G.R. Nos. 79690-707




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 79690-707 April 27, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN AND HONORABLE RAUL M. GONZALEZ, CLAIMING TO BE AND ACTING AS TANODBAYAN-OMBUDSMAN UNDER THE 1987 CONSTITUTION, respondents. G.R. No. L-80578 April 27, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondent. Francisco Carreon and Nestor C. Lumba for petitioner. The Solicitor General for respondent. PER CURIAM: In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule 65," petitioner Enrique A. Zaldivar, governor of the province of Antique, sought to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of Criminal Cases Nos. 12159 to 12161 and 12163-12177 on the ground thatsaid cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not the present or incumbent Tanodbayan) who has the authority to file cases with the Sandiganbayan. The complete prayer of the petition reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of the Honorable Court, a writ of preliminary injunction issue upon the filing of a bond in such amount as may be fixed by the Honorable Court, restraining the Honorable Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to 12161, and 12163 to 12177 insofar as petitioner Enrique A. Zaldivar is concerned and from hearing and resolving the special prosecutor's motion to suspend (Annex J) and thereafter, final judgment be rendered: — (1) ordering that the amended informations in the above-mentioned crimininal cases be or issuing a writ of mandamus commanding and ordering the respondent Sandiganbayan to do so and, in consequence, prohibiting and restraining the respondent Sandigan-bayan from proceeding to hear and try the abovementioned criminal cases or making the temporary preliminary injunction permanent; (2) declaring the acts of respondent Gonzalez as "Tanodbayan-Ombudsman" after 2 February 1987 relating to these cases as anullity and without legal effect, particularly, the promulgation of Tanodbayan resolution of 5 February 1987, the filing of the original informations on 3 March 1987 and the amended ones on 4 June 1987, and the filing of the Motion for Suspension Pendente Lite. PETITIONER prays for such other and further relief as may be deemed proper in the premises, with costs against the respondents. Manila, Philippines, September 9, 1987. (pp. 45-47, Rollo) In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as the first petition, prays that Tanodbayan Gonzalez be restrained from conducting preliminary investigations and similar cases with the Sandiganbayan. The prayer reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of this Honorable court, a writ of preliminary injunction issue restraining the respondent from further acting in TBP CASE NO. 87-01304 and, particularly, from filing the criminal Information consequent thereof-, and from conducting preliminary investigations in, and filing criminal informations for, such other complaints/ cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. It is likewise prayed that the present petition be consolidated with G.R.L-Nos. 79690-79707. After proper proceedings, it is prayed that final judgment be rendered annulling the acts of respondent Gonzalez as "Tanodbayan- Ombudsman" after 2 February 1987 relating to the investigation of complaints against petitioner, particularly: (1) Annulling, for absolute want of jurisdiction, the preliminary investigation conducted, and the Resolution rendered, by respondent in TBP CASE NO. 87-01304; (2) Prohibiting and restraining the respondent from filing any criminal Information as a consequence of the void preliminary investigation he conducted in TBP CASE NO. 87-01304, or annulling the criminal Information in the said case which may, in the meantime, have already been filed; (3) Prohibiting and restraining the respondent from conducting preliminary investigations in, and filing criminal informations for, such other complaints/cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. PETITIONER further prays for such other and further reliefs as may be deemed proper in the proper with costs against the respondent. Manila, Philippines, November 18,1987 (pp. 24-25, Rollo) We issued the restraining orders prayed for. After a study of the petitions, We have decided to give due course to the same; to consider the comments of the Solicitor-General and of Tanodbayan Gonzalez as their Answers thereto; and to forthwith decide the petitions. We find the petitions impressed with merit. Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent Tanodbayan) is charged with the duty to: Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or commission appears to be illegal, unjust, improper, or inefficient (Sec. 13, par. 1) The Constitution likewise provides that: The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, contempt except those conferred on the office of the Ombudsman created under this Constitution. (Art. XI, Section 7) (Emphasis ours). Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority. Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate. It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has never held it in the first place. WHEREFORE, We hereby: (1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and (2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and function of the Ombudsman. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, and Griño-Aquino, JJ., concur. Separate Opinions SARMIENTO, J., concurring: I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059, that the 1987 Constitution took effect on February 11, 1987. Separate Opinions SARMIENTO, J., concurring: I maintain, however, consistent with my dissent in De Leon vs. Esguerra, G.R. No. 78059, that the 1987 Constitution took effect on February 11, 1987. The Lawphil Project - Arellano Law Foundation