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SUPREME COURT REPORTS ANNOTATED VOLUME 160
VOL. 160, APRIL 27, 1988
843
Zaldivar vs. Sandiganbayan
*
Nos, L-79690–707. April 27, 1988.
ENRIQUE
A.
ZALDIVAR,
petitioner,
vs.
THE
HONORABLE SANDIGANBAYAN AND HONORABLE
RAUL M. GONZALEZ, CLAIMING TO BE AND ACTING
AS TANODBAYAN-OMBUDSMAN UNDER THE 1987
CONSTITUTION, respondents.
*
No. L-80578. April 27, 1988.
ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M.
GONZALEZ, claiming to be and acting as TanodbayanOmbudsman under the 1987 Constitution, respondent.
Ombudsman; Duty of the Ombudsman.—Under the 1987
Constitution, the Ombudsman (as distinguished from the
incumbent Tanodbayan) is charged with the duty to: “Investigate
on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient.”
Same; Same; Tanodbayan; Incumbent Tanodbayan lost his
right to conduct preliminary investigation and to direct the filing
of criminal cases with the Sandiganbayan effective February 2,
1987.—Now then, inasmuch as the aforementioned duty is given
to the Ombudsman. the incumbent Tanodbayan (called Special
Prosecutor under the 1987 Constitution and who is supposed to
retain powers and duties NOT GIVEN to the Ombudsman) is
clearly without authority to conduct preliminary investigations
and to direct the filing of criminal cases with the Sandiganbayan,
except upon orders of the Ombudsman. This right to do so was
lost effective February 2, 1987. From that time, he has been
divested of such authority.
Same; Same; Same; Same; The Special Prosecution cannot
initiate the prosecution of cases unless instructed to do so by the
Ombudsman; Power to issue subpoena transferred to the
Ombudsman.—Under the present Constitution, the Special
Prosecutor (Raul Gonzalez) is a mere subordinate of the
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SUPREME COURT REPORTS ANNOTATED VOLUME 160
Tanodbayan (Ombudsman) and can investigate and prosecute
cases only upon the latter’s authority or orders. The Special
Prosecutor cannot initiate the prosecution of cases but can only
conduct the same if instructed to do so by the Ombudsman. Even
his original power to issue subpoena, which he still claims under
Section 10(d) of PD 1630, is now deemed transferred to the
Ombudsman, who may, however, retain it in the Special
prosecutor in connection with the cases he is ordered to
investigate.
________________
*
EN BANC.
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SUPREME COURT REPORTS ANNOTATED
Zaldivar vs. Sandiganbayan
Same; Same; Same; The Special PrGsecution has no right to
hold over the position of Ombudsman.—It is not correct either to
suppose that the Special Prosecutor remains the Ombudsman as
long as he has not been replaced, for the fact is that he has never
been the Ombudsman. The Office of the Ombudsman is a new
creation under Article XI of the Constitution different from the
Office of the Tanodbayan created under PD1607 although
concededly some of the powers of the two offices are identical or
similar. The Special Prosecutor cannot plead that he has a right
to hold over the position of Ombudsman as he has never held it in
the first place.
PETITION for certiorari, prohibition and mandamus to
review the decision of the Sandiganbayan.
The facts are stated in the opinion of the Court.
Francisco Carreon and Nestor C. Lumba for
petitioner.
The Solicitor General for respondent.
PER CURIAM:
In G.R. Nos. 79690–707 “Petition for Certiorari,
Prohibition, and Mandamus under Rule 65," petitioner
Enrique A. Zaldivar, governor of the province of Antique,
sought to restrain the Sandiganbayan and Tanodbayan
Raul Gonzalez from proceeding with the prosecution and
hearing of Criminal Cases Nos. 12159 to 12161 and 12163–
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SUPREME COURT REPORTS ANNOTATED VOLUME 160
12177 on the ground that said cases were filed by said
Tanodbayan without legal and constitutional authority,
since under the 1987 Constitution which took effect on
February 2,1987, it is only the Ombudsman (not the
present or incumbent Tanodbayan) who has the authority
to file cases with the Sandiganbayan. The complete prayer
of the petition reads:
“WHEREFORE, it is respectfully prayed that pending the final
disposition of this petition or until further orders of the Honorable
Court, a writ of preliminary injunction issue upon the filing of a
bond in such amount as may be fixed by the Honorable Court,
restraining the Honorable Sandiganbayan from hearing and
trying Criminal Cases Nos. 12159 to 12161, and 12163 to 12177
insofar as petitioner Enrique A. Zaldivar is concerned and from
hearing and resolving the special prosecutor’s motion to suspend
(Annex J) and thereafter, final judgment be rendered:—
(1) ordering that the amended informations in the abovementioned criminal cases be quashed, or issuing a writ of
mandamus commanding and ordering the respondent
Sandiganbayan to do so and, in
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VOL. 160, APRIL 27, 1988
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Zaldivar vs. Sandiganbayan
consequence, prohibiting and restraining the respondent
Sandiganbayan from proceeding to hear and try the
abovementioned criminal cases or making the temporary
preliminary injunction permanent;
(2) declaring the acts of respondent Gonzalez as
TanodbayanOmbudflman” after 2 February 1987 relating to these
cases as a nullity and without legal effect, particularly, the
promulgation of Tanodbayan resolution of 5 February 1987, the
filing of the original informations on 3 March 1987 and the
amended ones on 4 June 1987, and the filing of the Motion for
Suspension Pendente Lite.
PETITIONER prays for such other and further relief as may be
deemed proper in the premises, with costs against the
respondents. Manila, Philippines, September 9,1987." (pp. 45–47,
Rollo)
In G.R. No. 80578, petitioner Enrique A. Zaldivar, on
substantially the same ground as the first petition, prays
that Tanodbayan Gonzalez be restrained from conducting
preliminary investigations and filing similar cases with the
Sandiganbayan. The prayer reads:
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SUPREME COURT REPORTS ANNOTATED VOLUME 160
“WHEREFORE, it is respectfully prayed that pending the final
disposition of this petition or until further orders of this
Honorable court, a writ of preliminary injunction issue
restraining the respondent from further acting in TBP CASE NO.
87–01304 and, particu-larly, from filing the criminal Information
consequent
thereof;
and
from
conducting
preliminary
investigations in, and filing criminal informations for, such other
complaints/ cases now pending or which may hereafter be filed
against petitioner with the Office of the respondent.
It is likewise prayed that the present petition be consolidated
with G.R. L-Nos. 79690–79707.
After proper proceedings, it is prayed that final judgment be
rendered annulling the acts of respondent Gonzalez as TanodbayanOmbudsman” after 2 February 1987 relating to the
investigation of complaints against petitioner, particularly:
(1) Annulling, for absolute want of jurisdiction, the
preliminary investigation conducted, and the Resolution
rendered, by respondent in TBP CASE NO. 87–01304;
(2) Prohibiting and restraining the respondent from filing any
criminal Information as a consequence of the void
preliminary investigation he conducted in TBP CASE NO.
87–01304, or annulling the criminal Information in the
said case which may, in the meantime, have already been
filed;
(3) Prohibiting
conducting
and
restraining
the
respondent
from
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SUPREME COURT REPORTS ANNOTATED
Zaldivar vs. Sandiganbayan
preliminary investigations in. and filing criminal
informations for. such other complaints/cases now pending
or which may hereafter be filed against petitioner with the
Office of the respondent.
PETITIONER further prays for such other and further reliefs as
may be deemed proper in the premises, with costs against the
respondent.
Manila, Philippines, November 18,1987."
(pp. 24–25, Rollo)
We issued the restraining orders prayed for.
After a study of the petitions, We have decided to give
due course to the same; to consider the comments of the
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SolicitorGeneral and of Tanodbayan Gonzalez as their
Answers thereto; and to forthwith decide the petitions.
We find the petitions impressed with merit.
Under the 1987 Constitution, the Ombudsman (as
distinguished from the incumbent Tanodbayan) is charged
with the duty to:
“Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee. office or agency. when
such act or omission appears to be illegal, unjust, improper, or
inefficient.” (Sec. 13, par.1)
The Constitution likewise provides that:
“The existing Tanodbayan shall hereafter be known as the Office
of the Special Prosecutor. It shall continue to function and
exercise its powers as now or hereafter may be provided by law,
except those conferred on the Office of the Ombudsman created
under this Constitution."(Art. XI, Section 7) (Italics ours).
Now then, inasmuch as the aforementioned duty is given to
the Ombudsman, the incumbent Tanodbayan (called
Special Prosecutor under the 1987 constitution and who is
supposed to retain powers and duties NOT GIVEN to the
Ombudsman) is clearly without authority to conduct
preliminary investigations and to direct the filing of
criminal cases with the Sandiganbayan, except upon orders
of the Ombudsman. This right to do so was lost effective
February 2,1987. From that time, he has been divested of
such authority.
Under the present Constitution, the Special Prosecutor
(Raul Gonzalez) is a mere subordinate of the Tanodbayan
(Ombuds847
VOL. 160, APRIL 27, 1988
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Zaldivar vs. Sandiganbayan
man) and can investigate and prosecute cases only upon
the latter’s authority or orders. The Special Prosecutor
cannot initiate the prosecution of cases but can only
conduct the same if instructed to do so by the Ombudsman.
Even his original power to issue subpoena, which he still
claims under Section 10(d) of PD 1630, is now deemed
transferred to the Ombudsman, who may, however, retain
it in the Special Prosecutor in connection with the cases he
is ordered to investigate.
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It is not correct either to suppose that the Special
Prosecutor remains the Ombudsman as long as he has not
been replaced, for the fact is that he has never been the
Ombudsman. The Office of the Ombudsman is a new
creation under Article XI of the Constitution different from
the Office of the Tanodbayan created under PD1607
although concededly some of the powers of the two offices
are identical or similar. The Special Prosecutor cannot
plead that he has a right to hold over the position of
Ombudsman as he has never held it in the first place.
WHEREFORE, We hereby:
(1) GRANT the consolidated petitions filed by
petitioner Zaldivar and hereby NULLIFY the
criminal informations filed against him in the
Sandiganbayan; and
(2) ORDER respondent Raul Gonzalez to cease and
desist from conducting investigations and filing
criminal cases with the Sandiganbayan or
otherwise exercising the powers and functions of
the Ombudsman.
SO ORDERED.
Yap (C.J.), Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin and Cortés, and Grino-Aquino, JJ., concur.
Sarmiento, J., I concur. H. maintain, however,
consistent with my dissent in De Leon vs. Esguerra, G.R.
No. 78059, that the 1987 Constitution took effect on
February 11,1987.
Zaldivar’s petition granted.
——o0o——
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