EDILBERTO M. RAMOS, PACIANO CAPALONGAN, VICTORINO REYES, CONSORCIA JOVEN, JOSEFINA COLOMA, JOSE JOAQUIN, PETITIONERS-APPELLANTS, VS. HON. BENJAMIN H. AQUINO, PROVINCIAL FISCAL, …

A constitutional question with an element of novelty is raised in
this appeal from a lower court order dismissing an
action for certiorari and prohibition against the then respondent Fiscal
of Rizal, Benjamin H. Aquino,
to prevent him from conducting a preliminary investigation.  It is whether there is an encroachment on the
constitutional prerogatives of the Auditor General if, after the final approval
of certain vouchers by him without an appeal being made, an inquiry by a
provincial fiscal to determine whether criminal liability for malversation through falsification of public, official and
commercial documents based thereon could lawfully be conducted.  The lower court answered that it could
validly be undertaken.  We agree that a
prosecutor could, without offending the constitutional grant of authority to
the Auditor General, do so.  We therefore
affirm.

In the certiorari and prohibition proceeding filed with
the lower court on June 6, 1967,
petitioners,^[1]
now appellants, assailed the jurisdiction of respondent Benjamin Aquino, then Provincial Fiscal of Rizal,
to conduct the preliminary investigation of the alleged commission of malversation through falsification of public, official and
commercial documents imputed to them by the other respondent, then the
Commanding General, Philippine Army, Fort Bonifacio, Rizal, Romeo Espino.  The basis for such a petition was that under
the Constitution, the Auditor General is not only vested with the duty to
examine or audit all expenditures of funds of the Government, but also to audit
or investigate and “bring to the attention of the proper administrative
officer expenditures of funds or property which in his opinion are irregular,
unnecessary, excessive, or extravagant.” It is their contention that under
the above, it is incumbent on the Auditor General to determine whether criminal
responsibility for the anomaly discovered in the course of his audit or
examination of the accounts lies.  It was
further contended that the decisions of the Auditor General on the correctness
of the vouchers on which the alleged offenses were based having become final and
irrevocable, not even the courts could substitute its findings.  Otherwise the provision of law that vouchers, claims or accounts “once finally settled
shall in no case be opened or
reviewed except as herein
provided” would be meaningless if the army authorities and respondent
Fiscal were permitted to proceed with the preliminary investigation to
determine whether criminal cases could be filed.^[2]

The above legal objections were brought to the attention of the
then respondent Provincial Fiscal by petitioners in a motion to quash which was denied by him in a resolution of
May 23, 1967 on this ground:  “The
exclusive jurisdiction of the Auditor General on matters now raised by
respondents refer to auditorial requirements and
approval but not to the criminal liability, if any, of the persons involved in
an alleged irregular or anomalous disbursement of public funds.  The authority of the Fiscal to investigate
whether a criminal act has been
committed or not in the disbursement of public funds, and finally of the Courts
to try any person involved in the alleged malversation
of public funds is not curtailed or in any way divested by the administrative
findings of the Auditor General.  To hold
otherwise would be to arrogate unto the Office of the Auditor General the power
which pertains to the judicial branch of the government.”^[3]

Then came this petition before the lower court, petitioners
praying for a judgment annulling the aforesaid resolution of respondent
Provincial Fiscal denying their motion to quash, rendering judgment that he was without jurisdiction to conduct
such preliminary investigation and prohibiting him from further proceeding on
the matter.^[4]
On November 2, 1967, there was a
motion to dismiss by respondent Provincial Fiscal based on the argument that
the amounts subject to the criminal cases were not closed and settled accounts
and that even if they were such, respondent Fiscal could still institute the
appropriate criminal action, there being no need for a certification by the
Auditor General as to any irregularity in the settlement of accounts as an essential element for a
criminal prosecution in malversation cases.

After an opposition was filed by petitioner to the aforesaid
motion to dismiss on November 21,
1967, the lower court, in an order of December 20, 1967, dismissed the petition.  In support of such an order, it was set forth
in such order of dismissal:  “The
Provincial Fiscal is only studying whether or not, as complained of, from these
accounts or vouchers which have already been passed in audit by the Auditor
General or his representatives more than three years ago, there is a crime to
be prosecuted in which the petitioners are answerable.”^[5]
It was further emphasized:  “Were
the theory of the petitioners to prevail, then the Auditor General will be
arrogating unto himself duties which pertain to the judicial branch of the
government.”^[6]
The last ground on which the plea that the petition be dismissed was sustained
is the principle that one “cannot restrain the Fiscal, by means of
injunction, from prosecuting [this] case * * *.”^[7]

The matter was duly elevated on appeal to this Court on January 3, 1968.  The brief for petitioners as appellants was
filed on March 6 of that year.  With the
submission of the brief for respondents as appellees
on May 3, 1968, the appeal
was deemed submitted.  As set forth at
the outset, there is no legal ground for reversing the lower court.

1. Appellants, in their brief, reiterate their principal argument
that the order of the lower court dismissing their petition and thus allowing
their investigation by respondent Fiscal to proceed, did amount to an
encroachment on the constitutional prerogatives of the Auditor General.  Such a contention lacks merit.  It betrays on its face a lack of understanding
of the constitutional provision relied upon. 
The Auditor General, as noted, is vested with the power to examine,
audit and settle all accounts pertaining to the revenues and receipts from
whatever source, and to audit, in accordance with law and administrative
regulations, all expenditures of funds or property pertaining to or held in
trust by the government as well as the provinces or municipalities thereof.^[8]
That is one thing.  The ascertainment of
whether a crime
is committed and by whom is definitely another.

There is thus a manifest failure on the part of appellants to appreciate correctly the
constitutional objective in the conferment of authority on the Auditor
General.  It is based on the fundamental
postulate that in the division
of powers, the control over the purse remains with the legislative branch.  There is the explicit requirement then that
there be no expenditure of public funds except in pursuance of an appropriation
made by law.^[9] There is need, therefore, for an
enactment to permit disbursements from
the public treasury.  Nor
does fidelity to this constitutional mandate end there.  There must be compliance with the terms of
the statute.  If it were not so, to the
extent that there is a deviation, there is a frustration of the legislative
will.  It is obvious that Congress
itself is not in a position to oversee and supervise the actual release of each
and every appropriation.  That is where
the Auditor General comes in.  It is the
responsibility of his office to exact obedience to any law that allows the
expenditure of public funds.  He serves as
the necessary check to make certain that no department of the government,
especially its main spending arm, the Executive, exceeds the statutory limits
of the appropriations to which it is entitled. 
That is the purpose and end calling for the creation of such an office,
certainly not the enforcement of criminal statutes.

So it has been made clear
by the then Delegate, later President, Manuel Roxas in the Constitutional Convention of 1934.  To the question as to the method or means to
determine whether public funds are spent in accordance with the congressional
will, this was his answer:  “The only means provided in our
Constitution, as in the constitutions in other countries, is the office of the
auditor; therefore, if the auditor is a check on the Executive, it is not wise
to make the auditor depend on the Executive. 
For another ways, the Executive, if he is able to influence the auditor,
may prevent the proper checking of the expenditures
of the public money.”^[10]
For such a dignitary to live up to such grave responsibility, he must,
according to Delegate Roxas, be
independent, not only of the President but even of Congress, even if he were in
a true and vital sense fulfilling a task appertaining to it.  Thus: 
“In the United States, while the auditor is appointed by the
President with the advice and consent of the United States Senate, the office
is kept as an independent office — independent [of] the Executive and
independent [of] the Legislature, because he has not only to check the accounts
of the Executive, but also the accounts of the Legislature.  * * *.”^[11]

It could be that appellants were not completely oblivious to the
force of the above observations.  They
therefore did seek to lend plausibility to their contention with the reminder
that there is likewise included in the constitutional provision in question the
task incumbent on the Auditor General to “bring to the attention of the
proper administrative officer expenditures of funds or property which, in his
opinion, are irregular, unnecessary, excessive, or extravagant.” From
which, by a process
of construction rather latitudinarian in character, they would imply that on
the Auditor General alone rests the determination of whether or not criminal
liability is incurred for any anomaly discovered in the course of his audit or
examination.  Such a conclusion is at war
with the controlling doctrine.  As
construed in Guevara v. Gimenez,^[12]
at most such a
duty goes no further then requiring him to call the attention of the
proper administrative officer of the existence of such a situation but does not
even extend to the power “to refuse and disapprove payment of such
expenditures, * *.”^[13]
Much less then could it justify the assertion devoid of any legal justification
that even the ascertainment of any possible criminal liability is likewise a
part and parcel of such constitutional competence of the Auditor General.  How, then,
can it be said that their plea is thereby strengthened?

There is likewise an invocation by appellants of alleged
statutory support for their untenable view. 
It is likewise in vain.  All that
appellants have to go on is the concluding paragraph of section 657 of the
Revised Administrative Code: 
“Accounts once finally settled shall in no case be opened or
reviewed except as herein provided.” The paragraph immediately preceding
should have disabused the minds of appellants of any cause for optimism.  All that it provides for is that in case any
settled account “appears to be infected with fraud, collusion or error of
calculation or when new and material evidence is discovered, the Auditor
General may, within three years after original settlement, open such account,
and after a reasonable time for his reply or appearance, may certify thereon a
new balance.” The official given the opportunity for a reply or appearance
is the provincial auditor, for under the first paragraph of this particular
section, the Auditor General at any time before the expiration of three years
after the making of any settlement by a provincial auditor, may, of his own
motion, review and revise the same and certify a new balance.  Nowhere does it appear that such a statutory
grant of authority of the Auditor General to open revised settled accounts
carries with it the power to determine who may be prosecuted in the event that
in the preparation thereof a crime has been committed.  The conclusive effect of the finality of his
decision on the executive branch of the government thus relates solely to the
administrative aspect of the matter.^[14]

From the constitutional, no less than the statutory standpoint
then, this claim of appellants finds no support.  It has nothing but novelty to call for any
attention being paid to it.  It is
singularly unpersuasive.  To repeat, it
would be to stretch to unwarranted limits the constitutional power thus
conferred on the Auditor General to accede to such a plea.  Nothing is better settled than that, broad
and comprehensive as it is, it does not include a participation in the
investigation of charges to determine whether or not a criminal prosecution
should be instituted.^[15]
Thus, the first two errors of the appellants which would impugn the order of
dismissal for reaching a similar conclusion are disposed of.

2. The third assigned error by appellants would find fault with
the lower court’s reliance on the well-settled doctrine that as a general
principle, no action lies to enjoin fiscals from conducting investigations to
ascertain whether an offense has been committed.  To demonstrate its equally groundless
character, it suffices to refer to Ramos v. Torres,^[16]
dismissing an original action for prohibition instituted by five of the six
petitioners, now appellants,^[17]
to cut short further proceedings based on an information
accusing them of malversation through falsification
of public and commercial documents.  In
the opinion of the present Chief Justice, it is emphatically affirmed:  “Upon a review of the record, we are
satisfied that petitioners herein have not established their right to the writ
prayed for.  Indeed, it is well-settled that, as a matter of general rule, the
writ of prohibition will not issue to restrain criminal prosecution.”^[18]
An excerpt from the opinion of Justice Sanchez in Hernandez v. Albano^[19]
was then quoted.  Thus: 
“Agreeably to the foregoing, a rule — now of long standing and
frequent application — was formulated
that ordinarily criminal prosecution may not be blocked by court prohibition or
injunction.  Really, if at every turn
investigation of a crime will
be halted by a court order, the administration of criminal justice will meet
with an undue setback.  Indeed, the
investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in hollow sound rather
than as a part and parcel of the machinery of criminal justice.”^[20]
Nor is the accused person thereby left unprotected for, as was noted by the
Chief Justice, referring to Gorospe v. Peñaflorida,^[21]
he could defend him­self from any possible prosecution by establishing that he
did not commit the act charged or that the statute or ordinance on which the
prosecution is based is invalid or in the event of conviction, he could
appeal.  While the general rule admits of
exceptions, no showing has been made that petitioners can appropriately invoke
them.  As they failed in their previous
action of prohibition in Ramos v. Torres, so they must now.

WHEREFORE, the appealed order of the lower court of December 20, 1967 dismissing
petitioners’ action for certiorari and prohibition is affirmed.  With costs against
petitioners-appellants.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Villamor, and Makasiar, JJ., concur.

Ruiz Castro and Barredo, JJ., did not take part.

^[1]
Except for petitioner Andres Ascueta, who is not a
party, the other petitioners were identified in a previous case Ramos v. Torres, L-23454, Oct. 25, 1968, 25 SCRA
557 thus:  “Petitioners herein are Edilberto M. Ramos, Paciano Capalongan, Victorino B. Reyes,
Andres Atienza, Consorcia Joven, Jose Joaquin and Andres Ascueta.  All of them are army personnel, working, with
the exception of the last, in the Finance Service of the Philippine Army, the
first as Colonel and Chief of said service, the second as Major and Chief of
the Audit and Fiscal Branch thereof,
the third as Captain and Officer-in-Charge of its Audit Section, the fourth as Captain, in charge of pre-auditing and processing commercial vouchers,
the fifth as Audit Examiner, and the sixth as Clerk in
charge of processing vouchers.” At p. 558.  Andres Atienza is
not a petitioner in this suit.

^[2]
For the requisite statutory support for the above view, petitioners invoke
Section 657 of the Administrative Code which reads:  “Power of Auditor to open and revise
settled accounts.  – At any time
before the expiration of three years after the making of any settlement by a
provincial auditor, the Auditor General may, on his own motion, review and
revise the same and certify a new balance. 
For such purpose he may require any account, vouchers, or other papers
connected with the matter to be forwarded to him.  When any settled account appears to be
infected with fraud, collusion, or error of calculation, or when new and
material evidence is discovered, the Auditor General may, within three years
after original settlement, open such account, and after a reasonable time for his reply or appearance, may certify
thereon a new balance.  A provincial
auditor may exercise the same power in respect to settled accounts pertaining
to the branches of the Government under his jurisdiction.  Accounts once finally settled shall in no
case be opened or reviewed except as
herein provided.” Cf. Petition before the lower court, pars. 5 and 8.

^[3]
Ibid, par. 6, referring
to Annex B thereof.

^[4]
Ibid, petitory part.

^[5]
Order, Record on Appeal, pp. 77-78.

^[6]
Ibid, p. 78.

^[7]
Ibid.

^[8]
The constitutional provision reads in full: 
“The Auditor General shall examine, audit, and settle all accounts
pertaining to the revenues and receipts from whatever source, including trust
funds derived from bond issues; and audit, in accordance with law and
administrative regulations, all expenditures of funds of property pertaining to
or held in trust by the Government or the provinces or municipalities
thereof.  He shall keep the general
accounts of the Government and preserve the vouchers pertaining thereto.  It shall be the duty of the Auditor General
to bring to the attention of the proper administrative officer expenditures of
funds or property which in his opinion, are irregular, unnecessary, excessive,
or extravagant.  He shall also perform such
other functions as may be prescribed by law.” Art. XI, Sec. 2,
Constitution.

^[9]
According to the Constitution:  “No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law.” Art.
VI, sec. 23, par. 2.

^[10]
V Laurel, Proceedings of the
Philippine Constitutional Convention, 636 (1967).

^[11]
Ibid, p. 637.

^[12]
L-17115, Nov. 30, 1962, 6 SCRA 807.

^[13]
Ibid, p. 813. 
The authoritative excerpt from the opinion of the present Chief Justice
reads as follows:  “Under our Constitution,
the authority of the Auditor General, in connection with expenditures of the
Government is limited to the auditing of expenditures of funds or property
pertaining to, or held in trust by, the Government or the provinces or
municipalities thereof (Article XI, section 2, of the Constitution).  Such function is limited to a determination
of whether there is a law appropriating funds for a given purpose; whether a
contract, made by the proper officer, has been entered into in conformity with
said appropriation law; whether the goods or services covered by said contract
have been delivered or rendered in pursuance of the provisions thereof, as
attested to by the proper officer; and whether payment therefor
has been authorized by the officials of the corresponding department or
bureau.  If these requirements have been
fulfilled, it is the ministerial duty of the Auditor General to approve and
pass in audit the voucher and treasury warrant for said payment.  He has no discretion or authority to disapprove
said payment upon the ground that the aforementioned contract was unwise or
that the amount stipulated thereon is unreasonable.  If he entertains such belief, he may do no
more than discharge the duty imposed upon him by the Constitution (Article XI, section
2), ‘to bring to the attention of the proper administrative officer
expenditures of funds or property which, in his opinion, are irregular,
unnecessary, excessive or extravagant’. 
This duty implies a negation of the power to refuse and disapprove payment of such
expenditures, for its disapproval, if he had authority therefor,
would bring to the attention of the aforementioned administrative officer the
reasons for the adverse action thus taken by the General Auditing Office, and,
hence, render the imposition of said duty unnecessary.”

^[14]
Section 655 of the Administrative Code reads as follows:  “Finality of decision made by Auditor.  – A decision of the Auditor General or of a
provincial auditor upon any matter within their respective powers shall be
conclusive upon the executive branches of the Government, subject to appeal or
review as hereinafter provided.”

^[15]
Cf. Guevara v.
Gimenez, L-17115, Nov.
30, 1962, 6 SCRA 807; Villegas v. Auditor General,
L-21352, Nov. 29, 1966, 18 SCRA 877; Resins, Inc.
v. Auditor General, L-17888, Oct. 29,
1968, 25 SCRA 754.

^[16]
L-23454, Oct. 25, 1968, 25 SCRA 557.

^[17]
Vide fn.

^[18]
Ibid, p. 563. 
Six cases were referred to by the Chief Justice, starting from Kwong Sing v. City of Manila, 41 Phil. 103 (1920);
where the doctrine was first announced through Justice Malcolm.  The other cases follow:  Gorospe v. Peñaflorida, 101 Phil. 886 (1957); University of the
Philippines v. City Fiscal of Quezon City,
L-18562, July 31, 1961, 2 SCRA 980; Tadeo v.
Provincial Fiscal, L-16474, January 31, 1962, 4 SCRA 235; Griñen
v. Consolacion, L-16050, July 31, 1962, 5 SCRA
722; Lava v. Gonzalez, L-23084, July 31, 1964, 11 SCRA 650.  People v. Mencias,
L-19633, Nov. 28, 1966, 18
SCRA 807, may also be cited.

^[19]
L-19272, January 25, 1967, 19 SCRA 95.

^[20]
Ibid, p. 98.

^[21]
101 Phil. 886 (1957).