Honansan II v. Panel of Investigating Prosecutors of the DOJ : 159747 : April 13, 2004 : J. Sandoval-Gutierrez : En Banc : Dissenting Opinion
DISSENTING OPINION
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 detat; (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, petitioners 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 defined, 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 detat, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Article 134-A. Coup detat. How committed. The crime of coup detat 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 detat, it has to be in his capacity as a public officer committing the alleged offense in relation to his public office.
The complaint filed with the Department of Justice alleges the events supposedly constituting the crime of coup detat, 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 detat was committed on 27 July 2003 by military personnel who occupied Oakwood. Senator Honasan and various 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 jurisdiction to investigate and prosecute the complaint for coup detat, thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
SECTION 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensations and Position Classification Act of 1989 (Republic Act No. 67 58), specifically including:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(a) Provincial governors, vice-governors, members of the Sangguniang Panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads;chanroblesvirtuallawlibrary
(b) City mayors, vice-mayors, members of the Sangguniang Panlungsod, city treasurers, assessors, engineers, and other city department heads;chanroblesvirtuallawlibrary
(c) Officials of the diplomatic service occupying the position of consul and higher;chanroblesvirtuallawlibrary
(d) Philippine Army and air force colonels, naval captains, and all officers of higher rank;chanroblesvirtuallawlibrary
(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;chanroblesvirtuallawlibrary
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;chanroblesvirtuallawlibrary
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;chanroblesvirtuallawlibrary
(2) Members of Congress or officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989;chanroblesvirtuallawlibrary
(3) Members of the judiciary without prejudice to the provisions of the Constitution;chanroblesvirtuallawlibrary
(4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution;chanroblesvirtuallawlibrary
(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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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)ςrαlαωlιbrαrÿ
Under the above provisions, what determines the Sandiganbayans 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 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 detat 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 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 the discharge of petitioners legislative duties as Senator.1 ςrνll
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 detat show hat 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 detat 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 are substantially similar. As stated in Santiago v. Valenzuela2, stare decisi et non quieta movere. Stand by the decisions and disturb not what is settled.
In Deloso v. Domingo3, 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 in relation to public office. In Cunanan v. Arceo4, the mayor ordered his co-accused to shoot the victims. We ruled that the murder was in relation to public office. In Alarilla v. Sandiganbayan 5, 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 mayors office. Following these precedents, I am convinced that petitioners 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 investigate and prosecute in the Commission on Elections.6 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.7 These powers may not be exercised by the DOJ.
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 respondents 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.
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 Ombudsmans 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 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 assumed by a more objective office. In Panlilio v. Sandiganbayan,8 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 PCGGs marked bias against the petitioner.
In Conjuangco v. PCGG,9 we held that there is a denial of due process where the PCGG showed marked bias in handling the investigation. In Salonga v. Cruz Pao,10 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 petitioners pleadings show the proofs of alleged bias. They may be summarized as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 petitioners guilt. How can the DOJ conduct an impartial and fair investigation when it has already found him guilty?chanroblesvirtualawlibrary
Fourth, petitioner was given five days to answer Matillanos 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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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.
And finally, the charges laid against Senator Honasan are unfounded concoctions of fertile imaginations. The petitioner had no role in the Oakwood 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 Caesars 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 preliminary investigation of the complaint for coup detat against petitioner for lack of jurisdiction.
Endnotes:
1 Memorandum of the Ombudsman, pp. 13 to 15; Memorandum of the DOJ Panel, pp. 15 to 18.2 78 Phil. 397 (1947).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. 6770.8 G.R. No. 92276, June 26, 1992, 210 SCRA 421.9 G.R. NOS. 92319-20, October 2, 1990, 190 SCRA 226.10 G.R. No. L-59524, February 18, 1985, 134 SCRA 438.
