SALVADOR M. PEREZ AND JUANITA A. APOSTOL, PETITIONERS, VS. HON. SANDIGANBAYAN (2ND DIVISION) AND PEOPLE OF THE PHILIPPINES REPRESENTED BY THE SPECIAL PROSECUTOR OF THE OFFICE OF…

Perez versus Sandiganbayan

The Case

This is a petition for certiorari brought by Salvador Perez, the municipal mayor of San Manuel, Pangasinan, and Juanita Apostol, the municipal treasurer, against the Second Division of the Sandiganbayan and the People of the Philippines, represented by the Special Prosecutor of the Office of the Ombudsman. The petitioners were charged with violation of Section 3(e) of Republic Act Number 3019, the Anti-Graft and Corrupt Practices Act, for purchasing a computer unit by personal canvass instead of public bidding. The case matters because it fixes the boundary between two constitutional offices: the Ombudsman, who holds the power to authorize the filing of criminal informations, and the Special Prosecutor, who acts only under the Ombudsman's supervision, control, and authority. It is a study in who may amend an information, and when a court may receive one.

Procedural History

The Office of the Deputy Ombudsman for Luzon resolved to file charges against the petitioners, and an Information for violation of Section 3(e) was lodged with the Sandiganbayan. Before arraignment, the petitioners moved for leave to file a motion for reconsideration and reinvestigation on the ground of newly discovered evidence, namely a reassessment by the Commission on Audit that the price difference was not really that material. The Sandiganbayan initially denied the motion, but on reconsideration allowed the petitioners to formalize their motion with the Office of the Ombudsman. A reinvestigation followed. The Assistant Special Prosecutor recommended withdrawal of the Information, but the Special Prosecutor declined to concur, and the Ombudsman deferred resolution, directing a study of whether unwarranted benefits were given to the seller. A Supplemental Memorandum then recommended amending, rather than withdrawing, the Information. The Special Prosecutor approved it, and a Motion for Leave to File Amended Information was filed. The Sandiganbayan granted the motion in its Resolution of May 2004, and denied reconsideration in its Resolution of September 2004. The petitioners then came to the Supreme Court by petition for certiorari under Rule 65, alleging grave abuse of discretion amounting to lack or excess of jurisdiction.

Facts

In September 1998, the Municipality of San Manuel, Pangasinan, a fourth class municipality, purchased one computer unit costing 120,000 pesos. The acquisition was made by personal canvass rather than by public bidding. The canvass of the stores and suppliers was done by the municipal treasurer, Apostol, and attested by the mayor, Perez.

The Office of the Deputy Ombudsman for Luzon resolved to charge both officials with violation of Section 3(e) of Republic Act Number 3019, alleging manifest partiality, evident bad faith, or gross inexcusable negligence in causing the purchase by personal canvass in violation of Sections 362 and 367 of Republic Act Number 7160, the Local Government Code, thereby causing undue injury to the municipality.

After a reinvestigation, the prosecution shifted its theory. The Assistant Special Prosecutor observed that no Committee on Awards had been constituted, as the Local Government Code requires for procurement by personal canvass, and that the officials had deliberately disregarded the procurement rules. He recommended that the Information be amended to charge that the accused gave unwarranted benefits, advantage, or preference to the supplier, Mobil Link Enterprises and Starlet Sales Center, instead of alleging overpricing. The Amended Information, filed with leave of court before any arraignment, carried that new allegation. The Sandiganbayan admitted it, and the petitioners challenged that admission before the Supreme Court.

Issues

• Whether or not the petitioners were denied procedural due process when the Special Prosecutor filed the Amended Information without authority from, or the approval of, the Ombudsman, and against the latter's specific instruction.
• Whether or not the Amended Information is valid in the absence of such authority or approval of the Ombudsman under the circumstances.
• Whether or not the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it admitted the Amended Information, which bore no approval of the Ombudsman and was filed against the latter's written instruction to submit to him the result of the re-study before the filing of the Amended Information.

Applicable Provisions

Section 7 of Article XI of the 1987 Constitution provides:

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.

This is the constitutional anchor of the rule that the Special Prosecutor keeps only such powers as are not conferred on the Ombudsman, and holds them subject to law.

Section 13, paragraph 8, of Article XI of the 1987 Constitution provides:

The Ombudsman may exercise such other powers or perform such functions or duties as may be provided by law.

This is the source of Congress's authority to grant prosecutorial powers to the Ombudsman through Republic Act Number 6770.

Section 15(10) of Republic Act Number 6770, the Ombudsman Act of 1989, provides:

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 its primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government, the investigation of such cases.

This grants the Ombudsman primary jurisdiction and the power to prosecute, from which the power to authorize the filing of informations is derived.

Office Order Number 40-05, series of 2005, provides in relevant part:

In the exigency of the service, except when otherwise ordered by the Ombudsman, the disposition of administrative and criminal cases involving any of the following, viz: 1) City and Municipal mayors; as the highest ranking respondent, where the offense charged involves injury or damage amounting to, or valued at Two Million Pesos (P2,000,000.00) or less, or where the maximum imposable penalty for any of the offense charged does not exceed twenty (20) years imprisonment, shall be subject to the final approval of the Deputy Ombudsman concerned.

This is the delegation provision the People invoked, and its terms show that the final approving authority was delegated to the Deputy Ombudsmen, not to the Special Prosecutor.

Ruling

On the first issue, the Court held that there was no denial of procedural due process, but it rejected the People's characterization of the Ombudsman's marginal notes as mere internal matters. Marginal notes of the Ombudsman to the recommendations of investigating prosecutors are judicially considered sufficient dispositions. The Court found that the Supplemental Memorandum complied with the Ombudsman's directive to study whether unwarranted benefits were given to the seller. However, the directive to submit the recommendation soonest was not shown to have been complied with in the manner required, because what is imperative is that the recommendation be submitted to someone with authority to implement it by authorizing the filing of the proper information.

On the second and third issues, the Court held that the Ombudsman's power to prosecute carries with it the power to authorize the filing of informations. The People's claim of a general delegation to the Special Prosecutor failed. The Court read Office Order Number 40-05 strictly: the delegation of final approving authority was made only to the Deputy Ombudsmen. All that was delegated to the Special Prosecutor was the discretionary authority to review and modify an authorized information, subject to the condition that the modification be made without departing from, or varying in any way, the contents of the basic Resolution, Order, or Decision. The Court noted that even the title of the Office Order betrayed the People's contention, reading: Delegation of Final Approving Authority to the Deputy Ombudsman for Luzon, Deputy Ombudsman for Visayas and Deputy Ombudsman for Mindanao. The Amended Information, having been filed without the required approval, could not stand, and the Sandiganbayan gravely abused its discretion in admitting it.

Doctrine

First, the Special Prosecutor is a subordinate of the Ombudsman and may investigate and prosecute only upon the latter's authority or orders. Second, the Ombudsman's power to prosecute under Republic Act Number 6770 includes the power to authorize the filing of informations, and that power may be delegated only as the law and the Office Orders provide. Third, a delegation of final approving authority to Deputy Ombudsmen does not extend to the Special Prosecutor, whose role is limited to reviewing and modifying an authorized information without departing from or varying the basic resolution, order, or decision. Fourth, marginal notes of the Ombudsman are not internal matters; they are dispositions that prosecutors must heed, and compliance means submission to one who has authority to implement the recommendation.

Disposition

The Court granted the petition, set aside the Sandiganbayan Resolutions of May 2004 and September 2004, and nullified the Amended Information for having been filed without the approval of the Ombudsman.

Remember This

Memorize this line: the Special Prosecutor prosecutes only upon the authority of the Ombudsman, and the power to authorize the filing of an information cannot be presumed from a delegation made to Deputy Ombudsmen. Examiners use this case to test the hierarchy between the Ombudsman and the Special Prosecutor, and the validity of an amended information filed without the Ombudsman's approval.