COMMISSION ON AUDIT MEMORANDUM NO. 76-81 December 7, 1976
TO
: All Officials and Employees of the Commission on Audit
SUBJECT : Rules governing the institution by the COA of criminal charges against accountable
officers of the government or any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations, self-governing boards,
commissions or agencies, and other parties found responsible in defrauding the
government.
Whenever it becomes necessary for this Commission to initiate the criminal prosecution of
government accountable officers and other persons believed to be responsible in cases of
malversation or defalcation of government funds and/or property, the following rules of procedure
shall be observed:
I. The Managers of the National Government Audit Office, the Local Government Audit
Office, the Corporate Audit Office and he Performance Audit Office shall refer to the Legal Office
for appropriate action reports of audit examinations conducted by government auditors in the
national and local offices as well as government-owned or controlled corporations which contain
findings of malversation or defalcation of government funds and/or property as verified and
confirmed by the managers concerned.
II. Upon receipt of the report, the Investigation and Prosecution Division, Legal Office, shall
prepare an index card for each case reported, indicating therein the name, residence, status,
position in the government or occupation, office address, etc. of the officials or parties implicated,
the amount involved, and such other data as may be necessary. The subject report is then
assigned by the General Counsel to an attorney in the Investigation and Prosecution Division of
the Legal Office for evaluation. The Chairman may, however, in his discretion designate a lawyer
in the Commission with trial experience to assist or collaborate with the attorney to whom the case
is assigned by the General Counsel.
If, upon such evaluation, the attorney so assigned is convinced that cash and/or property
shortage exists, he shall summon for conference the auditor or auditors who conducted the
examination. The said auditor/s shall also be requested to bring copies, preferably the originals, of
the pertinent documents examined that revealed the defalcation which shall be entrusted to the
custody of the Legal Office under proper receipt.
III. If criminal prosecution is warranted under the facts and circumstances of the case, the
statements of the examining auditor/s and other material witnesses shall be taken. There-after, a
letter-complaint shall be prepared and then filed with the Department of Justice or directly with the
Office of the Provincial or City Fiscal of the province or city where the crime was committed,
attaching thereto the statements of the auditor and the witnesses which shall be sworn to before
the state prosecutor or the fiscal to whom the complaint is assigned for preliminary investigation,
copy of the reports of the examining auditors, and other supporting documents.
The letter-complaint shall be signed by the General Counsel and the Commission attorney
assigned to the case, and approved by the Chairman. All other pleadings which may thereafter be
filed in connection therewith may be signed by the Commission attorney with the name of the
Chairman and that of the General Counsel preceding his signature, thusly:
"x x x x x x x x x x x x x x x x x x x x x x x x x x x "
FRANCISCO S. TANTUICO, JR.
Acting Chairman
B. C. FERNANDEZ, JR.
General Counsel
By:
Legal Officer, COA
Counsel for Complainant"
The Commission attorney assigned to the case shall act as counsel for the complainant
during the preliminary investigation thereof and shall be responsible for preparing the witnesses
and the documentary evidence for the purpose.
IV. If the attorney so assigned believes that criminal prosecution is not warranted or will not
prosper, he shall accordingly inform the General Counsel of his stand by means of a memorandum
stating his reasons therefor, furnishing the Manager of the Office concerned with a copy thereof.
V. Within five (5) days from receipt of the resolution of the state prosecutor or investigating
fiscal finding a prima facie case and recommending the filing of the information in court, the
Commission attorney shall confer with the said official and shall see that the correct amount
malversed or defalcated and recoverable is properly alleged in the information. Unless a separate
civil suit is filed or a reservation to that effect is made, a petition for a writ of preliminary attachment
upon so much of the properties of the accused as may be sufficient to guarantee the recovery of
the amount malversed or defalcated shall be filed simultaneously with, or within a reasonable time
after, the filing of the information in court.
In the event, however, that the case is dismissed after the preliminary investigation, the
Commission attorney shall, after `receipt of the resolution of the state prosecutor or investigating
fiscal to that effect, immediately confer with the General Counsel and/or the Chairman for the
purpose of determining the advisability of appealing the dismissal order to the Secretary of Justice.
VI. For every case, the Legal Office shall retain and maintain file copies of each document,
paper, effect and pleadings submitted to the state prosecutor or investigating fiscal for purposes of
preliminary investigation which, together with those papers called for in the succeeding
paragraphs, constitute the complete records thereof.
VII. After the criminal information shall have been filed in court, the Commission attorney
shall, as far as practicable, assist the state prosecutor or fiscal in the prosecution of the case until
its termination. He shall secure authenticated copies of the information and all other pleadings
filed with the court in connection therewith.
VII. To enable the Commission to properly keep track of the developments in each case
and the progress thereof at any given time, the Commission attorney shall see that the
Commission (the Legal Office) is furnished, by the Court or tribunal before which the case is
pending, with a copy of every order, resolution, etc. which such court or tribunal may issue from
time to time in connection therewith.
IX. The Investigation and Prosecution Division of the Legal Office shall maintain a criminal
docket book which shall contain exclusively a complete record of the proceedings in all criminal
cases for malversation or defalcation of government funds and/or property initiated by the
Commission on Audit.
This Memorandum shall take effect immediately.
(SGD.) FRANCISCO S. TANTUICO, JR.
Acting Chairman