Lastimosa vs Vasquez

7/29/2019 Lastimosa vs Vasquez

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Republic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 116801 April 6, 1995

GLORIA G. LASTIMOSA, First AssistantProvincial Prosecutor of Cebu, petitioner,vs.HONORABLE OMBUDSMAN CONRADOVASQUEZ, HONORABLE ARTURO C. MOJICA,DEPUTY OMBUDSMAN FOR THE VISAYAS,and HONORABLE FRANKLIN DRILON,SECRETARY OF JUSTICE, andUNDERSECRETARY OF JUSTICE RAMON J.LIWAG, respondents.

MENDOZA, J .:

This case requires us to determine the extent towhich the Ombudsman may call upon governmentprosecutors for assistance in the investigation andprosecution of criminal cases cognizable by hisoffice and the conditions under which he may doso.

Petitioner Gloria G. Lastimosa is First AssistantProvincial Prosecutor of Cebu. Because she andthe Provincial Prosecutor refused, or at any ratefailed, to file a criminal charge as ordered by theOmbudsman, an administrative complaint forgrave misconduct, insubordination, gross neglectof duty and maliciously refraining from prosecuting

crime was filed against her and the ProvincialProsecutor and a charge for indirect contempt wasbrought against them, both in the Office of theOmbudsman. In the meantime the two wereplaced under preventive suspension. This is apetition forcertiorariand prohibition filed bypetitioner to set aside the orders of theOmbudsman 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 acriminal complaint for frustrated rape and anadministrative complaint for immoral acts, abuseof authority and grave misconduct against the

Municipal Mayor of Santa Fe, Rogelio Ilustrisimo. 1The cases were filed with the Office of theOmbudsman-Visayas where they were docketedas OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively.

The complaint was assigned to a graftinvestigation officer who, after an investigation,found no prima facie evidence and accordinglyrecommended the dismissal of the complaint. Afterreviewing the matter, however, the Ombudsman,Hon. Conrado Vasquez, disapproved therecommendation and instead directed that MayorIlustrisimo be charged with attempted rape in theRegional Trial Court.

2

Accordingly, in a letter dated May 17, 1994, theDeputy Ombudsman for Visayas, respondent

Arturo C. Mojica, referred the case to CebuProvincial Prosecutor Oliveros E. Kintanar for the"filing of appropriate information with the RegionalTrial Court of Danao City, . . ."

3The case was

eventually assigned to herein petitioner, FirstAssistant Provincial Prosecutor Gloria G.Lastimosa.

It appears that petitioner conducted a preliminaryinvestigation on the basis of which she found thatonly acts of lasciviousness had been committed. 4With the approval of Provincial ProsecutorKintanar, she filed on July 4, 1994 an informationfor acts of lasciviousness against Mayor Ilustrisimowith the Municipal Circuit Trial Court of Santa Fe.

5

In two letters written to the Provincial Prosecutoron July 11, 1994 and July 22, 1994, DeputyOmbudsman Mojica inquired as to any actiontaken on the previous referral of the case, morespecifically the directive of the Ombudsman tocharge Mayor Ilustrisimo with attempted rape.

6

As no case for attempted rape had been filed bythe Prosecutor's Office, Deputy Ombudsman

Mojica ordered on July 27, 1994 ProvincialProsecutor Kintanar and petitioner Lastimosa toshow cause why they should not be punished forcontempt for "refusing and failing to obey thelawful directives" of the Office of the Ombudsman.7

For this purpose a hearing was set on August 1,1994. Petitioner and the Provincial Prosecutorwere given until August 3, 1994 within which tosubmit their answer.

8An answer

9was timely filed

by them and hearings were thereupon conducted.

It appears that earlier, on July 22, 1994, two caseshad been filed against the two prosecutors withthe Office of the Ombudsman for Visayas by

Julian Menchavez, a resident of Santa Fe, Cebu.One was an administrative complaint for violationof Republic Act No. 6713 and P.D. No. 807 (theCivil Service Law)

10and another one was a

criminal complaint for violation of 3(e) of RepublicAct No. 3019 and Art. 208 of the Revised PenalCode.

11The complaints were based on the

alleged refusal of petitioner and Kintanar to obeythe orders of the Ombudsman to charge MayorIlustrisimo with attempted rape.

In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman forVisayas Mojica issued an order on August 15,1994, placing petitioner Gloria G. Lastimosa andProvincial Prosecutor Oliveros E. Kintanar under

preventive suspension for a period of six (6)months,

12pursuant to Rule III, 9 of the Rules of

Procedure of the Office of the Ombudsman(Administrative Order No. 7), in relation to 24 ofR.A. No. 6770. The order was approved byOmbudsman Conrado M. Vasquez on August 16,1994 and on August 18, 1994 Acting Secretary ofJustice Ramon J. Liwag designated EduardoConcepcion of Region VII as Acting ProvincialProsecutor of Cebu.

On the other hand, the Graft Investigation OfficerII, Edgardo G. Canton, issued orders

13in the two

cases, directing petitioner and ProvincialProsecutor Kintanar to submit their counter
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affidavits and controverting evidence.

On September 6, 1994, petitioner Gloria G.Lastimosa filed the present petition forcertiorariand prohibition to set aside the following orders ofthe Office of the Ombudsman and Department ofJustice:

(a) Letter dated May 17, 1994of Deputy Ombudsman forVisayas Arturo C. Mojica and

related orders, referring to theOffice of the Cebu ProvincialProsecutor the records ofOMB-VIS-CRIM-93-0140,entitled Jessica V. Dayon vs.Mayor Rogelio Ilustrisimo, "forfiling of the appropriate action(for Attempted Rape) with theRegional Trial Court of DanaoCity.

(b) Order dated July 27, 1994of Deputy Ombudsman Mojicaand related orders directingpetitioner and Cebu ProvincialProsecutor Oliveros E.

Kintanar to explain in writingwithin three (3) days fromreceipt why they should notbe punished for indirectContempt of the Office of theOmbudsman "for refusing andfailing . . . to file theappropriate Information for

Attempted Rape againstMayor Rogelio Ilustrisimo.

(c) The 1st IndorsementdatedAugust 9, 1994 of ActingJustice Secretary Ramon J.Liwag, ordering the Office ofthe Provincial Prosecutor to

comply with the directive ofthe Office of the Ombudsmanthat a charge for attemptedrape be filed againstrespondent Mayor Ilustrisimoin recognition of the authorityof said Office.

(d) Order dated August 15,1994 of Deputy OmbudsmanMojica, duly approved byOmbudsman ConradoVasquez, and related ordersin OMB-VIS-(ADM)-94-0189,entitled Julian Menchavez vs.Oliveros Kintanar and Gloria

Lastimosa, placing petitionerand Provincial ProsecutorKintanar under preventivesuspension for a period of six(6) months, without pay.

(e) The 1st IndorsementdatedAugust 18, 1994 of ActingJustice Secretary Liwagdirecting Assistant RegionalState Prosecutor Eduardo O.Concepcion (Region VII) toimplement the letter dated

August 15, 1994 ofOmbudsman Vasquez,together with the Order dated

August 15, 1994, placingpetitioner and ProvincialProsecutor Kintanar underpreventive suspension.

(f) Department Order No. 259issued by Acting SecretaryLiwag on August 18, 1994,designating AssistantRegional State ProsecutorConcepcion Acting ProvincialProsecutor of Cebu.

Petitioner raises a number of issues which will bediscussed not necessarily in the order they arestated in the petition.

I.

The pivotal question in this case is whether theOffice of the Ombudsman has the power to call onthe Provincial Prosecutor to assist it in theprosecution of the case for attempted rape againstMayor Ilustrisimo. Lastimosa claims that the Officeof the Ombudsman and the prosecutor's officehave concurrent authority to investigate publicofficers or employees and that when the former

first took cognizance of the case against MayorIlustrisimo, it did so to the exclusion of the latter. Itthen became the duty of the Ombudsman's office,according to petitioner, to finish the preliminaryinvestigation by filing the information in courtinstead of asking the Office of the ProvincialProsecutor to do so. Petitioner contends that thepreparation and filing of the information were partand parcel of the preliminary investigationassumed by the Office of the Ombudsman and thefiling of information in court could not be delegatedby it to the Office of the Provincial Prosecutor.Petitioner defends her actuations in conducting apreliminary investigation as having been madenecessary by the insistence of the Ombudsman todelegate the filing of the case to her office.

In any event, petitioner contends, the Office of theOmbudsman has no jurisdiction over the caseagainst the mayor because the crime involved(rape) was not committed in relation to a publicoffice. For this reason it is argued that the Office othe Ombudsman has no authority to place her andProvincial Prosecutor Kintanar under preventivesuspension for refusing to follow his orders and tocite them for indirect contempt for such refusal.

Petitioner's contention has no merit. The office ofthe Ombudsman has the power to "investigate andprosecute on its own or on complaint by anyperson, any act or omission of any public officer oremployee, office or agency, when such act or

omission appears to be illegal, unjust, improper orinefficient."

14This power has been held to include

the investigation and prosecution of any crimecommitted by a public official regardless ofwhether the acts or omissions complained of arerelated to, or connected with, or arise from, theperformance of his official duty

15It is enough that

the act or omission was committed by a publicofficial. Hence, the crime of rape, when committedby a public official like a municipal mayor, is withinthe power of the Ombudsman to investigate andprosecute.

In the existence of his power, the Ombudsman isauthorized to call on prosecutors for assistance.


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31 of the Ombudsman Act of 1989 (R.A. No.6770) provides:

Designation of Investigatorsand Prosecutors. TheOmbudsman may utilize thepersonnel of his office and/ordesignate of deputize anyfiscal, state prosecutor orlawyer in the governmentservice to act as specialinvestigator or prosecutor toassist in the investigation andprosecution of certain cases.Those designated ordeputized to assist him asherein provided shall be underhis supervision and control.(Emphasis added)

It was on the basis of this provision thatOmbudsman Conrado Vasquez and DeputyOmbudsman Arturo C. Mojica ordered theProvincial Prosecutor of Cebu to file aninformation for attempted rape against MayorRogelio Ilustrismo.

It does not matter that the Office of the ProvincialProsecutor had already conducted the preliminaryinvestigation and all that remained to be done wasfor the Office of the Provincial Prosecutor to filethe corresponding case in court. Even if thepreliminary investigation had been given over tothe Provincial Prosecutor to conduct, hisdetermination of the nature of the offense to becharged would still be subject to the approval ofthe Office of the Ombudsman. This is becauseunder 31 of the Ombudsman's Act, when aprosecutor is deputized, he comes under the"supervision and control" of the Ombudsmanwhich means that he is subject to the power of theOmbudsman to direct, review, approve, reverse ormodify his (prosecutor's) decision.

16Petitioner

cannot legally act on her own and refuse to

prepare and file the information as directed by theOmbudsman.

II.

The records show that despite repeated orders ofthe Ombudsman, petitioner refused to file aninformation for attempted rape against MayorIlustrisimo, insisting that after investigating thecomplaint in the case she found that he hadcommitted only acts of lasciviousness.

15(g) of the Ombudsman Act gives the Office ofthe Ombudsman the power to "punish forcontempt, in accordance with the Rules of Court

and under the same procedure and with the samepenalties provided therein." There is no merit inthe argument that petitioner and ProvincialProsecutor Kintanar cannot be held liable forcontempt because their refusal arose out of anadministrative, rather than judicial, proceedingbefore the Office of the Ombudsman. As petitionerherself says in another context, the preliminaryinvestigation of a case, of which the filing of aninformation is a part, is quasi judicial in character.

Whether petitioner's refusal to follow theOmbudsman'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 Rule71, 3 of the Rules of Court is for respondents todetermine after appropriate hearing. At this point itis important only to note the existence of thecontempt power of the Ombudsman as a means oenforcing his lawful orders.

III.

Neither is there any doubt as to the power of theOmbudsman to discipline petitioner should it be

found that she is guilty of grave misconduct,insubordination and/or neglect of duty, nor of theOmbudsman's power to place her in the meantimeunder preventive suspension. The pertinentprovisions of the Ombudsman Act of 1989 state:

21. Officials Subject ToDisciplinary Authority;Exceptions. The Office ofthe Ombudsman shall havedisciplinary authority over allelective and appointiveofficials of the Governmentand its subdivisions,instrumentalities andagencies, including Members

of the Cabinet, localgovernment, government-owned or controlledcorporations and theirsubsidiaries, except overofficials who may be removedonly by impeachment or overMembers of Congress, andthe Judiciary.

22. Preventive Suspension. The Ombudsman or hisDeputy may suspend anyofficer or employee under hisauthority pending aninvestigation, if in his

judgment the evidence of guiltis strong, and (a) the chargeagainst such officer oremployee involvesdishonesty, oppression orgrave misconduct or neglectin the performance of duty; (b)the charges would warrantremoval from the service; or(c) the respondent's continuedstay in office may prejudicethe case filed against him.

The preventive suspensionshall continue until the case isterminated by the Office of the

Ombudsman but not morethan six months, without pay,except when the delay in thedisposition of the case by theOffice of the Ombudsman isdue to the fault, negligence orpetition of the respondent, inwhich case the period of suchdelay shall not be counted incomputing the period ofsuspension herein provided.

A.

Petitioner contends that her suspension is invalid


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because the order was issued without giving herand Provincial Prosecutor Kintanar the opportunityto refute the charges against them and because,at any rate, the evidence against them is notstrong as required by 24. The contention iswithout merit. Prior notice and hearing is a notrequired, such suspension not being a penalty butonly a preliminary step in an administrativeinvestigation. As held in Nera v. Garcia:

17

In connection with thesuspension of petitionerbefore he could file hisanswer to the administrativecomplaint, suffice it to say thatthe suspension was not apunishment or penalty for theacts of dishonesty andmisconduct in office, but onlyas a preventive measure.Suspension is a preliminarystep in an administrativeinvestigation. If after suchinvestigation, the charges areestablished and the personinvestigated is found guilty ofacts warranting his removal,then he is removed or

dismissed. This is the penalty.There is, therefore, nothingimproper in suspending anofficer pending hisinvestigation and before theopportunity to prove hisinnocence. (Emphasisadded).

It is true that, under 24 of the Ombudsman's Act,to justify the preventive suspension of a publicofficial, the evidence against him should be strong,and any of the following circumstances is present:

(a) the charge against suchofficer or employee involves

dishonesty, oppression orgrave misconduct or neglectin the performance of duty;

(b) the charges would warrantremoval from the service; or

(c) the respondent's continuedstay in office may prejudicethe case filed against him.

As held in Buenaseda v. Flavier,18

however,whether the evidence of guilt is strong is left to thedetermination of the Ombudsman by taking intoaccount the evidence before him. A preliminary

hearing as in bail petitions in cases involvingcapital offenses is not required. In rejecting asimilar argument as that made by petitioner in thiscase, this Court said in that case:

The import of the Neradecision is that the discipliningauthority is given thediscretion to decide when theevidence of guilt is strong.This fact is bolstered bySection 24 of R.A. No. 6770,which expressly left suchdetermination of guilt to the"judgment" of the

Ombudsman on the basis ofthe administrative complaint. .. .

19

In this case, respondent Deputy OmbudsmanMojica justified the preventive suspension ofpetitioner and Provincial Prosecutor Kintanar onthe following grounds:

A careful assessment of thefacts and circumstances of

the herein cases and therecords pertaining theretoagainst respondents[Provincial ProsecutorKintanar and herein petitionerclearly leads to the conclusionthat the evidence on record ofguilt is strong and the chargesinvolved offenses of gravemisconduct, gross neglect ofduty and dishonesty which wilwarrant respondents[Provincial ProsecutorKintanar and herein petitionerremoval from the service.Moreover, considering theunabashed attitude of

respondents in openlyannouncing various falsepretexts and alibis to justifytheir stubborn disregard forthe lawful directives of theOmbudsman as their officialposition in their pleadings filedin OMB-VIS-0-94-0478 and inprint and broadcast media,the probability is strong thatpublic service moreparticularly in the prosecutionof cases referred by the Officeof the Ombudsman to theCebu Provincial Prosecutor'soffice will be disrupted and

prejudiced and the records ofsaid cases even be tamperedwith if respondents [ProvincialProsecutor Kintanar andherein petitioner] are allowedto stay in the Cebu ProvincialProsecutor's Office during thependency of theseproceedings.

Indeed respondent Deputy Ombudsman Mojicahad personal knowledge of the facts justifying thepreventive suspension of petitioner and theProvincial Prosecutor since the acts alleged in theadministrative complaint against them were donein the course of their official transaction with the

Office of the Ombudsman. The administrativecomplaint against petitioner and ProvincialProsecutor Kintanar was filed in connection withtheir designation as deputies of the ombudsman inthe prosecution of a criminal case against MayorRogelio Ilustrisimo. Respondent DeputyOmbudsman did not have to go far to verify thematters alleged in determine whether the evidenceof guilt of petitioner and Provincial Prosecutor wasstrong for the purpose of placing them underpreventive suspension.

Given the attitude displayed by petitioner and theProvincial Prosecutor toward the criminal caseagainst Mayor Rogelio Ilustrisimo, their preventivesuspension is justified to the end that the proper


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prosecution of that case may not be hampered.

In addition, because the charges against the twoprosecutors involve grave misconduct,insubordination and neglect of duty and thesecharges, if proven, can lead to a dismissal frompublic office, the Ombudsman was justified inordering their preventive suspension.

B.

Petitioner questions her preventive suspension for

six (6) months without pay and contends that itshould only be for ninety (90) days on the basis ofcases decided by this Court. Petitioner is in error.She is referring to cases where the law is eithersilent or expressly limits the period of suspensionto ninety (90) days. With respect to the firstsituation, we ruled in the case ofGonzaga v.Sandiganbayan

21that

To the extent that there maybe cases of indefinitesuspension imposed eitherunder Section 13 of Rep. Act3019, or Section 42 of Pres.Decree 807, it is best for theguidance of all concerned that

this Court set forth the ruleson the period of preventivesuspension under theaforementioned laws, asfollows:

1. Preventive suspensionunder Section 13, Rep. Act3019 as amended shall belimited to a maximum periodof ninety (90) days, fromissuances thereof, and thisapplies to all public officers,(as defined in Section 2(b) ofRep. Act 3019) who arevalidly charged under said

Act.

2. Preventive suspensionunder Section 42 of Pres.Decree 807 shall apply to allofficers or employees whosepositions are embraced in theCivil Service, as providedunder Sections 3 and 4 ofsaid Pres. Decree 807, andshall be limited to a maximumperiod of ninety (90) daysfrom issuance, except wherethere is delay in thedisposition of the case, whichis due to the fault, negligence

or petition of the respondent,in which case the period ofdelay shall both be counted incomputing the period ofsuspension herein stated;provided that if the personsuspended is a presidentialappointee, the continuance ofhis suspension shall be for areasonable time as thecircumstances of the casemay warrant.

On the other hand, petitioner and the ProvincialProsecutor were placed under preventivesuspension pursuant to 24 of the Ombudsman

Act which expressly provides that "the preventivesuspension shall continue until the case isterminated by the Office of the Ombudsman butnot more than six months, without pay." Theirpreventive suspension for six (6) months withoutpay is thus according to law.

C.

Nor is there merit in petitioner's claim that thecontempt charge should first be resolved before

any action in the administrative complaint casecan be taken because the contempt case involvesa prejudicial question. There is simply no basis forthis contention. The two cases arose out of thesame act or omission and may proceed hand inhand, or one can be heard before the other.Whatever order is followed will not really matter.

WHEREFORE, the petition is DISMISSED for lackof merit and the Motion to Lift Order of PreventiveSuspension is DENIED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Davide,

Jr., Bellosillo, Melo, Quiason, Puno, Vitug,Kapunan and Francisco, JJ., concur.

Romero, J., is on leave.

Separate Opinions

REGALADO, J ., concurring:

I concur and welcome this opportunity to makesome observations on the matter of the power ofthe Ombudsman to preventively suspendpetitioner for six (6) months without pay, andwhich petitioner assails in the case at bar.

It would, of course, be a handy expedient to justrefer petitioner to the provisions of Section 24 ofRepublic Act No. 6770 which expressly grants thatauthority to respondent Ombudsman.Conveniently, we would merely need to remindpetitioner that for this Court to limit such authority

to suspend to a lesser period would, in effect, beconstitutive of judicial legislation. But I will go alittle further by essaying the rationale for suchconferment of a more extended authority to theOmbudsman on the issue of preventivesuspension, vis-a-vis the provisions on preventivesuspension in other enactments, and therebydispel lingering doubts or misgivings thereon.

It is true that the Civil Service Decree allows amaximum preventive suspension of only ninety(90) days.

1However, a comparison of the

grounds therefor2with those provided for in the

Ombudsman Act3will readily show that there is in

the latter the added requirement that the evidence


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of guilt is strong and the additional ground that"the respondent's continued stay in office mayprejudice the case filed against him." Further, inthe aforecited Section 41 of the Civil ServiceDecree, preventive suspension may be imposedon the mere simple showing that the chargeinvolves dishonesty, oppression or gravemisconduct, neglect in the performance of duty, orif there are reasons to believe that the respondentis guilty of charges which would warrant hisremoval from the service: whereas in Section 24 ofRepublic Act No. 6770, it is required that such

charges must be supported by strong evidence ofguiltin order to justify preventive suspension.

On the other hand, the still shorter period of sixty(60) days prescribed in the Local GovernmentCode of 1991

4as the maximum period for the

preventive suspension of local elective officials isjustifiable and deemed sufficient not only becausethe respondent involved is elected by the people,but more precisely because such preventivesuspension may only be ordered "after the issuesare joined." That means that before the order ofsuspension is issued, all the preliminaryrequirements and exchanges had been completedand the respondent had already filed his counter-affidavits to the affidavits of the complainant and

the latter's witnesses. At that stage, the case isready for resolution if the parties would not opt fora formal hearing.

The preparatory procedures before such stage isreached undoubtedly necessitate and consume alot of time. Yet, it will be noted that thosepreliminary steps are included in the case of theperiod of preventive suspension ordered evenbefore issues are joined, as in preventivesuspension by the Ombudsman pursuant to theaforecited Section 24 of Republic Act No. 6770.They conceivably include the service of thesubpoena or order for the respondent to file hiscounter-affidavits, the usual resort to motions forextension of time to comply with the same, the

improvident recourse to the Supreme Court tosuspend, annul or otherwise delay theproceedings, as well as the filing and resolution ofmotions to dismiss or for a bill of particulars or forthe inhibition of the investigating officer, the denialof which motions is often also brought all overagain to this Court on petitions forcertiorari.

An illustration of how the proceedings can bedelayed by such procedural maneuvers is affordedby the case ofBuenaseda, et al. vs. Flavier, et al.,

5the decision in which was ultimately promulgated

by this Court on September 21, 1993. Thepetitioners therein questioned through repeatedresourceful submissions the order of preventivesuspension issued by the Ombudsman on January

7, 1992 and it took more than twenty (20) monthsbefore said order could eventually be reviewed onthe merits and finally sustained by the SupremeCourt.

That is not all. Even after the formal hearing isscheduled, respondents can easily resort to thesame dilatory tactics usually employed by anaccused in regular court trials in criminal actions.Such stratagems can obviously result in thecontinued occupancy by the respondent of hisoffice and, in the language of the law, could"prejudice the case filed against him."

The longer period of six (6) months for preventive

suspension under Republic Act No. 6770 wasevidently induced by a desire to more meaningfullyemphasize and implement the authority of theOffice of the Ombudsman over public officials andemployees in order to serve as a deterrent againstillegal, unjust, improper and inefficient conduct ontheir part. As the agency mandated by theConstitution to undertake such task, it wasinvested with the corresponding authority toenable it to perform its mission. This intention iseasily deducible from the pertinent constitutionalprovisions creating said office and from the

express provisions of Republic Act No. 6770.Significantly, it is the only body authorized toinvestigate even officials removable byimpeachment.

6

For purposes of the present case, therefore, andspecifically on the issue subject of this concurringopinion, it would be advisable to recall what wesaid in Buenaseda, to wit:

The purpose of RA No. 6770is to give the Ombudsmansuch powers as he may needto perform efficiently the taskcommitted to him by theConstitution. Such being the

case, said statute, particularlyits provisions dealing withprocedure, should be givensuch interpretation that willeffectuate the purposes andobjective of the Constitution.

Any interpretation that willhamper the work of theOmbudsman should beavoided.

A statute granting powers toan agency created by theConstitution should beliberally construed for theadvancement of the purposes

and objectives for Departmenof which it was created (Cf.Department of Public Utilitiesv. Arkansas Louisiana Gas,Co., 200 Ark. 983, 142 S.W.[2d] 213 [1940]; Wallace v.Feehan, 206 Ind. 522, 190N.E. 438 [1934]).

On the foregoing considerations, which are mucha matter of judicial and legislative experience, it ispuerile for petitioner to impugn the expandedauthority of preventive suspension as now grantedby law to the Ombudsman. In fact, in certainsituations, the maximum allowable period mayeven prove too short to subserve the intended

purpose of the law.

Separate Opinions

REGALADO, J ., concurring:

I concur and welcome this opportunity to makesome observations on the matter of the power ofthe Ombudsman to preventively suspendpetitioner for six (6) months without pay, andwhich petitioner assails in the case at bar.


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It would, of course, be a handy expedient to justrefer petitioner to the provisions of Section 24 ofRepublic Act No. 6770 which expressly grants thatauthority to respondent Ombudsman.Conveniently, we would merely need to remindpetitioner that for this Court to limit such authorityto suspend to a lesser period would, in effect, beconstitutive of judicial legislation. But I will go alittle further by essaying the rationale for suchconferment of a more extended authority to theOmbudsman on the issue of preventivesuspension, vis-a-vis the provisions on preventive

suspension in other enactments, and therebydispel lingering doubts or misgivings thereon.

It is true that the Civil Service Decree allows amaximum preventive suspension of only ninety(90) days.

1However, a comparison of the

grounds therefor2with those provided for in the

Ombudsman Act3will readily show that there is in

the latter the added requirement that the evidenceof guilt is strong and the additional ground that"the respondent's continued stay in office mayprejudice the case filed against him." Further, inthe aforecited Section 41 of the Civil ServiceDecree, preventive suspension may be imposedon the mere simple showing that the chargeinvolves dishonesty, oppression or grave

misconduct, neglect in the performance of duty, orif there are reasons to believe that the respondentis guilty of charges which would warrant hisremoval from the service: whereas in Section 24 ofRepublic Act No. 6770, it is required that suchcharges must be supported by strong evidence ofguiltin order to justify preventive suspension.

On the other hand, the still shorter period of sixty(60) days prescribed in the Local GovernmentCode of 1991

4as the maximum period for the

preventive suspension of local elective officials isjustifiable and deemed sufficient not only becausethe respondent involved is elected by the people,but more precisely because such preventivesuspension may only be ordered "after the issues

are joined." That means that before the order ofsuspension is issued, all the preliminaryrequirements and exchanges had been completedand the respondent had already filed his counter-affidavits to the affidavits of the complainant andthe latter's witnesses. At that stage, the case isready for resolution if the parties would not opt fora formal hearing.

The preparatory procedures before such stage isreached undoubtedly necessitate and consume alot of time. Yet, it will be noted that thosepreliminary steps are included in the case of theperiod of preventive suspension ordered evenbefore issues are joined, as in preventivesuspension by the Ombudsman pursuant to the

aforecited Section 24 of Republic Act No. 6770.They conceivably include the service of thesubpoena or order for the respondent to file hiscounter-affidavits, the usual resort to motions forextension of time to comply with the same, theimprovident recourse to the Supreme Court tosuspend, annul or otherwise delay theproceedings, as well as the filing and resolution ofmotions to dismiss or for a bill of particulars or forthe inhibition of the investigating officer, the denialof which motions is often also brought all overagain to this Court on petitions forcertiorari.

An illustration of how the proceedings can bedelayed by such procedural maneuvers is affordedby the case ofBuenaseda, et al. vs. Flavier, et al.,

the decision in which was ultimately promulgatedby this Court on September 21, 1993. Thepetitioners therein questioned through repeatedresourceful submissions the order of preventivesuspension issued by the Ombudsman on January7, 1992 and it took more than twenty (20) monthsbefore said order could eventually be reviewed onthe merits and finally sustained by the SupremeCourt.

That is not all. Even after the formal hearing isscheduled, respondents can easily resort to thesame dilatory tactics usually employed by anaccused in regular court trials in criminal actions.Such stratagems can obviously result in thecontinued occupancy by the respondent of hisoffice and, in the language of the law, could"prejudice the case filed against him."

The longer period of six (6) months for preventivesuspension under Republic Act No. 6770 wasevidently induced by a desire to more meaningfullyemphasize and implement the authority of theOffice of the Ombudsman over public officials andemployees in order to serve as a deterrent againstillegal, unjust, improper and inefficient conduct ontheir part. As the agency mandated by theConstitution to undertake such task, it was

invested with the corresponding authority toenable it to perform its mission. This intention iseasily deducible from the pertinent constitutionalprovisions creating said office and from theexpress provisions of Republic Act No. 6770.Significantly, it is the only body authorized toinvestigate even officials removable byimpeachment.

6

For purposes of the present case, therefore, andspecifically on the issue subject of this concurringopinion, it would be advisable to recall what wesaid in Buenaseda, to wit:

The purpose of RA No. 6770

is to give the Ombudsmansuch powers as he may needto perform efficiently the taskcommitted to him by theConstitution. Such being thecase, said statute, particularlyits provisions dealing withprocedure, should be givensuch interpretation that willeffectuate the purposes andobjective of the Constitution.

Any interpretation that willhamper the work of theOmbudsman should beavoided.

A statute granting powers toan agency created by theConstitution should beliberally construed for theadvancement of the purposesand objectives for Departmenof which it was created (Cf.Department of Public Utilitiesv. Arkansas Louisiana Gas,Co., 200 Ark. 983, 142 S.W.[2d] 213 [1940]; Wallace v.Feehan, 206 Ind. 522, 190N.E. 438 [1934]).

On the foregoing considerations, which are mucha matter of judicial and legislative experience, it is


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puerile for petitioner to impugn the expandedauthority of preventive suspension as now grantedby law to the Ombudsman. In fact, in certainsituations, the maximum allowable period mayeven prove too short to subserve the intendedpurpose of the law.

Footnotes

1 Petition forCertiorariandProhibition, Annex A, Rollo,

pp. 42-43.

2 Annex B, Rollo, pp. 47-52.

3 Annex D, Rollo, p. 54.

4 Annex H, Rollo, pp. 59-69.

5 Annex I, Rollo, p. 70.

6 Annex E & F, Rollo, pp. 55-57.

7 Rollo, p. 72.

8 Annex O, Rollo, p. 80.

9 Annex Q, Rollo, pp. 83-90.

10 OMB-VIS-(ADM)-94-0189.

11 OMB-VIS-(CRIM)-94-0475.

12 Annex V, Rollo, pp. 95-96.

13 Annexes FF and GG,Rollo, pp. 110 and 118.

14 Ombudsman Act of 1989,(R.A. No. 6770) 15(1).

15 Deloso v. Domingo, 191SCRA 545 (1990).

16 ADMINISTRATIVE CODEof 1987, Bk IV, Ch. 7, 38(1).

17 106 Phil. 1031 (1960).Accord, Buenaseda v. Flavier,226 SCRA 645 (1993).

18 226 SCRA 645 (1993).

19 At 655.

20 Cf. Lacson v. Rogue, 92Phil. 456, 469 (1953).

21 201 SCRA 417, 427-8(1991).

REGALADO, J., concurring:

1 Section 42, Presidential

Decree No. 807.

2 Section 41, id.

3 Section 24, Republic ActNo. 6770.


5 G.R. No. 196719,September 21, 1993, 226SCRA 645.

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Lastimosa vs Vasquez

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