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Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 24 2004.

G.R. No. 161688 (Gov. Miguel D. Escobar, et al. vs. Commission on Elections en banc, et al.)

At bar is a petition for prohibition and mandamus with prayer for preliminary injunction, assailing the December 19, 2003 Order1 of the Sarangani Regional Trial Court (RTC), Branch 38 in Civil Case No. 34-03 which dismissed petitioners' petition for "prohibition, mandamus, injunction" seeking to enjoin the Deputy Ombudsman for Mindanao from enforcing his Joint Order,2 dated October 29, 2003, which required petitioners to submit their respective counter-affidavits.

On August 1, 2003 and September 10, 2003, separate complaints were filed with the Ombudsman for Mindanao against petitioners Governor Miguel D. Escobar and other elective and appointive officials of the Provincial Government of Sarangani Province: (1) Case No. OMB-M-C-03-0487-J for malversation of public funds through falsification of public documents and violation of Section 3(e) of RA 3019 and (2) Case No. OMB-M-A-03-303-J for grave misconduct and dishonesty.

In both complaints, petitioners were accused of committing anomalous disbursements of public funds to cooperatives and ghost projects.

A special audit team of the Commission on Audit, Sarangani Province, headed by respondent Helen M. Cailing was created to conduct an investigation of the alleged anomalous transactions.

On August 8, 2003, the special audit team submitted its fact-finding investigation report. On the basis thereof, the Deputy Ombudsman for Mindanao issued a Joint Order dated October 29, 2003 requiring petitioners to file their respective counter-affidavits.

Instead of filing their counter-affidavits, petitioners filed at the RTC of Sarangani Province a petition for prohibition and mandamus, asking the court to enjoin the Ombudsman for Mindanao from conducting its preliminary investigation.

On December 5, 2003, the Sarangani RTC issued a temporary restraining order.

On December 19, 2003, the Regional Trial Court issued the assailed order dismissing the petition for having been filed prematurely and for lack of jurisdiction:

Given the factual circumstances obtaining in this case, this Court believes that petitioners' resort before this court for injunctive relief, instead of complying the questioned order for petitioners to submit their respective counter-affidavits, cannot be sustained on the ground of prematurity and for lack of jurisdiction.

In this case, the petitioners failed to show that respondent Ombudsman have (sic) clearly abused its discretion x x x.

WHEREFORE, considering the foregoing, the above entitled petition is hereby ordered Dismissed for lack of jurisdiction.3

Petitioners filed the instant consolidated petition for certiorari, prohibition and mandamus asking this Court to:

1) Declare as UNCONSTITUTIONAL Sec. 1 of Resolution No. 6456 , (particularly in relation to par. (x), Sec. 261 of the Omnibus Election [Code]), which was promulgated by respondent COMELEC, En Banc , on December 10, 2003, xxx.

2) Declare the "Order" dismissing the "Petition" in Special Civil Case No. 34-03 (dated December 19, 2003), issued by respondent Judge, as erroneous and null and void ab initio , since respondent Judge has acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, x x x. 4

Petitioners filed their urgent motion for reconsideration on December 29, 2003, which is yet to be resolved. Unable to await said resolution, they filed the instant consolidated petition capitalizing on the forthcoming elections to justify their failure to exhaust all remedies. They reason that "the extreme urgency of the situation [brought about by] the start of the campaign period" is sufficient ground for the Court to dispense with the resolution of their motion for reconsideration pending before the trial court.

Quite obviously, petitioners seek to prevent the possible imposition of a preventive suspension on them which is yet to be ordered by respondent Deputy Ombudsman for Mindanao. According to them, there is a pending motion for that purpose filed on January 15, 2004.

At the outset, we find the instant petition procedurally flawed because generally special civil actions for certiorari will not lie unless the aggrieved party has no other plain, speedy and adequate remedy in the ordinary course of law, such as a timely motion for reconsideration which will allow the lower court to correct its alleged error.4 Only when a motion for reconsideration is filed and subsequently denied can petitioners avail of the remedy of the writ of certiorari.5

Moreover, even if the Court were to ignore said lapse, the petition must still fail. Sections 14 and 21 of RA 6770, otherwise known as the Ombudsman Act of 1989, are pertinent:

Section 14. Restrictions. - No Writ of Injunction shall be issued by any court to delay an investigation being conducted by the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman.

No Court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman, except the Supreme Court on pure question of law.

Section 21. Officials Subject To Disciplinary Authority. Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary.

The authority of the Ombudsman to conduct the subject preliminary investigation emanates from the Constitution itself. Sections 12 and 13 of Article XI provide:

SEC. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient.6 The Supreme Court has generally adopted, quite aptly, a policy of non-interference in the exercise of the Ombudsman's constitutionally mandated powers.7

Petitioners attempt to raise the issue of the constitutionality of Section 1 of COMELEC Resolution No. 6456 regarding the prohibition against the suspension of elective provincial, city, municipal or barangay officials during the election period (December 15, 2003 to June 9, 2004) without prior approval of the COMELEC.

This issue calls for the Court's exercise of judicial review. However, for the Court to exercise this power, the following requisites must be present. There must be an actual case or controversy;8 the question of constitutionality is ripe for adjudication;9 it must be raised by the proper party;10 it must be raised at the earliest possible opportunity11 and there must be a necessity for deciding the constitutional question.

The instant petition fails to meet said requirements. The Court must thus decline to rule on the constitutionality of Section 1 of COMELEC Resolution No. 6456. The Court has no authority to pass upon issues of constitutionality through advisory opinions. Neither does it have the authority to resolve hypothetical or feigned constitutional problems12 such as that raised in this petition.

WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.

Puno, J., on leave.

Very truly yours,

LUZVIMINDA D. PUNO
Clerk of Court

By:

(Sgd.) LUISA D VILLARAMA

Assistant Clerk of Court