Saturday, October 13, 2012

geralyn tome


FACTS: The Office of the Ombudsman received information from an informer-for-reward that tax refunds have been anomalously granted to Distillera Limtuaco & Co., Inc. and La Tondeña Distilleries, Inc.  Upon receipt of the information, Soquilon recommended to then Ombudsman Conrado M. Vasquez that the “case” be docketed and subsequently assigned to him for investigation.
On the basis of the information, the OMB issued a subpoena duces tecum addressed to Atty. Mansequiao of the Legal Department of the BIR ordering him to appear before him and to bring the complete original case dockets of the refunds granted to the said companies.
BIR resisted the summons on the grounds that the grant of the tax refund had already been mooted by the Sandiganbayan in People vs Larin, that “the legal issue was no longer in question since the BIR had ruled that the ad valorem taxes were erroneously paid and could therefore be the proper subject of a claim for tax credit.” BIR argued that for subpoena duces tecum to be properly issued in accordance with law, there must first be a pending action because the power to issue a subpoena duces tecum is not an independent proceeding. The BIR noted that the Ombudsman issued the assailed subpoena duces tecum based only on the information obtained from an “informer-for-reward”. 
The Ombudsman denied the motion of the BIR and reiterated its instructions to the BIR to produce the documents sought. Instead of complying, the BIR filed this petition for certiorari, prohibition, and preliminary injunction, and temporary restraining order with the SC.
1.       Whether or not the Ombudsman could validly exercise its power to investigate only when there exists an appropriate case and subject to the limitations provided by law
2.       Whether or not the granting tax refunds falls within BIR’s exclusive expertise and jurisdiction and that its findings could no longer be disturbed by the Ombudsman
3.       Whether or not the investigation conducted by the Office of the Ombudsman violated due process in issuing subpoena without first giving BIR the summary of complaint and requiring it to submit a written reply
1.      No. The 1987 Constitution enjoins that 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 case, notify the complainants of the action taken and the result thereof.” There is no requirement of a pending action before the Ombudsman could wield its investigative power. Even when the complaint is verbal or written, unsigned or unverified, the Ombudsman could, on its own, initiate the investigation.

2.      No.  The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. The Ombudsman Act provides that the jurisdiction of the Ombudsman encompasses “all kinds of malfeasance, misfeasance and nonfeasance that have been committed by any officer or employee xxx during his tenure of office.

Concededly, the determination of whether to grant a tax refund falls within the exclusive expertise of the BIR. When there is a suspicion of even just a tinge of impropriety in the grant of the same, the Ombudsman could rightfully ascertain whether the determination was done in accordance with law and identify the persons who may be held responsible thereto. 
3.      Yes. It is clear from the initial comments of the graft investigator that based on the information, he undoubtedly found reasonable grounds to investigate further.  In fact, he recommended that the “case” be docketed immediately and assigned to him for a “full-blown fact-finding investigation.” if there is a reasonable ground to investigate further, the investigator of the Office of the Ombudsman shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof. 
In the instant case, the BIR was never furnished by the respondent with a summary of the complaint and were not given the opportunity to submit their counter-affidavits and controverting evidence.  Instead, they were summarily ordered to appear before the Ombudsman and to produce the case dockets of the tax refunds granted to Limtuaco and La Tondeña.  They are aggrieved in that, from the point of view of the respondent, they were already deemed probably guilty of granting anomalous tax refunds.
Petition is granted. Ombudsman is prohibited from proceeding with the case and its orders are annulled and set aside.


FACTS: In Uy vs Sandiganbayan [G.R. Nos. 105965-70.  August 9, 1999], petitioner Uy, who was Deputy Comptroller of the Philippine navy and designated as Assistant Chief of Naval Staff for Comptrollership was charged with estafa through falsification of official documents and violation of RA 3019. The petitioner filed a motion to quash, arguing that the Sandiganbayan had no jurisdiction over the offense charged and that the Ombudsman and the Special Prosecutor had no authority to file the offense.
The court ruled that :
1.      It is the court-martial, not the Sandiganbayan, which has jurisdiction to try petitioner since he was a regular officer of the Armed Forces of the Philippines, and fell squarely under Article 2 of the Articles of War mentioned in Section 1(b) of P.D. 1850, “Providing for the trial by courts-martial of members of the Integrated National Police and further defining the jurisdiction of courts-martial over members of the Armed Forces of the Philippines”

2.      As to the violations of Republic Act No. 3019, the petitioner does not fall within the “rank” requirement stated in Section 4 of the Sandiganbayan Law, thus, exclusive jurisdiction over petitioner is vested in the regular courts , as amended by R.A. No. 8249, which states that “In cases where none of the accused are occupying positions corresponding to Salary Grade ‘27’ or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.”

In this connection, it is the prosecutor, not the Ombudsman, who has the authority to file the corresponding information/s against petitioner in the regional trial court.  The Ombudsman exercises prosecutorial powers only in cases cognizable by the Sandiganbayan.

In February 20, 2000, a motion for clarification which in fact appeared to be a partial motion for reconsideration was filed by the Ombudsman and the Special Prosecutor filed, which was denied.
The instant case is a Motion for Further Clarification filed by Ombudsman Aniano A. Desierto of the Court's ruling in its decision dated August 9, 1999 and resolution dated February 22, 2000.

ISSUE: Whether or not the prosecutory power of the Ombudsman extends only to cases cognizable by the Sandiganbayan and that the Ombudsman has no authority to prosecute cases falling within the jurisdiction of regular courts.

RULING: No. The Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. 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 all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.

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. 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 in public office.

Even a perusal of the law (PD 1630) originally creating the Office of the Ombudsman then (to be known as the Tanodbayan), and the amendatory laws issued subsequent thereto will show that, at its inception, the Office of the Ombudsman was already vested with the power to investigate and prosecute civil and criminal cases before the Sandiganbayan and even the regular courts.

FACTS: On May 18, 1995, eleven suspected members of the notorious robbery gang, "Kuratong Baleleng," were killed in an alleged shootout with composite teams of the National Capital Regional Command (NCRC), Traffic Management Command (TMC), Presidential Anti-Crime Commission (PACC), Central Police District Command (CPDC) and Criminal Investigation Command (CIC).

SPO2 Eduardo de los Reyes of the Central Intelligence Command (CIC) then made an expose', stating that there was no shootout and that the "Kuratong Baleleng" members were victims of summary execution. 
The Commission on Human Rights (CHR) received the complaint of the relatives of the slain suspected gang members, accusing the PACC, NCRC, TMC, CIC and CPDC of murder. Acting Ombudsman Villa directed public respondent Deputy Ombudsman Casaclang to create a panel to monitor the investigations being conducted by the Commission on Human Rights, the Senate Committee on Justice and Human Rights, and the Philippine National Police (PNP) Director for Investigation regarding the alleged shootout.
The panel recommended that a preliminary investigation be conducted against petitioners and all the participating personnel listed in the After Operations Report of the PNP. Casaclang then issued the order directing petitioner[s] and nine others to submit their counter-affidavits and controverting evidence within ten days from receipt thereof, which the petitioners failed to comply.
The petitioners instead filed a motion with Casaclang to suspend the preliminary investigation against them pending resolution of the petition for certiorari filed with the Supreme Court.  Casaclang granted the motion, only to be reversed by Villa.  Villa then took over "the direct supervision and control of the preliminary investigation". The petitioners challenged the take-over, asserting that neither the Ombudsman nor his Deputy may conduct preliminary investigation.
  1. Whether or not the Ombudsman and Deputy Ombudsman are authorized to conduct preliminary investigations
  2. Whether or not public respondent Deputy Ombudsman for Military Manuel Casaclang committed grave abuse of discretion when he set the case for preliminary investigation and required the petitioners to submit their counter-affidavits before any preliminary evaluation of the complaint as required by Section 2, Rule II of Administrative Order No. 07 of the Office of the Ombudsman.
1.      Yes. By express mandate of paragraph 8, Section 13, Article XI of the Constitution, among the functions of the Ombudsman are those other powers, functions or duties as may be provided by law.
Through the passage of R.A. No. 6770, the Office of the Special Prosecutor was made an organic component of the Office of the Ombudsman, while the Ombudsman was granted the following powers, among others:

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 its primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

2.      Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided

x x x                           x x x                           x x x

The petitioners have not proven any distinction between "the duty to investigate" and "the power to conduct preliminary investigations"; neither have the petitioners established that the power remains with the Tanodbayan, now the Special Prosecutor. 

Deputy Ombudsman - Section 5, Article XI of the Constitution provides: SEC. 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.

The deliberations on the Deputy for the military establishment do not yield conclusive evidence that such deputy is prohibited from performing other functions or duties affecting non-military personnel.  On the contrary, a review of the relevant Constitutional provisions reveals otherwise.

As previously established, the Ombudsman "may exercise such other powers or perform such functions or duties" as Congress may prescribe through legislation. Therefore, nothing can prevent Congress from giving the Ombudsman supervision and control over the Ombudsman's deputies, one being the deputy for the military establishment.

2.      The Court does not share the petitioners' view that Casaclang set the case for preliminary investigation and required the petitioners to file their counter-affidavits without the conduct of a preliminary evaluation of the complaint as required by the Rules of the Office of the Ombudsman.  In this case, no evidence to that effect was adduced.  On the contrary, the Panel of Investigators submitted its evaluation report on 8 June 1995, and it was only on 14 June 1995 that respondent Casaclang issued the questioned order.
Moreover, the evaluation required is merely preliminary in nature and scope, not a detailed inquiry. Likewise, the conduct of such evaluation involves the exercise of discretion which has not been shown to be abused in the instant case.

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