Tirol

7. Honasan, II vs. Panel of Investigating Prosecutors of the Department of Justice

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.

DOCTRINE: Ombudsman has concurrent jurisdiction with the Department of Justice.

Facts: Senator Gringo Honasan was charged with the crime of coup d’etat before the Department of Justice
(DOJ). Captain Gerardo Gambala (for and in behalf of the military rebels occupying Oakwood) made a public
statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and
the Government of President Gloria Macapagal Arroyo. He stated that 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. Prosecutors of the Department of Justice (DOJ Panel) sent a subpoena to petitioner for
preliminary investigation.

Petitioner filed a Motion for Clarification questioning the 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.

Senator Gregorio B. Honasan II was directed to file a counter-affidavit, but instead he 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 on the ground that the DOJ has no jurisdiction to conduct the
preliminary investigation.

Contentions

 Honasan: Ombudsman and not DOJ has the jurisdiction to conduct preliminary investigation over all
public officials, including him as he is a senator. Since, Honasan is charged with coup d’etat in relation
to his office. As according the Article XI of the 1987 Constitution, it confers to the Ombudsman the power
to investigate moto proprio, or by complaint of any person, any act or omission that 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.

 DOJ: DOJ has the jurisdiction to conduct preliminary investigation pursuant to the Revised Administrative
Code. And Coup d’etat is not directly related to his public office as a senator. Thus, the jurisdiction of the
DOJ is a statutory grant and is not derived from provisions of the joint circular.

 Ombudsman: DOJ has the jurisdiction because coup d’etat falls under the Sandiganbayan only if it’s
committed in relation to office. Thus, Joint Circulat need not be published because it is merely an internal
arrangement between DOJ and Ombudsman and it neither regulates nor penalizes conduct of persons.

Issue: Whether or not the DOJ has jurisdiction to conduct preliminary investigation over the charge of coup d’etat
against Senator Gringo Honasan II.
Ruling: YES. 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:

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system;

Section 1 of P.D. 1275, effective April 11, 1978 also provides:

Sec. 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.

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary
investigation under Section 13(1), 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.

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,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.

This 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.

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 preliminary investigation vested on the Ombudsman is exclusive.

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 of such
investigation in the exercise of his primary jurisdiction.

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:

It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal]
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,
in ill-gotten wealth cases, may conduct the investigation.

Hence, 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.

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.

Dispositive: WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.