Busuego vs. Office of the Ombudsman Mindanao

The Ombudsman possesses primary jurisdiction, albeit concurrent with the Department of Justice, over criminal complaints against public officers or employees, and may exercise this jurisdiction to the exclusion of other investigating agencies regardless of whether the offense was committed in relation to office; moreover, the Ombudsman may direct the amendment of a complaint during preliminary investigation to cure procedural defects such as the failure to implead indispensable parties, rather than dismissing the complaint outright.

Alfredo Romulo A. Busuego, Chief of Hospital at Davao Regional Hospital in Tagum City, was married to Rosa S. Busuego in 1975. The marriage produced two sons, Alfred and Robert. In 1983, marital discord emerged when Rosa discovered photographs and love letters from other women addressed to Alfredo. In 1985, despite Alfredo's opposition—which allegedly included threatening Rosa with a loaded gun—she left to work as a nurse in New York City, taking their children with her. While Rosa was abroad, Alfredo allegedly engaged in extramarital affairs with Emy Sia and Julie de Leon, including keeping Sia in their conjugal dwelling in Tagum City.

The Marriage and Separation: Alfredo Romulo A. Busuego and Rosa S. Busuego were married on 12 July 1975 at the Assumption Church, Davao City. They had two sons, Alfred and Robert, born in 1976 and 1978, respectively. In 1983, marital problems emerged when Rosa discovered photographs and love letters from other women addressed to Alfredo. Alfredo allegedly spent little time with the family, coming home late on weekdays and spending weekends with friends. In 1985, an opportunity to work as a nurse in New York City arose for Rosa. Despite Alfredo's vehement opposition—which allegedly included an incident where he pointed a loaded gun at Rosa's temple—she left for the United States in March 1985, eventually taking their children with her. While abroad, Rosa allegedly supported the family financially, as Alfredo provided no support.

The Alleged Concubinage: While Rosa was in the US, Alfredo allegedly engaged in affairs with Emy Sia and Julie de Leon. Sometime in 1997, Rosa learned that Sia, a nurse at the Regional Hospital in Tagum, was living at their conjugal home. Alfredo explained that Sia was merely staying in the maids' quarters to escape alleged abuse from Rosa's brother-in-law. In October 2005, Robert Busuego, the couple's son who had returned to Davao City to study medicine, called Rosa to complain of Alfredo's illicit affairs and shabby treatment. Robert executed an affidavit stating that from July 1997 to January 1998, he found Sia sleeping with Alfredo in the conjugal bedroom; that Sia confirmed to him she was Alfredo's mistress; that Sia was hospitalized during this period and resumed cohabitation upon discharge; and that de Leon stayed in the conjugal dwelling on 23, 24, 30 and 31 December 2004, sleeping in the conjugal room. Househelpers Melissa S. Diambangan and Liza S. Diambangan executed joint affidavits corroborating that they saw Sia sleeping overnight with Alfredo in the conjugal bedroom, that Sia called Alfredo "Papa," and confirming de Leon's presence in December 2004.

The Complaint and Preliminary Investigation: In 2006, Rosa filed a complaint with the Office of the Ombudsman charging Alfredo with concubinage, violation of RA 9262, and grave threats. Alfredo filed a counter-affidavit denying all allegations and arguing that the complaint should be dismissed for failure to implead Sia and de Leon as required by Article 344 of the Revised Penal Code. The Ombudsman conducted a clarificatory hearing where Rosa was directed to submit the addresses of the alleged concubines. On 24 June 2008, the Ombudsman issued a Joint Order impleading Sia and de Leon. Sia's copy was returned marked "Return to Sender; removed," while de Leon's was received by Ananias de Leon. Neither filed counter-affidavits.

The Challenged Resolutions: On 17 April 2009, the Ombudsman issued a Resolution finding probable cause for concubinage against Alfredo and Sia only, dismissing the charges regarding de Leon for lack of merit, and dismissing the charges under RA 9262 and grave threats. Alfredo filed a Partial Motion for Reconsideration, submitting an affidavit of recantation from Liza Diambangan claiming her previous affidavit was false. The Ombudsman denied the motion in its Order dated 11 October 2010, noting the motion was filed out of time and giving scant attention to the recantation.

Automatic Inclusion of Concubines: Petitioner argued that the Ombudsman gravely abused its discretion by "railroading" the inclusion of Sia and de Leon as party-respondents through a mere clarificatory hearing and Joint Order, in violation of Article 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court, which require that the offended party cannot institute criminal prosecution without including both guilty parties.

Jurisdiction: Petitioner maintained that the Ombudsman should have referred the complaint to the Department of Justice because the offense of concubinage was not committed in relation to his office as Chief of Hospital, citing OMB-DOJ Joint Circular No. 95-001.

Condonation: Petitioner contended that Rosa had condoned or pardoned the alleged concubinage because she admitted knowing of his womanizing since 1997 yet continued her annual visits to him in Davao City, which constituted continued cohabitation and forgiveness of the marital offense.

Recantation: Petitioner argued that the Ombudsman erred in failing to consider the affidavit of recantation executed by Liza S. Diambangan, which allegedly destroyed the basis for probable cause.

Lack of Probable Cause: Petitioner asserted that there was no basis for indicting him and Sia for concubinage because the evidence was insufficient and his explanations—that Sia stayed only in the maids' quarters and that he was busy at the hospital during the dates alleged—were plausible.

Procedural Compliance: Respondent Office of the Ombudsman countered that it merely followed its own Rules of Procedure by conducting a clarificatory hearing and directing the amendment of the complaint to implead the alleged concubines, rather than dismissing the complaint outright, which would have been superfluous since Rosa could simply re-file and res judicata does not apply in preliminary investigation.

Primary Jurisdiction: Respondent maintained that the Ombudsman possesses primary jurisdiction, albeit concurrent with the DOJ, over criminal complaints against public officers regardless of whether the offense was committed in relation to office, and may exercise this jurisdiction to the exclusion of other agencies.

No Condonation: Respondent argued that Rosa's general knowledge of Alfredo's womanizing did not constitute condonation of the specific acts of concubinage defined in Article 334 of the Revised Penal Code, and that annual visits did not amount to acquiescence to the illicit relationships or the specific act of keeping a mistress in the conjugal dwelling.

Recantation Unreliable: Respondent asserted that affidavits of recantation are generally unreliable and deserve scant consideration, especially where other corroborating testimonies remain unretracted.

Sufficient Evidence: Respondent contended that the sworn statements of Robert Busuego and the househelpers provided sufficient basis for a finding of probable cause that Alfredo kept Sia in the conjugal dwelling.

Procedural Inclusion of Concubines: Whether the Ombudsman gravely abused its discretion in directing the amendment of the complaint to include the alleged concubines rather than dismissing it for failure to comply with Article 344 of the Revised Penal Code.

Jurisdictional Authority: Whether the Ombudsman properly exercised jurisdiction over the complaint despite the offense not being committed in relation to petitioner's office.

Condonation as Bar: Whether Rosa's continued visits to Alfredo despite knowledge of his infidelity constituted condonation barring prosecution for concubinage.

Effect of Recantation: Whether the Ombudsman erred in disregarding the affidavit of recantation executed by witness Liza Diambangan.

Existence of Probable Cause: Whether the Ombudsman correctly found probable cause for the crime of concubinage under Article 334 of the Revised Penal Code.

Procedural Inclusion of Concubines: The Ombudsman did not gravely abuse its discretion. The procedural sequence of referring the complaint for comment and conducting a clarificatory hearing is authorized under Section 2(b) and Section 4(d) and (f) of Rule II of the Ombudsman Rules of Procedure. Amendment of the complaint to cure procedural defects is permitted under the Rules of Court and the Ombudsman's own rules, and dismissal would have been superfluous since res judicata does not apply in preliminary investigation.

Jurisdictional Authority: The Ombudsman properly exercised jurisdiction. Pursuant to settled jurisprudence in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ, the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over cases involving public officers, and may take over at any stage from any investigating agency. The OMB-DOJ Joint Circular No. 95-001 is merely an internal agreement; the Ombudsman may assert its primary jurisdiction to the exclusion of the DOJ.

Condonation as Bar: Condonation was not established. Knowledge of general womanizing does not equate to condonation of the specific acts of concubinage enumerated in Article 334. Citing Bugayong v. Ginez, condonation requires forgiveness of the specific marital offense, and continued cohabitation or sexual intercourse after knowledge of the offense may constitute condonation; however, Rosa's annual visits and belief that Alfredo had stopped womanizing do not amount to forgiveness of the specific act of keeping a mistress in the conjugal dwelling.

Effect of Recantation: The Ombudsman correctly gave scant consideration to the affidavit of recantation. Citing Firaza v. People, affidavits of recantation are inherently unreliable and dangerous to accept as grounds for acquittal unless special circumstances raise doubt about the truth of the original testimony. The recantation of one witness does not negate the unretracted testimonies of other corroborating witnesses.

Existence of Probable Cause: Probable cause was properly found. The sworn statements of Robert Busuego and the househelpers Melissa and Liza Diambangan provided sufficient basis to believe that Alfredo kept Emy Sia in the conjugal dwelling, satisfying the first mode of concubinage under Article 334. Whether Sia actually stayed in the maids' quarters or the conjugal bedroom is a matter of defense to be raised during trial.

Primary Jurisdiction of the Ombudsman: The Ombudsman possesses primary jurisdiction, albeit concurrent with the Department of Justice and other investigating agencies, over criminal complaints against public officers or employees. This jurisdiction exists regardless of whether the offense was committed in relation to office. Once the Ombudsman chooses to exercise this primary jurisdiction, it may proceed to the exclusion of other agencies. The authority is derived from the Constitution, the Ombudsman Act of 1989, and the Sandiganbayan Law.

Amendment of Complaints During Preliminary Investigation: During preliminary investigation, a complaint may be amended to include indispensable parties or cure procedural defects without requiring dismissal and re-filing. The doctrine of res judicata does not apply in the preliminary investigation stage. Investigating officers may conduct clarificatory hearings and direct amendments to obviate unnecessary delays.

Condonation in Concubinage Cases: Condonation of concubinage requires forgiveness of the specific marital offense constituting the felony. General knowledge of a spouse's womanizing or infidelity does not automatically constitute condonation of the specific acts defined in Article 334 of the Revised Penal Code (keeping a mistress in the conjugal dwelling, sexual intercourse under scandalous circumstances, or cohabitation elsewhere). Continued cohabitation or sexual intercourse with knowledge of the specific offense may raise a presumption of condonation, but this may be rebutted by evidence showing lack of consent or acquiescence to the specific illicit relationship.

Reliability of Affidavits of Recantation: Affidavits of recantation are viewed with disfavor and are inherently unreliable. Courts should not set aside testimony solemnly given during preliminary investigation or trial simply because a witness later recants, as this would make solemn proceedings a mockery. Recantations are only given weight when special circumstances, coupled with the retraction, raise doubt about the truth of the original testimony, and where the original testimony is essential to the finding of probable cause or conviction.

• "The Ombudsman has full discretionary authority in the determination of probable cause during a preliminary investigation. This is the reason why judicial review of the resolution of the Ombudsman in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public officers is limited to a determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment for that of the Ombudsman."
• "By grave abuse of discretion is meant such capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility."
• "Plainly, applying that ruling in this case, the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over Rosa's complaint, and after choosing to exercise such jurisdiction, need not defer to the dictates of a respondent in a complaint, such as Alfredo. In other words, the Ombudsman may exercise jurisdiction to the exclusion of the DOJ."
• "Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosa's admission was that she believed her husband had stopped womanizing, not that she had knowledge of Alfredo's specific acts of concubinage with Sia and de Leon, specifically keeping them in the conjugal dwelling."
• "We have generally looked with disfavor upon retraction of testimonies previously given in court. Affidavits of recantation are unreliable and deserve scant consideration. The asserted motives for the repudiation are commonly held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently and deservedly subject to serious doubt."
• "It is a dangerous rule to set aside a testimony which has been solemnly taken before a court of justice in an open and free trial and under conditions precisely sought to discourage and forestall falsehood simply because one of the witnesses who had given the testimony later on changed his mind. Such a rule will make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses."

Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ, G.R. No. 159747, 13 April 2004, 427 SCRA 46: Controlling precedent establishing that the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over cases involving public officers, and may take over at any stage from any investigating agency.

Bugayong v. Ginez, 100 Phil. 616 (1956): Cited for the definition of condonation as the forgiveness of a marital offense, and the principle that sexual intercourse after knowledge of infidelity may constitute condonation.

People v. Francisco, 55 Phil. 1008 (1930): Cited for the principle that continued patience and cohabitation due to promises of improvement, without consent to the immorality, does not constitute condonation.

Firaza v. People, 547 Phil. 572 (2007): Controlling precedent on the unreliability of affidavits of recantation and the danger of acquitting based on subsequent retractions of testimony.

Kalalo v. Office of the Ombudsman, G.R. No. 158189, 23 April 2010, 619 SCRA 141: Cited for the principle that the Ombudsman has full discretionary authority in determining probable cause during preliminary investigation.

Asetre v. Asetre, G.R. No. 171536, 7 April 2009, 584 SCRA 471: Cited regarding the limited scope of judicial review of Ombudsman resolutions.

Casing v. Ombudsman, G.R. No. 192334, 13 June 2012, 672 SCRA 500: Cited for the definition of grave abuse of discretion.

_Article 334, Revised Penal Code: Defines concubinage as committed by a husband who (1) keeps a mistress in the conjugal dwelling; (2) has sexual intercourse under scandalous circumstances with a woman not his wife; or (3) cohabits with her in any other place. Applied to determine the elements of the offense charged and the necessity of impleading the concubine under Article 344.

_Article 344, Revised Penal Code: Provides that the crimes of adultery and concubinage shall not be prosecuted except upon complaint filed by the offended spouse, who cannot institute criminal prosecution without including both guilty parties if both are alive, nor if the offended party has consented to the offense or pardoned the offenders. Applied to determine the procedural requirement of impleading the concubine.

_Section 5, Rule 110, Rules of Court: Reiterates the requirement in Article 344 that the offended party cannot institute criminal prosecution without including both guilty parties in cases of adultery and concubinage.

_Section 15, Ombudsman Act of 1989 (Republic Act No. 6770): Grants the Ombudsman the power to investigate and prosecute any act or omission of a public officer or employee which appears to be illegal, unjust, improper or inefficient.

_Section 4, Presidential Decree No. 1606 (Sandiganbayan Law), as amended: Defines the jurisdiction of the Sandiganbayan and the Ombudsman's authority over cases cognizable thereby.

_OMB-DOJ Joint Circular No. 95-001: Internal agreement between the Ombudsman and DOJ regarding the handling of complaints against public officers. The Court ruled this does not divest the Ombudsman of its constitutional primary jurisdiction.

_Rule II, Sections 2 and 4, Rules of Procedure of the Office of the Ombudsman: Authorizes the investigating officer to conduct clarificatory hearings and to recommend whether a complaint should be dismissed, referred for comment, or subjected to preliminary investigation.

Antonio T. Carpio (Chairperson), Arturo D. Brion, Mariano C. Del Castillo, and Estela M. Perlas-Bernabe.