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^{DISSENTING OPINION}

PARDO, J.:

I am constrained to dissent. Our submission is that the Ombudsman exercises investigatory and prosecutorial powers only in cases cognizable by the Sandiganbayan in its original jurisdiction. The Constitution and the law did not create the office of Ombudsman to be a super prosecutor or fiscal of offenses committed by public officers and employees. That is not the concept of an Ombudsman. His powers are only those expressly granted by the Constitution or the law, nothing more. We explain why.

The constitution as well as RA 6770, ¹ has endowed the Ombudsman with a wide latitude of investigatory and prosecutory powers virtually free from legislative, executive or judicial intervention of offenses committed by public officers. ² Thus, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases. ³cräläwvirtualibräry

The powers, functions and duties of the Office of the Ombudsman are clearly provided in section 13, Article XI of the 1987 Constitution, as follows:

(1) [to] 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.

(2) [to] direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties.

xxx xxx xxx

In line with the aforestated constitutional provisions, then President Corazon C. Aquino signed Executive Order No. 244 limiting the Special Prosecutors authority, thus:

Section 2 The Office of the Special Prosecutor shall exercise powers presently exercised by the Tanodbayan except those conferred on the Office of the Ombudsman under the Constitution.

Then, too, Section 17 of P.D. No. 1630 provides that:

The Office of Tanodbayan (now, Office of the Special Prosecutor) shall have the exclusive authority to conduct preliminary investigation of all cases cognizable by the Sandiganbayan;

Section 11, subparagraph 4 (c) of R.A. No. 6770, states that:

The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers:

(a) to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan. ⁴cräläwvirtualibräry

It is confuted by relevant provisions of the Ombudsman Act of 1989 (RA 6770) which inter alia (1) confers on the Office of the Special Prosecutor- an organic component of the Office of the Ombudsman under the supervision and control of the Ombudsman- the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan (Sec. 11), and (2) recognizes the primary jurisdiction of the Office of the Ombudsman over cases cognizable by the Sandiganbayan and (its power) in the exercise of this primary jurisdiction, to take over, at any stage, from any investigatory agency of Government, the investigation of such cases (Sec. 15). Moreover, pursuant to Department Circular No. 50, dated November 6, 1991, jointly promulgated by Ombudsman Conrado M. Vasquez and Acting Secretary Silvestre Bello III of the Department of Justice, it is the Ombudsmans responsibility and prerogative to approve the resolution of the investigating prosecutor who conducts the preliminary investigation of a crime cognizable by the Sandiganbayan, and to file the corresponding information with said court.

Also germane is Administrative Order No. 8 of the Ombudsman, dated November 8, 1990, viz:

For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts, the difference between the two, aside, from the category of the courts wherein they are filed is on the authority to prosecute, such cases.

The power to investigate or conduct a preliminary investigation in any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or city Prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular courts, the control and supervision by the Office of he Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigation agencies of the government in the prosecution of the cases of the government in the prosecution of cases cognizable by regular courts. ⁵cräläwvirtualibräry

(1) The Ombudsman has exclusive power to conduct preliminary investigations, file and prosecute criminal cases falling within the original jurisdiction of the Sandiganbayan.

The Office of the Ombudsman has the sole power to 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. ⁶ The Special Prosecutor, an organic component of the office of the Ombudsman ** under the supervision and control of the Ombudsman, ⁷ has the power to conduct preliminary investigation, file and prosecute cases within the jurisdiction of the Sandiganbayan. ⁸cräläwvirtualibräry

In Zaldivar v. Sandiganbayan, ⁹ the Court held that it is the Ombudsman and no other who has the right to conduct preliminary investigations and direct the filing of criminal cases with the Sandiganbayan. The prosecution may be undertaken by the Office of the Special Prosecutor, under the supervision and control of the Ombudsman.

Under the Revised Rules of Criminal Procedure, ¹⁰ the Ombudsman has authority to conduct preliminary investigation of all cases and approve the filing of complaint or information cognizable by the Sandiganbayan in the exercise of its original jurisdiction. ¹¹cräläwvirtualibräry

(2) The power of the Ombudsman to investigate cases cognizable by the regular courts is shared with public prosecutors.

The Ombudsman may investigate criminal cases involving public officials regardless of whether the cases fall within jurisdiction of the Sandiganbayan or the regular courts. He may, however, not directly file informations with the regular courts. He must refer the result of his preliminary investigation to the proper city or provincial prosecutor or chief state prosecutor for the filing of the proper information with the regular courts. ¹²cräläwvirtualibräry

(3) The Ombudsmans power to prosecute is limited to all cases cognizable by the Sandiganbayan. In cases filed with or cognizable by the regular courts, even so called Ombudsman cases,¹³ only public prosecutors have the express power to prosecute such cases.

Generalia specialibus non derogant. - Where there is a particular or special provision in the statute and also a general one, the special provision prevails in the sense that the general provisions cannot derogate from the special. ¹⁴ Thus, we construe R.A. 6770, the Ombudsman law. The Ombudsman shall investigate and prosecute on its own or on complaint by any person, any illegal, unjust, improper or inefficient act or omission of any public officer or employee, office or agency over cases within the original jurisdiction of the Sandiganbayan.

This way, every word contained in Sec. 15, R.A. 6770, is given effect. It is a well established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the lawmaking body is presumed to know the meaning of the words employed in the statute and to have used them advisedly. ¹⁵ The meaning of any law is not to be extracted from any single part or from an isolated clause or sentence. There must be a general consideration of the act as a whole. Every part of the statute must be considered together and kept subservient to the general intent of the enactment, not separately and independently. ¹⁶ The cardinal rule in statutory construction is that the particular words, clauses and phrases should not be studied as detached and isolated expressions, but the whole and every part of the statute must be considered in fixing the meaning of any of its parts and in order to produce a harmonious whole. A statute must be so construed as to harmonize and give effect to all its provisions whenever possible. ¹⁷cräläwvirtualibräry

Under the Article XI, Section 13 of the Constitution, the powers of the Office of the Ombudsman can be categorized as investigatory, directory and recommendatory. The power to investigate includes only the power to conduct an inquiry, judicial or otherwise, for the discovery and collection of facts concerning the matter or matters involved. ¹⁸ The power to direct involves the power to guide, order, command or instruct. ¹⁹ The power to recommend includes the power to give advice, exhortation or indorsement, which is essentially persuasive in character, not binding upon the party to whom it is made. ²⁰ this grant of powers by the Constitution is consistent with the function of an Ombudsman, to wit: It is an independent, high level officer, who receives complaints, who pursues inquiries into the matters involved and who makes recommendations for suitable action. He makes periodic reports. His remedial weapons are persuasion, criticism and publicity. ²¹ [B]eholden to no one, [he] acts as the champion of the people and the preserver of the integrity of public service. ²²cräläwvirtualibräry

However, the grant of power outside the essential powers prescribed in the Constitution (i.e. investigatory, directory and recommendatory) must be express and strictly construed. ²³Thus, the power to prosecute cases cognizable by regular courts can not be implied. When a power is not essential to the accomplishment of the principal purposes for which that power was created, it cannot be granted by implication. ²⁴cräläwvirtualibräry

We note that the while the Ombudsman law ²⁵grants the Ombudsman the power to prosecute criminal cases within the original jurisdiction of the Sandiganbayan, it is silent as to whether the Ombudsman can prosecute cases within the jurisdiction of the regular courts. The Ombudsman law expressly identifies the Sandiganbayan as the venue where it can exercise prosecutorial powers of cases involving public officers within its original jurisdiction.

Clearly then, the Ombudsman does not have the power to prosecute criminal cases within the original jurisdiction of the regular courts. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. ²⁶cräläwvirtualibräry

IN VIEW WHEREOF , I vote to DENY the Ombudsmans Motion For Leave to Admit Motion for Further Clarification.

¹ An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman.

² Espinosa v. Ombudsman, G.R. No. 135775, October 19, 2000.

³ R.A. 6770, Section 15.

⁴ Velasco v. Hon. Casaclang, 355 Phil. 815, 828-829 [1998].

⁵ Quion v. Sandiganbayan, 338 Phil. 290, 303-304 [1997].

⁶ Espinosa v. Ombudsman, supra, Note 2.

⁷ Quion v. Sandiganbayan, supra, Note 5, p. 303.

⁸ R.A. 6770, Section 11 (4) (a); Quion v. Sandiganbayan, supra, Note 5.

⁹ 160 SCRA 843 [1988].

¹⁰ Effective December 1, 2000.

¹¹ Rule 112, Sec 4, Revised Rules of Criminal Procedure.

¹² R.A. No. 6770, Sec. 15 (3).

¹³ Ombudsman cases are those cases cognizable by the regular courts, not falling under the jurisdiction of the Sandiganbayan but which involves any act or omission of any public official, employees, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. (R.A. 6770, Sec. 15[1]) Under Administrative Order No. 8, dated November 8, 1990 of the Office of the Ombudsman, for purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. (Gozos v. Tac-an, 300 SCRA 265, 275 [1998]).

¹⁴ Lichauco v. Apostol, 44 Phil. 138 [1922]; Manila Railroad Co. v. Collector of Customs, 52 Phil. 950 [1929].

¹⁵ Marsaman Manning Agency, Inc. v. National Labor Relations Commission, 313 SCRA 88, 90 [1999], citing Aparri v. court of Appeals, 127 SCRA 231, 241 [1984].

¹⁶ Tamayo v. Gsell, 35 Phil. 953 [1916].

¹⁷ National Tobacco Administration v. Commission on Audit, 311 SCRA 755, 769 [1999].

¹⁸ Anti-Graft League of the Philippines, Inc. v. Oreta, 99 SCRA 648 [1980].

¹⁹ Blacks Law Dictionary, Fourth Edition, p. 546.

²⁰ Cuyegkeng v. Cruz, 108 Phil. 1155 [1960].

²¹ Ruperto G. Martin quoting The Ombudsman, by Delegate Rodolfo P. Robles of the 1987 Constitutional Convention, p. 1, Law and Jurisprudence on the Freedom Constitution of the Philippines, 1986, Manila, p. 706.

²² Espinosa v. Ombudsman, supra, Note 2.

²³ Hector S. de Leon, The Law on Public Officers and Election Law, Third Edition, 1997, Rex Book Store, Manila, p. 125.

²⁴ Lo Cham v. Ocampo, 77 Phil. 635 [1946].

²⁵ R.A. No. 6770.

²⁶ R.A. No. 8249, Sec. 4.