ANGELES V OMBUDSMAN (2012)

SECOND DIVISION

[ G.R. Nos. 189161 & 189173, March 21, 2012 ]

JUDGE ADORACION G. ANGELES, PETITIONER, VS. HON. MA.MERCEDITAS N. GUTIERREZ, OMBUDSMAN; HON. ORLANDO C.CASIMIRO, OVERALL DEPUTY OMBUDSMAN; HON. SYLVIA A.

SEVERO, GRAFT INVESTIGATOR AND PROSECUTION OFFICER I;HON. MARILOU B. ANCHETA-MEJICA, ACTING DIRECTOR, PIAB-D;HON. JOSE T. DE JESUS, JR., ASSISTANT OMBUDSMAN, PAMO;ALL OF THE OMBUDSMAN; AND SSP EMMANUEL Y. VELASCO,

RESPONDENTS.

D E C I S I O N

SERENO, J.:

The Case

This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Court. The Court is once again asked to determine whether the Office of the Ombudsman (Ombudsman) committed grave abuse of discretion in the exercise of its discretionary powers to investigate and prosecute criminal complaints.

This Petition dated 01 September 2009 seeks to set aside the Joint Order[1] dated 21 March 2007 of the Ombudsman (the questioned Joint Order) exonerating respondent Senior State Prosecutor Emmanuel Y. Velasco (respondent Velasco or respondent) from the charges filed by petitioner Judge Adoracion G. Angeles (petitioner Judge Angeles or petitioner).

The Facts

The Complaint filed with the Ombudsman

Petitioner Judge Angeles was, at the time this Petition was filed, thePresiding Judge of Branch 121 of the Caloocan City Regional Trial Court (RTC); while private respondent Velasco was a senior state prosecutor at the Department of Justice (DOJ).

On 20 February 2007, petitioner Judge Angeles filed a criminal Complaint against respondent Velasco with the Ombudsman[2] and sought his indictment before the Sandiganbayan for the following acts allegedly committed in his capacity as a prosecutor:

1. Giving an unwarranted benefit, advantage or preference to the accused in a criminal case for smuggling by failing to present a material witness;

2. Engaging in private practice by insisting on the reopening of childabuse cases against petitioner;

3. Falsifying a public document to make it appear that a clarificatoryhearing on the child abuse Complaint was conducted.[3]

Failure to present a material witness

According to the Complaint, respondent Velasco, who was the trial prosecutor in a criminal case involving the smuggling of jewelry,[4] failed to present a material witness in the aforesaid case.[5] The witness, a gemmologist of the Bureau of Customs, was to testify on thetype of substance making up the pieces of smuggled jewelry.[6]

According to petitioner, considering the materiality of the gemmologist’s testimony, which respondent must have known of, since hewas the handling trial prosecutor of the case, his failure to offer the said testimony in court shows that he tried to suppress the evidence in favor of the accused in the said case. This act was alleged to be in violation of Section 3(e) of the Anti Graft and Corrupt Practices Act,[7] which considers as a corrupt practice the acts

of public officers that give unwarranted benefits to any private partythrough either manifest partiality, evident bad faith, or gross inexcusable negligence in the discharge of their official functions.[8]

The gemmologist, however, was eventually presented as a witness after respondent Velasco had filed a Motion to adduce additional evidence inthe said case.[9]

Insistence on the reopening of child abuse cases

The second act complained of refers to respondent Velasco’s filing of two Petitions to reopen the child abuse cases filed against petitionerJudge Angeles. Petitioner was previously charged with inflicting physical and psychological abuse on Maria Mercedes Vistan, her 13-year-old grandniece.[10] Respondent was the one who conducted the preliminary investigation of the Complaint for child abuse and later indicted petitioner for 21 counts thereof.[11] However, the DOJ later onreversed respondent Velasco’s recommendation[12] upon a Petition for Review filed by respondent. Consequently, the Informations, which had been filed in the meantime, were ordered withdrawn by the trial court.[13] Petitioner later filed an administrative Complaint against respondent for gross misconduct, gross ignorance of the law, incompetence, and manifest bad faith arising from the alleged malicious indictment.

According to petitioner, the move of respondent to reopen the child abuse cases was allegedly meant to exact vengeance for petitioner’s filing of the above-mentioned administrative Complaint.[14] Meanwhile, the two Petitions to reopen the child abuse cases, which were filed byrespondent in the DOJ and the Office of the President, were denied forhaving been filed in the wrong venues.

Petitioner alleges in her Complaint that since respondent Velasco was not the trial prosecutor in the said case, his unauthorized act of filing two Petitions to reopen the child abuse cases constituted a violation of Section 7(b)(2) of the Code of Conduct and Ethical Standards for Public Officials and Employees.[15] This code considers as

unlawful the acts of public officials and employees engaging in the private practice of their profession, unless authorized by the Constitution or by law.[16] This single act of moving to reopen the child abuse cases was the only instance of private practice imputed torespondent Velasco. No other act constituting private practice was cited by petitioner.

Falsification of Public Document

The alleged falsification of public document arose from the same preliminary investigation conducted by respondent in the child abuse cases mentioned above. According to petitioner Judge Angeles, respondent Velasco made it appear that he had conducted a clarificatory hearing on the Complaint for child abuse on 22 June 1999as shown in the Minutes[17] of the said hearing.[18] Petitioner alleges that Leonila Vistan, the witness who supposedly attended the hearing, was seriously sick and could not have appeared at the alleged clarificatory hearing.[19] Moreover, respondent had, in fact, resolved the cases two days earlier, on 20 June 1999, as shown by the date on the Resolution indicting petitioner. Thus, the latter alleges, the Minutes of the hearing on 22 June 1999 must have been falsified by respondent by making it appear that Leonila Vistan had participated inan inexistent proceeding. This act is in violation of Article 171 of the Revised Penal Code,[20] which criminalizes it as a falsification of a public document.[21]

The Decision of the Ombudsman

In the questioned Joint Order, the Ombudsman dismissed the charges against respondent Velasco. It found that after evaluation of the facts and evidence presented by complainant, there was no cause to conduct a preliminary investigation or an administrative adjudication with regard to the charges.

On the first charge of suppression of testimonial evidence in connection with the smuggling case, the Ombudsman dismissed the chargeon the ground that petitioner had no sufficient personal interest in the subject matter of the grievance.[22] The Ombudsman explained that

petitioner was neither one of the parties nor the presiding judge in the said criminal case and, therefore, had no personal interest in it.

Moreover, granting that the personal interest of petitioner was not inissue, respondent Velasco acted based on his discretion as prosecutor and his appreciation of the evidence in the case, and any lapse in hisjudgment cannot be a source of criminal liability. The Ombudsman said that it had no authority to investigate the prosecutor’s exercise of discretion, unless there was sufficient evidence that the exercise wastainted with malice and bad faith.[23]

The Ombudsman likewise dismissed the second charge of private practiceof profession on the ground of failure to exhaust administrative remedies.[24] It pointed out that petitioner should have first elevated her concern to the DOJ, which had primary jurisdiction over respondent’s actions and conduct as public prosecutor.[25] Moreover, theOmbudsman found that respondent Velasco was not engaged in private practice when he filed the two Petitions for the reopening of the child abuse cases against petitioner, since he was the investigating prosecutor of the said cases.[26]

Finally, on the falsification of a public document, which was also dismissed, the Ombudsman said that the issue should have been raised earlier, when petitioner Judge Angeles filed her Petition for Review of the Resolution of respondent Velasco. Moreover, petitioner should have substantiated the allegation of falsification, because the mere presentation of the alleged falsified document did not in itself establish falsification. The Ombudsman also ruled that with the belated filing of the charge and the reversal by the DOJ of respondentVelasco’s Resolution indicting petitioner, the materiality of the alleged falsified document is no longer in issue.[27]

Petitioner filed a Motion for Reconsideration[28] of the questioned Joint Order, which was denied by the Ombudsman for lack of merit.[29]

Hence, the present Rule 65 Petition.

Issue

Whether the Ombudsman committed grave abuse of discretion amounting tolack or excess of jurisdiction in dismissing the Complaint against respondent Velasco.

The Court’s Ruling

We dismiss the Petition.

I

Power of the Court over the Ombudsman’s Exerciseof its Investigative and Prosecutorial Powers

As a general rule, the Court does not interfere with the Ombudsman’s exercise of its investigative and prosecutorial powers without good and compelling reasons. Such reasons are clearly absent in the instantPetition.

At the outset, we emphasize that certiorari is an extraordinary prerogative writ that is never demandable as a matter of right. Also, it is meant to correct only errors of jurisdiction and not errors of judgment committed in the exercise of the discretion of a tribunal or an officer. This is especially true in the case of the exercise by theOmbudsman of its constitutionally mandated powers. That is why this Court has consistently maintained its well-entrenched policy of non-interference in the Ombudsman’s exercise of its investigatory and prosecutorial powers.[30]

General Rule of Non-Interferencewith the Plenary Powers of the Ombudsman

The general rule has always been non-interference by the courts in theexercise by the office of the prosecutor or the Ombudsman of its plenary investigative and prosecutorial powers. In Esquivel v. Ombudsman,[31] we explained thus:

The Ombudsman is empowered to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the corresponding information with the appropriate courts. Settled is the rule that the Supreme Court will not ordinarily interfere with the Ombudsman’s exercise of his investigatory and prosecutory powers without good and compelling reasons to indicate otherwise. Said exercise of powers is based upon the constitutional mandate and the court will not interfere in its exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman, but upon practicalityas well. Otherwise, innumerable petitions seeking dismissal of investigatory proceedings conducted by the Ombudsman will grievously hamper the functions of the office and the courts, in much the same way that courts will be swamped if they had to review the exercise of discretion on the part of public prosecutors each time they decided tofile an information or dismiss a complaint by a private complainant. (Emphasis supplied; citations omitted.)

In Presidential Commission on Good Government v. Desierto,[32] we further clarified the plenary powers of the Ombudsman. We emphasized that if the latter,using professional judgment, finds a case dismissible, the Court shallrespect that finding, unless the exercise of such discretionary power was tainted with grave abuse of discretion.

The Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto[33] explained the rationale for the plenary powers of the Ombudsman, which is virtually free from legislative, executive or judicial intervention. Its plenary powers were constitutionally designed to insulate it from outside pressure and improper influence. Accordingly, the Court has consistently respected and recognized, as we do now in this case, the independence and competence of the Ombudsman, as it acts as “the champion of the people and the preserver of the integrity of public service.”

The Discretionary Nature ofPreliminary Investigation

The determination by the Ombudsman of probable cause or of whether there exists a reasonable ground to believe that a crime has been committed, and that the accused is probably guilty thereof, is usuallydone after the conduct of a preliminary investigation. However, a preliminary investigation is by no means mandatory.

The Rules of Procedure of the Office of the Ombudsman (Ombudsman Rulesof Procedure),[34] specifically Section 2 of Rule II, states:

Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be: a) dismissed outright for want of palpable merit; b) referred to respondent for comment; c) indorsed to the proper government office or agency which has jurisdiction over thecase; d) forwarded to the appropriate officer or official for fact-finding investigation; e) referred for administrative adjudication; orf) subjected to a preliminary investigation.

Thus, the Ombudsman need not conduct a preliminary investigation upon receipt of a complaint. Indeed, we have said in Knecht v. Desierto[35] and later in Mamburao, Inc. v. Office of the Ombudsman[36] and Karaan v. Office of the Ombudsman[37] that should investigating officers find a complaint utterly devoid of merit, they may recommend its outright dismissal. Moreover, it is also within their discretion to determine whether or not preliminary investigation should be conducted.

The Court has undoubtedly acknowledged the powers of the Ombudsman to dismiss a complaint outright without a preliminary investigation in ThePresidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.[38]

We reiterate that the Ombudsman has full discretion to determine whether a criminal case should be filed, including whether a preliminary investigation is warranted. The Court therefore gives due deference to the Ombudsman’s decision to no longer conduct a preliminary investigation in this case on the criminal charges levelled against respondent Velasco.

II

No Grave Abuse of Discretion in theOmbudsman’s Evaluation of Evidence

This Court acknowledges exceptional cases calling for a review of the Ombudsman’s action when there is a charge and sufficient proof to showgrave abuse of discretion.

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction; or the exercise of power in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility. The abuse must be in a manner so patent and so gross as to amount to an evasion of a positiveduty or to a virtual refusal to perform the duty enjoined or to act atall in contemplation of law.[39]

The determination of grave abuse of discretion as the exception to thegeneral rule of non-interference in the Ombudsman’s exercise of its powers is precisely the province of the extraordinary writ of certiorari. However, we highlight the exceptional nature of that determination.

In this Petition, we do not find any grave abuse of discretion that calls for the Court’s exceptional divergence from the general rule.

Notably, the burden of proof to show grave abuse of discretion is on petitioner, and she has failed to discharge this burden. She merely states why she does not agree with the findings of the Ombudsman, instead of demonstrating and proving grave abuse of discretion. In herarguments, petitioner would also have us pass upon the factual findings of the Ombudsman. That we cannot do, for this Court is not a trier of facts.

Even if we were to extend liberally the exception to the general rule against the review of the findings of the Ombudsman, an examination ofthe records would show that no grave abuse of discretion was

demonstrated to warrant a reversal of the Joint Order dismissing the Complaint against respondent Velasco.

A. On the first charge of suppression of evidence

On the charge of suppression of evidence arising from the failure of respondent Velasco to present the testimony of a material witness, theOmbudsman found – and we defer to its findings – that he acted based on his discretion as prosecutor and on his appreciation of the evidence in the case, and any lapse in his judgment cannot be a sourceof criminal liability. The Ombudsman also found that there was no sufficient evidence that the failure of respondent to present the witness was tainted with malice; or that the failure of respondent to do so gave any private party unwarranted benefit, advantage or preference in the discharge of the former’s official administrative orjudicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.

Moreover, in G.R. No. 187596,[40] a case involving the same incidents and parties as the present Petition, this Court affirmed the factual findings of the Court of Appeals (CA). We take judicial notice of the CA’s factual finding that the charge of suppression of evidence by respondent in the smuggling case was dispelled by the Chief State Prosecutor himself in a Certification dated 17 October 2002.[41] The Certification vouching for the integrity and competence of respondent in his handling of the smuggling case states:

This is to certify that I had never called the attention nor even had castigated State Prosecutor EMMANUEL Y. VELASCO with regard to the wayhe handled the case of People of the Philippines versus Lintag, et al.(Pasay Regional Trial Court, Criminal Case Number 99-0129, for violation of the Tariff and Customs Code of the Philippines) specifically with regard to the aspect of the presentation of one of the prosecution’s witnesses, a gemologist (sic). In fact, SP Velasco successfully prosecuted said case.[42]

Thus, we find no grave abuse of discretion in the Ombudsman’s dismissal of the first charge.

However, we need to clarify that we cannot subscribe to the other reason for the Ombudsman’s dismissal of the charge pursuant to paragraph 4, Section 20 of the Ombudsman Act. The provision allows theOmbudsman to decide not to conduct the necessary investigation of any administrative act or omission complained of, if it believes that the complainant has no sufficient personal interest in the subject matter of the grievance. It is clear that, in relation to Section 19, Section20 of the Ombudsman Act applies only to administrative cases. As for Section 19, its subject heading is “Administrative Complaints.” It lists acts or omissions that may be the subject of a complaint on which the Ombudsman shall act. On the other hand, the subject heading of Section 20 is “Exceptions.” It lists the exceptional situations in which the Ombudsman has the option not to investigate an administrative complaint even when its subject is an act or omission listed in Section 19. That both Sections 19 and 20 of the Ombudsman Act apply only to administrative complaints is made even clearer in the Ombudsman Rules of Procedure. Their counterpart provisions appear in the Ombudsman Rules of Procedure under Rule III which outlines the procedure for administrative cases.[43] Clearly, then, paragraph 4, Section 20 of the Ombudsman Act applies only to administrative complaints. It should not have been used by the Ombudsman as a ground to dismiss the first charge, since the Complaint filed by petitioner before the Ombudsman was criminal in nature. The criminal nature of petitioner’s Complaint is clear from its prayer seeking the indictmentof respondent before the Ombudsman.[44] This lapse notwithstanding, we do not find any arbitrariness or whim in the manner that the Ombudsmandisposed of the charge. If there was any abuse of discretion at all, it was not grave.

B. On the second charge of private practice

The Ombudsman found that respondent Velasco was not engaged in privatepractice when he filed two Petitions for the reopening of the child abuse cases against petitioner on the ground that respondent was acting in his capacity as the investigating prosecutor of the said cases. Again, this Court takes judicial notice of the CA’s finding in

G.R. No. 187596, adverted to earlier, that respondent’s isolated act of filing a pleading did not necessarily constitute private practice of law.[45] We have, in fact, said so in Maderada v. Mediodea,[46] citing People v. Villanueva:[47]

Private practice has been defined by this Court as follows:

“Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of the same kind. In other words, it is frequent habitual exercise. Practice of law to fall within the prohibition of statute [referring to the prohibition for judges and other officials or employees of the superior courts or of the Office of the Solicitor General from engaging in private practice] has been interpreted as customarily or habitually holding one’s self out to the public, as a lawyer and demanding payment for such services. x x x.”

Clearly, by no stretch of the imagination can the act of respondent Velasco be considered private practice, since he was not customarily or habitually holding himself out to the public as a lawyer and demanding payment for those services. The appellate court also noted that, on the contrary, he filed the motion in good faith and in the honest belief that he was performing his duty as a public servant.[48]

Thus, the Ombudsman did not commit any grave abuse of discretion when it dismissed the second charge against respondent Velasco.

However, we again need to point out that we do not share the Ombudsman’s finding that the charge is dismissible on the ground of failure to exhaust administrative remedies pursuant to paragraph 1, Section 20 of the Ombudsman Act. As already explained earlier, the said provision applies only to administrative cases, while the Complaint before the Ombudsman was not administrative, but criminal, in nature. Still, we do not find any abuse of discretion when the Ombudsman proffered this ground for dismissing the second charge.

C. On the third charge of falsification of public document

Finally, the Ombudsman correctly found that the charge of falsification had not been substantiated, and that the mere presentation of the alleged manufactured document alone would not in itself establish falsification. To recall, petitioner Angeles claimed that Leonila Vistan could not have appeared before respondent Velasco because she was sick, but offered no supporting evidence. Also, it does not follow that a clarificatory hearing could not have been conducted, just because respondent Velasco had prepared a Resolution on 20 June 1999, two days before that hearing.

Moreover, as found by the CA in G.R. No. 187596 adverted to earlier, aclarificatory hearing was in fact conducted. The appellate court foundthat the declarations of petitioner could not prevail over the positive assertion of Percival Abril and Jesusa Hernandez, who testified that they had seen Leonila Vistan before Velasco at the clarificatory hearing on 22 June 1999.[49]

However, the Court differs with the Ombudsman on the latter’s pronouncement that the issue of falsification of public document should have been raised by petitioner earlier, when she filed her Petition for Review of the Resolution of respondent Velasco; and that,consequently, the charge of falsification of a public document was no longer in issue because of its belated filing. We draw attention to the fact that the Petition for Review of respondent’s Resolution indicting petitioner Judge Angeles was under an entirely different proceeding. The purpose of the Petition was to reverse the aforesaid Resolution, and not to exact criminal liability on respondent for the crime of falsification of a public document, as in the Complaint before the Ombudsman. Thus, it cannot be said that the issue of falsification of a public document in the criminal Complaint was raised belatedly, because the Complaint was not a continuation of the previous Petition for Review of respondent’s Resolution. The two proceedings were completely independent of each other. This lapse, however, did not constitute grave abuse of discretion.

In sum, this Court finds no compelling reason to depart from its long-standing policy of non-interference in the exercise by the Ombudsman

of its investigatory and prosecutorial powers which, as we have emphasized, are plenary.

Although the Court diverges from some of the conclusions reached by the Ombudsman, we find that its dismissal of the charges against respondent Velasco was arrived at after a rational deliberation. Such deliberation was shown by its reasoned disposition of the case in the exercise of its constitutionally mandated discretionary powers. The Ombudsman did not overstep the boundaries of its plenary powers and acted within the permissible limits. We do not find any arbitrariness or abuse that was so gross and patent in the manner it exercised its discretion as would warrant this Court’s reversal.

Absent a clear showing of grave abuse of discretion, we uphold the findings of the Ombudsman.

Final Note

Finally, the Court notes with strong disapproval both parties’ resort to abuse of the judicial processes of this Court. This is the third case we know of that the parties have filed against each other, and that has reached the Supreme Court.[50]

This fact is especially regrettable, considering that petitioner as judge and respondent as prosecutor should have been well-cognizant of our clogged court dockets and should have thus exercised more restraint in filing cases against each other. Canon 12 of the Code of Professional Responsibility enjoins a lawyer from filing multiple actions arising from the same cause and from misusing court process.[51]

Judging from the number of cases and the vengeful tone of the charges that the parties have hurled against each other in their pleadings, they seem more bent on settling what has become a personal score between them, rather than on achieving the ends of justice.[52]

The parties are warned against trifling with court process. This case shall, hopefully, serve as a reminder of their ethical and professional duties and put an immediate end to their recriminations.

OMBUDSMAN V. ANDUTAN (2011)

SECOND DIVISION

[ G.R. No. 164679, July 27, 2011 ]

OFFICE OF THE OMBUDSMAN, PETITIONER, VS. ULDARICO P.ANDUTAN, JR., RESPONDENT.

D E C I S I O N

BRION, J.:

Through a petition for review on certiorari, [1] the petitioner Office of the Ombudsman (Ombudsman) seeks the reversal of the decision [2] of theCourt of Appeals (CA), dated July 28, 2004, in "Uldarico P. Andutan, Jr. v. Office of the Ombudsman and Fact Finding and Intelligence Bureau (FFIB), etc.," docketed as CA-G.R. SP No. 68893. The assailed decision annulled and set aside the decision of the Ombudsman dated July 30, 2001, [3] findingUldarico P. Andutan, Jr. guilty of Gross Neglect of Duty.

THE FACTUAL ANTECEDENTS

Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and Duty Drawback Center of the Department of Finance (DOF). OnJune 30, 1998, then Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career officials or those occupying political positions to vacate their positions effective July 1, 1998. [4] On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the DOF. [5]

On September 1, 1999, Andutan, together with Antonio P. Belicena, former Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao, Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia); Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager, Devmark Textiles Ind. Inc., was criminally charged by the Fact Findingand Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of Public Documents, and violations of Section 3(a), (e)and (j) of Republic Act No. (R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. [6] As government employees, Andutan, Belicena and Malonzo were likewise administratively charged of Grave Misconduct, Dishonesty, Falsification of Official Documents and Conduct Prejudicial to the Best Interest of the Service. [7]

The criminal and administrative charges arose from anomalies in the illegal transfer of Tax Credit Certificates (TCCs) to Steel Asia, amongothers. [8]

During the investigation, the FFIB found that Steel Asia fraudulently obtained TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00). [9] The FFIB concluded that Belicena, Malonzo and Andutan - in their respective capacities - irregularly approved the "issuance of the TCCsto several garment/textile companies and allowing their subsequent illegal transfer" to Steel Asia. [10]

On November 11, 1999, the Ombudsman ordered the respondents therein (respondents) to submit their counter-affidavits. Only Malonzo complied with the order, prompting the Ombudsman to set a Preliminary Conference on March 13, 2000.

Upon the respondents' failure to appear at the March 20, 2000 hearing,the Ombudsman deemed the case submitted for resolution.

On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect of Duty. [11] Having been separated from the service, Andutan was imposed the penalty of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual disqualification from reinstatement and/or reemployment in any branch or instrumentality of the government, including government owned and controlled agencies or corporations. [12]

After failing to obtain a reconsideration of the decision, [13] Andutan filed a petition for review on certiorari before the CA.

On July 28, 2004, [14] the CA annulled and set aside the decision of theOmbudsman, ruling that the latter "should not have considered the administrative complaints" because: first, Section 20 of R.A. 6770 provides that the Ombudsman "may not conduct the necessary investigation of any administrative act or omission complained of if it believes that x x x [t]he complaint was filed after one year from the occurrence of the act or omission complained of"; [15] and second, the administrative case was filed after Andutan's forced resignation. [16]

THE PETITIONER'S ARGUMENTS

In this petition for review on certiorari, the Ombudsman asks the Court tooverturn the decision of the CA. It submits, first, that contrary to the CA's findings, administrative offenses do not prescribe after one yearfrom their commission, [17] and second, that in cases of "capital" administrative offenses, resignation or optional retirement cannot render administrative proceedings moot and academic, since accessory penalties such as perpetual disqualification and the forfeiture of

retirement benefits may still be imposed. [18]

The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory. Consistent with existing jurisprudence, the use of the word "may" indicates that Section 20 is merely directory or permissive. [19] Thus, it is not ministerial upon it to dismiss the administrative complaint,as long as any of the circumstances under Section 20 is present. [20] Inany case, the Ombudsman urges the Court to examine its mandate under Section 13, Article XI of the 1987 Constitution, and hold that an imposition of a one (1) year prescriptive period on the filing of cases unconstitutionally restricts its mandate. [21]

Further, the Ombudsman submits that Andutan's resignation from office does not render moot the administrative proceedings lodged against him, even after his resignation. Relying on Section VI(1) of Civil Service Commission (CSC) Memorandum Circular No. 38, [22] the Ombudsman argues that "[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servant's resignation is not a bar to his administrative investigation, prosecution and adjudication." [23] It is irrelevant thatAndutan had already resigned from office when the administrative case was filed since he was charged for "acts performed in office which areinimical to the service and prejudicial to the interests of litigants and the general public." [24] Furthermore, even if Andutan had already resigned, there is a need to "determine whether or not there remains penalties capable of imposition, like bar from reentering the (sic) public service and forfeiture of benefits." [25] Finally, the Ombudsman reiterates that its findings against Andutan are supported by substantial evidence.

THE RESPONDENT'S ARGUMENTS

Andutan raises three (3) counterarguments to the Ombudsman's petition.

First, Andutan submits that the CA did not consider Section 20(5) of R.A.6770 as a prescriptive period; rather, the CA merely held that the Ombudsman should not have considered the administrative complaint. According to Andutan, Section 20(5) "does not purport to impose a

prescriptive period x x x but simply prohibits the Office of the Ombudsman from conducting an investigation where the complaint [was] filed more than one (1) year from the occurrence of the act or omission complained of." [26] Andutan believes that the Ombudsman shouldhave referred the complaint to another government agency. [27] Further, Andutan disagrees with the Ombudsman's interpretation of Section 20(5). Andutan suggests that the phrase "may not conduct the necessaryinvestigation" means that the Ombudsman is prohibited to act on cases that fall under those enumerated in Section 20(5). [28]

Second, Andutan reiterates that the administrative case against him wasmoot because he was no longer in the public service at the time the case was commenced. [29] According to Andutan, Atty. Perez v. Judge Abiera [30] and similar cases cited by the Ombudsman do not apply since the administrative investigations against the respondents in those cases were commenced prior to their resignation. Here, Andutan urges the Court to rule otherwise since unlike the cases cited, he had already resigned before the administrative case was initiated. He further notes that his resignation from office cannot be characterized as "preemptive, i.e. made under an atmosphere of fear for the imminence of formal charges" [31] because it was done pursuant to the Memorandum issued by then Executive Secretary Ronaldo Zamora.

Having established the propriety of his resignation, Andutan asks the Court to uphold the mootness of the administrative case against him since the cardinal issue in administrative cases is the "officer's fitness to remain in office, the principal penalty imposable being either suspension or removal." [32] The Ombudsman's opinion - that accessory penalties may still be imposed - is untenable since it is a fundamental legal principle that "accessory follows the principal, andthe former cannot exist independently of the latter." [33]

Third, the Ombudsman's findings were void because procedural and substantive due process were not observed. Likewise, Andutan submits that the Ombudsman's findings lacked legal and factual bases.

ISSUES

Based on the submissions made, we see the following as the issues for our resolution:

I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from conducting an administrative investigation a year after the act was committed?

II. Does Andutan's resignation render moot the administrative case filed against him?

III. Assuming that the administrative case is not moot, are the Ombudsman's findings supported by substantial evidence?

THE COURT'S RULING

We rule to deny the petition.

The provisions of Section 20(5) are merely directory;the Ombudsman is not prohibited from conducting aninvestigation a year after the supposedact was committed.

The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has been settled by jurisprudence. [34] In Office of the Ombudsman v. De Sahagun, [35] the Court, speaking through Justice Austria-Martinez, held:

[W]ell-entrenched is the rule that administrative offenses do not prescribe [Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20, 2005, 470 SCRA 218;Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476;Heck v. Judge Santos, 467 Phil. 798, 824 (2004);Floria v. Sunga,420 Phil. 637, 648-649 (2001)]. Administrative offenses by their very nature pertain to the character of public officers and employees.In disciplining public officers and employees, the object sought is not the punishment of the officer or employee but the improvement of the public service and the preservation of the public's faith and confidence in our government [Melchor v. Gironella, G.R. No. 151138,

February 16, 2005, 451 SCRA 476, 481;Remolona v. Civil Service Commission,414 Phil. 590, 601 (2001)].

Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:

SEC. 20.Exceptions. - The Office of the Ombudsmanmaynot conduct the necessary investigation of any administrative act or omission complained of if it believes that:

x x x x

(5) The complaint was filed after one year from the occurrence of the act or omission complained of. (Emphasis supplied)

proscribes the investigation of any administrative act or omission if the complaint was filed after one year from the occurrence of the complained act or omission.

InMelchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to the prescription of the offense but to the discretion given to theOmbudsmanon whether it would investigate a particular administrative offense. The use of the word "may" in the provision is construed as permissive and operating to confer discretion [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute are clear, plain and free from ambiguity, they mustbe given their literal meaning and applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476, 481;National Federation of Labor v. National Labor Relations Commission,383 Phil. 910, 918 (2000)].

In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50],the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:

Petitioner argues that based on the abovementioned provision [Section 20(5) of RA 6770)], respondent's complaint is barred by prescription

considering that it was filed more than one year after the alleged commission of the acts complained of.

Petitioner's argument is without merit.

The use of the word "may" clearly shows that it is directory in natureand not mandatory as petitioner contends. When used in a statute, it is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced. Applying Section 20(5), therefore,it is discretionary upon the Ombudsman whether or not to conduct an investigation on a complaint even if it was filed after one year from the occurrence of the act or omission complained of. In fine, the complaint is not barred by prescription. (Emphasis supplied)

The declaration of the CA in its assailed decision that while as a general rule the word "may" is directory, the negative phrase "may not" is mandatory in tenor; that a directory word, when qualified by the word "not," becomes prohibitory and therefore becomes mandatory incharacter, is not plausible. It is not supported by jurisprudence on statutory construction. [emphases and underscoring supplied]

Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an administrative investigation after the lapse of one year, reckoned from the time the alleged act was committed. Without doubt, even if the administrative case was filed beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within itsdiscretion to conduct the administrative investigation.

However, the crux of the present controversy is not on the issue of prescription, but on the issue of the Ombudsman's authority to institute an administrative complaint against a government employee who had already resigned. On this issue, we rule in Andutan's favor.

Andutan's resignation divests the Ombudsmanof its right to institute an administrativecomplaint against him.

Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from conducting the investigation, the Ombudsman can no longer institute an administrative case against Andutan because the latter was not a public servant at the time the case was filed.

The Ombudsman argued - in both the present petition and in the petition it filed with the CA - that Andutan's retirement from office does not render moot any administrative case, as long as he is chargedwith an offense he committed while in office. It is irrelevant, according to the Ombudsman, that Andutan had already resigned prior tothe filing of the administrative case since the operative fact that determines its jurisdiction is the commission of an offense while in the public service.

The Ombudsman relies on Section VI(1) of Civil Service Commission Memorandum Circular No. 38 for this proposition, viz.:

Section VI.

1. x x x

An officer or employee under administrative investigation may be allowed to resign pending decision of his case but it shall be withoutprejudice to the continuation of the proceeding against him. It shall also be without prejudice to the filing of any administrative, criminal case against him for any act committed while still in the service. (emphasis and underscoring supplied)

The CA refused to give credence to this argument, holding that the provision "refers to cases where the officers or employees were already charged before they were allowed to resign or were separated from service." [36] In this case, the CA noted that "the administrative cases were filed only after Andutan was retired, hence the Ombudsman was already divested of jurisdiction and could no longer prosecute thecases." [37]

Challenging the CA's interpretation, the Ombudsman argues that the CA

"limited the scope of the cited Civil Service Memorandum Circular to the first sentence." [38] Further, according to the Ombudsman, "the court a quo ignored the second statement in the said circular that contemplates a situation where previous to the institution of the administrative investigation or charge, the public official or employee subject of the investigation has resigned." [39]

To recall, we have held in the past that a public official's resignation does not render moot an administrative case that was filedprior to the official's resignation. In Pagano v. Nazarro, Jr., [40] we held that:

InOffice of the Court Administrator v. Juan [A.M. No. P-03-1726,22 July 2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against him.Resignation is not a way out to evade administrative liability when facing administrative sanction . The resignation of a public servant does not preclude the finding of any administrative liability to which he or she shall still be answerable

[Baquerfo v. Sanchez, A.M. No. P-05-1974,6 April 2005, 455 SCRA 13, 19-20]. [emphasis and underscoring supplied]

Likewise, in Baquerfo v. Sanchez, [41] we held:

Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801, 2 April 2004, 427 SCRA 8] or retirement [Re: Complaint Filed by Atty. Francis Allan A. Rubio on the Alleged Falsification of Public Documents and Malversationof Public Funds, A.M. No. 2004-17-SC, 27 September 2004;Caja v. Nanquil, A.M. No. P-04-1885, 13 September 2004] neither warrants the dismissal of the administrative complaint filed against him while he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA 302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nordoes it render said administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533 (1998)]. The jurisdiction that was this Court's at the time of the filing of the administrative complaint was not lost by the mere fact that the respondent public official had

ceased in office during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent's resignation does not preclude the finding of any administrative liability to which he shall still be answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August 2004]. [emphases and underscoring supplied)

However, the facts of those cases are not entirely applicable to the present case. In the above-cited cases, the Court found that the public officials - subject of the administrative cases - resigned, either to prevent the continuation of a case already filed [42] or to pre-empt the imminent filing of one. [43] Here, neither situation obtains.

The Ombudsman's general assertion that Andutan pre-empted the filing of a case against him by resigning, since he "knew for certain that the investigative and disciplinary arms of the State would eventually reach him" [44] is unfounded. First, Andutan's resignation was neither hischoice nor of his own doing; he was forced to resign. Second, Andutan resigned from his DOF post on July 1, 1998, while the administrative case was filed on September 1, 1999, exactly one (1) year and two (2) months after his resignation. The Court struggles to find reason in the Ombudsman's sweeping assertions in light of these facts.

What is clear from the records is that Andutan was forced to resign more than a year before the Ombudsman filed the administrative case against him. Additionally, even if we were to accept the Ombudsman's position that Andutan foresaw the filing of the case against him, his forced resignation negates the claim that he tried to prevent the filing of the administrative case.

Having established the inapplicability of prevailing jurisprudence, weturn our attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We disagree with the Ombudsman's interpretation that "[a]s long as the breach of conduct was committed while the public official or employee was still in the service x x x a public servant'sresignation is not a bar to his administrative investigation, prosecution and adjudication." [45] If we agree with this

interpretation, any official - even if he has been separated from the service for a long time - may still be subject to the disciplinary authority of his superiors, ad infinitum. We believe that this interpretation is inconsistent with the principal motivation of the law - which is to improve public service and to preserve the public's faith and confidence in the government, and not the punishment of the public official concerned. [46] Likewise, if the act committed by the public official is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same.

The possibility of imposing accessory penalties does not negate the Ombudsman's lack of jurisdiction.

The Ombudsman suggests that although the issue of Andutan's removal from the service is moot, there is an "irresistible justification" to "determine whether or not there remains penalties capable of imposition, like bar from re-entering the public service and forfeiture of benefits." [47] Otherwise stated, since accessory penalties may still be imposed against Andutan, the administrative case itself is not moot and may proceed despite the inapplicability ofthe principal penalty of removal from office.

We find several reasons that militate against this position.

First, although we have held that the resignation of an official does not render an administrative case moot and academic because accessory penalties may still be imposed, this holding must be read in its proper context. In Pagano v. Nazarro, Jr., [48] indeed, we held:

A case becomes moot and academic only when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128,9 May 2005, 458 SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner's separation from government service.Even if the most severe of administrative sanctions - that of separation from service - may no longer be imposed on the petitioner,

there are other penalties which may be imposed on her if she is later found guilty of administrative offenses charged against her, namely, the disqualification to hold any government office and the forfeiture of benefits. [emphasis and underscoring supplied]

Reading the quoted passage in a vacuum, one could be led to the conclusion that the mere availability of accessory penalties justifiesthe continuation of an administrative case. This is a misplaced reading of the case and its ruling.

Esther S. Pagano - who was serving as Cashier IV at the Office of the Provincial Treasurer of Benguet - filed her certificate of candidacy for councilor four days after the Provincial Treasurer directed her toexplain why no administrative case should be filed against her. The directive arose from allegations that her accountabilities included a cash shortage of P1,424,289.99. She filed her certificate of candidacyunder the pretext that since she was deemed ipso facto resigned from office, she was no longer under the administrative jurisdiction of hersuperiors. Thus, according to Pagano, the administrative complaint hadbecome moot.

We rejected Pagano's position on the principal ground "that the precipitate resignation of a government employee charged with an offense punishable by dismissal from the servicedoes notrender moot the administrative case against him. Resignation is not a way out to evade administrative liability when facing administrative sanction." [49] Our position that accessory penalties are still imposable - therebynegating the mootness of the administrative complaint - merely flows from the fact that Pagano pre-empted the filing of the administrative case against her. It was neither intended to be a stand-alone argumentnor would it have justified the continuation of the administrative complaint if Pagano's filing of candidacy/resignation did not reek of irregularities. Our factual findings in Pagano confirm this, viz.:

At the time petitioner filed her certificate of candidacy, petitioner was already notified by the Provincial Treasurer that she needed to explain why no administrative charge should be filed against her, after it discovered the cash shortage ofP1,424,289.99 in her

accountabilities.Moreover, she had already filed her answer.To all intents and purposes, the administrative proceedings had already been commenced at the time she was considered separated from service through her precipitate filing of her certificate of candidacy.Petitioner's bad faith was manifest when she filed it, fullyknowing that administrative proceedings were being instituted against her as part of the procedural due process in laying the foundation foran administrative case. [50] (emphasis and underscoring supplied)

Plainly, our justification for the continuation of the administrative case - notwithstanding Pagano's resignation - was her "bad faith" in filing the certificate of candidacy, and not the availability of accessory penalties.

Second, we agree with the Ombudsman that "fitness to serve in public office x x x is a question of transcendental [importance] [51]" and that"preserving the inviolability of public office" compels the state to prevent the "re-entry [to] public service of persons who have x x x demonstrated their absolute lack of fitness to hold public office." [52]

However, the State must perform this task within the limits set by law, particularly, the limits of jurisdiction. As earlier stated, under the Ombudsman's theory, the administrative authorities may exercise administrative jurisdiction over subordinates ad infinitum; thus,a public official who has validly severed his ties with the civil service may still be the subject of an administrative complaint up to his deathbed. This is contrary to the law and the public policy behindit.

Lastly, the State is not without remedy against Andutan or any public official who committed violations while in office, but had already resigned or retired therefrom. Under the "threefold liability rule," the wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. [53] Even if the Ombudsmanmay no longer file an administrative case against a public official who has already resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate Andutan's alleged transgressions. In fact, here, the Ombudsman - through the FFIB -

filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not only be meted out the penalty of imprisonment, but also the penalties of perpetual disqualification from office, and confiscation or forfeiture of any prohibited interest. [54]

Conclusion

Public office is a public trust. No precept of administrative law is more basic than this statement of what assumption of public office involves. The stability of our public institutions relies on the ability of our civil servants to serve their constituencies well.

While we commend the Ombudsman's resolve in pursuing the present case for violations allegedly committed by Andutan, the Court is compelled to uphold the law and dismiss the petition. Consistent with our holding that Andutan is no longer the proper subject of an administrative complaint, we find no reason to delve on the Ombudsman's factual findings.

OMBUDSMAN V. MOJICA (2005)SECOND DIVISION

[ G.R. NO. 146486, MARCH 04, 2005 ]

OFFICE OF THE OMBUDSMAN, PETITIONER, VS. HONORABLE COURTOF APPEALS AND FORMER DEPUTY OMBUDSMAN FOR THE VISAYAS

ARTURO C. MOJICA, RESPONDENTS.

D E C I S I O N

CHICO-NAZARIO, J.: 

This is a “petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65” of the Decision[1] of the Court of Appeals of 18 December 2000 in CA-G.R. SP No. 58460 entitled, Arturo C. Mojica, DeputyOmbudsman for the Visayas v. Ombudsman Aniano Desierto, Over-all Deputy Ombudsman Margarito Gervacio, Jr. and the Committee of Peers composed of Deputy Ombudsman Jesus F. Guerrero, Deputy Ombudsman Rolando Casimiro and Special Prosecutor Leonardo P. Tamayo.

The case had its inception on 29 December 1999, when twenty-two officials and employees of the Office of the Deputy Ombudsman (OMB) for the Visayas, led by its two directors, filed a formal complaint[2] with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the Visayas, herein private respondent Arturo Mojica, committed the following:1. Sexual harassment against Rayvi Padua-Varona;

2. Mulcting money from confidential employees James Alueta and Eden Kiamco;and

3. Oppression against all employees in not releasing the P7,200.00 benefitsof OMB-Visayas employees on the date the said amount was due for release.The complainants further requested that an officer-in-charge from the OMB-Manila be appointed to manage their office to prevent the Deputy Ombudsman from harassing witnesses and wielding his influence over them. To underscore the seriousness of their intentions, they threatened to goon a mass leave of absence, and in fact took their cause to the media.[3]

The subsequent events, as stated by the Ombudsman and adopted by the Court of Appeals,[4] are as follows:The Ombudsman immediately proceeded to the OMB-Visayas office in Cebu City to personally deal with the office rebellion. Reaching Cebu, the Ombudsman was informed by Petitioner that Petitioner wanted to proceed to Manila, apparentlybecause of his alienation and the fear for reprisal from his alleged lady victims’ husbands. Petitioner in fact already had a ticket for the plane leaving two hours later that day. The Ombudsmanassented to the quick movement to Manila for Petitioner’s safety and the interest of the Office’s operations.

Subsequently, the Ombudsman installed Assistant OmbudsmanNicanor J. Cruz as the Officer-in-Charge of OMB-Visayas.

Acting on the formal complaint against petitioner, the Ombudsman directed his Fact-Finding and Intelligence Bureau (FFIB) to conduct a verification and fact-finding investigation on the matter. The FFIB, later in its Report, foundthe evidence against Petitioner strong on the charges of acts of extortion, sexual harassment and oppression. The FFIB report was referred by the Ombudsman to a constituted Committee of Peers composed of the Deputy Ombudsman for Luzon, The Special Prosecutor and the Deputy Ombudsman for the Military.

The Committee of Peers initially recommended that the investigation be converted into one solely for purposes of impeachment. However, this recommendation was denied by the Ombudsman after careful study, and following the established stand of the Office of the Ombudsman that the Deputy Ombudsmenand The Special Prosecutor are not removable through impeachment. As succintly(sic) stated by the Ombudsman in his Memorandum dated March 27, 2000 (in reiteration of the March 13, 2000 Order of Overall Deputy Ombudsman) -Acting on your query as to whether or not the Ombudsman confirms or affirms the disapproval by Overall Deputy Ombudsman Margarito P. Gervacio, Jr., of your recommendation to conduct instead an investigation of the complaint against Deputy Ombudsman Arturo C. Mojica solely for the purpose of impeachment, I hereby confirm the action of disapproval.

x x xMoreover, as demonstrated in many previous cases against Deputy OmbudsmanArturo C. Mojica, Deputy Ombudsman Manuel B. Casaclang, DeputyOmbudsman Jesus F. Guerrero, Special Prosecutor Leonardo P. Tamayo and former Overall Deputy Ombudsman Francisco A. Villa, the official position of the Office is that the Constitution, R.A. 6770 and the Supreme Court in Zaldivar vs. Gonzales, G.R. No. 80578, 19 May 1988, exclude the Deputy Ombudsman and the Special Prosecutor from the list of impeachable officials and the Jarque caseinvolves Ombudsman Aniano A. Desierto as respondent, hence, the mention therein of the Deputy Ombudsmen is merely an obiter dictum. Two of your present members in fact participated in the investigation of the previous Mojica cases and thereafter recommended the dismissal thereof for lack of merit.In the same Memorandum, the Ombudsman directed the Committee of Peers to evaluate the merits of the case and if warranted by evidence, to conduct administrative and criminal investigation(s) immediately thereafter. Upon evaluation, the Committee recommended the docketing of the complaint as criminal and administrative cases. The Committee of Peers’ Evaluation dated 30March 2000, stated as follows:On the basis of the foregoing facts, duly supported with sworn-statements executed by all concerned parties, the undersigned members of the COP find sufficient cause to warrant the conduct of preliminary investigation and

administrative adjudication against Deputy Ombudsman Arturo C. Mojica for the following criminal and administrative offenses, namely:I. CRIMINAL

Violation of Section 3, paragraph[s] (b) and (e) of R.A. 3019 (Anti-Graft and Corrupt Practices Act);

Violation of R.A. 7877 (Anti-Sexual Harassment Act of 1995),

II. ADMINISTRATIVE

a. Dishonestyb. Grave Misconductc. Oppressiond. Conduct grossly prejudicial to the best interest of the servicee. Directly or indirectly having financial and material interest in any transaction requiring the approval of his Office; (Section 22, paragraphs (A),(C), (N), (T) and (U), Rule XIV of Executive Order No. 292, otherwise known asthe “Administrative Code of 1987”.)

Accordingly, let the instant case be docketed separately, one for the criminalcase and another for the administrative case covering all the offenses specified above and, thereafter, a formal investigation be simultaneously and jointly conducted by the Committee of Peers, pursuant to Administrative Order No. 7.Accordingly, on 6 April 2000, the Committee of Peers (COP) directed the hereinprivate respondent Mojica in OMB-0-00-0615 entitled, Padua-Varona v. Mojica, for violation of Republic Act No. 7877(Anti-Sexual Harassment Act of 1995) and Sec. 3, par. (b) and (c) of Rep. Act No. 3019 (Anti-Graft and Corrupt Practices Act) to submit his controverting evidence.

On 10 April 2000, the complainants in OMB-0-00-0615 filed a Motion to Place Respondent Under Preventive Suspension,[5] claiming that the offenses for whichprivate respondent Mojica was charged warranted removal from office, the evidence against him was strong, and that Mojica’s continued stay in office would prejudice the case, as he was harassing some witnesses and complainants to recant or otherwise desist from pursuing the case.

On the same date, the Ombudsman issued a Memorandum[6] to the COP, directing them to conduct administrative proceedings in OMB-ADM-0-00-0316 entitled, OMBVisayas Employees v. Mojica (for dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service, and directly or indirectly having financial and material interest in any transaction requiringthe approval of his office), and submit a recommendation on the propriety of putting Mojica under preventive suspension.

Subsequently, the COP issued an Order[7] in OMB-ADM-0-00-0316 finding prima facie evidence against Mojica and requiring him to submit an answer to the above-mentioned offenses within ten days, as well as his counter-affidavit andsupporting evidence.[8]

Aggrieved, the private respondent filed a petition[9] for Certiorari before the Court of Appeals praying that a resolution be issued:1. . . . . issuing a Temporary Restraining Order (TRO) upon the filing of the petition to enjoin and restrain the respondents, (the Ombudsman, the Over-all DeputyOmbudsman, the Committee of Peers, and the Special Prosecutor) theiragents and representatives, from suspending the petitioner (herein private respondent Mojica);

2. thereafter, converting said TRO into a Writ of Preliminary Injunction;

3. after hearing, a decision be rendered declaring the following acts of theOmbudsman null and void ab initio:a. detailing and assigning indefinitely the petitioner to OMB-Manila “in a [special] capacity,” thus effectively demoting/suspending petitioner, and preventing him from preparing his defense;

b. authorizing or directing the docketing of the complaints against the petitioner, which is equivalent to authorizing the filing of the administrative and/or criminal cases against the petitioner, who is an impeachable official;

c. denying the request of petitioner for leave of absence, which acts were done without lawful authority, in a malevolent and oppressive manner and without jurisdiction.On 04 May 2000, the Court of Appeals resolved to grant the prayer for Temporary Restraining Order and required the Ombudsman to comment and show cause why no writ of preliminary injunction should be issued, which reads in part:Meanwhile, to maintain the status quo and in order to forestall the petition at bench from becoming moot and academic, and considering that upon examination of the records we believe that there is an urgent need for the issuance of a temporary restraining order to prevent great and irreparable injury that wouldresult to herein petitioner before the matter could be heard on notice, the herein respondents, their agents and representatives acting for and in their behalf or under their authority, are hereby enjoined and restrained from proceeding with the hearing of the Motion to Place Respondent Under PreventiveSuspension dated April 10, 2000, which hearing is set on May 9, 2000 at 2:00 o’clock in the afternoon and/or from conducting any further proceedings relative to the suspension from (o)ffice of the herein petitioner until further order and/or notice from this Court.[10]

Nevertheless, on 6 June 2000, the COP issued an Order[11] in both OMB-0-00-0615and OMB-ADM-0-00-0316 to the effect that having failed to submit the required

counter-affidavits despite the lapse of seventeen days from the expiration of the extended reglementary period for filing the same, respondent Mojica was deemed to have waived his right to present his evidence. The COP thus deemed both criminal and administrative cases submitted for resolution on the basis of the evidence on record.

Thus, on 13 June 2000, the private respondent thus filed an urgent motion[12] before the Court of Appeals to enjoin the Ombudsman from taking any action whatsoever in the criminal and administrative cases aforementioned. Thefollowing day, the private respondent filed another urgent motion, this time praying that the Court of Appeals issue an order requiring the Ombudsman to show cause why it should not be cited for contempt for failing to conform withthe 4 May 2000 Resolution of the Court of Appeals. On 20 June 2000, the Court of Appeals directed[13] the Ombudsman to comment on the above pleadings, and tocomply with the former’s Temporary Restraining Order of 4 May 2000.

The parties subsequently exchanged various pleadings that culminated in a Resolution[14] by the Court of Appeals on 5 July 2000 that, among other things,directed the issuance of a writ of preliminary injunction enjoining all therein respondents from taking any action whatsoever in cases No. OMB-0-00-0615 (criminal) and No. OMB-ADM-0-00-0316 (administrative) against Mojica, anddeemed the instant petition submitted for resolution on the merits upon the submission of the comment or explanation on the appellate court’s show cause Resolution of 20 June 2000.

Meanwhile, on 19 June 2000, the Office of the Deputy Ombudsman for the Military directed the private respondent Mojica ostensibly to answer a different set of charges for “violation of Art. 266 and Sec. 3(e) of Rep. Act No. 3019” (OMB-00-0-1050) and for “grave misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service”[15] (OMB-ADM-0-00-0506). Feeling that this was merely an attempt at circumventing the directivesof the Court of Appeals, Mojica filed an urgent motion before the Court of Appeals for respondents to show cause again why they should not be cited for contempt.

By way of opposition, the Ombudsman pointed out that the writ of preliminary injunction issued by the appellate court was against any action taken in casesNo. OMB-0-00-0615 and No. OMB-ADM-0-00-0316, and not against any new cases filed against the private respondent thereafter. The Ombudsmanfurther pointed out that since Mojica’s term of office had already expired as of 6 July 2000, the private respondent could no longer invoke his alleged immunity from suit.

On 14 August 2000, the Office of the Deputy Ombudsman for the Military issued an order deeming that cases No. OMB-0-00-1050 and No. OMB-ADM-0-00-0506 had been deemed submitted for resolution on the basis of the evidence at hand. On 17 August 2000, the private respondent filed an urgent motion for the immediate issuance of an order enjoining the Ombudsman from taking any further

action whatsoever in OMB-ADM-0-00-0506 and OMB-0-00-1050.[16]

On 18 December 2000, despite the expiration of private respondent Mojica’s term of office, the Court of Appeals nevertheless rendered the assailed Decision[17] on the grounds of public interest.

In essence, the appellate court held that although the 1987 Constitution, the deliberations thereon, and the commentaries of noted jurists, all indicate that a Deputy Ombudsman is not an impeachable official, it was nevertheless constrained to hold otherwise on the basis of this Court’s past rulings. Thus,the dispositive portion thereof reads:WHEREFORE, in view of the foregoing, the order of the Committee of Peers in its Evaluation dated March 30, 2000 directing the docketing separately of the criminal case as well as the administrative case against the petitioner is hereby SET ASIDE andDECLARED NULL AND VOID. Accordingly, the complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316,respectively, filed against the petitioner are hereby DISMISSED. All acts or orders of the Ombudsman, the Overall Deputy Ombudsman and the Committee of Peers, subjecting the petitioner [herein private respondent] to criminal and administrative investigations, or pursuant to such investigations, are likewise hereby DECLARED INVALID.[18]

Thereupon, on 15 January 2001, the Office of the Ombudsman filed before this Court “a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65 of the same rules,” of the above decision, on the following grounds:

ITHE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN ERRONEOUSLY RULING THAT PRIVATE RESPONDENT, AS THEN DEPUTYOMBUDSMAN FOR THE VISAYAS, IS ANIMPEACHABLE OFFICIAL, CONSIDERING THAT THE PLAIN TEXT OF SEC. 2, ART. XI OF THE 1987 CONSTITUTION, AS WELL AS THE INTENT OF THE FRAMERS THEREOF, EXCLUDES A DEPUTYOMBUDSMAN FROM THE LIST OF IMPEACHABLE OFFICIALS.

II

THE PRINCIPLE OF STARE DECISIS ET NON QUIETA MOVERE MAY NOT BE INVOKED TO PERPETUATE AN ERRONEOUS OBITER DICTUM.

III

THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO ORDER THE DISMISSAL OF ACRIMINAL CASE AGAINST A RETIRED DEPUTY OMBUDSMAN, WHICH IS STILL PENDING PRELIMINARY INVESTIGATION BEFORE PETITIONEROMBUDSMAN.[19]

At the outset, it bears noting that instead of assailing the Court of Appeals Decision solely by petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, petitioner lodged the present petition

“alternatively” as “an original special civil action for certiorari under Sec. 1,Rule 65 of the same rules.”

It is settled that the appeal from a final disposition of the Court of Appealsis a petition for review under Rule 45 and not a special civil action under Rule 65 of the 1997 Rules of Civil Procedure. Rule 45 is clear that the decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceeding involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. Under Rule 45, the reglementary period to appeal is fifteen (15) days from notice of judgmentor denial of motion for reconsideration.[20]

The records show that following the petitioner’s receipt on 5 January 2001 of a copy the Court of Appeals Decision, it filed the present petition on 16 January 2001, well within the reglementary period so indicated.

We go now into the substantive aspect of this case, where we are presented an attack upon a prior interpretation of Article XI, Sec. 2 in relation to Article XI, Sec. 8 of our Constitution.

The interpretation in question first appears in Cuenco v. Fernan,[21] a disbarment case against then Associate Justice Marcelo Fernan filed by Atty. Miguel Cuenco, a former member of the House of Representatives, where we held in part:There is another reason why the complaint for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7)(1) of theConstitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Member’s incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman   and his deputies  (Article XI [8] in relation to Article XI [2], id.), a majority of the members of the Commission on Elections (Article IX [C]in relation to Article XI [1] [1][2], id.), and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1] [1], id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied.)Barely two months later, we issued another Resolution in In Re: Raul M. Gonzales,[22] concerning the same charges for disbarment brought against Justice Fernan,wherein we cited the above ruling to underscore the principle involved in the case, that “[a] public officer who under the Constitution is required to be a member of the Philippine Bar as a qualification for the office held by him andwho may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer.”[23]

In 1995, we subsequently anchored our Resolution in Jarque v. Desierto,[24] a disbarment case against then Ombudsman Aniano Desierto, on the above ruling, adding that:. . . [T]he court is not here saying that the Ombudsman and other constitutional officers who are required by the Constitution to be members of the Philippine Bar and are remova[ble] only by impeachment, are immunized fromliability possibly for criminal acts or for violation of the Code of Professional Responsibility or other claimed misbehavior. What the Court is saying is that there is here a fundamental procedural requirement which must be observed before such liability may be determined and enforced. The Ombudsman   or his deputies must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Ombudsman be thus terminated by impeachment, he may then be held to answer either criminally or administratively – e.g., in disbarment proceedings – for any wrong or misbehavior which may be proven against him in appropriate proceedings. (Emphasis supplied)Finally, in Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella,[25] the Court, citing its Resolution in Jarque v. Desierto,[26] dismissed, in a minute resolution, the complaint for disbarment against the herein private respondent Mojica in his capacity as Deputy Ombudsman for the Visayas, statingthat:Anent the complaint for disbarment against respondent Arturo C. Mojica in his capacity as Deputy Ombudsman for Visayas, suffice it to state that a public officer whose membership in the Philippine Bar is a qualification for the office held by him and removable only by impeachment cannot be charged with disbarment during his membership (In Re: Raul M. Gonzales, 160 SCRA 771, 774 [1988]; Cuenco vs. Fernan,158 SCRA 29, 40 [1988]). And we have held in the case of Jarque vs. Desierto (A.C. No. 4509, En Banc Resolution December 5, 1995), that the Ombudsman or his deputies must first be removed from office via impeachment before they may be held to answer for any wrong or misbehavior which may be proven against them in disbarment proceedings.The above Resolution was subsequently made the basis of the appellate court’s assailed Decision of 18 December 2000. Thus, in holding that a Deputy Ombudsman is an impeachable officer, the appellate court stated that ithad to “defer to the loftier principle of adherence to judicial precedents, otherwise known as the doctrine of Stare Decisis.... necessary for the uniformity and continuity of the law and also to give stability to society.”[27]

Nevertheless, the court a quo took pains to point out that the 1987 Constitution, the deliberations thereon, and the opinions of constitutional law experts all indicate that the Deputy Ombudsman is notan impeachable officer.

Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article XI of the 1987 Constitution, states that:Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violationof the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.To determine whether or not the Ombudsman therein mentioned refers to a personor to an office, reference was made by the appellate court to the Records of the Constitutional Commission, as well as to the opinions of leading commentators in constitutional law. Thus:. . . It appears that the members of the Constitutional Commission have made reference only to the Ombudsman as impeachable, excluding his deputies. The pertinent portions of the record read, to wit:. . .

MR. REGALADO. Yes, thank you.

On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsmanwill perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while theOmbudsman is the guardian of the people, “Quis custodiet ipsos custodies,” who will guard the guardians? I understand here that theOmbudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment.

MR. ROMULO. That is the intention, Madam President.

MR. REGALADO. Only the Ombudsman?

MR. MONSOD. Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase “have the rank of.” We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not apart of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee.

MR. ROMULO. Yes. If I may just comment:  the   Ombudsman   in this provision is a rank in itself really. That is how we look at it. But for purposes of government classification and salary, we thought we have to give him a recognizable or an existing rank as a point of reference more than anything else.

MR. REGALADO. Yes, but my concern is whether or not he is removable only by impeachment, because Section 2 enumerates the impeachable officials, and it

does not mention public officers with the rank of constitutional commissioners.

MR. ROMULO. But we do mention them as the Ombudsman is mentioned in that enumeration. We used the word “ Ombudsman ” because we would like it to be his title; we do not want him called “Chairman” or “Justice.” We want him called   Ombudsman .

. . .

(Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274)

MR. DAVIDE. I will not insist.

On lines 13 and 14, I move for the deletion of the words “and theOmbudsman.” The Ombudsman should not be placed on the level of the President and the Vice-President, the members of the judiciary and the members of the Constitutional Commissions in the matter of removal from office.

MR. MONSOD. Madam President.

THE PRESIDENT. Commissioner Monsod is recognized.

MR. MONSOD. We regret we cannot accept the amendment because we feel that the Ombudsman is at least on the same level as the Constitutional Commissioners and this is one way of insulating it from politics.

MR. DAVIDE. Madam President, to make the members of theOmbudsman removable only by impeachment would be to enshrine and install an officer whose functions are not as delicate as the others whom we wanted to protect from immediate removal by way of an impeachment.

MR. MONSOD. We feel that an officer in the Ombudsman, if he does his work well, could be stepping on a lot of toes. We would really prefer to keep him there but we would like the body to vote on it, although I would like to ask if we still have a quorum, Madam President.

THE PRESIDENT. Do we have a quorum? There are members who are in the lounge.

The Secretary-General and the pages conduct an actual count of the Commissioners present.

THE PRESIDENT. We have a quorum.

MR. MONSOD. May we restate the proposed amendment for the benefit of those whowere not here a few minutes ago.

MR. DE LOS REYES. Madam President, parliamentary inquiry. I thought that amendment was already covered in the amendment of Commissioner Rodrigo. One ofthose amendments proposed by Commissioner Rodrigo was to delete the word “Ombudsman” and, therefore, we have already voted on it.

MR. DAVIDE. Madam President, may I comment on that.

THE PRESIDENT. Yes, the Gentleman may proceed.

MR. DAVIDE. The proposed amendment of Commissioner Rodrigo was the total deletion of the Office of the Ombudsman and all sections relating to it. It was rejected by the body and, therefore, we can have individual amendments nowon the particular sections.

THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not justto include the Ombudsman among those officials who have to be removed from office only on impeachment. Is that right?

MR. DAVIDE. Yes, Madam President.

MR. RODRIGO. Before we vote on the amendment, may I ask a question?

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. The   Ombudsman , is this only one man?

MR. DAVIDE. Only one man.

MR. RODRIGO. Not including his deputies.

MR. MONSOD. No.

. . .

(Ibid., p. 305, emphasis supplied)Moreover, this Court has likewise taken into account the commentaries of the leading legal luminaries on the Constitution as to their opinion on whether ornot the DeputyOmbudsman is impeachable. All of them agree in unison that the impeachable officers enumerated in Section 2, Article XI of the 1986 Constitution is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. Foremost among them is the erudite Justice Isagani A. Cruz (ret.), who opined:The impeachable officers are the President of the Philippines, the Vice-President, the members of the Supreme Court, the members of the ConstitutionalCommissions, and the Ombudsman. (see Art. XI, Sec. 2)The list is exclusive andmay not be increased or reduced by legislative enactment.   The power to impeachis essentially a non-legislative prerogative and can be exercised by the

Congress only within the limits of the authority conferred upon it by the Constitution. This authority may not be expanded by the grantee itself even ifmotivated by the desire to strengthen the security of tenure of other officials of the government.

It is now provided by decree (see P.D. No. 1606) that justices of the Sandiganbayan may be removed only through process of impeachment, the purpose evidently being to withdraw them from the removal power of the Supreme Court. This prohibition is of dubious constitutionality. In the first place, the listof impeachable officers is covered by the maxim“expressio unius est exclusio alterius.” Secondly, Article VIII, Section 11, of the Constitution states that all judges of inferior courts – and this would include the Sandiganbayan – areunder the disciplinary power of the Supreme Court and may be removed by it. This view is bolstered by the last sentence of Article XI, Section 2, which runs in full as follows:

Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and theOmbudsman may be removedfrom office, on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Cruz, IsaganiA., Philippine Political Law, 1996 ed., pp. 333-334)Equally worth noting is the opinion of no less than Rev. Fr. Joaquin G. Bernas, S.J., himself who was a member of the Constitutional Commission which drafted the 1987 Constitution, (who) asserted:

Q. Is the list of officers subject to impeachment found in Section 2 exclusive?

A. As presently worded, yes.

(Bernas, Joaquin G., S.J., The 1987 Philippine Constitution, A Reviewer-Primer, 1997 ed., p. 401)

Last but certainly not the least is the equally erudite Representative AntonioB. Nachura himself, who, as a professor of law, commented that the enumerationof impeachable officers in Section 2, Article XI of the 1987 Constitution, is exclusive. (Nachura, Antonio B., Outline/Reviewer in Political Law, 1998 ed., p. 192)[28]

From the foregoing, it is immediately apparent that, as enumerated in Sec. 2 of Article XI of the 1987 Constitution, only the following are impeachable officers: the President, the Vice President, the members of the Supreme Court,the members of the Constitutional Commissions, and theOmbudsman.[29]

How then to explain our earlier pronouncement in Cuenco v. Fernan, as later citedin In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v.

Dep. Ombudsman Mojica and Graft Investigator Labella? By way of reiteration, said Resolution reads in part:. . . To grant a complaint for disbarment of a Member of the Court during the Member’s incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI of the Constitution. Precisely the same situation exists in respectof the Ombudsman   and his deputies  (Article XI [2][8] in relation to Article XI [2]), . . . all of whom are constitutionally required to be members of the Philippine Bar.[30] (Emphasis supplied)In cross-referencing Sec. 2, which is an enumeration of impeachable officers, with Sec. 8, which lists the qualifications of the Ombudsman and his deputies,the intention was to indicate, by way of obiter dictum, that as with members of this Court, the officers so enumerated were also constitutionally required to be members of the bar.

A dictum is an opinion that does not embody the resolution or determination ofthe court, and made without argument, or full consideration of the point. Meredicta are not binding under the doctrine of stare decisis.[31]

The legal maxim "stare decisis et non quieta movere" (follow past precedents and do notdisturb what has been settled) states that where the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.[32]

The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, does Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits.

Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented.[33]

As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner.

The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office.[34] Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts.[35]

Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the petitioner, the former’s retirement benefits have been placed on hold in view of the provisions of Sections 12[36] and 13[37] of the Anti-Graft and Corrupt Practices Act.

WHEREFORE, the Order of the Court of Appeals dated 18 December 2000 is hereby REVERSED andSET ASIDE. The complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316 are hereby REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur,