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46 SUPREME COURT REPORTS ANNOTATED

Honasan II vs. The Panel of Investigating Prosecutors of
the Department of Justice

*
G.R. No. 159747. April 13, 2004.

GREGORIO B. HONASAN II, petitioner, vs. THE PANEL

OF INVESTIGATING PROSECUTORS OF THE
DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F.
DACANAY, EDNA A. VALENZUELA AND SEBASTIAN
F. CAPONONG, JR.), CIDG-PNP-P/DIRECTOR
EDUARDO MATILLANO and HON. OMBUDSMAN
SIMEON V. MARCELO, respondents.

Ombudsman; Jurisdiction; Criminal Procedure; Preliminary

Investigations; If it were the intention of the framers of the 1987
Constitution, they would have expressly declared the exclusive
conferment of the power to investigate and prosecute cases
involving public officials to the Ombudsman.—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,

_______________

* EN BANC.

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Honasan II vs. The Panel of Investigating Prosecutors of the

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employee, office or agency, when such act or omission appears to

be illegal, unjust, improper, or inefficient,” does not exclude other

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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. . . . .
Same; Same; Same; Same; 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
Supreme Court.—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.
Same; Same; Same; Same; 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

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and state prosecutors; Respondent Department of Justice (DOJ)

Panel is not precluded from conducting any investigation of cases

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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.—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.
Same; Same; Same; Same; 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—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.—To reiterate for emphasis, the power to
investigate or conduct preliminary investigation on charges
against any public officers or employees may be exercised by an
investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized
Ombudsman prosecutors. The fact that all prosecutors are in
effect deputized Ombudsman prosecutors under the OMB-DOJ
Circular is a mere superfluity. The DOJ Panel need not be
authorized nor deputized by the Ombudsman to conduct the
preliminary investigation for complaints filed with it because the
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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 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.
Same; Same; Same; Same; Administrative Law; Publication
of Laws and Regulations; 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—OMB-DOJ Joint Circular No. 95-001 is merely an
internal circular between the DOJ and the Office of the

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Honasan II vs. The Panel of Investigating Prosecutors of the

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Ombudsman, outlining authority and responsibilities among

prosecutors of the DOJ and of the Office of the Ombudsman in the
conduct of preliminary investigation and does not regulate the
conduct of persons or the public, in general.—Petitioner’s
contention that OMB-DOJ Joint Circular No. 95-001 is ineffective
on the ground that it was not published is not plausible. We agree
with and adopt the Ombudsman’s dissertation on the matter, to
wit: Petitioner appears to be of the belief, although NOT founded
on a proper reading and application of jurisprudence, that OMB-
DOJ Joint Circular No. 95-001, an internal arrangement between
the DOJ and the Office of the Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid down the
rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that
only circulars and regulations which prescribe a penalty for its
violation should be published before becoming effective, this, on
the general principle and theory that before the public isbound 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 Tañada v. Tuvera, 146
SCRA 453 (1986), the Honorable Court ruled that: Interpretative
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regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.
(at page 454, emphasis supplied) OMB-DOJ Joint Circular No. 95-
001 is merely an internal circular between the DOJ and the Office
of the Ombudsman, outlining authority and responsibilities
among prosecutors of the DOJ and of the Office of the
Ombudsman in the conduct of preliminary investigation. OMB-
DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct
of persons or the public, in general. Accordingly, there is no merit
to petitioner’s submission that OMB-DOJ Joint Circular No. 95-
001 has to be published.
Same; Same; Same; Same; Since the DOJ has concurrent
jurisdiction to investigate charges against public officers, the fact
that petitioner, a Senator, 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.—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 that
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

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does not by itself remove from the DOJ Panel the authority to
investigate the charge of coup d’etat against him.

VITUG, J., Separate Opinion:

Ombudsman; Jurisdiction; Criminal Procedure; Preliminary

Investigations; While Section 31 of R.A. No. 6770 states that the
Ombudsman may “designate or deputize any fiscal, state
prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and
prosecution of certain cases,” the provision cannot be assumed,
however, to be an undefined and broad entrustment of authority—
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the deputized fiscal, state prosecutor or government lawyer must in

each instance be named, the case to which the deputized official is
assigned must be specified, and the investigation must be
conducted under the supervision and control of the Ombudsman.—
While Section 31 of Republic Act No. 6770 states that the
Ombudsman may “designate or deputize any fiscal, state
prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and
prosecution of certain cases,” the provision cannot be assumed,
however, to be an undefined and broad entrustment of authority.
If it were otherwise, it would be unable to either withstand the
weight of burden to be within constitutional parameters or the
proscription against undue delegation of powers. The deputized
fiscal, state prosecutor or government lawyer must in each
instance be named; the case to which the deputized official is
assigned must be specified; and the investigation must be
conducted under the supervision and control of the Ombudsman.
The Ombudsman remains to have the basic responsibility, direct
or incidental, in the investigation and prosecution of such cases.
Same; Same; Same; Same; Criminal Law; Coup d’Etat; The
crime of coup d’etat, with which petitioner, a member of the
Senate, has been charged, is said to be closely linked to his
“National Recovery Program,” a publication which encapsules the
bills and resolutions authored or sponsored by him on the senate
floor, and is thus, related to and bearing on his official function.—
The Sandiganbayan law grants to the Sandiganbayan exclusive
original jurisdiction over offenses or felonies, whether simple or
complexed with other crimes, committed by the public officials,
including members of Congress, in relation to their office. The
crime of coup d’etat, with which petitioner, a member of the
Senate, has been charged, is said to be closely linked to his
“National Recovery Program,” a publication which encapsules the
bills and resolutions authored or sponsored by him on the senate
floor. I see the charge as being then related to and bearing on his
official function.

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YNARES-SANTIAGO, J., Dissenting Opinion:

Criminal Law; Coup d’Etat; Jurisdiction; The crime of coup

d’etat, if committed by members of Congress or by a public officer
with a salary grade above 27, falls within the exclusive original

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jurisdiction of the Sandiganbayan.—The crime of coup d’etat, if

committed by members of Congress or by a public officer with a
salary grade above 27, falls within the exclusive original
jurisdiction of the Sandiganbayan. Section 4 of P.D. 1606, as
amended, provides: Sec. 4. Jurisdiction.—The Sandiganbayan
shall exercise exclusive original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act
No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense: x x x x x x x x x (2) Members of
Congress and officials thereof classified as Grade “27” and up
under the Compensation and Position Classification Act of 1989; x
x x x x x x x x.
Same; Same; Same; Since the perpetrators take advantage of
their official positions, it follows that coup d’etat can be committed
only through acts directly or intimately related to the performance
of official functions, and the same need not be proved since it
inheres in the very nature of the crime itself.—A coup consists
mainly of the military personnel and public officers and
employees seizing the controlling levers of the state, which is then
used to displace the government from its control of the remainder.
As defined, it is a swift attack directed against the duly
constituted authorities or vital facilities and installations to seize
state power. It is therefore inherent in coup d’etat that the crime
be committed “in relation to” the office of a public officer or
employee. The violence, intimidation, threat, strategy or stealth
which are inherent in the crime can only be accomplished by those
who possess a degree of trust reposed on such person in that
position by the Republic of the Philippines. It is by exploiting this
trust that the swift attack can be made. Since the perpetrators
take advantage of their official positions, it follows that coup
d’etat can be committed only through acts directly or intimately
related to the performance of official functions, and the same need
not be proved since it inheres in the very nature of the crime
itself.
Same; Same; Same; If murder can be committed in the
performance of official functions, so can the crime of coup d’etat.—
It is contended by public respondent that the crime of coup d’etat
cannot be committed “in relation” to petitioner’s office, since the
performance of legislative functions does not include its
commission as part of the job description. To accommodate this
reasoning would be to render erroneous this Court’s ruling in
People v. Montejo that “although public office is not an element of

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Honasan II vs. The Panel of Investigating Prosecutors of the

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the crime of murder in [the] abstract,” the facts in a particular

case may show that “. . . the offense therein charged is intimately
connected with [the accuseds’] respective offices and was
perpetrated while they were in the performance, though improper
or irregular, of their official functions.” Simply put, if murder can
be committed in the performance of official functions, so can the
crime of coup d’etat.
Same; Same; Same; Separation of Powers; Congress; The
growing complexity of our society and governmental structure has
so revolutionized the powers and duties of the legislative body such
that its members are no longer confined to making laws—they can
perform such other functions, which are, strictly speaking, not
within the ambit of the traditional legislative powers.—The
Ombudsman is wrong when he says that legislative function is
only “to make laws, and to alter and repeal them.” The growing
complexity of our society and governmental structure has so
revolutionized the powers and duties of the legislative body such
that its members are no longer confined to making laws. They can
perform such other functions, which are, strictly speaking, not
within the ambit of the traditional legislative powers, for
instance, to canvass presidential elections, give concurrence to
treaties, to propose constitutional amendments as well as
oversight functions. As an incident thereto and in pursuance
thereof, members of Congress may deliver privilege speeches,
interpellations, or simply inform and educate the public in respect
to certain proposed legislative measures.
Ombudsman; Preliminary Investigations; Administrative
Law; Jurisdiction; The “primary jurisdiction” of the Office of the
Ombudsman to conduct the preliminary investigation of an offense
within the exclusive original jurisdiction of the Sandiganbayan
operates as a mandate on the Office of the Ombudsman, especially
when the person under investigation is a member of Congress, and
the Ombudsman’s refusal to exercise such authority, relegating the
conduct of the preliminary investigation to the DOJ Investigating
Panel is a dereliction of duty imposed by no less than the
Constitution.—If we were to give our assent to respondent’s
restrictive interpretation of the term “in relation to his office,” we
would be creating an awkward situation wherein a powerful
member of Congress will be investigated by the DOJ which is an
adjunct of the executive department, and tried by a regular court
which is much vulnerable to outside pressure. Contrarily, a more
liberal approach would bring the case to be investigated and tried
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by specialized Constitutional bodies and, thus ensure the

integrity of the judicial proceedings. The “primary jurisdiction” of
the Office of the Ombudsman to conduct the preliminary
investigation of an offense within the exclusive original
jurisdiction of the Sandiganbayan operates as a mandate on the
Office of the Ombudsman, especially when the person under
investigation is a member of Congress. The Ombudsman’s refusal
to exercise such authority, relegating the conduct of the
preliminary investi-

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gation of I.S. No. 2003-1120 to the respondent Investigating Panel

appointed by the Department of Justice (“DOJ”) under DOJ
Department Order No. 279, s. 2003, is a dereliction of a duty
imposed by no less than the Constitution.
Same; Same; Same; Same; Doctrine of Primary Jurisdiction;
Words and Phrases; “Primary jurisdiction” usually refers to cases
involving specialized disputes where the practice is to refer the
same to an administrative agency of special competence in
observance of the doctrine of primary jurisdiction.—“Primary
Jurisdiction” usually refers to cases involving specialized disputes
where the practice is to refer the same to an administrative
agency of special competence in observance of the doctrine of
primary jurisdiction. This Court has said that it cannot or will not
determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal before the question is
resolved by the administrative tribunal, where the question
demands the exercise of sound administrative discretion requiring
the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate
matters of fact, and a uniformity of ruling is essential to comply
with the premises of the regulatory statute administered. The
objective of the doctrine of primary jurisdiction is “to guide a court
in determining whether it should refrain from exercising its
jurisdiction until after an administrative agency has determined
some question or some aspect of some question arising in the
proceeding before the court.” It applies where a claim is originally
cognizable in the courts and comes into play whenever
enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, has been placed within the special
competence of an administrative body; in such case, the judicial
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process is suspended pending referral of such issues to the

administrative body for its view.
Same; Same; Same; Same; Same; Where the concurrent
authority is vested in both the Department of Justice and the Office
of the Ombudsman, the doctrine of primary jurisdiction should
operate to restrain the Department of Justice from exercising its
investigative authority if the case will likely be cognizable by the
Sandiganbayan.—Where the concurrent authority is vested in
both the Department of Justice and the Office of the Ombudsman,
the doctrine of primary jurisdiction should operate to restrain the
Department of Justice from exercising its investigative authority
if the case will likely be cognizable by the Sandiganbayan. In such
cases, the Office of the Ombudsman should be the proper agency
to conduct the preliminary investigation over such an offense, it
being vested with the specialized competence and undoubted
probity to conduct the investigation.

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Same; Same; Same; Same; Same; Separation of Powers; The

urgent need to follow the doctrine of primary jurisdiction is more
heightened in a case where the accused is a member of Congress.—
The urgent need to follow the doctrine is more heightened in this
case where the accused is a member of Congress. The DOJ is
under the supervision and control of the Office of the President; in
effect, therefore, the investigation would be conducted by the
Executive over a member of a co-equal branch of government. It is
precisely for this reason that the independent constitutional
Office of the Ombudsman should conduct the preliminary
investigation. Senator Honasan is a member of the political
opposition. His right to a preliminary investigation by a fair and
uninfluenced body is sacred and should not be denied.

SANDOVAL-GUTIERREZ, J., Dissenting Opinion:

Ombudsman; Jurisdiction; Criminal Procedure; Preliminary

Investigations; Administrative Law; Doctrine of Primary
Jurisdiction; Coup d’Etat; Following the doctrine of “primary
jurisdiction,” it is the Ombudsman who should conduct the
preliminary investigation of the charge of coup d’etat against the
Senator-petitioner.—Under the above provisions, what determines
the Sandiganbayan’s jurisdiction is the official position or rank of
the offender, that is, whether he is one of those public officers
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enumerated therein. Petitioner, being a Senator, occupies a

government position higher than Grade 27 of the Compensation
and Position Classification Act of 1989. In fact, he holds the third
highest position and rank in the Government. At the apex, the
President stands alone. At the second level, we have the Vice-
President, Speaker of the House, Senate President and Chief
Justice. Clearly, he is embraced in the above provisions. Following
the doctrine of “primary jurisdiction,” it is the Ombudsman who
should conduct the preliminary investigation of the charge of coup
d’etat against petitioner. The DOJ should refrain from exercising
such function.
Same; Same; Same; Same; Same; Same; Same; There is no
doubt that the alleged coup d’etat was committed in relation to the
performance of petitioner’s official duty as a Senator.—The
allegations in the complaint and in the pleadings of the DOJ, the
Solicitor General, and the Ombudsman (who is taking their side)
charging petitioner with coup d’etat show that he was engaged in
a discussion of his National Recovery Program (NRP), corruption
in government, and the need for reform. The NRP is a summary of
what he has introduced and intended to introduce into legislation
by Congress. There is no doubt, therefore, that the alleged coup
d’etat was committed in relation to the performance of his official
duty as a Senator.

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Same; Same; Same; Same; Same; Same; Whenever the

Constitution or statute vests jurisdiction over the investigation and
prosecution of certain crimes in an office, the DOJ has no
jurisdiction over those crimes.—While the DOJ has a broad
general jurisdiction over crimes found in the Revised Penal Code
and special laws, however, this jurisdiction is not plenary or total.
Whenever the Constitution or statute vests jurisdiction over the
investigation and prosecution of certain crimes in an office, the
DOJ has no jurisdiction over those crimes. In election offenses,
the Constitution vests the power to investigate and prosecute in
the Commission on Elections. In crimes committed by public
officers in relation to their office, the Ombudsman is given by both
the Constitution and the statute the same power of investigation
and prosecution. These powers may not be exercised by the DOJ.
Same; Same; Same; Same; Same; Same; The DOJ cannot
pretend to have investigatory and prosecutorial powers above those

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of the Ombuds-man; I agree with the petitioner that a becoming

sense of courtesy, respect, and propriety requires that the
constitutional officer should conduct the preliminary investigation
and prosecution of the complaint against him and not a fifth
assistant city prosecutor or even a panel of prosecutors from the
DOJ National Prosecution Service.—The DOJ cannot pretend to
have investigatory and prosecutorial powers above those of the
Ombudsman. The Ombudsman is a constitutional officer with a
rank equivalent to that of an Associate Justice of this Court. The
respondent’s Prosecution Office investigates and prosecutes all
kinds of offenses from petty crimes, like vagrancy or theft, to more
serious crimes, such as those found in the Revised Penal Code.
The Ombudsman, on the other hand, prosecutes offenses in
relation to public office committed by public officers with the rank
and position classification of Grade 27 or higher. It is a special
kind of jurisdiction which excludes general powers of other
prosecutory offices. I agree with the petitioner that a becoming
sense of courtesy, respect, and propriety requires that the
constitutional officer should conduct the preliminary investigation
and prosecution of the complaint against him and not a fifth
assistant city prosecutor or even a panel of prosecutors from the
DOJ National Prosecution Service.
Same; Same; Same; Same; Same; Same; Mere agreement,
such as OMB-DOJ Joint Circular No. 95-001, can not fully
transfer the prosecutory powers of the Ombudsman to the DOJ
without need for deputization in specific cases.—I do not believe
that a mere agreement, such as OMB-DOJ Joint Circular No. 95-
001, can fully transfer the prosecutory powers of the Ombudsman
to the DOJ without need for deputization in specific cases. As
stated by the petitioner, the DOJ cannot be given a roving
commission or authority to investigate and prosecute cases falling
under the Ombudsman’s powers anytime the DOJ pleases without
any special and explicit deputization. On this point, I agree with
Justice Jose C. Vitug that the

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Joint Circular must be understood as a mere working

arrangement between the Office of the Ombudsman and the DOJ
that must not be meant to be such a blanket delegation to the
DOJ as to generally allow it to conduct preliminary investigation
over any case cognizable by the Ombuds-man.
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Same; Same; Same; Same; Where the facts of the cold

neutrality of the prosecutors cannot be met, they must yield to
another office especially where their jurisdiction is under question.
—Prosecutors, like Caesar’s wife, must be beyond suspicion.
Where the test of the cold neutrality required of them cannot be
met, they must yield to another office especially where their
jurisdiction is under question. The tenacious insistence of
respondents in handling the investigation of the case and their
unwillingness to transfer it to the Ombudsman in the face of their
questionable jurisdiction are indications of marked bias.

SPECIAL CIVIL ACTION in the Supreme Court.

Certiorari.

The facts are stated in the opinion of the Court.

     Daniel C. Gutierrez for petitioner.
          Virgilio T. Pablico for respondent Police Director
Eduardo Matillano.

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

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statement aired on nation television, stating their withdrawal of

support to the chain of command of the AFP and the Government
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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

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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

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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
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thumb mark in blood with tape. He then pressed

the cut on his left arm against the NRP flag and left
mark of letter “I” on it. Everybody else followed;
13. That when my turn came, I slightly made a cut on
my upper inner arm and pricked a portion of it to
let it bleed and I followed what Senator HONASAN
did;
14. That I did not like to participate in the rites but I
had the fear for my life with what Senator
HONASAN said that “. . . kaya nating pumatay ng
kasamahan”;
15. That after the rites, the meeting was adjourned and
we left the place;
16. That I avoided Captain Alejano after that meeting
but I was extra cautious that he would not notice it
for fear of my life due to the threat made by Senator
HONASAN during the meeting on June 4, 2003 and
the information relayed to me by Captain Alejano
that their group had already deeply established
their network inside the intelligence community;
17. That sometime in the first week of July 2003,
Captain Alejano came to see me to return the rifle
that he borrowed and told me that when the group
arrives at the Malacañang Compound for “D-DAY,”
my task is to

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switch off the telephone PABX that serves the

Malacañang complex. I told him that I could not do
it. No further conversation ensued and he left;
18. That on Sunday, July 27, 2003, while watching the
television, I saw flashed on the screen Lieutenant
Antonio Trillanes, Captain Gerardo Gambala,
Captain Alejano and some others who were present
during the June 4th meeting that I attended,
having a press conference about their occupation of
the Oakwood Hotel. I also saw that the letter “I” on
the arm bands and the banner is the same letter “I”
in the banner which was displayed and on which we
pressed our wound to leave the imprint of the letter
“I”;

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That this Affidavit is being executed in order to

19.
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.

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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

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hereby directed to file their respective counter-affidavits

1
and
controverting evidence on or before September 23, 2003.

Hence, Senator Gregorio B. Honasan II filed the herein

petition for certiorari under Rule 65 of the Rules of Court
against the DOJ Panel and its members, CIDG-PNP-
P/Director Eduardo Matillano and Ombudsman Simeon V.
Marcelo, attributing grave abuse of discretion on the part
of the DOJ Panel in issuing the aforequoted Order of
September 10, 2003 on the ground that the DOJ has no
jurisdiction to conduct the preliminary investigation.
Respondent Ombudsman, the Office of Solicitor General
in representation of respondents DOJ Panel, and Director
Matillano submitted their respective comments.
The Court heard the parties in oral arguments on the
following issues:

1) Whether respondent Department of Justice Panel of

Investigators has jurisdiction to conduct
preliminary investigation over the charge of coup
d’etat against petitioner;
2) Whether Ombudsman-DOJ Circular No. 95-001
violates the Constitution and Republic Act No. 6770
or Ombudsman Act of 1989; and
3) Whether respondent DOJ Panel of Investigators
committed grave abuse of discretion in deferring
the resolution of the petitioner’s motion to clarify
jurisdiction considering the claim of the petitioner
that the DOJ Panel has no jurisdiction to conduct
preliminary investigation.

After the oral arguments, the parties submitted their

respective memoranda. The arguments of petitioner are:

1. The Office of the Ombudsman has jurisdiction to

conduct the preliminary investigation over all
public officials, including petitioner.
2. Respondent DOJ Panel is neither authorized nor
deputized under OMB-DOJ Joint Circular No. 95-
001 to conduct the preliminary investigation
involving Honasan.
3. Even if deputized, the respondent DOJ Panel is still
without authority since OMB-DOJ Joint Circular
No. 95-001 is ultra vires for being violative of the
Constitution, beyond the powers granted to the
Ombuds-

_______________

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1 Annex “A,” Rollo, p. 67.

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man by R.A. 6770 and inoperative due to lack of

publication, hence null 7and void.
4. Since petitioner is charged with coup d’etat in
relation to his office, it is the Office of the
Ombudsman which has the jurisdiction to conduct
the preliminary investigation.
5. The respondent DOJ Panel gravely erred in
deferring the resolution of petitioner’s Motion to
Clarify Jurisdiction since the issue involved therein
is determinative of the validity of the preliminary
investigation.
6. Respondent DOJ Panel gravely erred when it
resolved petitioner’s Motion in the guise of directing
him to submit Counter-Affidavit and yet refused
and/or failed to perform its duties to resolve
petitioner’s Motion stating its legal and factual
bases.

The arguments of respondent DOJ Panel are:

1. The DOJ has jurisdiction to conduct the

preliminary investigation on petitioner pursuant to
Section 3, Chapter I, Title III, Book IV of the
Revised Administrative Code of 1987 in relation to
P.D. No. 1275, as amended by P.D. No. 1513.
2. Petitioner is charged with a crime that is not
directly nor intimately related to his public office as
a Senator. The factual allegations in the complaint
and the supporting affidavits are bereft of the
requisite nexus between petitioner’s office and the
acts complained of.
3. The challenge against the constitutionality of the
OMB-DOJ Joint Circular, as a ground to question
the jurisdiction of the DOJ over the complaint
below, is misplaced. The jurisdiction of the DOJ is a
statutory grant under the Revised Administrative
Code. It is not derived from any provision of the
joint circular which embodies the guidelines
governing the authority of both the DOJ and the
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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:

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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.

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Petitioner’s assertion that the Joint Circular is

3. 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:
...

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(2) Investigate the commission of crimes, prosecute offenders and

administer the probation and correction system; (Emphasis
supplied)

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and Section 1 of P.D. 1275, effective April 11,1978, to wit:

SECTION 1. Creation of the National Prosecution Service;

Supervision and Control of the Secretary of Justice.—There is
hereby created and established a National Prosecution Service
under the supervision and control of the Secretary of Justice, to be
composed of the Prosecution Staff in the Office of the Secretary of
Justice and such number of Regional State Prosecution Offices,
and Provincial and City Fiscal’s Offices as are hereinafter
provided, which shall be primarily responsible for the
investigation and prosecution of all cases involving violations of
penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ,

that has the jurisdiction to conduct the preliminary
investigation under paragraph (1), Section 13, Article XI of
the 1987 Constitution, which confers upon the Office of the
Ombudsman the power to investigate on its own, or on
complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient. Petitioner rationalizes that the 1987
Administrative Code and the Ombudsman Act of 1989
cannot prevail over the Constitution/pursuant to Article 7
of the Civil Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their

violation, or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the
Constitution.
2
and Mabanag vs. Lopez Vito.

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:

_______________

2 78 Phil. 1 (1947).

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Honasan II vs. The Panel of Investigating Prosecutors of

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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

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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

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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

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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 3 preliminary
investigation vested on the Ombudsman is exclusive;

_______________

3 G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226, 240.

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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 4
of such investigation in
the exercise of his primary jurisdiction. (Emphasis supplied)

A little over
5
a month later, the Court, in Deloso vs.
Domingo, 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:

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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.

_______________

4 Id., at p. 241.
5 G.R. No. 90591, November 21, 1990, 191 SCRA 545, 550-551.

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the Department of Justice

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
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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, 6 and honest
investigative body, like the Ombudsman, is greatest.

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.7
In 1993, the Court held in Sanchez vs. Demetriou, 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

_______________

6 Id., at pp. 551-552.

7 G.R. Nos. 111771-77, November 9, 1993, 227 SCRA 627.

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Honasan II vs. The Panel of Investigating Prosecutors of the
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8
Aguinaldo vs. Domagas, 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]

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act or omission of any public official” (191 SCRA 550) is not an

exclusive authority but rather a shared or concurrent authority in
respect of the offense charged, i.e., the crime of sedition. Thus, the
non-involvement of the office of the Ombudsman in the present
case does not have any adverse legal consequence upon the
authority of the panel of prosecutors to file and prosecute the
information or amended information.
In fact, other investigatory agencies of the government such as
the Department of Justice in connection with the charge of
sedition, and the Presidential Commission on Good Government,9
in ill gotten wealth cases, may conduct the investigation.
(Emphasis supplied)
10
In Natividad vs. Felix, a 1994 case, where the petitioner
municipal mayor contended that it is the Ombudsman and
not the provincial fiscal who has the authority to conduct a
preliminary investigation over his case for alleged Murder,
the Court held:

The Deloso case has already been re-examined in two cases,

namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou.
However, by way of amplification, we feel the need for tracing the
history of the legislation relative to the jurisdiction of
Sandiganbayan since the Ombudsman’s primary jurisdiction is
dependent on the cases cognizable by the former.
In the process, we shall observe how the policy of the law, with
reference to the subject matter, has been in a state of flux.
These laws, in chronological order, are the following: (a) Pres.
Decree No. 1486—the first law on the Sandiganbayan; (b) Pres.
Decree No. 1606 which expressly repealed Pres. Decree No. 1486;
(c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No.
1860; and (e) Pres. Decree No. 1861.

_______________

8 G.R. No. 98452, En Banc Resolution dated September 26, 1991.

9 Id., at p. 637.
10 G.R. No. 111616, February 4, 1994, 229 SCRA 680.

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The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No.

1861 reads as follows:

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“SECTION 1. Section 4 of Presidential Decree No. 1606 ishereby

amended to read as follows:

‘SEC. 4. Jurisdiction.—The Sandiganbayan shall exercise:

‘(a) Exclusive original jurisdiction in all cases involving:
...
(2) Other offenses or felonies committed by public officers and employees in
relation to their office, including those employed, in government-owned or
controlled corporation, whether simple or complexed with other crimes, where the
penalty prescribed by law is higher that prision correccional or imprisonment for
six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or
felonies mentioned in this paragraph where the penalty prescribed by law does
not exceed prision correccional or imprisonment for six (6) years or a fine of
P6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court and Municipal Circuit Trial Court.”

A perusal of the aforecited law shows that two requirements

must concur under Sec. 4 (a) (2) for an offense to fall under the
Sandiganbayan’s jurisdiction, namely: the offense committed by
the public officer must be in relation to his office and the penalty
prescribed be higher than prision correccional
11
or imprisonment
for six (6) years, or a fine of P6,000.00.
Applying the law to the case at bench, we find that although
the second requirement has been met, the first requirement is
wanting. A review of these Presidential Decrees, except Batas
Pambansa Blg. 129, would reveal that the crime committed by
public officers or employees must be “in relation to their office” if
it is to fall within the jurisdiction of the Sandiganbayan. This
phrase which is traceable to Pres. Decree No. 1468, has been
retained by Pres. Decree No, 1861 as a requirement before the
Ombudsman can acquire primary jurisdiction on its power to
investigate.
It cannot be denied that Pres. Decree No. 1861 is in pari
materia to Article XI, Sections 12 and 13 of the 1987 Constitution
and the Ombudsman Act of 1989 because, as earlier mentioned,
the Ombudsman’s power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are in pari materia
when they relate to the same person or thing

_______________

11 The penalty requirement was deleted by R.A. 8249, amending P.D. 1861.

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or to the same class of persons or things, or object, or cover the

same specific or particular subject matter.
It is axiomatic in statutory construction that a statute must be
interpreted, not only to be consistent with itself, but also to
harmonize with other laws on the same subject matter, as to form
a complete, coherent and intelligible system. The rule is expressed
in the maxim, “interpretare et concordare legibus est
optimus interpretandi” or every statute must be so construed
and harmonized with other statutes as to form a uniform system of
jurisprudence. Thus, in the application and interpretation of
Article XI, Sections 12 and 13 of the 1987 Constitution and the
Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into
consideration. It must be assumed that when the 1987
Constitution was written, its framers had in mind previous
statutes relating to the same subject matter. In the absence of any
express repeal or amendment, the 1987 Constitution and the
Ombudsman Act of 1989 are deemed in 12
accord with existing
statute, specifically, Pres. Decree No. 1861. (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.

_______________

12 Id., pp. 685-688.

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Thus, with the jurisprudential declarations that the

Ombudsman and the DOJ have concurrent jurisdiction to
conduct preliminary investigation, the respective heads of
said offices came up with OMB-DOJ Joint Circular No. 95-
001 for the proper guidelines of their respective prosecutors
in the conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL

PROSECUTION OFFICERS OF THE OFFICE OF
THE OMBUDSMAN ALL REGIONAL STATE
PROSECUTORS AND THEIR ASSISTANTS,
PROVINCIAL/CITY PROSECUTORS AND THEIR
ASSISTANTS, STATE PROSECUTORS AND
PROSECUTING ATTORNEYS OF THE
DEPARTMENT OF JUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST
PUBLIC OFFICERS AND EMPLOYEES, THE
CONDUCT OF PRELIMINARY INVESTIGATION,
PREPARATION OF RESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES
BY PROVINCIAL AND CITY PROSECUTORS AND
THEIR ASSISTANTS.

x------------------------------------------------------------------------x

In a recent dialogue between the OFFICE OF THE

OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion
centered around the latest pronouncement of the SUPREME
COURT on the extent to which the OMBUDSMAN may call upon
the government prosecutors for assistance in the investigation
and prosecution of criminal cases cognizable by his office and the
conditions under which he may do so. Also discussed was Republic
Act No. 7975 otherwise known as “AN ACT TO STRENGTHEN
THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF
THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE
PRESIDENTIAL DECREE NO. 1606, AS AMENDED” and its
implications on the jurisdiction of the office of the Ombudsman on
criminal offenses committed by public officers and employees.
Concerns were expressed on unnecessary delays that could be
caused by discussions on jurisdiction between the OFFICE OF
THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and

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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 prosecu-

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Honasan II vs. The Panel of Investigating Prosecutors of the
Department of Justice

tors 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.

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Manila, Philippines, October 5, 1995.

(signed) (signed)
TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO
Secretary Ombudsman
Department of Justice Office of the Ombudsman

A close examination, of the circular supports the view of

the respondent Ombudsman that it is just an internal
agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on
Criminal Procedure on Preliminary Investigation, effective
December 1, 2000, to wit:
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Honasan II vs. The Panel of Investigating Prosecutors of
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SEC. 2. Officers authorized to conduct preliminary investigations.

—
The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal
Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall

include all crimes cognizable by the proper court in their respective
territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review.—
If the investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare the resolution and information. He shall
certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to
believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of offenses

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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

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Honasan II vs. The Panel of Investigating Prosecutors of the
Department of Justice

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.
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Next, petitioner contends that under OMB-Joint

Circular No. 95-001, there is no showing that the Office of
the Ombudsman has deputized the prosecutors of the DOJ
to conduct the preliminary investigation of the charge filed
against him.
We find no merit in this argument. As we have lengthily
discussed, the Constitution, the Ombudsman Act of 1989,
Administrative Order No. 8 of the Office of the
Ombudsman, the prevailing jurisprudence and under the
Revised Rules on Criminal Procedure, all recognize and
uphold the concurrent jurisdiction of the Ombudsman and
the DOJ to conduct preliminary investigation on charges
filed against public officers and employees.
To reiterate for emphasis, the power to investigate or
conduct preliminary investigation on charges against any
public officers or employees may be exercised by an
investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized
Ombudsman prosecutors. The fact that all prosecutors are
in effect deputized Ombudsman prosecutors under the
OMB-DOJ Circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman
to conduct the preliminary investigation for complaints
filed with it because the DOJ’s authority to act as the
principal law agency of the government and investigate the
commission of crimes under the Revised
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Honasan II vs. The Panel of Investigating Prosecutors of
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Penal Code is derived from the Revised Administrative13

Code which had been held in the Natividad case as not
being contrary to the Constitution. Thus, there is not even
a need to delegate the conduct of the preliminary
investigation to an agency which has the jurisdiction to do
so in the first place. However, the Ombudsman may assert
its primary jurisdiction at any stage of the investigation.
Petitioner’s contention that OMB-DOJ Joint Circular
No. 95-001 is ineffective on the ground that it was not
published is not plausible. We agree with and adopt the
Ombudsman’s dissertation on the matter, to wit:

Petitioner appears to be of the belief, although NOT founded on a

proper reading and application of jurisprudence, that OMB-DOJ

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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 Tañada v. Tuvera, 146 SCRA 453
(1986), the Honorable Court ruled that:
Interpretative regulations and those merely internal in nature,
that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication
required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.
(at page 454, emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal
circular between the DOJ and the Office of the Ombudsman,
outlining authority and responsibilities among prosecutors of the
DOJ and of the Office of the Ombudsman in the conduct of
preliminary investigation. OMB-DOJ Joint Circular No. 95-001
DOES NOT regulate the conduct of persons or the public, in
general.

_______________

13 Supra, Notes 12 and 13.

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Accordingly, there is no merit to petitioner’s submission

14
that
OMB-DOJ Joint Circular No. 95-001 has to be published.

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
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Sandiganbayan. Considering that the Court’s finding that

the DOJ has concurrent jurisdiction to investigate charges
against public officers, the fact that petitioner holds a
Salary Grade 31 position does not by itself remove from the
DOJ Panel the authority to investigate the charge of coup
d’etat against him.
The question whether or not the offense allegedly
committed by petitioner is one of those enumerated in the
Sandiganbayan Law that fall within the exclusive
jurisdiction of the Sandiganbayan will not be resolved in
the present petition so as not to pre-empt, the result of the
investigation being conducted by the DOJ Panel as to the
questions whether or not probable cause exists to warrant
the filing of the information against the petitioner; and to
which court should the information, be filed considering the
presence of other respondents in the subject complaint.
WHEREFORE, the petition for certiorari is DISMISSED
for lack of merit.
SO ORDERED.

          Davide, Jr. (C.J.), Panganiban, Carpio, Corona,

Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ.,
concur.
     Puno, J., I join J. C.Y. Santiago.
     Vitug, J., Please see separate (dissenting) opinion.
     Quisumbing, J., I join the dissent.
          Ynares-Santiago, J., See separate dissenting
opinion.
     Sandoval-Gutierrez, J., Please see my Dissent.

_______________

14 Memorandum, pp. 35-36.

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SEPARATE OPINION

VITUG, J.:

Preliminary investigation is an initial step in the

indictment of an accused; it is a substantive right, not
1
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1
merely a formal or a technical requirement, which an
accused can avail himself of in full measure. Thus, an
accused is entitled to rightly assail the conduct of an
investigation that does not accord with the law. He may
also question the jurisdiction or the authority of the person
or agency conducting that investigation and, if bereft of
such jurisdiction or authority, to demand that it be
undertaken 2 strictly in conformity with the legal
prescription. 3
The Ombudsman is empowered to, among other things,
investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may, at any stage, take over from any
agency of Government the investigation of such cases. This
statutory provision, by and large, is a restatement of the
constitutional grant to the Ombudsman of the power to
investigate and prosecute “any act or omission of any public
officer or employee, office or agency,4
when such act or
omission appears to be illegal x x x.”
The Panel of investigating Prosecutors of the
Department of Justice, in taking cognizance of the
preliminary investigation on charges of coup d’etat against
petitioner Gregorio Honasan, relies on OMB-DOJ Circular
No. 95-001. That joint circular must be understood as being
merely a working arrangement between the Office of the
Ombudsman (OMB) and the Department of Justice (DOJ)
that must not be meant to be such a blanket delegation to
the DOJ as to generally allow it to conduct preliminary
investigation over any case cognizable by the OMB.
While Section 31 of Republic Act No. 6770 states that
the Ombudsman may “designate or deputize any fiscal,
state prosecutor or

_______________

1 Yusop vs. Sandiganbayan, 352 SCRA 587 (2001).

2 Mondia, Jr. vs. Deputy Ombudsman, 346 SCRA 365 (2000).
3 See Republic Act No. 6770 in relation to Republic Act No. 8249.
4 Article XI, Section 5.

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the Department of Justice

lawyer in the government service to act as special

investigator or prosecutor to assist in the investigation and
prosecution of certain cases,” the provision cannot be
assumed, however, to be an undefined and broad
entrustment of authority. If it were otherwise, it would be
unable to either withstand the weight of burden to be
within constitutional parameters or the proscription
against undue delegation of powers. The deputized fiscal,
state prosecutor or government lawyer must in each
instance be named; the case to which the deputized official
is assigned must be specified; and the investigation must
be conducted under the supervision and control of the
Ombudsman. The Ombudsman remains to have the basic
responsibility, direct or incidental, in the investigation and
prosecution of such cases. 5
The Sandiganbayan law grants to the Sandiganbayan
exclusive original jurisdiction over offenses or felonies,
whether simple or complexed with other crimes, committed
by the public officials, including members of Congress, in
relation to their office. The crime of coup d’etat, with which
petitioner, a member of the Senate, has been charged, is
said to be closely linked to his “National Recovery
Program,” a publication which encapsules the bills and
resolutions authored or sponsored by him on the senate
floor. I see the charge as being then related to and bearing
on his official function.
On the above score, I vote to grant the petition.

DISSENTING OPINION

YNARES-SANTIAGO, J.:

The first question to answer is which court has jurisdiction

to try a Senator who is accused of coup d’etat. Behind the
simple issue is a more salient question—Should this Court
allow an all too restrictive and limiting interpretation of
the law rather than take a more judicious approach of
interpreting the law by the spirit, which vivifies, and not by
the letter, which killeth?
The elemental thrust of the Majority view is that the
Department of Justice (DOJ), not the Office of the
Ombudsman, has the jurisdiction to investigate the
petitioner, a Senator, for the crime of

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5 Republic Act No. 8249.

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coup d’etat pursuant to Section 4 of Presidential Decree No.

1606 as amended by Republic Act No. 8249
(Sandiganbayan Law). The Majority maintains that since
the crime for which petitioner is charged falls under
Section 4, paragraph (b) of the Sandiganbayan Law, it is
imperative to show that petitioner committed the offense in
relation to his office as Senator. It reasoned that since
petitioner committed the felonious acts, as alleged in the
complaint, not in connection with or in relation to his
public office, it is the DOJ, and not the Office of the
Ombudsman, which is legally tasked to conduct the
preliminary investigation.
In light of the peculiar circumstances prevailing in the
instant case and in consideration of the policies relied upon
by the Majority, specifically, the Sandiganbayan Law and
Republic Act No. 6770 (The Ombudsman Act of 1989), I
submit that the posture taken by the Majority seriously
deviates from and renders nugatory the very intent for
which the laws were enacted.
The crime of coup d’etat, if committed by members of
Congress or by a public officer with a salary grade above
27, falls within the exclusive original jurisdiction of the
Sandiganbayan. Section 4 of P.D. 1606, as amended,
provides:

Sec. 4. Jurisdiction.—The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act
No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials
occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
x x x      x x x      x x x
(2) Members of Congress and officials thereof classified as
Grade “27” and up under the Compensation and Position
Classification Act of 1989;
x x x      x x x      x x x.

1
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1
In the case of Lacson v. Executive Secretary, we clarified
the exclusive original jurisdiction of the Sandiganbayan
pursuant to Presidential Decree (“PD”) No. 1606, as
amended by Republic Act

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1 G.R. No. 128096, 20 January 1999, 301 SCRA 298.

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(“RA”) Nos. 7975 and 8249, and made the following

definitive pronouncements:

Considering that herein petitioner and intervenors are being

charged with murder which is a felony punishable under Title
VIII of the Revised Penal Code, the governing provision on the
jurisdictional offense is not paragraph but paragraph (b), Section
4 of R.A. 8249. This paragraph (b) pertains to “other offenses or
felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in
subsection (a) of [Section 4, R.A. 8249] in relation to their office.”
The phrase “other offenses or felonies” is too broad as to include
the crime of murder, provided it was committed in relation to the
accused’s official functions. Thus, under said paragraph (b), what
determines the Sandiganbayan’s jurisdiction is the official
position or rank of the offender—that is, whether he is one of
those public officers or employees enumerated in paragraph (a) of
Section 4. The offenses mentioned in paragraphs (a), (b) and (c) of
the same Section 4 do not make any reference to the criminal
participation of the accused public officer as to whether he is
charged as a principal, accomplice or accessory. In enacting R.A.
8249, the Congress simply restored the original provisions of P.D.
1606 which does not mention the criminal participation of the
public officer as a requisite to determine the jurisdiction of the
Sandiganbayan.

As worded, the Sandiganbayan Law requires that for a

felony, coup d’etat in this case, to fall under the exclusive
jurisdiction of the Sandiganbayan, two requisites must
concur, namely: (1) that the public officer or employee
occupies the position corresponding to Salary Grade 27 or
higher; and (2) that the crime is committed by the public
officer or employee in relation to his office. Applying the

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law to the case at bar, the Majority found that although the
first requirement has been met, the second requirement is
wanting, I disagree.
Following its definition, coup d’etat can only be
committed by members of the military or police or holding
any public office or employment, with or without civilian
support. Article 134-A of the Revised Penal Code states:

Article 134-A. Coup d’etat.—How committed.—The crime of coup

d’etat is a swift attack accompanied by violence, intimidation,
threat, strategy or stealth, directed against duly constituted
authorities of the Republic of the Philippines, or any military
camp or installation, communications network, public utilities or
other facilities needed for the exercise and continued possession of
power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the

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military or police or holding any public office or employment, with

or without civilian support or participation for the purpose of
seizing or diminishing state power.

A coup consists mainly of the military personnel and public

officers and employees seizing the controlling levers of the
state, which is then used to displace the government from
its control of the remainder. As defined, it is a swift attack
directed against the duly constituted authorities or vital
facilities and installations to seize state power. It is
therefore inherent in coup d’etat that the crime be
committed “in relation to” the office of a public officer or
employee. The violence, intimidation, threat, strategy or
stealth which are inherent in the crime can only be
accomplished by those who possess a degree of trust
reposed on such person in that position by the Republic of
the Philippines. It is by exploiting this trust that the swift
attack can be made. Since the perpetrators take advantage
of their official positions, it follows that coup d’etat can be
committed only through acts directly or intimately related
to the performance of official functions, and the same need
not be proved since it inheres in the very nature of the
crime itself.
It is contended by public respondent that the crime of
coup d’etat cannot be committed “in relation” to petitioner’s
office, since the performance of legislative functions does
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not include its commission as part of the job description. To

accommodate this reasoning would be to render2
erroneous
this Court’s ruling in People v. Montejo that “although
public office is not an element of the crime of murder in
[the] abstract,” the facts in a particular case may show that
“. . . the offense therein charged is intimately connected
with [the accuseds’] respective offices and was perpetrated
while they were in the performance, though improper or
irregular, of their official functions.” Simply put, if murder
can be committed in the performance of official functions, so
can the crime of coup d’etat.
The Ombudsman is wrong when he says that legislative
function is only “to make laws, and to alter and repeal
them.” The growing complexity of our society and
governmental structure has so revolutionized the powers
and duties of the legislative body such that its members are
no longer confined to making laws. They can perform such
other functions, which are, strictly speaking, not within the
ambit of the traditional legislative powers, for instance, to

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2 108 Phil. 613 (1960).

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canvass presidential elections, give concurrence to treaties,

to propose constitutional amendments as well as oversight
functions. As an incident thereto and in pursuance thereof,
members of Congress may deliver privilege speeches,
interpellations, or simply inform and educate the public in
respect to certain proposed legislative measures.
The complaint alleges that the meeting on June 4, 2003
of the alleged coup plotters involved a discussion on the
issues and concerns within the framework of the National
Recovery Program (NRP), a bill which petitioner authored
in the Senate. The act of the petitioner in ventilating the
ails of the society and extolling the merits of the NRP is
part of his duties as legislator not only to inform the public
of his legislative measures but also, as a component of the
national leadership, to find answers to the many problems
of our society. One can see therefore that Senator
Honasan’s acts were “in relation to his office.”

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It is true that not every crime committed by a high-

ranking public officer falls within the exclusive original
jurisdiction of the Sandiganbayan. It is also true that there
is no public office or employment that includes the
commission of a crime as part of its job description.
However, to follow this latter argument would mean that
there would be no crime falling under Section 4, paragraph
(b) PD No. 1606, as amended. This would be an undue
truncation of the Sandiganbayan’s exclusive original
jurisdiction and contrary to the plain language of the
provision.
Only by a reasonable interpretation of the scope and
breadth of the term “offense committed in relation to [an
accused’s] office” in light of the broad powers and functions
of the office of Senator, can we subserve the very purpose
for which the Sandiganbayan and the Office of the
Ombudsman were created.
The raison d’ etre for the creation of the Office of the
Ombudsman in the 1987 Constitution and for the grant of
its broad investigative authority, is to insulate said office
from the long tentacles of officialdom that are able to
penetrate judges’ and fiscals’ offices, and others involved in
the prosecution of erring public officials, and through the
exertion of official pressure and influence, quash, de-
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lay, or dismiss investigations, into malfeasances,

3
and
misfeasances committed by public officers.
In similar vein, the Constitution provides for the
creation of the Sandiganbayan to attain the highest norms
of official conduct required of public officers and employees.
It is a special court that tries cases involving public officers
and employees that fall within specific salary levels. Thus,
Section 4 of the Sandiganbayan Law makes it a
requirement that for offenses to fall under the exclusive
jurisdiction of the Sandiganbayan, the public officer
involved must occupy a position equivalent to Salary Grade
27 or higher. This salary grade requirement is not a
product, of whim or an empty expression of fancy, but a
way to ensure that offenses which spring from official
abuse will be tried by a judicial body insulated from official
pressure and unsusceptible to the blandishments, influence

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and intimidation from those who seek to subvert the ends

of justice.
If we were to give our assent to respondent’s restrictive
interpretation of the term “in relation to his office,” we
would be creating an awkward situation wherein a
powerful member of Congress will be investigated by the
DOJ which is an adjunct of the executive department, and
tried by a regular court which is much vulnerable to
outside pressure. Contrarily, a more liberal approach would
bring the case to be investigated and tried by specialized
Constitutional bodies and, thus ensure the integrity of the
judicial proceedings.
Second, the “primary jurisdiction” of the Office of the
Ombudsman to conduct the preliminary investigation of an
offense within the exclusive original jurisdiction of the
Sandiganbayan operates as a mandate on the Office of the
Ombudsman, especially when the person under
investigation is a member of Congress. The Ombudsman’s
refusal to exercise such authority, relegating the conduct of
the preliminary investigation of I.S. No. 2003-1120 to the
respondent Investigating Panel appointed by the
Department of Justice (“DOJ”) under DOJ Department
Order No. 279, s. 2003, is a dereliction of a duty imposed by
no less than the Constitution.
Insofar as the investigation of said crimes is concerned, I
submit that the same belongs to the primary jurisdiction of
the Ombuds-

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3 Deloso v. Domingo, G.R. No. 90591, 21 November 1990, 191 SCRA

545, 550-551.

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man. RA No. 6770 or the Ombudsman Act of 1989,

empowers the Ombudsman to conduct the investigation of
cases involving illegal acts or omissions committed by any
public officer or employee. Section 15, paragraph (1) of the
Ombudsman Act of 1989 provides:

SECTION 15. Powers, Functions and Duties.—The Office of the

Ombudsman shall have the following powers, functions and
duties:

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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
investigatory4
agency of Government, the investigation of such
cases; x x x.
5
In Uy v. Sandiganbayan, the extent and scope of the
jurisdiction of the Office of the Ombudsman to conduct
investigations was described as:

The power to investigate and to prosecute granted by law to the

Ombudsman is plenary and unqualified. It pertains to any act or
omission of any public officer or employee when such act or
omission appears to be illegal, unjust, improper or inefficient. The
law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has
been held that the clause “any illegal act or omission of any public
official” is broad enough to embrace any crime committed by a
public officer or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15 (1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11 (4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the scope of
the investigatory and prosecutory power of the Ombudsman to
such cases.

The “primary jurisdiction” of the Office of the Ombudsman

in cases cognizable6 by the Sandiganbayan was reiterated in
Laurel v. Desierto:

_______________

4 Rep. Act No. 6770, sec. 15, par. (1).

5 G.R. Nos. 105965-70, En Banc Resolution on Motion for Further
Clarification, 20 March 2001, 354 SCRA 651.
6 G.R. No. 145368, 12 April 2002, 381 SCRA 48.

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Section 15 of RA 6770 gives the Ombudsman primary jurisdiction

over cases cognizable by the Sandiganbayan. The law defines such
primary jurisdiction as authorizing the Ombudsman “to take over,
at any stage, from any investigatory agency of the government,
the investigation of such cases.” The grant of this authority does
not necessarily imply the exclusion from its jurisdiction of cases
involving public officers and employees cognizable by other courts.
The exercise by the Ombudsman of his primary jurisdiction over
cases cognizable by the Sandiganbayan is not incompatible with
the discharge of his duty to investigate and prosecute other
offenses committed by public officers and employees. Indeed, it
must be stressed that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed by public
officers and employees during their tenure of office.

“Primary Jurisdiction” usually refers to cases involving

specialized disputes where the practice is to refer the same
to an administrative agency of special competence in
observance of the doctrine of primary jurisdiction. This
Court has said that it cannot or will not determine a
controversy involving a question which is within the
jurisdiction of the administrative tribunal before the
question is resolved by the administrative tribunal, where
the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine
technical and intricate matters of fact, and a uniformity of
ruling is essential to comply with 7
the premises of the
regulatory statute administered. The objective of the
doctrine of primary jurisdiction is “to guide a court in
determining whether it should refrain from exercising its
jurisdiction until after an administrative agency has
determined some question or some aspect of some 8
question
arising in the proceeding before the court.” It applies
where a claim is originally cognizable in the courts and
comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory
scheme, has been placed within the special competence of
an administrative body; in

_______________

7 Fabia v. Court of Appeals, G.R. No. 132684, 11 September 2002, 388

SCRA 574 citing Saavedra v. Securities and Exchange Commission, citing
Pambujan Sur United Mine Workers v. Samar Mining Co., Inc., 94 Phil.
932 (1954).
8 Fabia v. Court of Appeals, G.R. No. 132684, 11 September 2002, 388
SCRA 574, citing Quintos, Jr. v. National Stud Farm, No. L-37052, 29
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November 1973, 54 SCRA 210.

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such case, the judicial process is suspended pending

referral
9
of such issues to the administrative body for its
view.
Where the concurrent authority is vested in both the
Department of Justice and the Office of the Ombudsman,
the doctrine of primary jurisdiction should operate to
restrain the Department of Justice from exercising its
investigative authority if the case will likely be cognizable
by the Sandiganbayan. In such cases, the Office of the
Ombudsman should be the proper agency to conduct the
preliminary investigation over such an offense, it being
vested with the specialized competence and undoubted
probity to conduct the investigation.
The urgent need to follow the doctrine is more
heightened in this case where the accused is a member of
Congress. The DOJ is under the supervision and control of
the Office of the President; in effect, therefore, the
investigation would be conducted by the Executive over a
member of a co-equal branch of government. It is precisely
for this reason that the independent constitutional Office of
the Ombudsman should conduct the preliminary
investigation. Senator Honasan is a member of the political
opposition. His right to a preliminary investigation by a
fair and uninfluenced body is sacred and should not be
denied. As we stated in the Uy case:

The prosecution of offenses committed by public officers and

employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a more
active and effective agent of the people in ensuring accountability
in public office. A review of the development of our Ombudsman
laws reveals this intent.

These pronouncements are in harmony with the

constitutional mandate of the Office of the Ombudsman, as
expressed in Article XI of the Constitution:

SECTION 12. The Ombudsman and his Deputies, as protectors of

the people, shall act promptly on complaints filed in any form or
manner against public officials or employees of the Government or
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any agency, subdivision or instrumentality thereof, including

government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the actions taken
and the result thereof. (Italics supplied.)

_______________

9 Fabia v. Court of Appeals, supra, citing Industrial Enterprise v. Court

of Appeals, G.R. No. 88550, 18 April 1990, 184 SCRA 426.

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SECTION 13. The Office of the Ombudsman shall have the

following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper,
or inefficient. x x x.

Coupled with these provisions, Section 13 of the

Ombudsman Act of 1989 provides:

SECTION 13. Mandate.—The Ombudsman and his Deputies, as

protectors of the people, shall act promptly on complaints filed in
any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations,
and enforce their administrative, civil and criminal liability in
every case where the evidence warrants in order to promote
efficient service by the Government to the people. (Italics
supplied)

The Constitution and the Ombudsman Act of 1989 both

mention, unequivocally, that the Office of the Ombudsman
has the duty and mandate to act on the complaints filed
against officers or employees of the Government. It is
imperative that this duty be exercised in order to make real
the role of the Office of the Ombudsman as a defender of
the people’s interests specially in cases like these which
have partisan political taint.
For the foregoing reasons, I vote to GRANT the petition.

DISSENTING OPINION

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SANDOVAL-GUTIERREZ, J.:

I am constrained to dissent from the majority opinion for

the following reasons: (1) it evades the consequence of the
statutory definition of the crime of coup d’etat; (2) it
violates the principle of stare decisis without a clear
explanation why the established doctrine has to be re-
examined and reversed; and (3) it trivializes the
importance of two constitutional offices—the Ombudsman
and the Senate—and in the process, petitioner’s right to
due process has been impaired.

I
It is an established principle that an act no matter how
offensive, destructive, or reprehensible, is not a crime
unless it is de-
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fined, prohibited, and punished by law. The prosecution

and punishment of any criminal offense are necessarily
circumscribed by the specific provision of law which defines
it.
Article 134-A of the Revised Penal Code defines coup
d’etat, thus:

“Article 134-A. Coup d’etat.—How committed.—The crime of coup

d’etat is a swift attack accompanied by violence, intimidation,
threat, strategy or stealth, directed against duly constituted
authorities of the Republic of the Philippines, or any military
camp or installation, communications networks, public utilities or
other facilities needed for the exercise and continued possession of
power, singly or simultaneously carried out anywhere in the
Philippines by any person or persons, belonging to the military or
police or holding any public office or employment with or without
civilian support or participation for the purpose of seizing or
diminishing state power.”

There is no question that Senator Honasan, herein

petitioner, holds a high public office, If he is charged with
coup d’etat, it has to be in his capacity as a public officer
committing the alleged offense in relation to his public
office.

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The complaint filed with the Department of Justice

alleges the events supposedly constituting the crime of
coup d’etat, thus:

1. On 04 June 2003, Senator Honasan presided over a

meeting held “somewhere in San Juan, Metro
Manila.”
2. After dinner, Senator Honasan, as presiding officer,
“discussed the NRP (National Recovery Program),
the graft and corruption in the government,
including the military institutions, the judiciary,
the executive department, and the like.”
3. “The discussion concluded that we must use force,
violence and armed struggle to achieve the vision of
NRP. x x x Senator Honasan countered that ‘we will
never achieve reforms through the democratic
processes because the people who are in power will
not give up their positions as they have their vested
interests to protect.’ x x x Senator Honasan replied
‘kung kaya nating pumatay sa ating mga kalaban,
kaya din nating pumatay sa mga kasamahang
magtataksil.’ x x x.”
4. In the course of the meeting, Senator Honasan
presented the plan of action to achieve the goals of
the NRP, i.e., overthrow of the government under
the present leadership thru armed revolution and
after which, a junta will be constituted to run the
new government.
5. The crime of coup d’etat was committed on 27 July
2003 by military personnel who occupied Oakwood.
Senator Honasan and various

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military officers, one member of his staff, and

several John Does and Jane Does were involved in
the Oakwood incident.

The above allegations determine whether or not petitioner

committed the alleged crime as a public officer “in relation
to his office.” If it was in relation to his office, the crime
falls under the exclusive original jurisdiction of the
Sandiganbayan. It is the Ombudsman who has the primary
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jurisdiction to investigate and prosecute the complaint for

coup d’etat, thus:

Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of

the Sandiganbayan as follows:
“SECTION 4. Jurisdiction.—The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:

“a. Violations of Republic No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following
positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission
of the offense:

(1) Officials of the executive branch occupying the positions of

regional director and higher, otherwise classified as Grade
‘27’ and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758),
specifically including:

(a) Provincial governors, vice-governors, members of the

Sangguniang Panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department
heads;
(b) City mayors, vice-mayors, members of the Sangguniang
Panlungsod, city treasurers, assessors, engineers, and
other city department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine Army and air force colonels, naval captains,
and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying
the position of provincial director and those holding the
rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman
and special prosecutor;

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the Department of Justice

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Presidents, directors or trustees, or managers of

(g) government-owned or controlled corporations, state
universities or educational institutions or
foundations;

(2) Members of Congress or officials thereof classified

as Grade ‘27’ and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of the Constitutional
Commissions, without prejudice to the provisions of
the Constitution;
(5) All other national and local officials classified as
Grade ‘27’ or higher under the Compensation and
Position Classification Act of 1989,

“b. Other offenses or felonies whether simple or

complexed with other crimes committed by the
public officials and employees mentioned in
Subsection (a) of this section in relation to their
office.
“c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986.”

Section 15 of Republic Act 6770, or the Ombudsman Act of

1989, provides:

“1) Investigate and prosecute on its own or on

complaint by any person, any act or omission of any
public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction
over cases cognizable by the Sandiganbayan and, in
the exercise of his primary jurisdiction, it may take
over, at any stage, from any investigatory agency of
Government, the investigation of such cases; x x x”
(Emphasis supplied)

Under the above provisions, what determines the

Sandiganbayan’s jurisdiction is the official position or rank
of the offender, that is, whether he is one of those public
officers enumerated therein.
Petitioner, being a Senator, occupies a government
position higher than Grade 27 of the Compensation and
Position Classification Act of 1989. In fact, he holds the
third highest position and rank in the Government. At the
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apex, the President stands alone. At the second level, we

have the Vice-President, Speaker of the House, Senate
President and Chief Justice. Clearly, he is embraced in the
above provisions.

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Following the doctrine of “primary jurisdiction,” it is the

Ombudsman who should conduct the preliminary
investigation of the charge of coup d’etat against petitioner.
The DOJ should refrain from exercising such function.
The crux of the jurisdiction of the DOJ lies in the
meaning of “in relation to their office.”
The respondents start their discussion of “in relation to
public office” with a peculiar presentation. They contend
that the duties of a Senator are to make laws, to
appropriate, to tax, to expropriate, to canvass presidential
elections, to declare the existence of a state of war, to give
concurrence to treaties and amnesties, to propose
constitutional amendments, to impeach, to investigate in
aid of legislation, and to determine the Senate rules of
proceedings and discipline of its members. They maintain
that the “alleged acts done to overthrow the incumbent
government and authorities by arms and with violence”
cannot be qualified as “acts reminiscent of 1
the discharge of
petitioner’s legislative duties as Senator.”
The allegations in the complaint and in the pleadings of
the DOJ, the Solicitor General, and the Ombudsman (who
is taking their side) charging petitioner with coup d’etat
show that he was engaged in a discussion of his National
Recovery Program (NRP), corruption in government, and
the need for reform. The NRP is a summary of what he has
introduced and intended to introduce into legislation by
Congress. There is no doubt, therefore, that the alleged
coup d’etat was committed in relation to the performance of
his official duty as a Senator.

II
The ponencia is a departure or reversion from established
doctrine. Under the principle of stare decisis, the Court
should, for the sake of certainty, apply a conclusion reached
in one case to decisions which follow, if the facts are2
substantially similar. As stated in Santiago vs. Valenzuela,

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stare decisi et non quieta movere. Stand by title decisions

and disturb not what is settled.

_______________

1 Memorandum of the Ombudsman, pp. 13 to 15; Memorandum of the

DOJ Panel, pp. 15 to 18.
2 78 Phil. 397 (1947).

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3
In Deloso vs. Domingo, where the Governor of Zambales
and his military and police escorts ambushed the victims
who were passing by in a car, we held that the multiple
murders were committed 4
in relation to public office. In
Cunanan vs. Arceo, the mayor ordered his co-accused to
shoot the victims. We ruled that the murder was 5in relation
to public office. In Alarilla vs. Sandiganbayan, the town
mayor aimed a gun and threatened to kill a councilor of the
municipality during a public hearing. We concluded that
the grave threats were in relation to the mayor’s office.
Following these precedents, I am convinced that
petitioner’s discourse on his National Recovery Program is
in relation to his office.

III
The respondents state that the DOJ is vested with
jurisdiction to conduct all investigations and prosecution of
all crimes. They cite PD 1275, as amended by PD 1513, and
the Revised Administrative Code of 1987 as the source of
this plenary power.
While the DOJ has a broad general jurisdiction over
crimes found in the Revised Penal Code and special laws,
however, this jurisdiction is not plenary or total. Whenever
the Constitution or statute vests jurisdiction over the
investigation and prosecution of certain crimes in an office,
the DOJ has no jurisdiction over those crimes. In election
offenses, the Constitution vests the power to 6investigate
and prosecute in the Commission on Elections. In crimes
committed by public officers in relation to their office, the
Ombudsman is given by both the Constitution and the7
statute the same power of investigation and prosecution.
These powers may not be exercised by the DOJ.

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The DOJ cannot pretend to have investigatory and

prosecutorial powers above those of the Ombudsman. The
Ombudsman is a constitutional officer with a rank
equivalent to that of an Associate Justice of this Court. The
respondent’s Prosecution Office investi-

_______________

3 G.R. No. 90591, November 21, 1990, 191 SCRA 545.

4 G.R. No. 11615, March 1, 1995, 242 SCRA 88.
5 G.R. No. 136806, August 22, 2000, 338 SCRA 485.
6 Section 2 [6], Art. IX-C, Constitution.
7 Section 13(1), Art. XI, Id.; Section 4, PD 1606, as amended; Section
15, R.A. 6770.

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gates and prosecutes all kinds of offenses from petty

crimes, like vagrancy or theft, to more serious crimes, such
as those found in the Revised Penal Code. The
Ombudsman, on the other hand, prosecutes offenses in
relation to public office committed by public officers with
the rank and position classification of Grade 27 or higher.
It is a special kind of jurisdiction which excludes general
powers of other prosecutory offices.
I agree with the petitioner that a becoming sense of
courtesy, respect, and propriety requires that the
constitutional officer should conduct the preliminary
investigation and prosecution of the complaint against him
and not a fifth assistant city prosecutor or even a panel of
prosecutors from the DOJ National Prosecution Service.
I do not believe that a mere agreement, such as OMB-
DOJ Joint Circular No. 95-001, can fully transfer the
prosecutory powers of the Ombudsman to the DOJ without
need for deputization in specific cases. As stated by the
petitioner, the DOJ cannot be given a roving commission or
authority to investigate and prosecute cases falling under
the Ombudsman’s powers anytime the DOJ pleases
without any special and explicit deputization. On this
point, I agree with Justice Jose C. Vitug that the Joint
Circular must be understood as a mere working
arrangement between the Office of the Ombudsman and
the DOJ that must not be meant to be such a blanket
delegation to the DOJ as to generally allow it to conduct
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preliminary investigation over any case cognizable by the

Ombudsman.
Petitioner further raises a due process question. He
accuses the DOJ of bias, partiality, and prejudgment. He
states that he has absolutely no chance of being cleared by
the respondent DOJ panel because it has already decided,
before any presentation of proof, that he must be charged
and arrested without bail.
As stated by the petitioner, there are precedents to the
effect that where bias exists, jurisdiction has to be assumed8
by a more objective office. In Panlilio vs. Sandiganbayan
we recognized that the PCGG has the authority to
investigate the case, yet we ordered the transfer of the case
to the Ombudsman because of the PCGG’s “marked bias”
against the petitioner.

_______________

8 G.R. No. 92276, June 26, 1992, 210 SCRA 421.

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the Department of Justice

9
In Cojuangco vs. PCGG, we held that there is a denial of
due process where the PCGG showed “marked bias” in 10
handling the investigation. In Salonga vs. Cruz Paño,
where the preliminary investigation was tainted by bias
and partiality, we emphasized the right of an accused to be
free, not only from arbitrary arrest and punishment but
also from unwarranted and biased prosecution.
The petitioner’s pleadings show the proofs of alleged
bias. They may be summarized as follows:

First, on July 27, 2003 when the Oakwood incident was just
starting, DILG Secretary Lina and National Security Adviser
Roilo Golez went on a media barrage accusing petitioner of
complicity without a shred of evidence.
Second, petitioner was approached by Palace emissaries,
Velasco, Defensor, Tiglao, and Afable to help defuse the incident
and ask mutineers to surrender. Then the request was distorted
to make it appear that he went there to save his own skin.
Third, even before any charge was filed, officials of the DOJ
were on an almost daily media program prematurely proclaiming
petitioner’s guilt. How can the DOJ conduct an impartial and fair
investigation when it has already found him guilty?

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Fourth, petitioner was given five days to answer Matillano’s

complaint but later on, it was shortened to three days.
Fifth, petitioner filed a 30 page Reply but the DOJ Order was
issued at once, or only after two days, or on Sept. 10, 2003. The
Order did not discuss the Reply, but perfunctorily glossed over
and disregarded it.

The petitioner states that the DOJ is constitutionally and

factually under the control of the President. He argues
that:

“No questionable prosecution of an opposition Senator who has

declared himself available for the Presidency would be initiated
without the instigation, encouragement or approval of officials at
the highest levels of the Administration. Justice requires that the
Ombudsman, an independent constitutional office, handle the
investigation and prosecution of this case. The DOJ cannot act
fairly and independently in this case. In fact, all of the actions the
DOJ has taken so far have been marked by bias, hounding and
persecution.

_______________

9 G.R. Nos. 92319-20, October 2, 1990, 190 SCRA 226.

10 G.R. No. L-59524, February 18, 1985, 134 SCRA 438.

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And finally, the charges laid against Senator Honasan are

unfounded concoctions of fertile imaginations. The petitioner had
no role in the Oakwook mutiny except the quell and pacify the
angry young men fighting for a just cause. Inspiration perhaps,
from his National Recovery Program, but no marching orders
whatsoever.”

Prosecutors, like Caesar’s wife, must be beyond suspicion.

Where the test of the cold neutrality required of them
cannot be met, they must yield to another office especially
where their jurisdiction is under question. The tenacious
insistence of respondents in handling the investigation of
the case and their unwillingness to transfer it to the
Ombudsman in the face of their questionable jurisdiction
are indications of marked bias.
WHEREFORE, I vote to GRANT the petition and to
order the Department of Justice to refrain from conducting
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preliminary investigation of the complaint for coup d’etat

against petitioner for lack of jurisdiction.
Petition dismissed.

Notes.—Rule 1, § 3 of the Rules of Procedure of the

Office of the Ombudsman providing that complaints filed
with that office may be “in any form, either verbal or in
writing” applies primarily to those cases involving acts and
omissions of public officials which are alleged to be merely
“unjust, improper or inefficient.” (Olivas vs. Office of the
Ombudsman, 239 SCRA 283 [1994])
It is beyond the ambit of the Supreme Court to review
the exercise of discretion of the Ombudsman in prosecuting
or dismissing a complaint filed before it. (Alba vs.
Nitorredo, 254 SCRA 753 [1996])

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