verbally moved for the reconsideration of the order but the relief sought was denied.

Hence, petitoner filed a petition for certiorari and prohibition before the SC. It is the petitioner's position that the Tanodbayan has no power to conduct preliminary investigations, file informations and prosecute criminal cases against judges and their appurtenant judicial staff. He contended that under the Section 9(a) of the Tanodbayan Decree, the courts, judges and other appurtenant judicial staff, among others, are beyond the reach of the Tanodbayan, and that only administrative acts of agencies of the government, whether or not criminal in character, are within the powers of said official.

Issue:

Has the Tanodbayan the authority to conduct a preliminary investigation of a complaint charging a municipal judge and his clerk of court with violation of Section 3(e) of Rep. Act No. 3019 and, upon a finding of prima facie case, proceed to file the corresponding information before the Sandiganbayan and prosecute the same?

Held:

Yes. Petitioner’s argument overlooks the fact that under the decree, the Tanodbayan functions not only as an ombudsman, but as prosecutor as well.

As ombudsman, his investigatory powers are limited to complaints initiated against officers and personnel of administrative agencies, as defined in Section 9(a) of the law. To that extent, we agree with the petitioner's interpretation of the law that insofar as administrative complaints are concerned, the courts, judges and their appurtenant judicial staff are outside the Tanodbayan's investigatory power. The reason for such exclusion is quite evident: under Section 6, Article 10 of the Constitution, it is the Supreme Court that exercises administrative supervision over all courts and their personnel and, therefore, is the proper forum to which administrative complaints involving judges and the court's personnel should be lodged.

As prosecutor, however, the authority of the Tanodbayan is primary and without exceptions. His powers are defined in Sections 17 and 19 of P.D. 1607, as follows:

SEC. 17. Office of the Chief Special Prosecutor.—There is hereby created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor composed of a Chief Special Prosecutor, an Assistant Chief Special Prosecutor, and nine (9) Special Prosecutors, who shall have the same qualifications as provincial and city fiscals and who shall be appointed by the President; ...

The Chief Special Prosecutor, the Assistant Chief Special Prosecutor and the Special Prosecutors shall have the exclusive authority to conduct preliminary investigation of all cases cognizable, by the Sandiganbayan: to file informations therefor and to direct and control the prosecution of said cases therein Provided, however that the Tanodbayan may upon recommendation of the Chief Special Prosecutor, designate any fiscal, state prosecutor or lawyer in the government service to act as Special Prosecutor to assist in the investigation and prosecution of all cases cognizable by the Sandiganbayan who shall not receive any additional compensation except such allowances, per diems and travelling expenses as the Tanodbayan may determine in accordance with existing laws, rules and regulations.

xxx         xxx      xxx

SEC. 19. Prosecution of Public Personnel or Other Person.—If the Tanodbayan has reason to believe that any public official employee, or other person has acted in a manner warranting criminal or disciplinary action or proceedings, he shall cause him to be investigated by the Office of the Chief Special Prosecutor who shall file and prosecute the corresponding criminal or administrative case before the Sandiganbayan or the proper court or before the proper administrative agency. In case of failure of justice, the Tanodbayan shall make the appropriate recommendations to the administrative agency concerned.

Section 17 of the Decree, in unequivocal term, confers upon the Tanodbayan, through the Chief Special Prosecutor and the Special Prosecutors, the exclusive authority to "conduct preliminary investigation of all cases cognizable by the Sandiganbayan, to file informations therefor, and to direct and control the prosecution of said cases therein." If, as petitioner contends, judges, and other court personnel lie outside the investigatory power of the Tanodbayan, then no judge or court employee could ever be brought to justice for crimes and offenses cognizable by the Sandiganbayan, for lack of proper officer or entity authorized to conduct the preliminary investigation on complaints of such nature against them. This absurd situation the law could never have intended, considering that the Office of the Tanodbayan was purposely created to "give effect to the constitutional right of the people to petition the government for redress of grievances and to promote higher standards of integrity and efficiency in the government service."

Petition dismissed. 

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Khan vs Ombudsman

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:

xxx       xxx       xxx

(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)

xxx       xxx       xxx

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.

xxx       xxx       xxx

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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Discharge of Accused to be State Witness

DISCHARGE OF ACCUSED TO BE STATE WITNESS

Rule 119, Section 7, Rules of Court

General rule:

It is the duty of the prosecutor to include all the accused in the complaint/information.

Exception:

Prosecutor may ask the court to discharge one of them after complying with the conditions prescribed by law. [Rule 119, Sec. 17] This applies only when the information has already been filed in court.

What is a state witness?

A state witness is one of two or more persons jointly charged with the commission of a crime but who is discharged with his consent as such accused so that he may be a witness for the State.

On whose motion should the application for discharge of the state witness be made?

On motion of the prosecution.

When should the application for discharge of the state witness be made?

It should be made upon motion of the prosecution before resting its case.

What is the procedure?

1. Before resting its case, the prosecution should file a motion to discharge the accused as state witness with his consent.

2.  The court will require the prosecution to present evidence and the sworn statement of the proposed state witness at a hearing in order to support the discharge. It need not be a trial type hearing.

3. The court will determine if the requisites of giving the discharge are present. Evidence adduced in support of the discharge shall automatically form part of the trial.

4. If the court is satisfied, it will discharge the state witness. The discharge is equivalent to an acquittal, unless the witness later fails or refuses to testify.

5. If the court denies the motion for discharge, his sworn statement shall be inadmissible as evidence.

What are the requisites in order for a person to be discharged as a state witness?

1. There is absolute necessity for the testimony of the accused whose discharge is requested;

2.  There is no direct evidence available for the proper prosecution of the offense committed, except the testimony of the said accused;

3.  The testimony of said accused can be substantially corroborated in its material points;

4.  Said accused does not appear to be the most guilty;

5.  Said accused has not at any time been convicted of any offense involving moral turpitude.

What is the meaning of “absolute necessity” of the testimony of the proposed state witness?

It means that there is no other evidence to establish the offense other than the testimony of the accused. For example, where an offense is committed in conspiracy and clandestinely, the discharge of one of the conspirators is necessary in order to provide direct evidence of the commission of the crime.  No one else other than one of the conspirators can testify on what happened among them. [Chua v. CA (1996)]

He alone has the knowledge of the crime, and not when his testimony would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan (1983)]

This requirement is aimed to curtail miscarriage of justice. Absolute necessity of the testimony of the defendant, whose discharge is requested must be shown, if the discharge is to be allowed, and it is the court upon which the power to determine the necessity is lodged.

No direct evidence available

The discharge of the witness may only be made if he alone has knowledge of the crime and not when his testimony would simply corroborate or otherwise strengthen the evidence in the hands of the prosecution.

The testimony of said accused can be substantially corroborated in its material points

This is an indispensable requirement because it is a known fact in human nature that a culprit confessing a crime is likely to put the blame on others rather than himself.

Said accused does not appear to be the most guilty.

The law only requires is that the defendant whose exclusion is requested does not appear to be the most guilty, not necessarily that he is the least guilty.

Said accused has not at any time been convicted of any offense involving moral turpitude.

Moral turpitude is defined as anything done contrary to justice, honesty, principle or good morals. In this requirement prior conviction is necessary, so if the witness being discharged was merely accused of a crime involving moral turpitude or has been acquitted of the same, he is still eligible for discharge.

Can the court grant the discharge before the prosecution has finished presenting all its evidence?

No. The court should resolve any motion to discharge only after the prosecution has presented all of its evidence since it is at this time when the court can determine the presence of the requisites above.

Although Chua v. CA (p. 703 of Herrera) says that the prosecution is not required to present all its other evidence before an accused can be discharged. The accused may be discharged at any time before the defendants have entered upon their defense.

May more than one accused be discharged as a state witness?

Yes. Rule 119, Section 17 of the Rules of court does not prohibit the discharge of more than one co-defendant to be utilized as state witness. It all depends upon the needs of the fiscal and the discretion of the Judge. Any error of the trial judge in this manner cannot have the effect of invalidating the testimony of the discharged co-defendants. (People vs Bacsa, 104 Phil 136)

What is the remedy of the prosecution if the court denies the motion to discharge?

The State can file a petition for certiorari.

What are the effects of the discharge?

1. Evidence in support of the discharge shall automatically form part of the trial. If the court denies the motion to discharge, his sworn statement shall be inadmissible in evidence.

2. Discharge of the accused operates as an acquittal and bar to further prosecution for the same offense,

Exception:

If he fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis of the discharge.  In this case, he can be prosecuted again AND his admission can be used against him.

What happens if the court improperly or erroneously discharges an accused as state witness (ex. he has been convicted pala of a crime involving moral turpitude)?

The improper discharge will not render inadmissible his testimony nor detract from his competency as a witness.  It will also not invalidate his acquittal because the acquittal becomes ineffective only if he fails or refuses to testify.

Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)]

What happens when the original information under which an accused was discharged is later amended?

A discharge under the original information is just as binding upon the subsequent amended information, since the amended information is just a continuation of the original.

Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)]

Can the other conspirators be convicted solely on the basis of the testimony of the discharged state witness?

No. There must be other evidence to support his testimony.  The testimony of a state witness comes from a polluted source and must be received with caution. It should be substantially corroborated in its material points.

As an exception however, the testimony of a co-conspirator, even if uncorroborated, will be considered sufficient if given in a straightforward manner and it contains details which could not have been the result of deliberate afterthought.

Is a motion to discharge fatally inadequate as it failed to allege all elements of discharge?

No. On the contention of petitioner that respondent court failed to consider the motion to discharge as fatally inadequate as it states only three elements of discharge, viz: (1) that Enriquez is the least guilty; (2) that there is absolute necessity for his testimony; and (3) that Enriquez has not been convicted of any offense involving moral turpitude, petitioner seems to confuse a motion to discharge to that of an information or complaint. In an information or a complaint, all the elements necessary to constitute an offense or to state a cause of action must be alleged and failure to do so will constitute a ground for the other party to file a motion to quash, in the case of an information, or a motion to dismiss, in the case of a complaint. The motion to discharge will suffice if the allegations contained therein adequately inform the adverse party and the court a quo what relief the movant is praying for. The only requirement therefor was that a hearing on the motion be had. It is at the hearing where the movant should show the presence of all the elements required by the rule for the discharge of an accused to be a state witness.

Can the testimony come ahead before the discharge?

Yes. “While it is the usual practice of the prosecution to present the accused who turns state witness only after his discharge, the trial court may nevertheless sanction his discharge after his testimony if circumstances so warrant. In the case before Us, the imminent risk to his life justified the deviation from the normal course of procedure as a measure to protect him while at the same time ensuring his undaunted cooperation with the prosecution. Indeed, as is explicit from the Rule, as long as the motion for discharge of an accused to be utilized as a state witness is filed before the prosecution rests, the trial court should, if warranted, grant it.” (Rosales vs. Court of Appeals, 215 SCRA 102)

Two ways of becoming a State witness:

1.  under Section 17 of Rule 119, Rules of Court or

2. under Republic Act No. 6981 “Witness Protection and Security Benefit Program” 

Distinguish Discharge as a State Witness from Discharge from the Information

Discharge as a State Witness	Discharge from the Information
Rule 119, Section 7	Rule 110, Section 14
Accused had been arraigned and the case is undergoing trial	Accused had not been arraigned
Double jeopardy attaches	Double jeopardy does not attach
● Upon motion of the prosecution before resting its case. ● Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. ● The court is satisfied of the 5 requisites	Can be made only upon motion by the prosecutor before plea of the accused, with notice to the offended party and with leave of court.

Distinguish Discharge as a State Witness from Discharge from the Witness Protection Program

Discharge as a State Witness	Discharge from the Witness Protection Program
Rule 119, Section 7	Republic Act No. 6981
Applied before the court	Applied before the DOJ
Granted by the court	Granted by the DOJ
Compliance with the requirement of Rule 119, Section 17 must be satisfied ● Upon motion of the prosecution before resting its case. ● Hearing in support of the discharge where the prosecution is to present evidence and the sworn statement of each proposed state witness. ● The court is satisfied of the 5 requisites	Only compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal Procedure is required ● upon motion by the prosecutor before plea of the accused, with notice to the offended party and with leave of court. the procedural requirements of Section 17, Rule 119 on the need for the prosecution to present evidence and the sworn statement of each state witness at a hearing in support of the discharge do not yet come into play. This is because the determination of who should be criminally charged in court is essentially an executive function, not a judicial one.
Double jeopardy attaches because it is a discharge after plea	No double jeopardy because it is a discharge before plea

Yu vs. Presiding Judge of RTC Tagaytay

GR 142848, June 30, 2006

The discharge of an accused under Republic Act No. 6981 as availed of by the prosecution in favor of the private respondents, is distinct and separate from the discharge of an accused under Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

The discharge of an accused to be a state witness under Republic Act No. 6981 is only one of the modes for a participant in the commission of a crime to be a state witness. Rule 119, Section 17, of the Revised Rules on Criminal Procedure, is another mode of discharge. The immunity provided under Republic Act No. 6981 is granted by the DOJ while the other is granted by the court.

Rule 119, Section 17, of the Revised Rules on Criminal Procedure, contemplates a situation where the information has been filed and the accused had been arraigned and the case is undergoing trial. The discharge of an accused under this rule may be ordered upon motion of the prosecution before resting its case, that is, at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence.

On the other hand, in the discharge of an accused under Republic Act No. 6981, only compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal Procedure is required but not the requirement of Rule 119, Section 17.

More to the point is the recent case of Soberano v. People where this Court held:

An amendment of the information made before plea which excludes some or one of the accused must be made only upon motion by the prosecutor, with notice to the offended party and with leave of court in compliance with Section 14, Rule 110. Section 14, Rule 110 does not qualify the grounds for the exclusion of the accused. Thus, said provision applies in equal force when the exclusion is sought on the usual ground of lack of probable cause, or when it is for utilization of the accused as state witness, as in this case, or on some other ground.

At this level, the procedural requirements of Section 17, Rule 119 on the need for the prosecution to present evidence and the sworn statement of each state witness at a hearing in support of the discharge do not yet come into play. This is because, as correctly pointed out by the Court of Appeals, the determination of who should be criminally charged in court is essentially an executive function, not a judicial one.

Salvanera vs. People

G.R. No. 143093, May 21, 2007

According to petitioner, the testimony of an accused sought to be discharged to become a state witness must be substantially corroborated, not by a co-accused likewise sought to be discharged, but by other prosecution witnesses who are not the accused in the same criminal case. Petitioner justifies this theory on the general principles of justice and sound logic. He contends that it is a notorious fact in human nature that a culprit, confessing a crime, is likely to put the blame on others, if by doing so, he will be freed from any criminal responsibility. Thus, in the instant case, petitioner supposes that both Abutin and Tampelix will naturally seize the opportunity to be absolved of any liability by putting the blame on one of their co-accused. Petitioner argues that prosecution witnesses Parane and Salazar, who are not accused, do not have personal knowledge of the circumstances surrounding the alleged conspiracy. Thus, they could not testify to corroborate the statement of Abutin and Tampelix that petitioner is the mastermind or the principal by induction.

We agree with the Court of Appeals in dismissing this reasoning as specious. To require the two witnesses Parane and Salazar to corroborate the testimony of Abutin and Tampelix on the exact same points is to render nugatory the other requisite that “there must be no other direct evidence available for the proper prosecution of the offense committed, except the testimony of the state witness.” The corroborative evidence required by the Rules does not have to consist of the very same evidence as will be testified on by the proposed state witnesses. We have ruled that “a conspiracy is more readily proved by the acts of a fellow criminal than by any other method. If it is shown that the statements of the conspirator are corroborated by other evidence, then we have convincing proof of veracity. Even if the confirmatory testimony only applies to some particulars, we can properly infer that the witness has told the truth in other respects.” It is enough that the testimony of a co-conspirator is corroborated by some other witness or evidence. In the case at bar, we are satisfied from a reading of the records that the testimonies of Abutin and Tampelix are corroborated on important points by each other’s testimonies and the circumstances disclosed through the testimonies of the other prosecution witnesses, and “to such extent that their trustworthiness becomes manifest.”

As part of the conspiracy, Abutin and Tampelix can testify on the criminal plan of the conspirators. Where a crime is contrived in secret, the discharge of one of the conspirators is essential because only they have knowledge of the crime. The other prosecution witnesses are not eyewitnesses to the crime, as, in fact, there is none. No one except the conspirators knew and witnessed the murder. The testimonies of the accused and proposed state witnesses Abutin and Tampelix can directly link petitioner to the commission of the crime.

WEBB vs. DE LEON

August 23, 1995

FACTS:

State witness Alfaro admitted that she was with them. She admitted kasama siyang nagpunta sa bahay ng mga Vizconde. And then she was placed in the Witness Protection Program and was used against Hubert Webb. And according to Webb, the provision of the Witness Protection Act – which authorizes the DOJ to place somebody in the Witness Protection Program, and once he certifies that she is covered, the fiscal is no longer allowed to file a case against her (state witness) – is violative of the judicial prerogative to discharge a witness because you jumping the gun on the court.

According to Webb, it should be the court that will discharge and not the DOJ. The law is not valid because it is an encroachment of a judicial prerogative. It is an intrusion for it is only the court which has the power under the rules on criminal procedure to discharge an accused as state witness.

ISSUE #1: Is Webb’s argument valid?

HELD: “Webb’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution.”

ISSUE #2: How do you reconcile this ruling with the rule that only the court has the power to discharge?

HELD: Simple! In the Witness Protection Program, the accused is NOT even accused in any case yet. Wala pa! But once he is accused, you need the consent of the court to discharge, that is kapag kasali na! Pero kung hindi pa kasali, there is no need for the court’s consent to decide because that is an executive function.

ISSUE #3: And why is the court’s consent necessary once the accused is charged in court?

HELD: This is because the court has already acquired jurisdiction over the person of the accused. So the SC said, “Section 17 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision the court is given the power to discharge as state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.”

ISSUE #4: Is it wise for Congress to enact this law? Why will Congress enact this kind of law that will determine that the witness will not be included in the information?

HELD: YES. It is a wise legislation. “Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. The Witness Protection Act is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify.”

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