Honasan II v. Panel of Investigating Prosecutors of the DOJ : 159747 :
April 13, 2004 : J. Vitug : En Banc : Separate Opinion
Preliminary investigation is an initial step in the indictment of
an accused; it is a substantive right, not merely a formal or a technical
requirement,1 which an accused can avail himself of in full measure. Thus, an accused is
entitled to rightly assail the conduct of an investigation that does not accord
with the law. He may also question the jurisdiction or the authority of the
person or agency conducting that investigation and, if bereft of such
jurisdiction or authority, to demand that it be undertaken strictly in
conformity with the legal prescription.2 cralawred
The Ombudsman is empowered3 to, among other things, 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 this primary jurisdiction, it may, at any
stage, take over from any agency of Government the investigation of such
cases. This statutory provision, by and large, is a restatement of the
constitutional grant to the Ombudsman of the power to investigate and prosecute
any act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal x x x.4 cralawred
The Panel of Investigating Prosecutors of the Department of
Justice, in taking cognizance of the preliminary investigation on charges of coup
detat against petitioner Gregorio Honasan, relies on OMB-DOJ Circular No.
95-001. That joint circular must be understood as being merely a working
arrangement between the Office of the Ombudsman (OMB) and the Department of
Justice (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 OMB.
While Section 31 of Republic Act No. 6770 states that the
Ombudsman may designate or deputize any fiscal, state prosecutor or lawyer in
the government service to act as special investigator or prosecutor to assist
in the investigation and prosecution of certain cases, the provision cannot be
assumed, however, to be an undefined and broad entrustment of authority. If it
were otherwise, it would be unable to either withstand the weight of burden to
be within constitutional parameters or the proscription against undue
delegation of powers. The deputized fiscal, state prosecutor or government
lawyer must in each instance be named; the case to which the deputized official
is assigned must be specified; and the investigation must be conducted under
the supervision and control of the Ombudsman. The Ombudsman remains to have
the basic responsibility, direct or incidental, in the investigation and
prosecution of such cases.
The Sandiganbayan law5 grants to the Sandiganbayan exclusive original jurisdiction over offenses or
felonies, whether simple or complexed with other crimes, committed by the
public officials, including members of Congress, in relation to their office.
The crime of coup detat, with which petitioner, a member of the Senate,
has been charged, is said to be closely linked to his National Recovery
Program, a publication which encapsules the bills and resolutions authored or
sponsored by him on the senate floor. I see the charge as being then related
to and bearing on his official function.
On the above score, I vote to grant the petition.
Sandiganbayan, 352 SCRA 587.
Mondia, Jr. v.
Deputy Ombudsman, 346 SCRA 365.
See Republic Act No. 6770 in relation to Republic Act No. 8249.
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