Office of the Ombudsman vs. Mislang

The Ombudsman and the AFP General Court Martial have concurrent jurisdiction over administrative disciplinary cases involving military personnel, and the body that first takes cognizance acquires jurisdiction to the exclusion of the other. Even assuming the Ombudsman validly acted, a dismissal for Grave Misconduct must be supported by substantial evidence and rendered with due process; reliance solely on complaint-affidavits without furnishing copies to the respondent and without independent evidence of conspiracy is insufficient.

Respondent Col. Noel P. Mislang was the Commanding Officer of the 41st Infantry Battalion, Philippine Army. The Office of the Ombudsman and the AFP General Court Martial both exercise disciplinary authority over military personnel, and a January 28, 2004 MOA between the AFP and the Ombudsman delineated their lines of disciplinary authority, with non-graft and corruption cases against military personnel to be endorsed by the Ombudsman to the AFP. The dispute required the SC to reconcile the Ombudsman's plenary jurisdiction, the court-martial's sui generis disciplinary authority, and the rule on concurrent jurisdiction.

Respondent Col. Noel P. Mislang was the Commanding Officer of the 41st Infantry Battalion, Philippine Army, while complainant Cecilia S. Luna was the former Mayor of Lagayan, Abra. Corporal Eduardo Barcelona and Corporal Antonio Rosqueta were intelligence operatives of the 41st Infantry Battalion under respondent, and Mauro Durwin and Florencio Baharin were agents of the Military Intelligence Group. Vicente P. Valera was the then Governor of the Province of Abra.

According to Barcelona, he and Rosqueta regularly reported to respondent for both official and unofficial, as well as legal and illegal, instructions. Respondent allegedly gave each of them a .45 caliber pistol in April 2004 and directed them to tail and assassinate Mayor Luna; they were also provided seed money for the purpose and met respondent's assets, Durwin and Baharin. In June 2004, respondent allegedly ordered the inclusion of Mayor Luna's two sons, Ryan and Jendrick, in the assassination plot. In July 2004, respondent brought Barcelona, Rosqueta, and Corporal John Pablo to the place where the assassination was to be done, with the murders supposed to take place during a birthday party; the self-confessed hired gunmen claimed to have conversed with Valera, who was allegedly privy to the scheme. The planned assassination was not carried out because Ryan and Jendrick were absent at the event.

The failed assassination plot allegedly enraged respondent. Barcelona and Rosqueta were placed on Absence Without Leave status in December 2004 as they began distancing themselves from respondent. Respondent also allegedly ordered the assassination of Barcelona and Rosqueta, who in turn filed a complaint with the Intelligence Security Group in Fort Bonifacio against respondent on December 17, 2004. Meanwhile, Durwin and Baharin contacted Barcelona and Rosqueta for a meeting; on their way to a party in Isabela Province, Durwin and Baharin shot Rosqueta to death and seriously wounded Barcelona, who survived. The text also states that on March 8, 2004, Barcelona and Rosqueta submitted their affidavits relative to respondent's part in the assassination plot.

Complaints for Grave Misconduct were filed before the Office of the Ombudsman against respondent, Valera, Durwin, and Baharin based on the complaint-affidavit dated March 8, 2005 of Luna, the complaint-affidavit dated March 11, 2005 of Barcelona, and the complaint-affidavit dated April 13, 2005 of Elena V. Rosqueta. Respondent did not submit a counter-affidavit to refute the charges. He asserted, however, that he was not furnished copies of the complaint-affidavits or any order to file his counter-affidavits despite manifestations and motions before the Ombudsman asking either for copies of the complaints or for dismissal of the administrative cases for violation of due process and his right to a speedy disposition; he contended that he was not made a party to the proceedings.

On June 16, 2009, or four years after the complaints were filed before the Ombudsman, respondent's former counsel Atty. Leonardo P. Tamayo wrote to Deputy Ombudsman Emilio A. Gonzales III of the MOLEO informing him that several complaints based on the same evidence supporting the complaints before the Ombudsman had also been filed against respondent before the General Court Martial, Philippine Army; that while pending preliminary investigation before the Ombudsman, the General Court Martial took cognizance of the complaints, arraigned respondent, heard the cases, and rendered an Order on February 7, 2007 declaring respondent "Not Guilty." The records also disclosed a letter dated November 11, 2010 of Director Wilbert Candelaria informing respondent's counsel that OMB-L-A-05-0202-C and OMB-L-C-05-0276-C were already dismissed as of September 24, 2010, while OMB-L-A-05-0201-C, OMB-L-C-05-0275-C, OMB-L-A-05-0309-D, and OMB-L-C-05-0409-D were still undergoing preliminary investigation and administrative adjudication.

The CA found that the Ombudsman relied on the affidavits of Barcelona and Rosqueta, which implicated respondent in a supposed conspiracy through their admissions of illegal activities, and that there was no independent or extraneous evidence to prove conspiracy. The CA also considered respondent's assertion that he had not received copies of the complaint-affidavits or any order to file his counter-affidavits, and it found that the General Court Martial had taken cognizance of the same acts and had adjudged respondent not guilty in its February 7, 2007 Order.

• Res Judicata and Substantial Evidence: Petitioner argued that res judicata was inapplicable and that the factual findings in its May 9, 2011 Joint Decision were supported by substantial evidence and thus conclusive upon the reviewing authority.
• Evidence in Administrative Proceedings: Petitioner maintained that it may render its decision in administrative disciplinary cases based only on the affidavits and documents constituting the evidence on record, as it had done in this case.
• Jurisdiction Despite Court-Martial: Petitioner argued that it had jurisdiction over the complaints against respondent notwithstanding the General Court Martial's exercise of concurrent jurisdiction over the same acts subject of the complaints.
• Exhaustion of Administrative Remedies: Petitioner asserted that respondent violated the principle of exhaustion of administrative remedies in filing his petition for review before the CA without prior resort to a motion for reconsideration before the Ombudsman.
• Non-Attachment of Joint Decision: Petitioner asserted that respondent failed to attach a copy of the assailed May 9, 2011 Joint Decision to his petition before the CA, which should have been fatal to his appeal.
• Effect of the MOA: Petitioner argued that the January 28, 2004 MOA did not set aside its disciplinary power as Ombudsman; adherence to the MOA was expected but not required, and because the complaints were directly filed before it, its jurisdiction had already vested.
• Technical Rules of Evidence: Petitioner argued that its administrative proceedings are not bound by technical rules of procedure and evidentiary rules.

• Due Process and Speedy Disposition: Respondent contended that he was not made a party to the proceedings and was not furnished copies of the complaint-affidavits or any order to file his counter-affidavits despite repeated manifestations and motions before the Ombudsman, violating his right to due process and to a speedy disposition of his cases.
• Exclusive Jurisdiction under the MOA: Respondent took the view that the January 28, 2004 MOA between the AFP and the Ombudsman delineated their disciplinary authority such that non-graft and corruption cases against military personnel were to be endorsed by the Ombudsman to the AFP, and that the General Court Martial had exclusive jurisdiction over the case.
• Prior Court-Martial Action: Respondent's counsel brought to the Ombudsman's attention that the General Court Martial had taken cognizance of complaints based on the same evidence and had rendered an Order on February 7, 2007 declaring respondent "Not Guilty."

• Procedural Defects in Respondent's Appeal: Whether the CA correctly entertained respondent's Rule 43 petition despite the alleged non-attachment of the Joint Decision and failure to file a motion for reconsideration before the Ombudsman.
• Concurrent Jurisdiction and First-to-Acquire Rule: Whether the Ombudsman could validly issue the Joint Decision after the AFP General Court Martial had taken cognizance of the same acts.
• Effect of the MOA and Prior Court-Martial Action: Whether the January 28, 2004 MOA between the AFP and the Ombudsman gave the General Court Martial exclusive jurisdiction or otherwise barred the Ombudsman from proceeding.
• Due Process and Substantial Evidence: Whether the Ombudsman's Joint Decision was supported by substantial evidence and rendered with due process, particularly in relying on the affidavits of Barcelona and Rosqueta without independent evidence of conspiracy.

• Procedural Defects in Respondent's Appeal: No. The CA properly entertained the Rule 43 petition; the alleged non-attachment was not established because the CA's decision cited the Joint Decision, and exhaustion of administrative remedies was excused by the due process and purely legal questions raised.
• Concurrent Jurisdiction and First-to-Acquire Rule: No. The Ombudsman and the AFP General Court Martial have concurrent or coordinate jurisdiction over administrative disciplinary cases involving military personnel, and the body that first takes cognizance acquires jurisdiction to the exclusion of the other; the AFP first acquired jurisdiction.
• Effect of the MOA and Prior Court-Martial Action: No. The January 28, 2004 MOA did not abrogate the Ombudsman's plenary jurisdiction or confer exclusive jurisdiction on the General Court Martial; it was intended for coordination and efficiency, but the first-to-acquire rule required the Ombudsman to refrain after the AFP had taken cognizance.
• Due Process and Substantial Evidence: No. The Joint Decision was not supported by substantial evidence and was rendered without due process because respondent was not furnished copies of the complaint-affidavits, and the conspiracy was not shown by independent evidence aside from the affidavits of Barcelona and Rosqueta.

• Procedural Defects in Respondent's Appeal: The SC found no merit in petitioner's contention that the Rule 43 petition should have been dismissed outright. The inference that the Joint Decision was not attached cannot be made from petitioner's bare assertion that the wrong document was attached to its copy; it does not follow that the CA was not furnished a correct copy. A plain reading of the CA decision showed it had a copy because it cited the May 9, 2011 Joint Decision in its footnotes, so the CA was not deprived of the opportunity to review. Petitioner could have manifested and resolved the matter before the CA; it was too late to make a fatal issue of it before the SC. On exhaustion, the doctrine is not absolute; exceptions include violation of due process and purely legal questions. Respondent alleged he was not furnished copies of the complaints despite manifestations and motions, putting due process in issue. Also raised was the legal effect of respondent's "acquittal" before the General Court Martial on the pending complaints, a legal question. There was sufficient basis to dispense with a prior motion for reconsideration.
• Concurrent Jurisdiction and First-to-Acquire Rule: The SC held that the Ombudsman and the General Court Martial of the AFP have concurring or coordinate jurisdiction over administrative disciplinary cases involving erring military personnel, particularly violations of the Articles of War that are service-connected. A court-martial is a court, and prosecution before it is criminal and not administrative, but in threshing out its jurisdiction and the nature of offenses under the Articles of War, the SC emphasized its administrative disciplinary character. Article 96 offenses are service-connected; the penalty is dismissal from the service, purely disciplinary in character, intended to cleanse the military profession of misfits and preserve military discipline. Court-martial proceedings are sui generis, applicable only to military personnel because the military is an armed organization requiring a separate disciplinary system; they contemplate both the penal and administrative disciplinary nature of military justice. In view of the administrative disciplinary aspect shared with the Ombudsman, both have concurrent authority to dismiss respondent from the service. In administrative cases involving concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. The records show the AFP first acquired jurisdiction: the earliest complaint-affidavit before the Ombudsman was dated March 8, 2005, whereas the Sinumpaang Salaysay of Rosqueta and Barcelona were executed on December 17, 2004 at the Philippine Army Headquarters, clearly ahead; the AFP's specification of charges was proffered later in May 2005, but as early as January 13, 2005, respondent was already reassigned pending investigation preliminary to court-martial trial proper; the AFP fielded senior military officers to investigate and secure affidavits, and Lt. Col. Remy R. Maglaya submitted his Investigation Report to the Army Inspector General on January 31, 2005. The AFP having first acquired jurisdiction, the Ombudsman should have refrained from further acting on the complaints; the General Court Martial's exercise of jurisdiction was to the exclusion of the Ombudsman.
• Effect of the MOA and Prior Court-Martial Action: The SC debunked respondent's theory that by virtue of the January 28, 2004 MOA the General Court Martial had exclusive jurisdiction because the case was non-graft and corruption related. The MOA was not, and could not have been, an abrogation of the Ombudsman's plenary jurisdiction over complaints against public officials or employees for illegal, unjust, improper or inefficient acts or omissions; jurisdiction over the subject matter is a matter of law and may not be conferred by consent or agreement of the parties. A plain reading of the MOA shows it was executed to avoid conflicting decisions and wastage of government resources through proper coordination. It expressly recognized petitioner's primary jurisdiction, foresaw joint inquiries and fact-finding investigations between the petitioner and the AFP, assisted by the Commission on Audit if need be, with respect to graft and corruption cases, and reserved petitioner's authority to determine what law was violated in cases directly lodged before it, including the Articles of War. It provided that if a case filed before it is found to be non-graft or corruption-related, it is to be endorsed to the AFP; the purpose is coordination and avoidance of conflicting parallel investigations. When the MOA provided that non-graft cases against military personnel shall be endorsed by petitioner to the disciplinary authority of the AFP, it did so as a matter of efficiency and in recognition of the AFP's concurrent jurisdiction and vast resources for investigations, including military intelligence. Concurrence of jurisdiction does not allow concurrent exercise of jurisdiction; the rule excludes any other concurrently authorized body from the body first exercising jurisdiction. The SC thus did not sustain the theory of exclusive jurisdiction under the MOA; the AFP's prior exercise of concurrent jurisdiction excluded the Ombudsman.
• Due Process and Substantial Evidence: Even assuming petitioner validly exercised its jurisdiction, the SC could not agree that the Joint Decision was grounded on substantial evidence. Petitioner failed to accord respondent administrative due process. There was nothing on record to show that respondent was furnished with, or had otherwise received, a copy of the complaint-affidavits on which the Joint Decision was based. Thus, it could not be said that respondent had a fair opportunity to squarely and intelligently answer the accusations or offer rebuttal evidence. In Office of the Ombudsman vs. Reyes, the SC emphasized that a judgment in an administrative case imposing the extreme penalty of dismissal must not only be based on substantial evidence but also rendered with due regard to the rights of the parties to due process. Due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents' right to a hearing, which includes the right to present one's case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the reasons for it and the various issues involved. Petitioner's contention that it may decide cases based solely on affidavits without need of a formal hearing is correct; however, nothing on record refuted respondent's assertion that he had not been able to submit a counter-affidavit or position paper because he was not furnished copies of the complaints despite repeated manifestations and motions. As the opportunity to consider and appreciate respondent's counter-statement of facts was denied him, the CA was hard-pressed to consider the evidence against respondent as substantial. Findings of fact by the Ombudsman are conclusive when supported by substantial evidence, but the rule is not absolute; the CA may resolve factual issues, review and re-evaluate the evidence, and reverse the administrative agency's findings if not supported by substantial evidence. Under Rule 45, jurisdiction is generally limited to review of errors of law, but the general rule admits exceptions, such as where the factual findings of the CA and the trial court are conflicting or contradictory; review was warranted because of the conflicting findings of the Deputy Ombudsman and the CA. Applying the rule on res inter alios acta alteri nocere non debet, the CA noted that petitioner relied solely on the allegations in the complaint-affidavits of the two self-confessed killers-for-hire to implicate respondent as a co-conspirator. This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. The CA found no corroborative evidence of conspiracy, direct or circumstantial. Petitioner argued that its administrative proceedings are not bound by technical rules of procedure and evidentiary rules, but while administrative or quasi-judicial bodies are not bound by technical rules of procedure, this rule cannot be taken as a license to disregard fundamental evidentiary rules; the decision of the administrative agencies and the evidence it relies upon must, at the very least, be substantial. The evidence presented must at least have a modicum of admissibility for it to have probative value; not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. Substantial evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Petitioner's factual conclusions were based solely on the allegations in the complaint-affidavits; compounded by the fact that respondent was not furnished copies of the complaint-affidavits as would have afforded him the opportunity to present his side, the CA cannot be faulted for concluding that petitioner's Joint Decision was not supported by substantial evidence.

• Concurrent jurisdiction and first-to-acquire rule — In administrative cases involving concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction. The SC applied this to the Ombudsman and the AFP General Court Martial, which have concurrent or coordinate jurisdiction over administrative disciplinary cases involving military personnel; because the AFP first acquired jurisdiction, the Ombudsman should have refrained from acting.
• Court-martial proceedings are sui generis — Military law is sui generis and applies only to military personnel because the military is an armed organization requiring a separate disciplinary system. Court-martial proceedings contemplate both the penal and administrative disciplinary nature of military justice; in view of the administrative disciplinary aspect shared with the Ombudsman, both have concurrent authority to dismiss respondent from the service.
• Ombudsman's plenary jurisdiction cannot be abrogated by agreement — Jurisdiction over the subject matter is a matter of law and may not be conferred by consent or agreement of the parties. The January 28, 2004 MOA between the AFP and the Ombudsman did not abrogate the Ombudsman's plenary jurisdiction; it was intended for coordination and efficiency and recognized the Ombudsman's primary jurisdiction, while providing for endorsement of non-graft cases to the AFP.
• Due process in administrative proceedings — A judgment in an administrative case imposing the extreme penalty of dismissal must not only be based on substantial evidence but also rendered with due regard to the rights of the parties to due process. The SC listed the cardinal principles: right to a hearing including presenting one's case and submitting evidence; the tribunal must consider the evidence; the decision must have a basis; there must be substantial evidence; the decision must be rendered on evidence presented or contained in the record and disclosed to the parties; the tribunal must act on its own consideration of law and facts and not simply accept a subordinate's views; and the decision must be rendered so respondents know the reasons and issues. Applied: respondent was not furnished copies of the complaint-affidavits, denying him the opportunity to answer.
• Substantial evidence — Substantial evidence is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Findings of the Ombudsman are conclusive when supported by substantial evidence, but the CA may review and reverse if not supported. Applied: the Ombudsman relied solely on complaint-affidavits, with no independent evidence of conspiracy, so the finding was not substantial.
• Res inter alios acta alteri nocere non debet — The act or declaration of a conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. Applied: the CA found no corroborative evidence of conspiracy apart from the affidavits of Barcelona and Rosqueta.
• Exhaustion of administrative remedies is not absolute — Exceptions include violation of due process and purely legal questions. Applied: respondent raised due process concerns and the legal effect of the court-martial's "Not Guilty" order, so a prior motion for reconsideration before the Ombudsman was not required.
• Administrative bodies not bound by technical rules but cannot disregard fundamental evidentiary rules — Administrative or quasi-judicial bodies are not bound by technical rules of procedure, but this is not a license to disregard fundamental evidentiary rules; the decision and evidence must at least be substantial. Applied: the Ombudsman could decide on affidavits without a formal hearing, but it still had to furnish respondent copies and rely on substantial evidence.

• "In administrative cases involving the concurrent jurisdiction of two or more disciplining authorities, the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction". — This is the first-to-acquire rule that the SC applied to hold that the AFP General Court Martial's prior exercise of jurisdiction excluded the Ombudsman.
• "A judgment in an administrative case that imposes the extreme penalty of dismissal must not only be based on substantial evidence but also rendered with due regard to the rights of the parties to due process." — This is the standard the SC used to invalidate the Ombudsman's Joint Decision for failing to furnish respondent copies of the complaint-affidavits.
• "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." — This definition supported the SC's conclusion that the Ombudsman's reliance on the complaint-affidavits alone was insufficient.
• "This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession." — This is the res inter alios acta rule that the CA applied in finding no independent evidence of conspiracy.

• Office of the Ombudsman vs. Reyes, 674 Phil. 416, 434 (2011) — Controlling precedent on the requirement that a dismissal in an administrative case be based on substantial evidence and rendered with due process.
• Primo C. Miro vs. Maarilyn Mendoza Vda. De Erederos, et al., 721 Phil. 772 (2013) — Followed on the conclusiveness of the Ombudsman's factual findings when supported by substantial evidence and on the CA's power to reverse unsupported findings; also cited for the definition of substantial evidence.
• Lt. Gonzales vs. Gen. Abaya, 530 Phil. 189 (2006) — Relied on for the service-connected nature of Article 96 offenses and the sui generis character of court-martial proceedings.
• Maj. Gen. Garcia (ret.) vs. Executive Secretary, et al., 692 Phil. 114, 138 (2012) — Cited for the nature of court-martial proceedings as criminal rather than administrative, while recognizing their administrative disciplinary character.
• Office of the Ombudsman vs. Rodriguez, 639 Phil. 312, 321 (2010) — Relied on for the first-to-acquire rule in administrative cases involving concurrent jurisdiction.
• Metromedia Times Corp. vs. Pastorin, 503 Phil. 288, 301 (2005) — Cited for the rule that jurisdiction over the subject matter is a matter of law and cannot be conferred by consent or agreement.
• Tamargo vs. Awingan, et al., 624 Phil. 312, 327 (2010) — Cited for the res inter alios acta rule on the admissibility of a conspirator's act or declaration against co-conspirators.
• Maglalang vs. Philippine Amusement and Gaming Corp., 723 Phil. 546, 557 (2013) — Cited for the exceptions to the doctrine of exhaustion of administrative remedies, including due process violations and purely legal questions.

• R.A. No. 6770 (The Ombudsman Act of 1989) — Cited as the basis for the Ombudsman's jurisdiction; the SC recognized that it shares concurrent or coordinate jurisdiction with the AFP General Court Martial over administrative disciplinary cases involving military personnel.
• C.A. No. 408, in relation to R.A. No. 7055 — The Articles of War and the law on service-connected offenses; the SC used these to characterize the court-martial's jurisdiction over service-connected violations and its administrative disciplinary character.
• Article 96, Articles of War — Conduct Unbecoming an Officer and Gentleman; the SC noted that the offense is service-connected and the penalty is dismissal from the service, purely disciplinary in character.
• Article 97, Articles of War — Neglects to the Prejudice of Good Order and Military Discipline; this was one of the charges before the General Court Martial.
• Rule 45, Rules of Court — The petition for review on certiorari filed by the Ombudsman; the SC noted that review is generally limited to errors of law but factual review was warranted due to conflicting findings.
• Rule 43, Rules of Court — The route by which respondent appealed the Ombudsman's Joint Decision to the CA; the SC found the CA properly entertained the petition.
• Memorandum of Agreement dated January 28, 2004 between the AFP and the Office of the Ombudsman — Delineated disciplinary authority; the SC held it did not abrogate the Ombudsman's plenary jurisdiction but was for coordination and efficiency, with non-graft cases to be endorsed to the AFP.