Honansan II v. Panel of Investigating Prosecutors of the DOJ : 159747 :
April 13, 2004 : J. Sandoval-Gutierrez : En Banc : Dissenting Opinion
I am constrained to dissent from the majority opinion for the following
reasons: (1) it evades the consequence of the statutory definition of the crime
of coup detat; (2) it violates the principle of stare decisis without
a clear explanation why the established doctrine has to be re-examined and
reversed; and (3) it trivializes the importance of two constitutional offices
the Ombudsman and the Senate and in the process, petitioners right to due
process has been impaired.
It is an established principle that an act no matter how
offensive, destructive, or reprehensible, is not a crime unless it is defined,
prohibited, and punished by law. The prosecution and punishment of any
criminal offense are necessarily circumscribed by the specific provision of law
which defines it.
Article 134-A of the Revised Penal Code defines coup detat,
Article 134-A. Coup detat. How committed. The crime
of coup detat is a swift attack accompanied by violence, intimidation,
threat, strategy or stealth, directed against duly constituted authorities of
the Republic of the Philippines, or any military camp or installation,
communications networks, public utilities or other facilities needed for the
exercise and continued possession of power, singly or simultaneously carried
out anywhere in the Philippines by any person or persons, belonging to the
military or police or holding any public office or employment with or without
civilian support or participation for the purpose of seizing or diminishing
There is no question that Senator Honasan, herein petitioner, holds
a high public office. If he is charged with coup detat, it has to be
in his capacity as a public officer committing the alleged offense in relation
to his public office.
The complaint filed with the Department of Justice alleges the
events supposedly constituting the crime of coup detat, thus:
1. On 04 June 2003,
Senator Honasan presided over a meeting held somewhere in San Juan, Metro
2. After dinner,
Senator Honasan, as presiding officer, discussed the NRP (National Recovery
the graft and corruption in the government, including the military
institutions, the judiciary, the executive department, and the like.
3. The discussion concluded that we
must use force, violence and armed struggle to achieve the vision of NRP. x
x x Senator Honasan countered that we will never achieve reforms through the
democratic processes because the people who are in power will not give up their
positions as they have their vested interests to protect. x x x Senator
Honasan replied kung kaya nating pumatay sa ating mga kalaban, kaya din nating
pumatay sa mga kasamahang magtataksil. x x x.
4. In the course of the meeting,
Senator Honasan presented the plan of action to achieve the goals of the NRP,
i.e., overthrow of the government under the present leadership thru armed
revolution and after which, a junta will be constituted to run the new
5. The crime of coup detat was
committed on 27 July 2003 by military personnel who occupied Oakwood. Senator
Honasan and various military officers, one member of his staff, and several
John Does and Jane Does were involved in the Oakwood incident.
The above allegations determine whether or not petitioner
committed the alleged crime as a public officer in relation to his office.
If it was in relation to his office, the crime falls under the exclusive
original jurisdiction of the Sandiganbayan. It is the Ombudsman who has the primary
jurisdiction to investigate and prosecute the complaint for coup detat,
Section 4 of P.D. No. 1606, as amended, defines the jurisdiction of
the Sandiganbayan as follows:chanroblesvirtua1awlibrary
SECTION 4. Jurisdiction. The Sandiganbayan shall exercise
exclusive original jurisdiction in all cases involving:chanroblesvirtua1awlibrary
A. Violations of Republic No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter
II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more
of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:chanroblesvirtua1awlibrary
(1) Officials of the
executive branch occupying the positions of regional director and higher,
otherwise classified as Grade 27 and higher, of the Compensations and
Position Classification Act of 1989 (Republic Act No. 67 58),
governors, vice-governors, members of the Sangguniang Panlalawigan, and
assessors, engineers, and other provincial department
(b) City mayors,
vice-mayors, members of the Sangguniang Panlungsod, city treasurers, assessors,
engineers, and other city department heads;chanroblesvirtuallawlibrary
(c) Officials of the
diplomatic service occupying the position of consul and higher;chanroblesvirtuallawlibrary
(d) Philippine Army
and air force colonels, naval captains, and all officers of higher rank;chanroblesvirtuallawlibrary
(e) Officers of the
Philippine National Police while occupying the position of provincial director
and those holding the rank of senior superintendent or higher;chanroblesvirtuallawlibrary
(f) City and
provincial prosecutors and their assistants, and officials and prosecutors in
the Office of the Ombudsman and special prosecutor;chanroblesvirtuallawlibrary
directors or trustees, or managers of government-owned or controlled
corporations, state universities or educational institutions or foundations;chanroblesvirtuallawlibrary
(2) Members of Congress or
officials thereof classified as Grade 27 and up under the Compensation and
Position Classification Act of 1989;chanroblesvirtuallawlibrary
(3) Members of the
judiciary without prejudice to the provisions of the Constitution;chanroblesvirtuallawlibrary
(4) Chairman and members
of the Constitutional Commissions, without prejudice to the provisions of the
(5) All other national and
local officials classified as Grade 27 or higher under the Compensation and
Position Classification Act of 1989.
offenses or felonies whether simple or complexed with other crimes committed by
the public officials and employees mentioned in Subsection a of this section in
relation to their office.
c. Civil and criminal
cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14
and 14-A, issued in 1986.
Section 15 of Republic Act 6770, or the Ombudsman Act of 1989,
1) 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 his primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases; x x x (Emphasis supplied)cralawlibrary
Under the above provisions, what determines the Sandiganbayans
jurisdiction is the official position or rank of the offender, that is, whether
he is one of those public officers enumerated therein.
Petitioner, being a Senator, occupies a government position
higher than Grade 27 of the Compensation and Position Classification Act of
1989. In fact, he holds the third highest position and rank in the
Government. At the apex, the President stands alone. At the second level, we
have the Vice-President, Speaker of the House, Senate President and Chief
Justice. Clearly, he is embraced in the above provisions.
Following the doctrine of primary jurisdiction, it is the
Ombudsman who should conduct the preliminary investigation of the charge of coup
detat against petitioner. The DOJ should refrain from exercising such
The crux of the jurisdiction of the DOJ lies in the meaning of
in relation to their office.
The respondents start their discussion of in relation to public
office with a peculiar presentation. They contend that the duties of a
Senator are to make laws, to appropriate, to tax, to expropriate, to canvass
presidential elections, to declare the existence of a state war, to give
concurrence to treaties and amnesties, to propose constitutional amendments, to
impeach, to investigate in aid of legislation, and to determine the Senate
rules of proceedings and discipline of its members. They maintain that the
alleged acts done to overthrow the incumbent government and authorities by
arms and with violence cannot be qualified as acts reminiscent of the
discharge of petitioners legislative duties as Senator.1 cralawred
The allegations in the complaint and in the pleadings of the DOJ,
the Solicitor General, and the Ombudsman (who is taking their side) charging
petitioner with coup detat show hat he was engaged in a discussion of
his National Recovery Program (NRP),
corruption in government, and the need for
reform. The NRP is a summary of what he has introduced and intended to
introduce into legislation by Congress. There is no doubt, therefore, that the
alleged coup detat was committed in relation to the performance of his
official duty as a Senator.
The ponencia is a departure or reversion from established
doctrine. Under the principle of stare decisis, the Court should, for
the sake of certainty, apply a conclusion reached in one case to decisions
which follow, if the facts are substantially similar. As stated in Santiago v. Valenzuela2, stare decisi et non quieta movere. Stand by the decisions and disturb not
what is settled.
In Deloso v. Domingo3,
where the Governor of Zambales and his military and police escorts ambushed the
victims who were passing by in a car, we held that the multiple murders were
committed in relation to public office. In Cunanan v. Arceo4,
ordered his co-accused to shoot the victims. We ruled that the murder was in
relation to public office. In Alarilla v. Sandiganbayan 5,
the town mayor aimed a gun and threatened to kill a councilor of the
municipality during a public hearing. We concluded that the grave threats were
in relation to the mayors office. Following these precedents, I am convinced
that petitioners discourse on his National Recovery Program is in relation to
The respondents state that the DOJ is vested with jurisdiction to
conduct all investigations and prosecution of all crimes. They
cite PD 1275, as amended by PD 1513, and the Revised Administrative Code of
1987 as the source of this plenary power.
While the DOJ has a broad general jurisdiction over crimes found
in the Revised Penal Code and special laws, however, this jurisdiction is not
plenary or total. Whenever the Constitution or statute vests jurisdiction over
the investigation and prosecution of certain crimes in an office, the DOJ has
no jurisdiction over those crimes. In election offenses, the Constitution
vests the power to investigate and prosecute in the Commission on Elections.6 In crimes
committed by public officers in relation to their office, the Ombudsman is
given by both the Constitution and the statute the same power of investigation
and prosecution.7 These powers may not be exercised by the DOJ.
The DOJ cannot pretend to have investigatory and prosecutorial
powers above those of the Ombudsman. The Ombudsman is a constitutional officer
with a rank equivalent to that of an Associate Justice of this Court. The
respondents Prosecution Office investigates and prosecutes all kinds of
offenses from petty crimes, like vagrancy or theft, to more serious crimes,
such as those found in the Revised Penal Code. The Ombudsman, on the other
hand, prosecutes offenses in relation to public office committed by public
officers with the rank and position classification of Grade 27 or higher. It
is a special kind of jurisdiction which excludes general powers of other
I agree with the petitioner that a becoming sense of courtesy,
respect, and propriety requires that the constitutional officer should conduct
the preliminary investigation and prosecution of the complaint against him and
not a fifth assistant city prosecutor or even a panel of prosecutors from the
DOJ National Prosecution Service.
I do not believe that a mere agreement, such as OMB-DOJ Joint
Circular No. 95-001, can fully transfer the prosecutory powers of the Ombudsman
to the DOJ without need for deputization in specific cases. As stated
by the petitioner, the DOJ cannot be given a roving commission or authority to
investigate and prosecute cases falling under the Ombudsmans powers anytime
the DOJ pleases without any special and explicit deputization. On this point,
I agree with Justice Jose C. Vitug that the Joint Circular must be understood
as a mere working arrangement between the Office of the Ombudsman and the DOJ
that must not be meant to be such a blanket delegation to the DOJ as to
generally allow it to conduct preliminary investigation over any case
cognizable by the Ombudsman.
Petitioner further raises a due process question. He accuses the
DOJ of bias, partiality, and prejudgment. He states that he has absolutely no
chance of being cleared by the respondent DOJ panel because it has already
decided, before any presentation of proof, that he must be charged and arrested
As stated by the petitioner, there are precedents to the effect
that where bias exists, jurisdiction has to be assumed by a more objective
office. In Panlilio v. Sandiganbayan,8 we recognized that the PCGG has the authority to investigate the case, yet
we ordered the transfer of the case to the Ombudsman because of the PCGGs
marked bias against the petitioner.
In Conjuangco v. PCGG,9 we held that there is a denial of due process where the PCGG showed marked
bias in handling the investigation. In Salonga v. Cruz Pao,10 where the preliminary
investigation was tainted by bias and partiality, we emphasized the right of an
accused to be free, not only from arbitrary arrest and punishment but also from
unwarranted and biased prosecution.
The petitioners pleadings show the proofs of alleged bias. They
may be summarized as follows:chanroblesvirtua1awlibrary
First, on July 27, 2003 when the Oakwood incident was just
starting, DILG Secretary Lina and National Security Adviser Roilo Golez went on
a media barrage accusing petitioner of complicity without a shred of evidence.
Second, petitioner was approached by Palace emissaries, Velasco,
Defensor, Tiglao, and Afable to help defuse the incident and ask mutineers to
surrender. Then the request was distorted to make it appear that he went there
to save his own skin.
Third, even before any charge was filed, officials of the DOJ were
on an almost daily media program prematurely proclaiming petitioners guilt.
How can the DOJ conduct an impartial and fair investigation when it has already
found him guilty?chanroblesvirtualawlibrary
Fourth, petitioner was given five days to answer Matillanos
complaint but later on, it was shortened to three days.
Fifth, petitioner filed a 30 page Reply but the DOJ Order was
issued at once, or only after two days, or on Sept. 10, 2003. The Order did
not discuss the Reply, but perfunctorily glossed over and disregarded it.
The petitioner states that the DOJ is constitutionally and
factually under the control of the President. He argues that:chanroblesvirtua1awlibrary
No questionable prosecution of an opposition Senator who has
declared himself available for the Presidency would be initiated without the
instigation, encouragement or approval of officials at the highest levels of
the Administration. Justice requires that the Ombudsman, an independent
constitutional office, handle the investigation and prosecution of this case.
The DOJ cannot act fairly and independently in this case. In fact, all of the
actions the DOJ has taken so far have been marked by bias, hounding and
And finally, the charges laid against Senator Honasan are unfounded
concoctions of fertile imaginations. The petitioner had no role in the Oakwood
mutiny except the quell and pacify the angry young men fighting for a just
cause. Inspiration perhaps, from his National Recovery Program, but no
marching orders whatsoever.
Prosecutors, like Caesars wife, must be beyond suspicion. Where
the test of the cold neutrality required of them cannot be met, they must yield
to another office especially where their jurisdiction is under question. The
tenacious insistence of respondents in handling the investigation of the case
and their unwillingness to transfer it to the Ombudsman in the face of their
questionable jurisdiction are indications of marked bias.
WHEREFORE, I vote to GRANT the petition and to order the
Department of Justice to refrain from conducting preliminary investigation of
the complaint for coup detat against petitioner for lack of
Memorandum of the Ombudsman, pp. 13 to 15; Memorandum of the DOJ Panel, pp. 15
G.R. No. 90591, November 21, 1990, 191 SCRA 545.
G.R. No. 11615, March 1, 1995, 242 SCRA 88.
G.R. No. 136806, August 22, 2000, 338 SCRA 485.
Section 2, Art. IX-C, Constitution.
Art. XI, id
.; Section 4, PD 1606, as amended; Section 15,
G.R. No. 92276, June 26, 1992, 210 SCRA 421.
G.R. NOS. 92319-20, October 2, 1990, 190 SCRA 226.
G.R. No. L-59524, February 18, 1985, 134 SCRA 438.
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