4. The Ombudsman and the Special Prosecutor (RA 6770)

M. Accountability of Public Officers

• Types of Accountability
• Administrative
• Criminal
• Civil
• Discipline
• Grounds
• Jurisdiction
• Dismissal, Preventive Suspension, Reinstatement, and Back Salaries
• Condonation Doctrine
• Impeachment and Quo Warranto
• The Ombudsman and the Office of the Special Prosecutor under Article XI of the 1987 Constitution in relation to R.A. No. 6770 or the Ombudsman Act of 1989
• Functions
• Judicial Review in Administrative Proceedings
• Judicial Review in Penal Proceedings
• The Sandiganbayan

1987 CONST., art. XI, secs. 5- 13; R.A. No. 6770, as amended; R.A. No. 6713

> art. XI, secs. 5- 13

SECTION 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

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

SECTION 7. 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, except those conferred on the Office of the Ombudsman created under this Constitution.

SECTION 8. The Ombudsman and his Deputies shall be natural-born citizens of the Philippines, and at the time of their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been candidates for any elective office in the immediately preceding election. The Ombudsman must have for ten years or more been a judge or engaged in the practice of law in the Philippines.

During their tenure, they shall be subject to the same disqualifications and prohibitions as provided for in Section 2 of Article IX-A of this Constitution.

SECTION 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

SECTION 10. The Ombudsman and his Deputies shall have the rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary, which shall not be decreased during their term of office.

SECTION 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from office.

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 subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

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.

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.

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

(6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

[R.A. No. 6770](/e9fa56f5d6224606a1ef9b45067258d4?pvs=25)

[R.A. No. 6713](/4887d476be7741818504eedf1107393b?pvs=25)

The Ombudsman and the Office of the Special Prosecutor [Sections 5 to 14, Article XI of the 1987

Scope

GOCCs with original charters and those organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption. (People v. Sandiganbayan, G.R. 147706-07, 2005).

The Ombudsman has the power to grant immunity by itself and even prior to the filing of information in court. R.A. 6770 fully recognizes this prosecutory prerogative by empowering the Ombudsman to grant immunity, subject to “such terms and conditions” as he may determine. The only textual limitation imposed by law on this authority is the need to take into account the pertinent provisions of the Rules of Court - i.e., Section 17, Rule 119 of the Rules of Court. The rule under RA 6770 clarifies that in cases already filed with the courts, the prosecution merely makes a proposal and initiates the process of granting immunity to an accused-witness in order to use him as a witness against co-accused. If there is any distinction at all between the public prosecutor and the Ombudsman, in this endeavor, it is in the specificity of and the higher priority given by law to the Ombudsman’s purpose and objective. This accounts for the Ombudsman’s unique power to grant immunity by itself and even prior to the filing of information in court, a power that the public prosecutor himself generally does not enjoy. (Quarto v. Ombudsman, G.R. 169042, 2011).

In the exercise of his duties, the Ombudsman is given full administrative disciplinary authority. His power is not limited to merely receiving, processing complaints, or recommending penalties. He is to conduct investigations, hold hearings, summon witnesses and require production of evidence and place respondents under preventive suspension. This includes the power to impose the penalty of removal, suspension, demotion, fine or censure of a public officer or employee. The provisions in RA 6770 taken altogether reveal the manifest intent of the lawmakers to bestow in the Office of the Ombudsman full administrative disciplinary authority. These provisions cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers and employees pending an investigation, determine the appropriate penalty imposable on erring public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty. Thus, it is settled that the Office of the Ombudsman can directly impose administrative sanctions. (Cabalit v. COA, G.R. 180236, 2012).

The Office of the Ombudsman exercises administrative disciplinary authority over public officials and employees within its jurisdiction, except officials removable only by impeachment, Members of Congress, and the Judiciary. Administrative discipline of judges and other judicial personnel falls under the Supreme Court’s exclusive administrative supervision under Article VIII, Section 6 of the 1987 Constitution, as held in Maceda v. Vasquez (G.R. No. 102781, April 22, 1993). (Alejandro v. Office of the Ombudsman Fact-Finding and Intelligence Bureau, G.R. 173121, 2013).

Composition:

• Ombudsman/Tanodbayan
• Overall Deputy (at least one Deputy for Luzon, Visayas and Mindanao)
• Deputy for military establishment may be appointed

Qualifications (Ombudsman and Deputies):

• Natural-born citizen
• At least 40 years old at the time of appointment
• Of recognized probity and independence
• Member of the Philippine bar
• Must not have been candidate for any elective office in the immediately preceding election
• For Ombudsman: He must have been for 10 years or more:
• A judge; or
• Engaged in the practice of law in the Philippines

Appointment:

• Ombudsman and deputies
• By the president from a list of at least 6 nominees prepared by the Judicial and Bar Council. Vacancies will be filled from a list of 3 nominees.
• Appointments do NOT require confirmation
• All vacancies shall be filled within 3 months after they occur.
• Appointees have 7-year term without reappointment and are not qualified to run for any office in the election succeeding their cessation from office.
• Other ombudsman officials and employees
• By the Ombudsman
• In accordance with Civil Service Law

Powers, Functions and Duties

• Investigate on its own, or on complaint by any person, any act or omission of a public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
• May be done on its own initiative or on complaint in any form.
• Such may be delegated.
• The power to investigate includes the power to impose preventive suspension. But, this is not a penalty.
• The Ombudsman’s power to investigate includes the authority to conduct preliminary investigations of cases within its jurisdiction. (RA 6770, Secs. 15(1) and 11(4); Uy v. Sandiganbayan, G.R. Nos. 105965-70, March 20, 2001)
• The complaint need not be drawn up in the usual form.
• The illegal act or omission need not be in connection with the duties of the public officer or employee concerned.
• ANY illegal act may be investigated by the Ombudsman. In this regard, the Ombudsman’s jurisdiction is concurrent with that of the regular prosecutors.
• Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any GOCC with an original charter, to perform and expedite an act of duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties.
• The ombudsman has persuasive power and may require that proper legal steps are taken by the officers concerned.
• The public official or employee must be employed in:
• The Government
• Any subdivision, agency, or instrumentality
• GOCCs with original charters
• The Special Prosecutor may prosecute before the Sandiganbayan, judges accused of graft and corruption, even if they are under the Supreme Court.
• The Ombudsman may direct the officer concerned to take appropriate action against a public official or employee at fault and recommend removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. It also has disciplinary authority to determine administrative liability and impose enforceable penalties on officials within its jurisdiction. (RA 6770, Secs. 15(3) and 21)
• The Ombudsman may investigate and prosecute cases within its jurisdiction, including through the Office of the Special Prosecutor or authorized prosecutors. (1987 Constitution, Art. XI, Secs. 12–13; RA 6770, Secs. 11 and 15)
• The Ombudsman’s prosecutorial discretion is independent of the Executive Department; the Executive Department does not have the final say over its prosecutorial decisions. (Acop v. Office of the Ombudsman, G.R. No. 120422, September 27, 1995)
• The Ombudsman may exercise its statutory prosecutorial authority, but mandamus generally cannot compel a prosecutor to file or pursue a charge where the decision calls for prosecutorial discretion. (RA 6770, Secs. 11 and 15)
• The refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer. (RA 6770, Sec. 15 (3); Ledesma v. CA, G.R. No. 161629, 2005; 1987 Constitution, Art. XI, Sec. 13(3))
• Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to COA for appropriate action.
• Requests any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents and public matters covered by its investigation when circumstances so warrant and with due process.
• Determine the cause of mismanagement, inefficiency, red tape, fraud and corruption in the government and make recommendations for their elimination and the observance of high standards of ethics and efficiency.
• Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.

The Office of the Ombudsman enjoys fiscal autonomy. Its approved annual appropriations should be automatically and regularly released.

Doctrines:

• The Ombudsman has jurisdiction over disciplinary cases against government employees, which includes public school teachers. However, Section 9 of the Magna Carta for Public School Teachers provides that administrative charges against a public school teacher shall initially be heard by a committee chaired by the corresponding School Superintendent or a duly authorized representative with at least the rank of division supervisor, with a representative of a teachers’ organization and a division supervisor as its other members; the Secretary of Education appoints all committee members only when the School Superintendent is the complainant or an interested party. (Ombudsman v. Estandarte, G.R. No. 168670, April 13, 2007).
• The Office of the Ombudsman has the authority to determine the administrative liability of an erring public official or employee and to direct and compel the head of the concerned officer or agency to implement the penalty imposed. This power to impose administrative liability is not merely recommendatory but actually mandatory. (Ombudsman v. Delijero, G.R. 172635, 2010).
• The enumeration of the powers of the Ombudsman in the Constitution is not exclusive. Congress may add additional powers. The Ombudsman Act grants to the Ombudsman fuller authority; has the power to impose the penalty of suspension. (Ombudsman v. CA, G.R. 160675, 2006)
• The doctrine of qualified political agency does not apply to the relationship between the Ombudsman and the Special Prosecutor. The Special Prosecutor may only file information only when authorized by the Ombudsman. (Perez v. Sandiganbayan, G.R. 166062, 2006).
• In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction over the complaint, the Ombudsman’s exercise of jurisdiction is to the exclusion of the Sangguniang Bayan exercising concurrent jurisdiction. Jurisdiction could no longer be transferred to the Sangguniang Bayan by virtue of a subsequent complaint filed by the same complainants. (Ombudsman v. Rodriguez, G.R. No. 172700, May 2, 2011).
• The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporation and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. (RA 6770, Sec. 21. However, the Office of the Ombudsman shall have the power to investigate any serious misconduct in the office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment if warranted. RA No. 6770, Sec. 22).
• An administrative complaint filed against a public officer before the Ombudsman does not bar an administrative investigation before the Presidential Anti-Graft Commission. The jurisdiction of the Ombudsman over administrative complaints are not exclusive, it may be exercised concurrently with an authorized agency. (Lacson v. Executive Secretary, G.R. No. 165399, 2011).
• Appeals from decisions of the Ombudsman in administrative cases do not stay the execution of the penalty imposed. This is in accordance with Section 7 Rule III of the Rules of Procedure of the Ombudsman which explicitly states that an appeal shall not stop the decision from being executory. No vested right is violated because pending appeal the appellant is considered as preventively suspended and will be paid backwages in case he wins in his appeal. In addition, under Section 13(8) Article XI of the Constitution, the Ombudsman is authorized to formulate its own rules. (Facura et al. v. CA, et al., G.R. 166495, 2011).
• Section 20 of RA 6770 is merely directory and does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within its discretion to conduct the administrative investigation. (Ombudsman v. Andutan, G.R. 16467.9, 2011).
• Although the Ombudsman is not precluded by Section 20(5) of RA 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against a resigned public officer because the latter was not a public servant at the time the case was filed. (Ombudsman v. Andutan, G.R. 16467.9, 2011).
• Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. An order imposing public censure or reprimand, suspension of not more than one month, or a fine equivalent to not more than one month’s salary is final and unappealable; other appealable administrative decisions may be reviewed under Rule 43. (Tolentino v, Atty. Roy Loyola et. al., G.R. 153809, 2011).
• It is worth stressing that the Ombudsman’s finding of probable cause does not touch on the issue of guilt or innocence of the accused. It is not the function of the Office of the Ombudsman to rule on such issues. Hence, Courts do not interfere in the Ombudsman's exercise of discretion in determining probable cause unless there are compelling reasons.(Ganaden v. Ombudsman, G.R. 170500/170510-11, 2011).
• It is settled that the Office of the Ombudsman may investigate and prosecute, on its own or on complaint by any person, any act or omission by any public officer or employee, office or agency, that appears to be illegal, unjust, improper or inefficient, subject to applicable laws on concurrent prosecutorial authority. The power to withdraw the information already filed is a mere adjunct or consequence of the Ombudsman’s overall power to prosecute. However, while it is the Ombudsman who has the full discretion to determine whether or not a criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is the Sandiganbayan, and no longer the Ombudsman, which has the full control of the case so much so that the information may be dismissed only with the approval of said court. Further, it does not matter whether such filing of a motion to dismiss by the prosecution is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation. (City of Tuguerarao v. Ting, .G.R. 192435-3, 2011).
• The power of the Office of the Ombudsman to investigate extends to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed during his tenure of office by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations. (Office of the Ombudsman v. De Leon, G.R. 154083, 2013).
• A preliminary investigation partakes of an investigative or inquisitorial power for the sole purpose of obtaining information on what future action of a judicial nature may be taken. Even the action of the Secretary of Justice in reviewing a prosecutor’s order or resolution via appeal or petition for review cannot be considered a quasi-judicial proceeding. Hence, Section 14, Article VIII of the Constitution does not thus extend to resolutions issued by the DOJ Secretary. (Bondoc v. Tan nong, G.R. No. 186652, 2010).
• The second paragraph of Section 14 of RA 6770 is declared invalid, and as such, the CA may impose provisional injunctive writ over the implementation of the preventive suspension order by the Ombudsman. Furthermore, the independence granted to the Ombudsman by the Constitution means freedom from the control or supervision of the Executive Department, not the Judiciary. (Carpio-Morales v. CA, G.R. No. 217126-27, 2015)
• Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office.

Judicial Review in Administrative Proceedings and in Penal Proceedings

Non-Administrative v. Administrative

OFFICE OF THE SPECIAL PROSECUTOR

Under PD 1487, as amended by PD 1607, Tanodbayan was both prosecutor and Ombudsman. Harmonisation of the laws left the Special Prosecutor to continue to exercise powers of the former Tanodbayan except those specifically passed on to the Ombudsman.

Since the power to investigate has been vested to the Ombudsman, the Special Prosecutor can only investigate and prosecute if authorised by the Ombudsman.

Appointment

• The President selects from a list of at least twenty-one (21) nominees prepared by the Judicial and Bar Council
• From a list of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after it occurs
• Each list shall be published in a newspaper of general circulation.

In the organization of the Office of the Ombudsman for filling up of positions therein, regional, cultural or ethnic considerations shall be taken into account to the end that the Office shall be as much as possible representative of the regional, ethnic and cultural make-up of the Filipino nation.

Qualifications:

• Natural born citizens of the Philippines,
• At least forty (40) years old,
• Of recognized probity and independence,
• Member of the Philippine Bar,
• Must not have been candidates for any elective national or local office in the immediately preceding election whether regular or special.

Term: The Special Prosecutor shall serve for a term of seven (7) years without reappointment.

Removal; Filling of Vacancy

• The Special Prosecutor is not removed by impeachment. The President may remove the Special Prosecutor, after due process, on any ground provided for the Ombudsman’s removal under Article XI, Section 2 of the Constitution (RA 6770, Sec. 8).

Prohibitions and Disqualifications

• The Special Prosecutor shall not, during their tenure, hold any other office or employment.
• Shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.
• Shall strictly avoid conflict of interest in the conduct of their office.
• Shall not be qualified to run for any office in the election immediately following their cessation from office.
• Shall not be allowed to appear or practice before the Ombudsman for two (2) years following their cessation from office.
• No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or professional partner or associate of the Special Prosecutor within one (1) year preceding the appointment may appear as counsel or agent on any matter pending before the Office of the Ombudsman or transact business directly or indirectly therewith.
• This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends to the law, business or professional firm for the same period.

Authority and Responsibilities

• Shall be composed of the Special Prosecutor and his prosecution staff. The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be under the supervision and control of the Ombudsman.
• It shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers:
• To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan;
• To enter into plea bargaining agreements; and
• To perform such other duties assigned to it by the Ombudsman.

Jurisdiction in general

• Violations of Anti-graft and Corrupt Practices Act;
• Republic Act No. 1379
• Chapter II, Section 2, Title VII, Book II of the Revised Penal Code
• The Regional Trial Court has exclusive original jurisdiction when the information alleges no damage to the government or bribery, or alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding ₱1 million. (RA 10660, amending PD 1606, sec. 4).
• One or more of the accused are official occupying the following positions in the government whether in a permanent, acting or interim capacity, at the time of the commission of the offense:
• Official 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:
• Provincial governors, vice-governors, members of the Sangguniang Panlalawigan and Provincial treasurers, assessors, engineers and other provincial department heads;
• City Mayors, Vice-Mayors, members of the Sangguniang Panglungsod, city treasurers, assessors, engineers and other city government department heads.
• Officials of the diplomatic service occupying the position of consul and higher;
• Philippine army and air force colonels, naval captains and all officers of higher rank;
• Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher;
• City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor;
• Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations;
• Members of Congress and officials thereof classified as Grade 27 and up under the Compensation and Position Classification Act of 1989;
• Members of the Judiciary without prejudice to the provisions of the Constitution;
• Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution;
• All other national and local officials classified as Grade 27 and higher under the Compensation and Position Classification Act of 1989.
• Other offenses or felonies whether simple or complexed with other crimes committed by the public officials employees mentioned above in relation to their office.
• Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. (RA 8249, sec. 4(a)).