Honasan II v. Panel of Investigating Prosecutors of the DOJ : 159747 : April 13, 2004 : J. Ynares-Santiago : En Banc : Dissenting Opinion
DISSENTING OPINION
YNARES-SANTIAGO, J.:
The first question to answer is which court has jurisdiction to try a Senator who is accused of coup detat. 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?chanroblesvirtualawlibrary
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 coup detat 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 detat, 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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Sec. 4. Jurisdiction.- The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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
(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.
In the case of Lacson v. Executive Secretary, 1 we clarified the exclusive original jurisdiction of the Sandiganbayan pursuant to Presidential Decree (PD) No. 1606, as amended by Republic Act (RA) Nos. 7975 and 8249, and made the following definitive pronouncements:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 accuseds official functions. Thus, under said paragraph b, what determines the Sandiganbayans 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 detat 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 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 detat 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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Article 134-A. Coup detat. How committed. The crime ofcoup 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 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 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 detat 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 detat 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 detat cannot be committed in relation to petitioners 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 Courts ruling in People v. Montejo2 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 detat.
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.
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 Honasans acts were in relation to his office.
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 Sandiganbayans 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 accuseds] 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, delay, or dismiss investigations into malfeasances, and misfeasances committed by public officers.3 ςrνll
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 exlusive 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 and intimidation from those who seek to subvert the ends of justice.
If we were to give our assent to respondents 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 Ombudsmans 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 Ombudsman. R.A. 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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
SECTION 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: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 this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; x x x.4 ςrνll
In Uy v. Sandiganbayan, 5 the extent and scope of the jurisdiction of the Office of the Ombudsman to conduct investigations was described as:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 cognizable by the Sandiganbayan was reiterated in Laurel v. Desierto :6 ςrνll
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 the premises of the regulatory statute administered.7 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.8 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 process is suspended pending referral of such issues to the administrative body for its view.9 ςrνll
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 Uycase:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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 n public office. A review of the development of our Ombudsman laws reveals this intent.
These pronouncements are in harmony with the constitutional mandate of he 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 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. (Underscoring supplied)ςrαlαωlιbrαrÿ
SECTION 13. The Office of the Ombudsman shall have the following powers, functions, and duties:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(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:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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. (Underscoring supplied)ςrαlαωlιbrαrÿ
The Constitution and the Ombudsman Act of 1989 bothmention, unequivocally, that the Office of the Ombudsman has the duty and mandateto 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 peoples interest specially in cases like these which have partisan political taint.
For the foregoing reasons, I vote to GRANT the petition.
Endnotes:
1 G.R. No. 128096, 20 January 1999, 301 SCRA 298.2 108 Phil. 613 [1960].3 Deloso v. Domingo, G.R. No. 90591, 21 November 1990, 191 SCRA 545, 550-551.4 Rep. Act No. 6770, sec. 15, para. (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 2002.7 Fabia v. Court of Appeals, G.R. No. 132684, 11 September 2002, citing Saavedra v. SEC, 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, citing Quintos, Jr. v. National Stud Farm, No. L-37052, 29 November 1973, 54 SCRA 210.9 Fabia v. Court of Appeals, supra, citing Industrial Enterprise v. Court of Appeals, G.R. No. 88550, 18 April 1990, 184 SCRA 426.
