G.R. No.
109113, January 25, 1995 contract documents for APM-01 and APM-02, the permitted
CONCERNED OFFICIALS OF THE METROPOLITAN WATERWORKS
AND SEWERAGE SYSTEM (MWSS), PETITIONERS, VS. HON.
OMBUDSMAN CONRADO M. VASQUEZ AND MEMBERS OF THE
PHILIPPINE LARGE DIAMETER PRESSURE PIPE
MANUFACTURERS ASSOCIATION (PLDPPMA), RESPONDENTS.
DECISION
VITUG, J.:
The Ombudsman, in its 19th October 1992 Order, [1] directed the
Board of Trustees of Metropolitan Waterworks and Sewerage
System ("MWSS") (a) to set aside the recommendation of its Pre-
qualification, Bids and Awards Committee for Construction
Services and Technical Equipment ("PBAC-CSTE") that Contract
No. APM-01 be given to a contractor offering fiberglass pipes and
(b) to instead award the contract to a complying and responsive
bidder pursuant to the provisions of Presidential Decree No. 1594.
[2] The subsequent motion for reconsideration was denied by the
Ombudsman in its Order of 01 March 1993.
These two Orders are now sought to be annulled in this petition
for certiorari, with prayer for preliminary injunction or a restraining
order, lodged by the "Concerned Officials of the Metropolitan
Waterworks and Sewerage System" [3] led by its former
Administrator Teofilo I. Asuncion. Let us first touch on the factual
backdrop.
In order to provide about 1.3 million liters of water daily to about
3.8 million people in the metropolitan area, [4] MWSS launched the
Angat Water Supply Optimization Project ("AWSOP") consisting
of several phases. The entire project would be, in most part,
financed by funds loaned by the Overseas Economic Cooperation
Fund ("OECF") of Japan to the national government and allocated
to MWSS in the form of equity. [5] With the completion of the
construction of the main aqueduct from Angat Dam all the way
down to La Mesa Dam in Novaliches, Quezon City, from where
water mains for the distribution system of the entire Metro Manila
begin, MWSS focused its attention to the Distribution System
Phase of the AWSOP. The projects were denominated Projects
APM-01 and APM-02 which consist of the construction of the
Distribution System Phase of the AWSOP, that would particularly
call for the supply of labor, materials and equipment, and of the
installation of new watermains (43,305 linear meters for APM-01
and 31,491 linear meters for APM-02), [6] comprising of fittings,
valves and pipes of different sizes. [7] Under Clause IB-34 of the
alternative pipe materials for the projects were to include the
following items:
"(millimeters)
Asbestos Cement Pipe (ACP) - 100 mm to 600 mm
Cast Iron Pipe (CIP) - 50 and larger
Polyethylene Pipe (PE) - 50 mm to 250 mm
Polyvinyl Chloride Pipe (PVC) - 50 mm to 250 mm
Ductile Iron Pipe (DIP) - 50 mm and larger
Steel Pipe (SP) - 400 mm and larger
Fiberglass Pressure Pipe 300 mm and larger" [8]
-
(FPP)
On 30 August 1991, MWSS caused the publication in two (2)
leading newspapers of an "Invitation for Pre-qualification and
Bids" for Projects APM-01 and APM-02. Since the aforesaid
projects were opened for international competitive bidding, copies
of the "Invitation for Pre-qualification and Bids" were sent to the
respective embassies and trade missions of member countries of
the OECF. The advertisement and invitation to prospective
bidders announced that "(g)oods and services to be supplied
under (the) contract must have their origin from countries defined
in the Guidelines for Procurement of Goods under OECF loans"
and that "(j)oint ventures between foreign and domestic firms are
encouraged." While there were twenty-five (25) prospective
applicants who secured pre-qualification documents, only
fourteen (14) contractors submitted corresponding applications to
the PBAC-CSTE.
On 20 November 1991, the PBAC-CSTE, after evaluating the
applications for pre-qualification, issued a report [9] concluding that
only eleven (11) [10] out of the fourteen (14) contractors were pre-
qualified to bid for the 31st March 1992 scheduled bidding
covering both the APM-01 and APM-02 proposed contracts. The
major factors considered in the evaluation were the applicants'
financial condition, technical qualification and experience to
undertake the project under bid.
Meanwhile, private respondent Philippine Large Diameter
Pressure Pipes Manufacturers' Association ("PLDPPMA"). [11] sent
seven (7) letters, between 13 January and 23 March 1992, to the
MWSS requesting clarification, as well as offering some
suggestions, on the technical specifications for APM-01 and APM-
02.
The first letter, dated 13 January 1992, [12] sought clarification on
the design criteria of thickness used for fiberglass and ductile iron
pipes which varied from the standard thickness given by
manufacturers.
The second letter, dated 29 January 1992, [13] suggested that all
alternative pipes for Projects APM-01 and APM-02 should have
the same design criteria on stiffness class, pressure class, rating,
elevated temperature and wall thickness and should be
manufactured in accordance with American Water Works
Association ("AWWA") standards.
PLDPPMA, in its third letter of 13 February 1992, [14] sought to be
elaborated on the imposition of the testing procedure of stiffness
factor on steel pipes used in Fiberglass Reinforced Pipes ("FRP")
and suggested that the 5-year minimum experience by
manufacturers be required for alternative pipes.
In its fourth letter, dated 25 February 1992, [15] PLDPPMA
reiterated their request that the deflection allowance of 3% under
the AWWA standards on steel pipes be also applied to all
alternative pipes and suggested that a comparative study should
be undertaken by the MWSS on the feasibility of using filament
wound fiberglass pipes ("FRP") and centrifugally cast fiberglass
pipes ("GRP").
In their fifth letter, dated 05 March 1992, [16] PLDPPMA appealed
to the MWSS to have steel pipes placed in equal footing with
other alternative pipes, specifically filament wound and
centrifugally cast fiberglass pipes, in order to avoid an unfair
requirement on stiffness value.
In their penultimate letter of 16 March 1992, [17] PLDPPMA
informed MWSS of their computation for wall thicknesses and
stiffness values for cement lined/cement coated and epoxy
lined/coal tar enamel coated steel pipes based on AWWA
standards.
Finally, in their seventh letter of 23 March 1992, [18] PLDPPMA
reiterated their request for correcting the specifications for steel
and fiberglass pipes, particularly on wall thicknesses and
deflections, because of MWSS Addendum #5 where the wall
thicknesses for steel pipes were noted to be more than the wall
thicknesses computed in the previously agreed agenda.
Former Administrator Luis Sison issued, between 10 February
and 24 March 1992, six (6) addenda to the bidding documents
that embodied the meritorious suggestions of PLDPPMA on
various technical specifications. In his 24th March 1992 letter to
the PLDPPMA, in response to the latter's 23rd March 1992
(seventh) letter, Sison explained that the additional thickness for
steel pipes was so required in order to serve as a pipe corrosion
allowance to counter imperfection in the preparation and
application of lining and coating, the limited service life of epoxy
resin lining and the corrosive element of the local soil.
The bidding was conducted by PBAC on the previously scheduled
date of 31 March 1992. The pre-qualified bidders using steel and
fiberglass pipes submitted their respective bid proposals. The
approved agency cost estimate for Project APM-01 was Three
Hundred Sixty Six Million Six Hundred Fifty Thousand Pesos
(P366,650,000.00). [19] The three (3) lowest bidders for the said
project (APM-01) were the following:
"BIDDER BID PRICE
1. DYWIDAG/TITAN/WILPER P267,345,574.00
PLDPPMA/GREEN JADE
2. F.F. CRUZ & CO., INC. P268,815,729.00
3. J.V. ANGELES CONST.
CORP./
JA DEVT. CORP. P278,205,457.00 [20]
while the three lowest bidders for Project APM-02 included:
"BIDDER BID PRICE
1. ENG'G. EQUIPMENT, INC. P219,574,538.00
(EEI)
2. FF CRUZ & CO., INC. P233,533,537.00
3. J.V. ANGELES CONST.
CORP./
JA DEVT. CORP. P277,304,604.00" [21]
In APM-01, Joint Venture and F.F. Cruz and Co., Inc. proposed to
use fiberglass pipes. In APM-02, Eng'g Equipment Inc. and F.F.
Cruz likewise proffered to use fiberglass pipes.
After the three lowest bidders for both projects were known, a
meeting was held on 27 May 1992 by the PBAC-CSTE,
composed of MWSS Deputy Administrator for Engineering
Eduardo M. Del Fierro, as Acting Chairman, and Deputy
Administrator for Construction Teofilo I. Asuncion, Deputy
Administrator for Operations Ruben A. Hernandez, Acting Chief of
Legal Office Precioso E. Remolacio, and Project Manager Cesar
S. Guevarra, as members, to decide on what should be done
about Contract APM-01. Three of the members, namely,
Hernandez, Guevarra and Asuncion, recommended to reject all
bids and conduct a rebidding for the contract on the following
grounds:
Ambiguity of Addendum No. 6 - The Addendum is subject
to different interpretations because there was no
“a. illustrations provided. Further, it could also be said that
some contractors did not use the FRP because said
Addendum was not clearly explained.
Remolacio both disagreed with the findings of the PBAC-CSTE;
the former opted for a rebidding while the latter batted for
awarding the contract to Joint Venture.
On the following day, or on 03 June 1992, the MWSS Board
Committee on Construction Management and the Board
Committee on Engineering, acting jointly on the recommendation
of Administrator Sison, recommended that Contract No. APM-01
be awarded to F.F. Cruz & Co., Inc., being the lowest complying
bidder. [24]

There was no provision for maintenance/repair materials

Prior thereto, or on 07 April 1992 (seven days after the
for bidders who opted to use FRP which is relatively new
“b. submission of the bid proposals on 31 March 1992), private
pipe to be used in the country. It was suggested that a 5%
respondent PLDPPMA, through its President Ramon Pastor, filed
to 10% allowance be provided for maintenance purposes.
with the Office of the Ombudsman a letter-complaint [25] (docketed
Case No. OMB-0-92-0750) protesting the public bidding
Further review of pipe design should be made by the
conducted by the MWSS for Projects APM-01 and APM-02,
“c. Consultant (NJS) in order to accommodate the load to be
detailing charges of an "apparent plan" on the part of the MWSS
carried in the Umiray-Angat Loop." [22]
to favor suppliers of fiberglass pipes, and urging the Ombudsman
to conduct an investigation thereon and to hold in abeyance the
Precioso E. Remolacio abstained; he felt that "technical
award of the contracts. PLDPPMA's letter-complaint, in part, read:
evaluation (was) more essential in deciding the issues in (the)
Contract." For his part, Acting Chairman Eduardo M. del Fierro
"Even before the bidding had started, there appears to be an
recommended that no rebidding should be undertaken and that
apparent plan on the part of the MWSS to favor a particular
an award should be made to either the lowest or the second
supplier of pipes for the project considering the following events:
lowest bidder.
"Firstly, the bid documents particularly the specifications for
On 29 May 1992, PBAC-CSTE met again to discuss and evaluate
alternative pipes when first released in December 1991
the bids in APM-02. Here again, three members, namely,
whimsically and arbitrarily set such rigid standards for steel pipes
Guevarra, Hernandez and Asuncion, opined that a rebidding
so that MWSS had to issue six addenda to the bidding documents
should be conducted, while Acting Chairman del Fierro and
and had to postpone the bidding several times in a vain attempt to
Remolacio believed that the contract should be awarded to the
correct the apparent prejudice against the use of steel pipes for
lowest bidder.
the APM 01 and 02 projects;

Finally, on 02 June 1992, the PBAC-CSTE formally submitted its

"Secondly, despite our prior agreement with MWSS Engineering
report [23] on its bid evaluation on APM-01. The PBAC-CSTE held
Department that the alternative pipes to be used for the project
that while Joint Venture's bid might have been the lowest it was,
should comply with internationally accepted AWWA
however, invalid due to its failure to acknowledge Addendum No.
specifications, the bidding specifications was written arbitrarily
6, a major consideration, that could not be waived. It accordingly
and in complete disregard of AWWA specifications increased by 1
recommended that the contract be instead awarded to the second
mm. the thickness required for steel pipes thereby effectively
lowest but complying bidder, F.F. Cruz & Co., Inc., subject to the
increasing the cost of steel pipes for the APM 01 project bid by
latter's manifestation that it would only hire key personnel with
about P30 Million, or more than twice the difference between the
experience in the installation of fiberglass pressure pipes (due to
lowest bid and the bid that utilized steel pipes;
PBAC-CSTE's observation in the report that the company and its
key personnel did not have previous experience in the installation
"Thirdly, despite the fact that it was/is of common knowledge that
of fiberglass reinforced pipes). Acting Chairman del Fierro,
FRP and GRP (Fiberglass) pipes have had a long history of
together with members Guevarra and Asuncion, approved the
failures in the United States such that even MWSS Pre-
PBAC-CSTE's findings and recommendation. Hernandez and
qualification, Bidding and Awards Committee resolved in a
meeting held in March 1992 not to use FRP and GRP pipes for
large projects, bids utilizing such pipes were still accepted for the
APM 01 and 02 projects; and
"Lastly, the undue preference for the use of GRP pipes became
more apparent when the supposed lowest bidder for the APM 01
project (who did not participate in the bidding for APM 02 project),
and the supposed lowest bidder for the APM 02 project (who also
did not participate in the bidding for APM 01 project), both
submitted bids utilizing GRP pipes."
On 10 June 1992, the Ombudsman referred PLDPPMA's 07th
April 1992 letter-complaint to the MWSS Board of Trustees for
comment along with a directive to it to hold in abeyance the
awarding of the subject contract. [26] MWSS asked for an
extension of time within which to submit its comment but called, at
the same time, the attention of the Ombudsman to Presidential
Decree No. 1818 [27] prohibiting the issuance of restraining
orders/injunctions in cases involving government infrastructure
projects.
After the submission by the parties of their respective pleadings,
the case was referred to the Fact-Finding and Intelligence Bureau
of the Office of the Ombudsman for investigation and report. On
14 September 1992, a fact-finding report [28] was submitted to,
and approved by, the Ombudsman which became the basis for
the issuance of the now challenged order, dated 19 October
1992, [29] reading as follows:
"In view of the findings of this Office on the above-entitled case as
contained in the Fact-Finding Report, dated September 14, 1992,
of the Fact Finding Investigation Bureau (copy attached), and
pursuant to the Powers, Functions and Duties of the Office of the
Ombudsman as mandated under Section 15 of Republic Act 6770
(Ombudsman Act), the MWSS Board of Trustees is hereby
directed to:
1) Set aside the recommendation of the MWSS Pre-qualification,
Bids and Awards Committee for Construction Services and
Technical Equipment (PBAC-CSTE) to award Contract APM-01 to
a contractor offering fiberglass pipes;
2) Award the subject contract to a complying and responsive
bidder pursuant to the provisions of PD 1594, Prescribing
Policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts.
"The Board of Trustees is further directed to inform this Office of
the action taken thereon.
"SO ORDERED."
A motion by herein petitioners for the reconsideration of the order
was denied on 01 March 1993. [30]
Thus, the present recourse.
Petitioners cite to us the following reasons for its petition for
certiorari.
"I.
"RESPONDENT OMBUDSMAN ACTED BEYOND THE
COMPETENCE OF HIS OFFICE WHEN HE ASSUMED
JURISDICTION OVER THE COMPLAINT AT BAR
NOTWITHSTANDING THAT THE SAME IS CLEARLY AMONG
THE CASES EXCEPTED BY SECTION 20 OF THE
OMBUDSMAN ACT OF 1989 (RA NO. 6770) WHICH
ENUMERATED THE ADMINISTRATIVE ACT OR OMISSION
THAT MAY NOT BE THE SUBJECT OF INVESTIGATION BY
HIS OFFICE.
"II
"RESPONDENT OMBUDSMAN, AFTER HAVING TAKEN
COGNIZANCE OF THE COMPLAINT, ARBITRARILY ISSUED A
DIRECTIVE IN THE NATURE OF A RESTRAINING ORDER OR
WRIT OF PRELIMINARY INJUNCTION TO PETITIONERS ‘TO
HOLD IN ABEYANCE THE AWARDING OF THE CONTRACT X
X X UNTIL FURTHER ORDER FROM THIS OFFICE,' A POWER
OR AUTHORITY NOT VESTED IN HIS OFFICE.
"III
"RESPONDENT OMBUDSMAN ACTED WITHOUT
JURISDICTION IN ISSUING THE ORDER OF OCTOBER 19,
1992 AS WELL AS THE ORDER OF MARCH 1, 1993,
CONSIDERING THAT UNDER THE LAW THE OMBUDSMAN'S
JURISDICTION CANNOT AND SHOULD NOT BE EXPANDED
TO INCLUDE THE DECISION MAKING POWER OVER A CIVIL
ADJUDICATORY MATTER SUCH AS THE MWSS BIDDING
PROCESS.
"IV
"RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR
OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION, BY ARBITRARILY
AND CAPRICIOUSLY INTERFERING WITH THE EXERCISE OF
SOUND DISCRETION BY THE MWSS WHICH IS A
SPECIALIZED AGENCY OF GOVERNMENT WITH WHICH
EVEN COURTS OF JUSTICE GENERALLY DO NOT
INTERFERE, ASSUMING ARGUENDO THAT HE HAS
JURISDICTION TO ISSUE THE ORDERS.
"V
"RESPONDENT OMBUDSMAN COMMITTED A GRAVE ERROR
OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OF JURISDICTION, IN ISSUING THE
SUBJECT ORDERS IN GROSS DISREGARD OF THE
CARDINAL PRINCIPLES OF DUE PROCESS OF LAW IN
ADMINISTRATIVE PROCEEDINGS, ASSUMING ARGUENDO
THAT HE HAS JURISDICTION TO ISSUE SAID ORDERS.
"VI
"RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR
OF LAW, AND ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION, IN GROSSLY
MISAPPREHENDING THE RECORD BY FAILING TO TAKE
INTO ACCOUNT THE FINDINGS OF EXPERTS THAT THE
MWSS SPECIFICATIONS ARE FAIR, AND BY CONCLUDING
BASELESSLY THAT MWSS FORMULATED ITS
SPECIFICATIONS TO FAVOR FIBERGLASS PIPES OVER
STEEL PIPES, ASSUMING ARGUENDO THAT HE HAS
JURISDICTION TO ISSUE THE SUBJECT ORDERS.
"VII
"RESPONDENT OMBUDSMAN COMMITTED GRAVE ERROR
OF LAW, AND ACTED ARBITRARILY AND CAPRICIOUSLY, IN
IMPLYING BASELESSLY THAT MWSS ACTED UNFAIRLY,
OPPRESSIVELY AND WITH GRAVE ABUSE OF DISCRETION,
ASSUMING ARGUENDO THAT HE HAS JURISDICTION TO
ISSUE THE SUBJECT ORDERS.
"VIII
IN CONSEQUENCE, THE ORDERS OF OCTOBER 19, 1992
AND MARCH 1, 1993 MUST BE REVERSED, ANNULLED AND
SET ASIDE." [31]
After the required pleadings were filed by the parties, this Court,
in its resolution of 19 May 1994 gave due course to the petition
and required the parties to submit memoranda. In compliance
therewith, the parties filed their respective memoranda, petitioners
(MWSS) on 07 July 1994, the Solicitor-General on 28 June 1994,
and PLDPPMA on 19 July 1994. Meanwhile, a motion for leave to
intervene and to admit an attached petition-in-intervention was
filed by Titan Construction Corporation on 30 June 1994.
Petitioners opposed Titan's intervention. This Court, ultimately,
denied the motion for leave to intervene.
The various alleged errors raised by petitioners can be grouped
into two basic issues, i.e., (a) whether or not the rudiments of due
process have been properly observed in the issuance of the
assailed 19th October 1992 and 01st March 1993 orders of the
Ombudsman; and, more pivotal than the first, (b) whether or not
the Ombudsman has jurisdiction to take cognizance of
PLDPPMA's complaint and to correspondingly issue its
challenged orders directing the Board of Trustees of the MWSS to
set aside the recommendation of the PBAC-CSTE.
Relative to the first issue, we are more than convinced, after a
scrutiny of the records of this case, that petitioners have been
amply accorded the opportunity to be heard.
Petitioners were asked to comment on the letter-complaint of
PLDPPMA. On 25 June 1992, petitioners moved for an extension
of time within which to comment. On 16 July 1992, petitioners
filed their letter-comment. Responding to the reply of PLDPPMA,
petitioners later filed a rejoinder. When an adverse order was
rendered against them, petitioners moved for its reconsideration,
albeit to no avail.
The essence of due process is an opportunity to be heard. [32]
One may be heard, not solely by verbal presentation but also, and
perhaps even many times more creditably and practicable than
oral argument, through pleadings. [33] In administrative
proceedings, moreover, technical rules of procedure and
evidence are not strictly applied; administrative due process
cannot be fully equated to due process in its strict judicial sense.
[34]
On the threshold matter that puts to issue the Ombudsman's
directive to the Board of Trustees of MWSS to set aside the
recommendation of the PBAC-CSTE to award Contract No. APM-
01 to the lowest complying bid, we find, this time, the petition to
be impressed with merit.

Petitioners maintain that while Republic Act ("R.A.") No. 6770,
otherwise known as the Ombudsman Act of 1989, extends certain
well-defined powers and authority to the Office of the
Ombudsman to, among other functions, investigate and prosecute
complaints filed therewith, the same law, however, expresses
limits to the exercise of such jurisdictional powers and authority.
Section 20 of the Act is cited; viz:
"Sec. 20. Exceptions. - The Office of the Ombudsman may not
conduct the necessary investigation of any administrative act or
omission complained of if it believes that:
“(1) The complainant has an adequate remedy in another judicial
or quasi-judicial body;
“(2) The complaint pertains to a matter outside the jurisdiction of
the Office of the Ombudsman;
“(3) The complaint is trivial, frivolous, vexatious or made in bad
faith;
“(4) The complainant has no sufficient personal interest in the
subject matter of the grievance; or
“(5) The complaint was filed after one year from the occurrence of
the act or omission complained of."
Petitioners contend that PLDPPMA's complaint falls under
exceptions (1) to (4) of Sec. 20 of R.A. No. 6770, and that,
therefore, the Ombudsman should not have taken cognizance of
the complaint.
Asserting, upon the other hand, that the Ombudsman has
jurisdiction over PLDPPMA's complaint, the Solicitor-General
enumerates various constitutional and statutory provisions; to wit:
(a) Section 13, Article XI of the 1987 Constitution providing thusly:
"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.
“(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."
(b) Section 13 of Republic Act No. 6770 which reads:
"SEC. 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."
(c) Section 15, paragraphs (1) to (7), of Republic Act No. 6770
which reproduced verbatim the aforequoted provisions of Section
13 of the 1987 Constitution with some additional salient statutory
provisions; hence:
"SEC. 15. Powers, Functions and Duties. - The Office of the
Ombudsman shall have the following powers, functions and
duties:
"x x x xxx xxx
“(8) Administer oaths, issue subpoena and subpoena duces
tecum, and take testimony in any investigation or inquiry,
including the power to examine and have access to bank
accounts and records;
“(9) Punish for contempt in accordance with the Rules of Court
and under the same procedure and with the same penalties
provided therein;
“(10) 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;
“(11) Investigate and initiate the proper action for the recovery of
ill-gotten and/or unexplained wealth amassed after February 25,
1986 and the prosecution of the parties involved therein.
"The Ombudsman shall give priority to complaints filed against
high ranking government officials and/or those occupying
supervisory positions, complaints involving grave offenses as well
as complaints involving large sums of money and/or properties."
(d) And, finally, Section 26 of the Ombudsman Act which
expresses, as follows:
"SEC. 26. Inquiries. - (1) The Office of the Ombudsman shall
inquire into acts or omissions of a public officer, employee, office
or agency which, from the reports or complaints it has received,
the Ombudsman or his Deputies consider to be:
"(a) contrary to law or regulation;
“(b) unreasonable, unfair, oppressive, irregular or inconsistent
with the general course of the operations and functions of a public
officer, employee, office or agency;
“(c) an error in the application or interpretation of law, rules or
regulations, or a gross or palpable error in the appreciation of
facts;
“(d) based on improper motives or corrupt considerations;
“(e) unclear or inadequately explained when reasons should have
been revealed; or
“(f) inefficiently performed or otherwise objectionable.
“2. The Office of the Ombudsman shall receive complaints from
any source in whatever form concerning an official act or
omission. It shall act on the complaint immediately and if it finds
the same entirely baseless, it shall dismiss the same and inform
the complainant of such dismissal citing the reasons therefor. If it
finds a reasonable ground to investigate further, it 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 hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case.
“3. When the complaint consists in delay or refusal to perform a
duty required by law, or when urgent action is necessary to
protect or preserve the rights of the complainant, the Office of the
Ombudsman shall take steps or measures and issue such orders
directing the officer, employee, office or agency concerned to:
“(a) expedite the performance of duty;
“(b) cease or desist from the performance of a prejudicial act;
“(c) correct the omission;
“(d) explain fully the administrative act in question; or
“(e) take any steps as may be necessary under the circumstances
to protect and preserve the rights of the complainant.
"4. Any delay or refusal to comply with the referral or directive of
the Ombudsman or any of his Deputies shall constitute a ground
for administrative disciplinary action against the officer or
employee to whom it was addressed."
On the basis of all the foregoing provisions of law, the Solicitor-
General insists that the authority of the Ombudsman is sufficiently
broad enough to cloth it with sufficient power to look into the
alleged irregularities in the bidding conducted on 31 March 1992
leading to the recommendation made by the PBAC-CSTE on
contract APM-01. He argues that even if no criminal act could be
attributed to the former MWSS Administrator and members of the
PBAC-CSTE, the questioned report could still be embraced in the
all?encompassing phrase "all kinds of malfeasance, misfeasance,
and non-feasance," and falls within the scope of the constitutional
provision calling for an investigation of "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."
Indeed, in Deloso v. Domingo, [35] this Court had occasion to
explain not only the rationale for the creation of an office of the
Ombudsman but also the grant to it of broad investigative
authority, thus:
"The reason for the creation of the Ombudsman in the 1987
Constitution and for the grant to it of 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. It was deemed necessary, therefore,
to create a special office to investigate all criminal complaints
against public officers regardless of whether or not the acts or
omissions complained of are related to or arise from the
performance of the duties of their office. The Ombudsman Act
makes perfectly clear that the jurisdiction of the Ombudsman
encompasses 'all kinds of malfeasance, misfeasance, and non-
feasance that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office.' "
To begin with, the powers, functions and duties of the
Ombudsman have generally been categorized into the following
headings: Investigatory Power; Prosecutory Power; Public
Assistance Functions; Authority to Inquire and Obtain Information;
and Function to Adopt, Institute and Implement Preventive
Measures.
Although the Solicitor-General has practically enumerated all the
constitutional and statutory provisions describing the ample
authority and responsibilities of the Ombudsman, the particular
aspect of his functions that, however, really finds relevance to the
present case relates to his investigatory power and public
assistance duties which can be found in the first and second
paragraphs, respectively, of Section 13, Article XI, of the
Constitution, along with the corresponding provisions of the
Ombudsman Act. This much can be gleaned from the findings of
the Office of the Ombudsman leading to its questioned orders.
We quote:
"a. There is an evident plan on the part of the MWSS under then
Administrator Sison to favor suppliers of fiberglass when it
prescribed rigid standards for steel pipes but set lenient
requirements for pipes made of fiberglass, for the following
reasons:
“1. MWSS management rely on the AWWA standards for
fiberglass pipe but neglect the same AWWA standards for steel
pipes. The MWSS management under Administrator Sison
disregarded the AWWA specifications by increasing 1mm
thickness for steel pipes.
“2. Complainant sent seven letters to the MWSS questioning and
making suggestions on the rules of the bidding it set but only one
was answered by Administrator Sison dated and received (by the
complainant) after the bidding.
“3. The MWSS' original specification for stiffness of fiberglass (36
psi) was [c]hanged to 54 psi (pounds per square inch) in its
Addendum No. 1 as a result of the complaints of the PLDPPMA
Members. But in its Addendum No. 4, the MWSS reverted to the
original stiffness class of 36 psi. In the letter-comment dated July
26, 1992 of the MWSS, thru Acting Administrator Teofilo I.
Asuncion, the MWSS tried to mislead this office by stating that the
stiffness class of fiberglass pipes was increased from 36 psi to 54
psi when in truth, as appearing in its Addendum No. 4, the MWSS
reverted to the original stiffness class of 36 psi. There is nothing
in the subsequent Addenda (Nos. 5 and 6) that will show that the
MWSS finally settled for the stiffness class of 54 psi.
“4. The MWSS failed to prescribe specific pipe laying procedure
for fiberglass pipes. Contrary to the claim of the MWSS that pipe
laying for fiberglass pipes is not a complicated procedure as it is
similar with other types of pipes, the installation of fiberglass pipes
seems to be a critical factor in the successful implementation of a
project as shown in the findings of experts, attached by the
MWSS in its motion, and quoted as follows: x x x
“5. The MWSS failed to include in the Specifications a provision
for the maintenance/repair materials for bidders who opted to use
fiberglass pipes. The importance of a provision for repair of
fiberglass pipes can be inferred in the findings of experts cited by
the MWSS and quoted as follows: x x x

“6. The MWSS tried to limit the acceptable joints for fiberglass
pipes favorable to a fiberglass manufacturer by issuing
Addendum No. 6 which was undated. The provision of Addendum
No. 6 ‘The only acceptable joints are gasketted Bell and Spigot
and Mechanical Type’ appears to be vague and ambiguous as it
cannot be determined clearly whether the bidders will be using
the Bell and Spigot type of Joint or Mechanical Type of Joint. As
stated in the Report, the cost of the Bell and Spigot Joint is
cheaper than the cost of Mechanical Type of Joint. Moreover, it
was only on June 1, 1992 or two (2) months after the bidding that
the MWSS issued clarification to the effect that fiberglass pipes
bidders can use either the Bell and Spigot type or Mechanical
type.
"7. In connection with Addendum No. 6, this office recently got
hold of a copy of a letter dated January 31, 1992 (found on Folder
I, records) of Joseph Albanese, Gruppo Sarplast, Milan, Italy
(Manufacturer/Supplier of fiberglass pipes for F.F. Cruz & Co.
Inc.), addressed to Felipe Cruz. The letter was officially
stamped/received by the Office of the MWSS Administrator on
February 12, 1992. It also has a marginal notation of ‘Attention:
Mr. Veriño From: Mr. F.F. Cruz.' The pertinent portion of the letter
in the light of Addendum No. 6 is quoted as follows:
“8. Conclusion ‘During the pre-bid meeting our friends should say:
our Spec TS-23 is a general one, but for this case only the pipes
produced with discontinuing filament winding will be accepted and
only bell and spigot joint.'
"The existence of such a letter in such a situation can only mean
that F.F. Cruz and Sarplast, Italy had previous communications
with the top officials of the MWSS even before the opening of the
bids on March 31, 1992. Clearly, the issuance of Addendum No. 6
would only fit well for F.F. Cruz Co., Inc. and Sarplast who is
proposing the use of discontinuous filament winding fiberglass
pipe with bell and Spigot joint.'
“b. MWSS has no experience and sufficient knowledge on the use
of fiberglass pipes.
“c. The Contractors who proposed to use fiberglass pipes have no
track record or experience in the installation of the same. Thus,
they are not qualified to undertake projects pursuant to the
provisions of PD 1594 and under the guidelines of the Overseas
Economic Cooperation Fund.
“d. The would-be manufacturers of fiberglass pipes has no
manufacturing plant at this stage and there is no guarantee
whether such manufacturing plants will be operational.
“e. There is no assurance that the manufacturers of fiberglass
would be able to produce the kind of pipe desired." [36]
In sum, the Office of the Ombudsman has considered three
issues: (1) whether or not the technical specifications prescribed
by the MWSS in projects APM 01 and 02 have been so designed
as to really favor Fiberglass Pipes-Contractors/Bidders; (2)
whether or not the MWSS has the technical knowledge and
expertise with fiberglass pipes; and (3) whether or not the
contractors and local manufacturers of fiberglass pipes have the
experience and qualification to undertake the APM-01 and APM-
02 projects.
While the broad authority of the Ombudsman to investigate any
act or omission which "x x x appears illegal, unjust, improper, or
inefficient" may be yielded, it is difficult to equally concede,
however, that the Constitution and the Ombudsman Act have
intended to likewise confer upon it veto or revisory power over an
exercise of judgment or discretion by an agency or officer upon
whom that judgment or discretion is lawfully vested. It would seem
to us that the Office of the Ombudsman, in issuing the challenged
orders, has not only directly assumed jurisdiction over, but
likewise preempted the exercise of discretion by, the Board of
Trustees of MWSS. Indeed, the recommendation of the PBAC-
CSTE to award Contract APM-01 appears to be yet pending
consideration and action by the MWSS Board of Trustees.
We can only view the assailed 19th October 1992 Order to be
more of an undue interference in the adjudicative responsibility of
the MWSS Board of Trustees rather than a mere directive
requiring the proper observance of and compliance with the law.
The report submitted by the Fact-Finding and Intelligence Bureau
of the Office of the Ombudsman reveals its predisposition against
the use of fiberglass pipes, a technical, rather than a legal, matter.
The fact-finding report has dealt with such matters as (1) the wall
thickness of pipes; (2) the joints; (3) the pipe laying procedure; (4)
the technical expertise of the MWSS, on the one hand, and the
fiberglass proponents, on the other; and (5) the supposed
negative international feedback on the use of fiberglass pipes.
The question could be asked: Was the 31st March 1992 bidding
really that faulty? During the bidding, the people present were the
PBAC members, a COA representative, the bidders and the
general public. The eleven (11) prequalified contractors,
according to the prequalification evaluation [37] of the PBAC,
possessed the required experience, technical qualification and
financial condition to undertake the project. It should not be amiss
to mention that the PBAC, under the implementing rules and
regulations of P.D. No. 1594, [38] was tasked with the responsibility
"for the conduct of prequalification, bidding, evaluation of bids and
recommending award of contracts." In evaluating the bids, PBAC
stated in its report that it had examined the three lowest bids. Part
of PBAC's review was to verify whether the proposed pipe
materials were in conformity with the permitted alternative
materials specified in Clause IB-34 of the bid document. [39] In
thereafter recommending that the award be made to F.F. Cruz,
Inc., instead of Joint Venture, PBAC explained:
"As presented above, evaluation of the bid results touches on a
number of parameters to determine whether the bids are
‘substantially responsive to the bidding documents and has
offered the lowest evaluated bid, and that the bidder has the
capacity and resources to effectively carry out the Contract
Works.' The evaluation was conducted as fairly and accurately as
possible to come up with a recommendation that satisfies the
interest of the MWSS which in the final analysis, shall bear the
consequences if the contract is not fully performed. Conclusions
of the important issues are hereunder presented.
"A. Establishing the validity of the Bid of the Lowest Bidder
"The deficiencies with respect to the bidding requirements
enumerated in Section 4.2.1, page 4 were discussed to wit:
a) Authority of the Signing Official
b) Acknowledgment of Addenda received
c) Currency Exchange Rate
"After the discussion, the PBAC agreed that the deficiencies on
the a) authority of the signing official and the c) currency
exchange rate may be waived as they do not affect the validity of
the bid. PBAC believes that the authority given to Fernando M.
Sopot by the Consortium in the Joint Venture Agreement
substantially complies with Clause IB-20-7 of the Contract
Documents. On the currency exchange rate, in the absence of
BF-14, the MWSS may provide the exchange rate.
"With regard to the acknowledgement of Addendum No. 6, which
is a material provision of the documents, it is ascertained that the
Joint Venture has not made allowance for the provision of said
Addenda. The Joint Venture indicated in the bid, as originally
submitted, the acknowledgement of Addenda # 1 to #5 only. The
alteration made during the bidding acknowledging Addendum #6
was done after the 12 noon deadline of submittal of bids and,
hence, cannot be entertained. Moreover, the person who made
the alteration is also not authorized to make such alteration and
affix his signature to the bid.
"It is therefore, the position of the PBAC that the deficiency in the
acknowledgment of Addendum No. 6 is a major defect and cannot
be waived as it affects the validity of the bid of the Consortium.
The bid has to be rejected as non-complying.
"The lowest complying bid becomes the bid submitted by the
second lowest Bidder F.F. CRUZ, & CO., INC. as discussed
above.” [40]
PBAC was evidently guided by the rule that bids should be
evaluated based on the required documents submitted before,
and not after, the opening of bids, [41] that should further dispel
any indiscriminate or whimsical exercise of discretion on its part.
The MWSS, a government-owned and controlled corporation
created by law through R.A. No. 6234, [42] is charged with the
construction, maintenance and operation of water work system to
insure an uninterrupted and adequate supply and distribution of
potable water. [43] It is the agency that should be in the best
position to evaluate the feasibility of the projections of the bidders
and to decide which bid is compatible with its development plans.
The exercise of this discretion is a policy decision that
necessitates, among other things, prior inquiry, investigation,
comparison, evaluation, and deliberation - matters that can best
be discharged by it. [44] MWSS has passed Resolution No. 32-93
[45] to likewise show its approval of the technical specifications for
fiberglass. All these should deserve weight.
In Razon Inc. v. PPA, [46] we have said that neither this Court nor
Congress, and now perhaps the Ombudsman, could be expected
to have the time and technical expertise to look into matters of
this nature. While we cannot go so far as to say that MWSS would
have the monopoly of technical know-how in the waterworks
system, by the very nature of its functions, however, it obviously
must enjoy an advantage over other agencies on the subject at
hand. In Felipe Ysmael, Jr. & Co. Inc. vs. Deputy Executive
Secretary, [47] citing numerous cases, [48] this Court has held:

"Thus, while the administration grapples with the complex and
multifarious problems caused by unbridled exploitation of these
resources, the judiciary will stand clear. A long line of cases
establish the basic rule that the courts will not interfere in matters
which are addressed to the sound discretion of government
agencies entrusted with the regulation of activities coming under
the special technical knowledge and training of such agencies."
It stands to reason for, in Bureau Veritas v. Office of the
President, [49] we have further observed:
"The discretion to accept or reject a bid and award contracts is
vested in the Government agencies entrusted with that function.
The discretion given to the authorities on this matter is of such
wide latitude that the Courts will not interfere therewith, unless it is
apparent that it is used as a shield to a fraudulent award."
All considered, it is our view that the issues here involved,
dealing, such as they do, on basically technical matters, deserve
to be disentangled from undue interference from courts and so
from the Ombudsman as well.
WHEREFORE, the petition is GRANTED. The questioned 19
October 1992 Order of the Ombudsman as well as its 01 March
1993 Order are hereby ANNULLED and SET ASIDE. No costs.
SO ORDERED.
G.R. No. 116801, April 06, 1995
GLORIA G. LASTIMOSA, FIRST ASSISTANT PROVINCIAL PROSECUTOR OF CEBU,
PETITIONER, VS. HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE
ARTURO C. MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, AND HONORABLE
FRANKLIN DRILON, SECRETARY OF JUSTICE, AND UNDERSECRETARY OF
JUSTICE RAMON J. LIWAG, RESPONDENTS.
DECISION
MENDOZA, J.:
This case requires us to determine the extent to which the Ombudsman may call upon
government prosecutors for assistance in the investigation and prosecution of criminal
cases cognizable by his office and the conditions under which he may do so.
Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because
she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as
ordered by the Ombudsman, an administrative complaint for grave misconduct,
insubordination, gross neglect of duty and maliciously refraining from prosecuting crime
was filed against her and the Provincial Prosecutor and a charge for indirect contempt was
brought against them, both in the Office of the Ombudsman. In the meantime the two were
placed under preventive suspension. This is a petition for certiorari and prohibition filed by
petitioner to set aside the orders of the Ombudsman with respect to the two proceedings.
The background of this case is as follows:
On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu,
filed a criminal complaint for frustrated rape and an administrative complaint for immoral
acts, abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe,
Rogelio Ilustrisimo.[1] The cases were filed with the Office of the Ombudsman-Visayas
where they were docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036,
respectively.
The complaint was assigned to a graft investigation officer who, after an investigation,
found no prima facie evidence and accordingly recommended the dismissal of the
complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado Vasquez,
disapproved the recommendation and instead directed that Mayor Ilustrisimo be charged
with attempted rape in the Regional Trial Court.[2]
Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas,
respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E.
Kintanar for the "filing of appropriate information with the Regional Trial Court of Danao
City, . . .”[3] The case was eventually assigned to herein petitioner, First Assistant Provincial
Prosecutor Gloria G. Lastimosa.
It appears that petitioner conducted a preliminary investigation on the basis of which she
found that only acts of lasciviousness had been committed.[4] With the approval of
Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of
lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial Court of Santa
Fe.[5]
In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994,
Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the
case, more specifically the directive of the Ombudsman to charge Mayor Ilustrisimo with
attempted rape.[6]
As no case for attempted rape had been filed by the Prosecutor's Office, Deputy
Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and
petitioner Lastimosa to show cause why they should not be punished for contempt for
"refusing and failing to obey the lawful directives" of the Office of the Ombudsman.[7]
For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial
Prosecutor were given until August 3, 1994 within which to submit their answer.[8] An
answer[9] was timely filed by them and hearings were thereupon conducted.
It appears that earlier, on July 22, 1994, two cases had been filed against the two
prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a
resident of Santa Fe, Cebu. One was an administrative complaint for violation of Republic
Act No. 6713 and P.D. No. 807 (the Civil Service Law)[10] and another one was a criminal
complaint for violation of §3(e) of Republic Act No. 3019 and Art. 208 of the Revised Penal
Code.[11] The complaints were based on the alleged refusal of petitioner and Kintanar to
obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape.
In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for
Visayas Mojica issued an order on August 15, 1994, placing petitioner Gloria G. Lastimosa
and Provincial Prosecutor Oliveros E. Kintanar under preventive suspension for a period of
six (6) months,[12] pursuant to Rule III, §9 of the Rules of Procedure of the Office of the
Ombudsman (Administrative Order No. 7), in relation to §24 of R.A. No. 6770. The order
was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August
18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of
Region VII as Acting Provincial Prosecutor of Cebu.
On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued orders[13]
in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their
counter affidavits and controverting evidence.
On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for
certiorari and prohibition to set aside the following orders of the Office of the Ombudsman
and Department of Justice:
(a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and
related orders, referring to the Office of the Cebu Provincial Prosecutor the records of
OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor Reqelio Ilustrisimo, "for
filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao
City."
(b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders
directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in
writing within three (3) days from receipt why they should not be punished for Indirect
Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the
appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo."
(c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag,
ordering the Office of the Provincial Prosecutor to comply with the directive of the Office of
the Ombudsman that a charge for attempted rape be filed against respondent Mayor
Ilustrisimo in recognition of the authority of said Office.
(d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved
by Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-94-0189,
entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner
and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6)
months, without pay.
(e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing
Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the
letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated
August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive
suspension.
(f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994,
designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor
of Cebu.
Petitioner raises a number of issues which will be discussed not necessarily in the order
they are stated in the petition.
I.
The pivotal question in this case is whether the Office of the Ombudsman has the power to
call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted
rape against Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and
the prosecutor's office have concurrent authority to investigate public officers or employees
and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did
so to the exclusion of the latter. It then became the duty of the Ombudsman's office,
according to petitioner, to finish the preliminary investigation by filing the information in
court instead of asking the Office of the Provincial Prosecutor to do so. Petitioner contends
that the preparation and filing of the information were part and parcel of the preliminary
investigation assumed by the Office of the Ombudsman and the filing of information in
court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner
defends her actuations in conducting a preliminary investigation as having been made
necessary by the insistence of the Ombudsman to delegate the filing of the case to her
office.
In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the
case against the mayor because the crime involved (rape) was not committed in relation to
a public office. For this reason it is argued that the Office of the Ombudsman has no
authority to place her and Provincial Prosecutor Kintanar under preventive suspension for
refusing to follow his orders and to cite them for indirect contempt for such refusal.
Petitioner's contention has no merit. The Office of the Ombudsman has the power to
"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.”[14] This power has been held to include the
investigation and prosecution of any crime committed by a public official regardless of
whether the acts or omissions complained of are related to, or connected with, or arise
from the performance of his official duty.[15] It is enough that the act or omission was
committed by a public official. Hence, the crime of rape, when committed by a public
official like a municipal mayor, is within the power of the Ombudsman to investigate and
prosecute.
In the exercise of his power, the Ombudsman is authorized to call on prosecutors for
assistance §31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides:
Designation of Investigators and Prosecutors. - The Ombudsman may utilize the personnel
of his office and/or designate or deputize any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or deputized to assist him as herein
provided shall be under his supervision and control. (Emphasis added)
It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy
Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an
information for attempted rape against Mayor Rogelio Ilustrisimo.
It does not matter that the Office of the Provincial Prosecutor had already conducted the
preliminary investigation and all that remained to be done was for the Office of the
Provincial Prosecutor to file the corresponding case in court. Even if the preliminary
investigation had been given over to the Provincial Prosecutor to conduct, his
determination of the nature of the offense to be charged would still be subject to the
approval of the Office of the Ombudsman. This is because under §31 of the Ombudsman's
Act, when a prosecutor is deputized, he comes under the "supervision and control" of the
Ombudsman which means that he is subject to the power of the Ombudsman to direct,
review, approve, reverse or modify his (prosecutor's) decision.[16] Petitioner cannot legally
act on her own and refuse to prepare and file the information as directed by the
Ombudsman.
II.
The records show that despite repeated orders of the Ombudsman, petitioner refused to
file an information for attempted rape against Mayor Ilustrisimo, insisting that after
investigating the complaint in the case she found that he had committed only acts of
lasciviousness.
§15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for
contempt, in accordance with the Rules of Court and under the same procedure and with
the same penalties provided therein." There is no merit in the argument that petitioner and
Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal
arose out of an administrative, rather than judicial, proceeding before the Office of the
Ombudsman. As petitioner herself says in another context, the preliminary investigation of
a case, of which the filing of an information is a part, is quasi judicial in character.
Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance,
disobedience or resistance of a lawful process, order or command of the Ombudsman thus
making her liable for indirect contempt under Rule 71, §3 of the Rules of Court is for
respondents to determine after appropriate hearing. At this point it is important only to note
the existence of the contempt power of the Ombudsman as a means of enforcing his lawful
orders.
III.
Neither is there any doubt as to the power of the Ombudsman to discipline petitioner
should it be found that she is guilty of grave misconduct, insubordination and/or neglect of
duty, nor of the Ombudsman's power to place her in the meantime under preventive
suspension. The pertinent provisions of the Ombudsman Act of 1989 state:
§21. Officials Subject To Disciplinary Authority; Exceptions. - 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 corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary.
§24. Preventive Suspension. - The Ombudsman or his Deputy may suspend any officer or
employee under his authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the respondent's continued stay in office
may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay shall not be counted in
computing the period of suspension herein provided.
A.
Petitioner contends that her suspension is invalid because the order was issued without
giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges against
them and because, at any rate, the evidence against them is not strong as required by
§24. The contention is without merit. Prior notice and hearing is not required, such
suspension not being a penalty but only a preliminary step in an administrative
investigation. As held in Nera v. Garcia:[17]
In connection with the suspension of petitioner before he could file his answer to the
administrative complaint, suffice it to say that the suspension was not a punishment or
penalty for the acts of dishonesty and misconduct in office, but only as a preventive
measure. Suspension is a preliminary step in an administrative investigation. If after such
investigation, the charges are established and the person investigated is found guilty of
acts warranting his removal, then he is removed or dismissed. This is the penalty. There is,
therefore, nothing improper in suspending an officer pending his investigation and before
the charges against him are heard and be given an opportunity to prove his innocence.
(Emphasis added)
It is true that, under §24 of the Ombudsman's Act, to justify the preventive suspension of a
public official, the evidence against him should be strong, and any of the following
circumstances is present:
(a) the charge against such officer or employee involves dishonesty, oppression
or grave misconduct or neglect in the performance of duty;
(b) the charges would warrant removal from the service; or
(c) the respondent's continued stay in office may prejudice the case filed against
him.
As held in Buenaseda v. Flavier,[18] however, whether the evidence of guilt is strong is left
to the determination of the Ombudsman by taking into account the evidence before him. A
preliminary hearing as in bail petitions in cases involving capital offenses is not required. In
rejecting a similar argument as that made by petitioner in this case, this Court said in that
case:
The import of the Nera decision is that the disciplining authority is given the discretion to
decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No.
6770, which expressly left such determination of guilt to the "judgment" of the Ombudsman
on the basis of the administrative complaint.…[19]
In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of
petitioner and Provincial Prosecutor Kintanar on the following grounds:
A careful assessment of the facts and circumstances of the herein cases and the records
pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein
petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and
the charges involved offenses of grave misconduct, gross neglect of duty and dishonesty
which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner]
removal from the service. Moreover, considering the unabashed attitude of respondents in
openly announcing various false pretexts and alibis to justify their stubborn disregard for
the lawful directives of the Ombudsman as their official position in their pleadings filed in
OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public
service more particularly in the prosecution of cases referred by the Office of the
Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced
and the records of said cases even be tampered with if respondents [Provincial Prosecutor
Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's
Office during the pendency of these proceedings.
Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts
justifying the preventive suspension of petitioner and the Provincial Prosecutor since the
acts alleged in the administrative complaint against them were done in the course of their
official transaction with the Office of the Ombudsman. The administrative complaint against
petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation
as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio
Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters
alleged in the administrative complaint to determine whether the evidence of guilt of
petitioner and Provincial Prosecutor was a strong for the purpose of placing them under
preventive suspension.
Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal
case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end
that the proper prosecution of that case may not be hampered.[20] In addition, because the
charges against the two prosecutors involve grave misconduct, insubordination and
neglect of duty and these charges, if proven, can lead to a dismissal from public office, the
Ombudsman was justified in ordering their preventive suspension.
B.
Petitioner questions her preventive suspension for six (6) months without pay and
contends that it should only be for ninety (90) days on the basis of cases decided by this
Court. Petitioner is in error. She is referring to cases where the law is either silent or
expressly limits the period of suspension to ninety (90) days. With respect to the first
situation, we ruled in the case of Gonzaga v. Sandiganbayan[21] that -
To the extent that there may be cases of indefinite suspension imposed either under
Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance
of all concerned that this Court set forth the rules on the period of preventive suspension
under the aforementioned laws, as follows:
1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to
a maximum period of ninety (90) days, from issuances thereof, and this applies to all public
officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said
Act.
2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or
employees whose positions are embraced in the Civil Service, as provided under Sections
3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90)
days from issuance, except where there is delay in the disposition of the case, which is
due to the fault, negligence or petition of the respondent, in which case the period of delay
shall both be counted in computing the period of suspension herein stated; provided that if
the person suspended is a presidential appointee, the continuance of his suspension shall
be for a reasonable time as the circumstances of the case may warrant.
On the other hand, petitioner and the Provincial Prosecutor were placed under preventive
suspension pursuant to §24 of the Ombudsman Act which expressly provides that "the
preventive suspension shall continue until the case is terminated by the Office of the
Ombudsman but not more than six months, without pay." Their preventive suspension for
six (6) months without pay is thus according to law.
C.
Nor is there merit in petitioner's claim that the contempt charge should first be resolved
before any action in the administrative complaint case can be taken because the contempt
case involves a prejudicial question. There is simply no basis for this contention. The two
cases arose out of the same act or omission and may proceed hand in hand, or one can
be heard before the other. Whatever order is followed will not really matter.
WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of
Preventive Suspension is DENIED.
SO ORDERED.
SECOND DIVISION
G.R. No. 115103, April 11, 2002
BUREAU OF INTERNAL REVENUE, REPRESENTED BY THE COMMISSIONER OF
INTERNAL REVENUE, PETITIONER, VS. OFFICE OF THE OMBUDSMAN,
RESPONDENT.
DECISION
DE LEON, JR., J.:
Graft Investigation Officer II Christopher S. Soquilon of the Office of the Ombudsman
(OMBUDSMAN, for brevity) received information from an “informer-for-reward” regarding
allegedly anomalous grant of tax refunds to Distillera Limtuaco & Co., Inc. (Limtuaco, for
brevity) and La Tondeña Distilleries, Inc. Upon receipt of the information, Soquilon
recommended[1] to then Ombudsman Conrado M. Vasquez that the “case” be docketed
and subsequently assigned to him for investigation.[2]
On November 29, 1993, the Ombudsman issued a subpoena duces tecum[3] addressed to
Atty. Millard Mansequiao of the Legal Department of the Bureau of Internal Revenue (BIR)
ordering him to appear before the Ombudsman and to bring the complete original case
dockets of the refunds granted to Limtuaco and La Tondeña.
The BIR, through Assistant Commissioner for Legal Service Jaime M. Maza, asked that it
be excused from complying with the subpoena duces tecum because (a) the Limtuaco
case was pending investigation by Graft Investigation Officer II Napoleon S. Baldrias; and
(b) the investigation thereof and that of La Tondeña was mooted when the Sandiganbayan
ruled in People v. Larin[4] 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.”[5]
Without resolving the issues raised by the BIR, the Ombudsman issued another subpoena
duces tecum, dated December 9, 1993, addressed to BIR Commissioner Liwayway
Vinzons-Chato ordering her to appear before the Ombudsman and to bring the complete
original case dockets of the refunds granted to Limtuaco and La Tondeña.[6]
The BIR moved to vacate the subpoena duces tecum arguing that (a) the second
subpoena duces tecum was issued without first resolving the issues raised in its
Manifestation and Motion dated December 8, 1993; (b) the documents required to be
produced were already submitted to Graft Investigation Officer II Baldrias; (c) the issue of
the tax credit of ad valorem taxes has already been resolved as proper by the
Sandiganbayan; (d) the subpoena duces tecum partook of the nature of an omnibus
subpoena because it did not specifically described the particular documents to be
produced; (e) there was no clear showing that the tax case dockets sought to be produced
contained evidence material to the inquiry; (f) compliance with the subpoena duces tecum
would violate Sec. 269[7] of the National Internal Revenue Code (NLRC) on
unlawful divulgence of trade secrets and Sec. 277[8] on procuring unlawful divulgence of
trade secrets; and (g) Limtuaco and La Tondeña had the right to rely on the correctness
and conclusiveness of the decisions of the Commissioner of Internal Revenue.[9]
The Ombudsman denied[10] the Motion to Vacate the Subpoena Duces Tecum, pointing out
that the Limtuaco tax refund case then assigned to Baldrias was already referred to the
Fact-Finding and Investigation Bureau of the Ombudsman for consolidation with Case No.
OMB-0-93-3248. The Ombudsman also claimed that the documents submitted by the BIR
to Baldrias were incomplete and not certified. It insisted that the issuance of the subpoena
duces tecum was not a “fishing expedition” considering that the documents required for
production were clearly and particularly specified.
The BIR moved to reconsider[11] the respondent’s Order dated February 15, 1994 alleging
that (a) the matter subject of the investigation was beyond the scope of the jurisdiction of
the Ombudsman; (b) the subpoena duces tecum was not properly issued in accordance
with law; and (c) non-compliance thereto was justifiable. The BIR averred it had the
exclusive authority whether to grant a tax credit and that the jurisdiction to review the same
was lodged with the Court of Tax Appeals and not with the Ombudsman.
According to the BIR, for a 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” and the report of Asst. Comm. Imelda L. Reyes. The BIR added
that the subpoena duces tecum suffered from a legal infirmity for not specifically
describing the documents sought to be produced.
Finding no valid reason to reverse its Order dated February 15, 1994, the Ombudsman
denied the motion for reconsideration and reiterated its directive to the BIR to produce the
documents.[12] Instead of complying, the BIR manifested its intention to elevate the case on
certiorari to this Court.[13] The Ombudsman thus ordered Asst. Comm. Maza to show cause
why he should not be cited for contempt for contumacious refusal to comply with the
subpoena duces tecum.[14]
However, before the expiration of the period within which Asst. Comm. Maza was required
to file a reply to the show cause order of the Ombudsman, the BIR filed before this Court
the instant Petition for Certiorari, Prohibition and Preliminary Injunction and Temporary
Restraining Order.[15]
Petitioner BIR insists that the investigative power of the Ombudsman is not
unbridled. Particularly on the issue of tax refunds, the BIR maintains that the Ombudsman
could validly exercise its power to investigate only when there exists an appropriate case
and subject to the limitations provided by law.[16] Petitioner opines that the fact-finding
investigation by the Ombudsman is not the proper case as it is only a step preliminary to
the filing of recovery actions on the tax refunds granted to Limtuaco and La Tondeña.
This Court is not persuaded. No less than 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.”[17]
Clearly, there is no requirement of a pending action before the Ombudsman could wield its
investigative power. The Ombudsman could resort to its investigative prerogative on its
own[18] or upon a complaint filed in any form or manner. Even when the complaint is verbal
or written, unsigned or unverified, the Ombudsman could, on its own, initiate the
investigation.[19] Thus –
There can be no objection to this procedure in the Office of the Ombudsman where
anonymous letters suffice to start an investigation because it is provided in the Constitution
itself. In the second place, it is apparent that in permitting the filing of complaints “in any
form and manner,” the framers of the Constitution took into account the well-known
reticence of the people which keep them from complaining against official
wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is
different from other investigatory and prosecutory agencies of the government because
those subject to its jurisdiction are public officials who, through official pressure and
influence, can quash, delay or dismiss investigations held against them. On the other
hand complainants are more often than not poor and simple folk who cannot afford to hire
lawyers.[20]
The term “in an appropriate case” has already been clarified by this Court in Almonte v.
Vasquez,[21] thus –
Rather than referring to the form of complaints, therefore, the phrase “in an appropriate
case” in Art. XI, §12 means any case concerning official act or omission which is alleged to
be “illegal, unjust, improper, or inefficient,” The phrase “subject to such limitations as may
be provided by law” refers to such limitations as may be provided by Congress or, in the
absence thereof, to such limitations as may be imposed by courts.
Plainly, the pendency of an action is not a prerequisite before the Ombudsman can start its
own investigation.
Petitioner next avers that the determination of granting tax refunds falls within its exclusive
expertise and jurisdiction and that its findings could no longer be disturbed by the
Ombudsman purportedly through its investigative power as it was a valid exercise of
discretion. Petitioner suggests that what respondent should have done was to appeal its
decision of granting tax credits to Limtuaco and La Tondeña to the Court of Tax Appeals
since it is the proper forum to review the decisions of the Commissioner of Internal
Revenue.
This contention of the BIR is baseless. The power to investigate and to prosecute which
was granted by law to the Ombudsman is plenary and unqualified.[22] The Ombudsman Act
makes it perfectly clear 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.[23]
Concededly, the determination of whether to grant a tax refund falls within the exclusive
expertise of the BIR. Nonetheless, 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. In that sense, the Ombudsman could not be accused of unlawfully
intruding into and intervening with the BIR’s exercise of discretion.
As correctly posited by the Office of the Solicitor General –
xxx (T)he Ombudsman undertook the investigation “not as an appellate body exercising
the power to review decisions or rulings rendered by a subordinate body, with the end view
of affirming or reversing the same, but as an investigative agency tasked to discharge the
role as ‘protector of the people’[24] pursuant to his authority ‘to investigate xxx 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.”[25] The OSG insists that the “mere
finality of petitioner’s ruling on the subject of tax refund cases is not a legal impediment to
the exercise of respondent’s investigative authority under the Constitution and its Charter
(RA 6770) which xxx is so encompassing as to include ‘all kinds of malfeasance,
misfeasance and nonfeasance that have been committed by any officer or employee
during his tenure of office.’”[26]
Indeed, the clause “any [illegal] act or omission of any public official” is broad enough to
embrace any crime committed by a public official. The law does not qualify the nature of
the illegal act or omission of the public official or employee that the Ombudsman may
investigate. It does not require that the act or omission be related to or be connected with
or arise from the performance of official duty.[27]
Petitioner fears that the fact-finding investigation being conducted by respondent would
only amount to “a general inquisitorial examination on the ‘case dockets’ with a view to
search through them to gather evidence”[28] considering that the subpoena duces tecum
did not describe with particularity the documents sought to be produced.
This Court is unimpressed. We agree with the view taken by the Solicitor General that the
assailed subpoena duces tecum indeed particularly and sufficiently described the records
to be produced. There is every indication that petitioner knew precisely what records were
being referred to as it even suggested that the tax dockets sought to be produced may not
contain evidence material to the inquiry and that it has already submitted the same to
Baldrias.
The records do not show how the production of the subpoenaed documents would
necessarily contravene Sec. 269[29] of the National Internal Revenue Code (NIRC) on
unlawful divulgence of trade secrets and Sec. 277[30] of the same Code on procuring
unlawful divulgence of trade secrets. The documents sought to be produced were only the
case dockets of the tax refunds granted to Limtuaco and La Tondeña which are
public records, and the subpoena duces tecum were directed to the public officials
who have the official custody of the said records. We find no valid reason why the trade
secrets of Limtuaco and La Tondeña would be unnecessarily disclosed if such official
records, subject of the subpoena duces tecum, were to be produced by the petitioner BIR
to respondent Office of the Ombudsman.
Assuming, for the sake of argument, that the case dockets of the tax refunds which were
granted to Limtuaco and La Tondeña contain trade secrets, that fact, however, would not
justify their non-production before the Ombudsman. As this Court has underscored in
Almote v. Vasquez[31] -
At common law a governmental privilege against disclosure is recognized with respect to
state secrets bearing on military, diplomatic and similar matters. This privilege is based
upon public interest of such paramount importance as in and of itself transcending the
individual interests of a private citizen, even though, as a consequence thereof, the plaintiff
cannot enforce his legal rights xxx
In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by
the production of records pertaining to the personnel of EIB. Indeed, EIIB’s function is the
gathering and evaluation of intelligence reports and information regarding “illegal activities
affecting the national economy, such as, but not limited to economic sabotage, smuggling,
tax evasion, dollar salting. Consequently, while in cases which involve state secrets it may
be sufficient to determine from the circumstances of the case that there is reasonable
danger that compulsion of the evidence will expose military maters without compelling
production, no similar excuse can be made for a privilege resting on other consideration.
Above all, even if the subpoenaed documents are treated as presumptively privileged, this
decision would only justify ordering their inspection in camera but not their nonproduction
xxx
Besides, under the facts of this case, petitioner should not have concerned itself with
possibly violating the pertinent provisions of the NLRC on unlawful divulgence or unlawful
procurement of trade secrets considering Rule V of the Rules of Procedure of the Office of
the Ombudsman[32] which provides that –
(a) Any person whose testimony or production of documents or other evidence is
necessary to determine the truth in any inquiry, hearing, or proceeding being conducted by
the Office of the Ombudsman or under its authority in the performance or furtherance or its
constitutional functions and statutory objectives, including preliminary investigation, may be
granted immunity from criminal prosecution by the Ombudsman, upon such terms and
conditions as the Ombudsman may determine, taking into account the pertinent provisions
of the Rules of Court xxx
With regard to the manner in which the investigation was conducted, petitioner asserts that
the investigation conducted by the Office of the Ombudsman violated due process,
inasmuch as it commenced its investigation by issuing the subpoena duces tecum without
first furnishing petitioner with a summary of the complaint and requiring it to submit a
written answer.[33] The Ombudsman labels this assertion of the BIR as premature
maintaining that it is only when the Ombudsman finds reasonable ground to investigate
further that it is required to furnish respondent with the summary of the complaint. The
Ombudsman insists that in the instant case, it has yet to make that determination.
On this score, we rule in favor of petitioner BIR. Records show that immediately upon
receipt of the information from an “informer-for-reward”, Graft Investigator Soquilon, in a
Memorandum dated November 26, 1993 addressed to then Ombudsman Conrado M.
Vasquez, requested that the “case” be docketed and assigned to him for a “full-blown fact-
finding investigation.”[34] In his Memorandum, Soquilon averred that he is “certain that
these refunds can be recovered by reason of the Tanduay precedent xxx and using the
power of this Office, we will not only bring back to the government multi-million illegal
refunds but, like the Tanduay case, we will be establishing graft and corruption against key
BIR officials.”[35] In a marginal note dated November 26, 1993,[36] Ombudsman Vasquez
approved the docketing of the case and its assignment to Soquilon. Likewise, in the
Preliminary Evaluation Sheet[37] of the Office of the Ombudsman, the Fact Finding
Investigation Bureau of the Ombudsman was named as complainant against Concerned
High Ranking and Key Officials of the Bureau of Internal Revenue who granted multi-
million tax refunds to Limtuaco and La Tondeña Distilleries for alleged violation of RA
3019. On November 29, 1993 and December 9, 1993 Soquilon issued the assailed
subpoena duces tecum requiring the concerned BIR officials to appear before the
Ombudsman and to bring with them the complete case dockets of the tax refunds granted
to Limtuaco and La Tondeña.
It is our view and we hold that the procedure taken by the respondent did not comply with
the safeguards enumerated in Sec. 26, §(2) of RA 6770 or the Ombudsman Act of 1989,
which clearly provides that –
(2) The Office of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission. It shall act on the complaint immediately and if
it finds the same entirely baseless, it shall dismiss the same and inform the complainant of
such dismissal citing the reasons therefore. If it finds a reasonable, ground to investigate
further, it 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 hours from receipt
hereof. If the answer is found satisfactory, it shall dismiss the case.
The procedure which was followed by the respondent likewise contravened the Rules of
Procedure of the Office of the Ombudsman,[38] Sec. 4, Rule 11 of which provides that –
(a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complaint or supporting witnesses to execute affidavits to
substantiate the complaints.
(b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits xxx
It is clear from the initial comments of Soquilon in his Memorandum to Ombudsman
Vasquez that 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.” Even during that initial stage, Soquilon was convinced
that the granting of the tax refunds was so anomalous that he assured Ombudsman
Vasquez of the eventual recovery of the tax refunds and the prosecution and conviction of
key BIR officials for graft and corruption.
We commend the graft investigators of the Office of the Ombudsman in their efforts to
cleanse our bureaucracy of scalawags. Sometimes, however, in their zeal and haste to pin
down the culprits they tend to circumvent some procedures. In this case, Graft
Investigation Officer Soquilon forgot that there are always two (2) sides to an issue and
that each party must be given every opportunity to air his grievance or explain his side as
the case may be. This is the essence of due process.
The law clearly provides that 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 officials
concerned were 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. Plainly, respondent Office of the
Ombudsman failed to afford petitioner with the basics of due process in conducting its
investigation.
WHEREFORE, the petition is GRANTED. The respondent Office of the Ombudsman is
prohibited and ordered to desist from proceeding with Case No. OMB-0-93-3248; and its
Orders dated November 29, 1993, December 9, 1993 and February 15, 1994 are hereby
ANNULLED and SET ASIDE.
SO ORDERED.
G.R. Nos. 145957-68, January 25, 2002
OFFICE OF THE OMBUDSMAN, PETITIONER, VS. RUBEN ENOC, SUSANA B.
ABAWAG, DOMINADOR D. DALA, CARLOS L. DENIA, ELVIRA I. LIM, TEODORO
YOS, DIOMEDES E. MIRAFUENTES, JOSEFINA L. TUNGAL, EMMA L. BERNALES,
LETICIA LAGUNSAY, AND EVANGELINE GALLITO, RESPONDENTS.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the order,[1] dated October 7, 2000, of the
Regional Trial Court, Branch 19 of Digos, Davao del Sur, dismissing Criminal Case Nos.
374(97) to 385(97) against respondents.
The antecedent facts are as follows:
Respondents were employed at the Office of the Southern Cultural Communities (OSCC),
Davao del Sur, Provincial Office, Digos, Davao del Sur with salaries below grade 27, as
follows:
1. Mr. Ruben Enoc, Provincial Officer
2. Ms. Susana B. Abawag, Special Disbursing Officer
3. Mr. Dominador D. Dala, Supply Officer
4. Mr. Teodoro Yos, Inspector
5. Ms. Leticia Lagunsay, Employee
6. Ms. Emma Ligason-Bernales, Public Health Nurse I
7. Ms. Elvira I. Lim, Development Management Officer (DMO) II
8. Dr. Carlos L. Denia, Medical Officer IV
9. Mr. Diomedes E. Mirafuentes, DMO II
10. Ms. Evangeline Gallito, Employee
11. Ms. Josefina Labo-Tungal, Officer-In-Charge, OSCC Bansalan Sub-Office[2]
They were charged with 11 counts of malversation through falsification, based on alleged
purchases of medicine and food assistance for cultural community members, and one
count of violation of R.A. No. 3019, §3(e), in connection with the purchases of supplies for
the OSCC without bidding/canvass. As none of the respondents has the “rank” required
under R.A. No. 8249[3] to be tried for the said crimes in the Sandiganbayan, the
informations were filed by the Ombudsman in the Regional Trial Court of Digos, Davao del
Sur, where they were docketed as Criminal Case Nos. 374(97) to 385(97), and assigned to
Branch 19 of the court.
Respondents moved to quash the informations invoking the ruling in Uy v.
Sandiganbayan[4] that the Ombudsman has no authority to prosecute graft cases falling
within the jurisdiction of regular courts. This motion was granted by the RTC and the
cases were dismissed without prejudice, however, to their refiling by the appropriate
officer.
The Office of the Ombudsman filed the instant petition contending that—
THE TRIAL COURT ERRED WHEN IT HELD THAT THE OMBUDSMAN HAS NO
JURISDICTION TO INVESTIGATE, FILE INFORMATION, AND PROSECUTE CASES
BEFORE THE REGULAR COURTS.
I. THE JURISDICTION OF THE HONORABLE SANDIGANBAYAN IS NOT
PARALLEL TO, NOR TO BE EQUATED WITH, THE BROADER
JURISDICTION OF THE OFFICE OF THE OMBUDSMAN;
II. THE PHRASE “PRIMARY JURISDICTION OF THE OFFICE OF THE
OMBUDSMAN OVER CASES COGNIZABLE BY THE SANDIGANBAYAN”
AS USED IN SECTION 15 (1), R.A. No. 6770 IS NOT A DELIMITATION OF
ITS JURISDICTION SOLELY TO SANDIGANBAYAN CASES; AND
III. THE AUTHORITY OF THE OFFICE OF THE SPECIAL PROSECUTOR TO
PROSECUTE CASES BEFORE THE SANDIGANBAYAN CANNOT BE
CONFUSED WITH THE BROADER INVESTIGATORY AND
PROSECUTORIAL POWERS OF THE OFFICE OF THE OMBUDSMAN.[5]
Respondents were required to comment but only respondent Carlos L. Denia did so. He
acknowledges that:
In view of the [March 20, 2001] pronouncement of the Honorable Court in the case of
George Uy v. Sandiganbayan, G.R. Nos. 105665-70 that the Office of the Ombudsman is
authorized to investigate and prosecute all cases involving public officials and employees,
without distinction as to their rank and the nature of their act or omission, the filing of the
subject Informations by the said office were not defective.[6]
In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on
March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory
power of the Ombudsman extended only to cases cognizable by the Sandiganbayan.
Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has
powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but
also those cognizable by the regular courts. It held:
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.
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.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the
limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the
Special Prosecutor is merely a component of the Office of the Ombudsman and may only
act under the supervision and control and upon authority of the Ombudsman. Its power to
conduct preliminary investigation and to prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine
the investigatory and prosecutory power of the Ombudsman to these types of cases. The
Ombudsman is mandated by law to act on all complaints against officers and employees of
the government and to enforce their administrative, civil and criminal liability in every case
where the evidence warrants. To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the
government service to act as special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or deputized to assist him work under
his supervision and control. The law likewise allows him to direct the Special prosecutor to
prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section
11(4c) of RA 6770.
We, therefore, hold that the Ombudsman has authority to investigate and prosecute
Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of
Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the
regular prosecutors.
WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of
Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are
hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the
same.
SO ORDERED.
G.R. No. 124295, October 23, 2001
JUDGE RENATO A. FUENTES, PETITIONER, VS. OFFICE OF THE OMBUDSMAN-
MINDANAO, GRAFT INVESTIGATION OFFICER II, MARIVIC A. TRABAJO-DARAY,
ANTONIO E. VALENZUELA IN HIS CAPACITY AS THE DIRECTOR FOR FACT
FINDING AND INTELLIGENCE OF THE OFFICE OF THE DEPUTY OMBUDSMAN FOR
MINDANAO, AND MARGARITO P. GERVACIO, JR., IN HIS CAPACITY AS DEPUTY
OMBUDSMAN FOR MINDANAO, RESPONDENTS.
DECISION
PARDO, J.:
The case is a petition[1] for certiorari assailing the propriety of the Ombudsman's action
investigating petitioner for violation of Republic Act No. 3019, Section 3(e).[2]
On August 23, 1995, we promulgated a decision in Administrative Matter No. RTJ-94-
1270.[3] The antecedent facts are as follows:
"x x x [P]ursuant to the government's plan to construct its first fly-over in Davao City, the
Republic of the Philippines (represented by DPWH) filed an expropriation case against the
owners of the properties affected by the project, namely, defendants Tessie Amadeo,
Reynaldo Lao and Rev. Alfonso Galo. The case was docketed as Special Civil Case No.
22,052-93 and presided by Judge Renato A. Fuentes.
"The government won the expropriation case. x x x
"As of May 19, 1994, the DPWH still owed the defendants-lot owners, the total sum of
P15,510,415.00 broken down as follows:
Dr. Reynaldo Lao -P 489,000.00
Tessie P. Amadeo -P 1,094,200.00
Rev. Alfonso Galo-P 13,927,215.00
"In an order dated April 5, 1994, the lower court granted Tessie Amadeo's motion for the
issuance of a writ of execution against the DPWH to satisfy her unpaid claim. The Order
was received by DPWH (Regional XI) through its Legal Officer, Atty. Warelito
Cartagena. DPWH's counsel, the Office of the Solicitor General, received its copy of the
order only on May 10, 1994.
"On April 6, 1994, Clerk of Court Rogelio Fabro issued the corresponding Writ of
Execution. On April 15, 1994, the writ was served by respondent Sheriff Paralisan to the
DPWH-Region XI (Legal Services) through William Nagar.
"On May 3, 1994, respondent Sheriff Paralisan issued a Notice of Levy, addressed to the
Regional Director of the DPWH, Davao City, describing the properties subject of the levy
as `All scrap iron/junks found in the premises of the Department of Public Works and
Highways depot at Panacan, Davao City'x x x.
"The auction sale pushed through on May 18, 1994 at the DPWH depot in Panacan,
Davao City. Alex Bacquial emerged as the highest bidder. x x x Sheriff Paralisan issued
the corresponding certificate of sale in favor of Alex Bacquial. x x x
"Meanwhile, Alex Bacquial, together with respondent Sheriff Paralisan, attempted to
withdraw the auctioned properties on May 19, 1994. They were, however, prevented from
doing so by the custodian of the subject DPWH properties, a certain Engr. Ramon Alejo,
Regional Equipment Engineer, Regional Equipment Services, DPWH depot in Panacan,
Davao City. Engr. Alejo claimed that his office was totally unaware of the auction sale, and
informed the sheriff that many of the properties within the holding area of the depot were
still serviceable and were due for repair and rehabilitation.
"On May 20, 1994, Alex Bacquial filed an ex-parte urgent motion for the issuance of a
`break through' order to enable him to effect the withdrawal of the auctioned
properties. The motion was granted by Judge Fuentes on the same date.
"On May 21, 1994, Alex Bacquial and Sheriff Paralisan returned to the depot, armed with
the lower court's order."[4]
Thus, Bacquial succeeded in hauling off the scrap iron/junk equipment in the depot,
including the repairable equipment within the DPWH depot. He hauled equipment from the
depot for five successive days until the lower court issued another order temporarily
suspending the writ of execution it earlier issued in the expropriation case and directing
Bacquial not to implement the writ.[5]
However, on June 21, 1994, the lower court issued another order upholding the validity of
the writ of execution issued in favor of the defendants in Special Civil Case No. 22, 052-
93.[6]
On the basis of letters from Congressman Manuel M. Garcia of the Second District of
Davao City and Engineer Ramon A. Alejo, the Court Administrator, Supreme Court
directed Judge Renato A. Fuentes and Sheriff Norberto Paralisan to comment on the
report recommending the filing of an administrative case against the sheriff and other
persons responsible for the anomalous implementation of the writ of execution. Also, on
September 21, 1994, the Department of Public Works and Highways, through the Solicitor
General, filed an administrative complaint against Sheriff Norberto Paralisan for conduct
prejudicial to the best interest of the service, in violation of Article IX, Section 36 (b) of P.
D. No. 807.[7]
After considering the foregoing facts, on August 23, 1995, the Supreme Court promulgated
a decision, the dispositive portion of which states:
"IN VIEW WHEREOF, respondent NORBERTO PARALISAN, Sheriff IV, Regional Trial
Court (Branch XVII), Davao City, is declared guilty of conduct prejudicial to the best
interest of the service, in violation of Section 36 (b), Article IX of PD 807. Accordingly,
respondent sheriff is DISMISSED from the service, with forfeiture of all retirement benefits
and accrued leave credits and with prejudice to reemployment in any branch or
instrumentality of the government, including government-owned or controlled corporations.
The office of the Court Administrator is directed to conduct an investigation on Judge
Renato Fuentes and to charge him if the result of the investigation so warrants. The Office
of the Solicitor General is likewise ordered to take appropriate action to recover the value
of the serviceable or repairable equipment which were unlawfully hauled by Alex
Bacquial."[8] (underscoring ours)
On January 15, 1996, Director Antonio E. Valenzuela (hereafter, Valenzuela) of the Office
of the Ombudsman-Mindanao recommended that petitioner Judge Renato A. Fuentes be
charged before the Sandiganbayan with violation of Republic Act No. 3019, Section 3 (e)
and likewise be administratively charged before the Supreme Court with acts unbecoming
of a judge.[9]
On January 22, 1996, Director Valenzuela filed with the Office of the Deputy Ombudsman
for Mindanao a criminal complaint[10] charging Judge Rentao A. Fuentes with violation of
Republic Act No. 3019, Section 3 (e).
On February 6, 1996, the Office of the Ombudsman-Mindanao through Graft Investigation
Officer II Marivic A. Trabajo-Daray issued an order directing petitioner to submit his
counter-affidavit within ten days.[11]
On February 22, 1996, petitioner filed with the Office of the Ombudsman-Mindanao a
motion to dismiss complaint and/or manifestation to forward all records to the Supreme
Court.[12]
On March 15, 1996, Graft Investigation Officer Marivic A. Trabajo-Daray denied the motion
of petitioner.[13]
Hence, this petition.[14]
The issue is whether the Ombudsman may conduct an investigation of acts of a judge in
the exercise of his official functions alleged to be in violation of the Anti-Graft and Corrupt
Practices Act, in the absence of an administrative charge for the same acts before the
Supreme Court.
Petitioner alleged that the respondent Ombudsman-Mindanao committed a grave abuse of
discretion amounting to lack or excess of jurisdiction when he initiated a criminal complaint
against petitioner for violation of R.A. No. 3019, Section 3 [e]. And he conducted an
investigation of said complaint against petitioner. Thus, he encroached on the power of
the Supreme Court of administrative supervision over all courts and its personnel.
The Solicitor General submitted that the Ombudsman may conduct an investigation
because the Supreme Court is not in possession of any record which would verify the
propriety of the issuance of the questioned order and writ. Moreover, the Court
Administrator has not filed any administrative case against petitioner judge that would pose
similar issues on the present inquiry of the Ombudsman-Mindanao.
We grant the petition.
Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989, provides:
"Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the
following powers, functions and duties: (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."[15]
xxx xxx xxx
"Section 21. Officials Subject To Disciplinary Authority, Exceptions.- 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 corporations and their
subsidiaries, except over officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary."[16] (underscoring ours)
Thus, the Ombudsman may not initiate or investigate a criminal or administrative
complaint before his office against petitioner judge, pursuant to his power to investigate
public officers. The Ombudsman must indorse the case to the Supreme Court, for
appropriate action.
Article VIII, Section 6 of the Constitution exclusively vests in the Supreme Court
administrative supervision over all courts and court personnel, from the Presiding Justice
of the Court of Appeals to the lowest municipal trial court clerk.[17]
Hence, it is the Supreme Court that is tasked to oversee the judges and court personnel
and take the proper administrative action against them if they commit any violation of the
laws of the land. No other branch of government may intrude into this power, without
running afoul of the independence of the judiciary and the doctrine of separation of
powers.[18]
Petitioner's questioned order directing the attachment of government property and issuing
a writ of execution were done in relation to his office, well within his official functions. The
order may be erroneous or void for lack or excess of jurisdiction. However, whether or not
such order of execution was valid under the given circumstances, must be inquired into in
the course of the judicial action only by the Supreme Court that is tasked to supervise the
courts. "No other entity or official of the Government, not the prosecution or investigation
service of any other branch, not any functionary thereof, has competence to review a
judicial order or decision--whether final and executory or not--and pronounce it erroneous
so as to lay the basis for a criminal or administrative complaint for rendering an unjust
judgment or order. That prerogative belongs to the courts alone."[19]
WHEREFORE, the petition is GRANTED. The Ombudsman is directed to dismiss the
case and refer the complaint against petitioner Judge Renato A. Fuentes to the Supreme
Court for appropriate action.

No costs.

SO ORDERED.