Office of the Ombudsman vs. Valera

The power to preventively suspend a government officer or employee pending administrative investigation is vested exclusively in the Ombudsman and his Deputies under Section 24 of R.A. No. 6770; the Special Prosecutor, though accorded the same rank as a Deputy Ombudsman, may only recommend—not issue—a preventive suspension order, notwithstanding any memorandum by the Ombudsman directing the Special Prosecutor to act in his place and stead.

Atty. Gil A. Valera was appointed Deputy Commissioner of the Bureau of Customs by President Gloria Macapagal-Arroyo on July 13, 2001, in charge of the Revenue Collection Monitoring Group. The Office of the Ombudsman, as structured under R.A. No. 6770 (the Ombudsman Act of 1989), is composed of the Ombudsman, the Overall Deputy, Deputies for Luzon, Visayas, Mindanao, and the Armed Forces, and the Office of the Special Prosecutor, the last being an organic component under the supervision and control of the Ombudsman. The Special Prosecutor is accorded the same rank, salary, qualifications, and term as the Deputy Ombudsmen, but the statute enumerates the Special Prosecutor's powers separately and more narrowly than those of the Ombudsman and Deputies.

Atty. Gil A. Valera was appointed Deputy Commissioner of the Bureau of Customs by President Gloria Macapagal-Arroyo on July 13, 2001, took his oath on August 3, 2001, and assumed his post on August 7, 2001, heading the Revenue Collection Monitoring Group. On August 20, 2003, the Office of the Ombudsman received a sworn complaint filed by PNP-CIDG Director Eduardo S. Matillano charging Valera with criminal offenses involving violations of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act), the Tariff and Customs Code of the Philippines (TCCP), Executive Order No. 38, Executive Order No. 298, and R.A. No. 6713, as well as administrative offenses of Grave Misconduct and Serious Irregularity in the Performance of Duty. The complaint also charged Valera's brother-in-law, Ariel Manongdo, with violation of Section 4 of R.A. No. 3019.

The sworn complaint alleged three principal charges. First, on January 30, 2002, Valera allegedly compromised the collection case against Steel Asia Manufacturing Corporation in Civil Case No. 01-102504 before Branch 39, RTC, Manila, without proper authority from the Commissioner of Customs and without approval of the President, in violation of Section 2316 of the TCCP and Executive Order Nos. 156 and 38. The compromise allegedly caused the government undue injury by waiving legal interest, surcharges, litigation expenses, and damages, and gave Steel Asia unwarranted benefits totaling ₱14,762,467.70 in uncollected amounts. Second, Valera allegedly had financial or pecuniary interest in Cactus Cargoes Systems, a customs brokerage firm, by causing the employment of his brother-in-law therein. Third, on April 21, 2002, Valera allegedly traveled to Hong Kong with his family without proper authority from the Office of the President in violation of Executive Order No. 298. Prior to Matillano's complaint, similar charges had been filed by Atty. Adolfo Casareño, also alleging that Valera entered into the compromise agreement with Steel Asia without authority from the Commissioner of Customs.

The cases against Valera before the Ombudsman were docketed as OMB-C-C-02-0568-I, OMB-C-C-03-0547-J, and OMB-C-A-0379-J. On November 12, 2003, Ombudsman Simeon V. Marcelo issued a Memorandum inhibiting himself from all three cases and directing Special Prosecutor Dennis M. Villa-Ignacio to act in his place and stead, without stating any reason for the inhibition. Pursuant to that memorandum, Special Prosecutor Villa-Ignacio issued the Order dated March 17, 2004 in the administrative case OMB-C-A-0379-J, placing Valera under preventive suspension for six months without pay. Villa-Ignacio found that Valera entered into the compromise agreement with Steel Asia without authority from the Commissioner of Customs and without approval of the Secretary of Finance, in violation of Section 2316 of the TCCP, and concluded that strong evidence of guilt existed under Section 24 of R.A. No. 6770.

Valera sought reconsideration, claiming denial of due process, pointing out that he had submitted his counter-affidavit on November 6, 2003, and that the Preliminary Investigation and Administrative Adjudication Bureau-A (PIAB-A) had not found sufficient basis for preventive suspension during the two-month period before the Ombudsman required his counter-affidavit. Villa-Ignacio denied the motion on April 5, 2004, explaining that the delay was due to the Ombudsman's inhibition and the transmittal of records. Even before his motion for reconsideration was resolved, Valera filed a petition for certiorari and prohibition with the Court of Appeals, which issued a temporary restraining order on April 16, 2004. On June 25, 2004, the appellate court set aside the March 17, 2004 Order, holding that the Special Prosecutor had no authority to issue preventive suspension orders under Section 24 of R.A. No. 6770 and that Ombudsman Marcelo's Memorandum designating Villa-Ignacio to act in his place and stead was null and void. The Court of Appeals further found that the evidence of guilt was not strong, noting that Valera was not immediately suspended unlike other officials simultaneously charged, that Villa-Ignacio's comment did not reference the foreign travel violation, and that the PIAB-A had recommended against preventive suspension.

• Delegated Authority: Petitioners maintained that the Ombudsman's Memorandum directing the Special Prosecutor to act in his place and stead fully clothed Villa-Ignacio with delegated authority to act on the case, including the power to preventively suspend, since Section 24 of R.A. No. 6770 allows the Ombudsman to preventively suspend and the delegation transferred that authority. They argued that nothing in Section 24 prohibits delegation to an alter ego of the Ombudsman, and that the Special Prosecutor possessed the necessary qualifications and competence, sharing the same rank, qualifications, and appointment process as the Deputy Ombudsmen.
• Statutory Basis for Delegation: Petitioners invoked Section 11(4)(c) of R.A. No. 6770, which authorizes the Office of the Special Prosecutor to "perform such other duties assigned to it by the Ombudsman," contending that the Ombudsman may validly delegate functions he cannot personally perform and is not obliged to delegate only to the Overall Deputy Ombudsman. They asserted that no law mandates that the Ombudsman can inhibit himself only in favor of the Deputy Ombudsmen.
• Strong Evidence of Guilt: Petitioners argued that the evidence of Valera's guilt was strong, citing his unauthorized compromise agreement with Steel Asia, the waiver of penalties and damages, the exoneration of company officers from criminal liability for using spurious tax credit certificates, and his procurement of employment for his brother-in-law with a customs brokerage firm dealing with the Bureau of Customs. They asserted that the PIAB-A's recommendation against suspension was not binding on the Special Prosecutor, and that Valera's counter-affidavit failed to rebut the strong evidence against him.
• Delay Justified: Petitioners explained that the delay in issuing the preventive suspension order was due to the Ombudsman's inhibition, delay in transmittal of case records, and the time needed to study the divergent recommendations of the PIAB-A and the Assistant Ombudsman for PAMO.
• Forum Shopping: Petitioners charged Valera with violation of the rule on non-forum shopping for filing his certiorari petition with the Court of Appeals while his motion for reconsideration was still pending before the Special Prosecutor.

• No Authority to Suspend: Respondent Valera argued that the Special Prosecutor has no authority to issue preventive suspension orders, because Section 24 of R.A. No. 6770 vests that power only on the Ombudsman and his Deputies. While Section 11(4)(c) allows assignment of other duties to the Special Prosecutor, such performance must remain "under the supervision and control and upon the authority of the Ombudsman," which is undermined when the Special Prosecutor is designated to step into the Ombudsman's position.
• Hierarchy of Command: Respondent contended that the Ombudsman's memorandum destroyed the hierarchy within the Office of the Ombudsman by placing the Special Prosecutor over the Overall Deputy Ombudsman, infringing on Section 11(2) of R.A. No. 6770, which provides that the Overall Deputy Ombudsman shall oversee and administer the operations of the different offices and assumes as Acting Ombudsman in case of vacancy.
• Ejusdem Generis: Applying the rule of ejusdem generis, respondent theorized that since the first two powers enumerated in Section 11(4)—conducting preliminary investigation and entering plea bargaining—relate to criminal cases, the catch-all power "to perform such other duties assigned to it by the Ombudsman" can only refer to duties related to criminal complaints and cases, not to administrative adjudication or preventive suspension.
• Failure to Consider Counter-Affidavit: Respondent stressed that the Special Prosecutor issued the preventive suspension order without considering the counter-affidavit already filed on November 6, 2003, rendering the order null and void.
• Evidence Not Strong: Respondent cited the delay in placing him under preventive suspension—the first complaint was filed as early as August 26, 2002—and the PIAB-A's recommendation against suspension as beling the strength of the evidence against him.
• Justified Filing of Certiorari: Respondent stated that he filed the certiorari petition without awaiting resolution of his motion for reconsideration because the Special Prosecutor had not resolved it despite the lapse of the period provided by the Ombudsman's rules of procedure.

• Authority to Issue Preventive Suspension: Whether the Special Prosecutor, acting pursuant to a memorandum by the Ombudsman directing him to act in the Ombudsman's place and stead, has the authority to place a public officer under preventive suspension under Section 24 of R.A. No. 6770.
• Strength of Evidence: Whether the evidence of guilt against respondent Valera was strong enough to warrant preventive suspension.
• Forum Shopping: Whether respondent Valera's petition for certiorari before the Court of Appeals should have been dismissed for violation of the rule on forum shopping.

• Authority to Issue Preventive Suspension: No. The power to preventively suspend under Section 24 of R.A. No. 6770 is vested exclusively in the Ombudsman and his Deputies; the Special Prosecutor's authority in administrative investigation is limited to recommending—not issuing—preventive suspension orders.
• Strength of Evidence: Not passed upon. The resolution of this issue was rendered moot by the finding that the Special Prosecutor lacked authority to issue the suspension order in the first place.
• Forum Shopping: No dismissal warranted. The appellate court correctly overlooked the procedural lapse, the merits of the case constituting special circumstances justifying relaxation of the non-forum shopping rule.

• Authority to Issue Preventive Suspension: The Court examined the statutory framework of R.A. No. 6770 and the Constitution. Section 24 of R.A. No. 6770 expressly provides that "[t]he Ombudsman and his Deputy may preventively suspend any officer or employee under his authority pending an investigation." The Special Prosecutor is not mentioned in Section 24, notwithstanding that R.A. No. 6770 mentions the Special Prosecutor alongside the Ombudsman and Deputy Ombudsmen in provisions concerning appointment, qualifications, term of office, grounds for removal, prohibitions, and disclosure of relationship. Applying the maxim expressio unius est exclusio alterius, the deliberate omission of the Special Prosecutor from Section 24 evinces a legislative intent to withhold the power to preventively suspend from that office. The petitioners' argument that the Special Prosecutor, being of the same rank as a Deputy Ombudsman, can perform all the latter's functions was rejected, because rank classification under civil service laws determines salary and status, not necessarily powers or functions. The Court acknowledged that the Ombudsman may delegate his investigatory function—including administrative investigation—to the Special Prosecutor pursuant to Section 15(10) and Section 11(4)(c) of R.A. No. 6770, read with the Administrative Code's definition of "supervision and control." However, the power to preventively suspend is not part of the investigatory function; it is a separate power expressly granted only to the Ombudsman and his Deputies. Thus, when conducting an administrative investigation, the Special Prosecutor's authority regarding preventive suspension is recommendatory in nature, akin to that of the PIAB-A investigating panel, which itself had recommended against suspension. The Special Prosecutor could only recommend to the Ombudsman—or, in case of the latter's inhibition, to the designated Deputy Ombudsman—that the public officer be placed under preventive suspension. The Ombudsman's Memorandum designating the Special Prosecutor to act in his place and stead could not validly transfer a power that the statute does not grant to the Special Prosecutor. The Court also noted that Ombudsman Marcelo did not state any reason for his inhibition, and that the rule on voluntary inhibition requires just and valid causes, similar to the standard for judges.
• Strength of Evidence: Because the Court found that the Special Prosecutor had no authority to issue the preventive suspension order, it declined to resolve whether the evidence of guilt was strong, as that question was rendered academic.
• Forum Shopping: The Court held that the appellate court correctly overlooked the procedural lapse, the merits of respondent Valera's case constituting special circumstances or compelling reasons justifying relaxation of the rule requiring certification on non-forum shopping.

• Expressio unius est exclusio alterius — The express mention of one person, thing, act, or consequence excludes all others. The Court applied this maxim to Section 24 of R.A. No. 6770: because the provision expressly names the Ombudsman and his Deputies as the officials empowered to preventively suspend, and deliberately omits the Special Prosecutor—despite mentioning the Special Prosecutor alongside the Ombudsman and Deputies in other provisions of the same statute—the power to preventively suspend is withheld from the Special Prosecutor.

• Supervision and control under administrative law — As defined in Section 38(1), Chapter 7, Book IV of the Administrative Code of 1987, supervision and control include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse, or modify acts and decisions of subordinate officials; determine priorities; and prescribe standards and guidelines. The Court explained that the Ombudsman's supervision and control over the Special Prosecutor allows delegation of investigatory functions but does not extend to transferring the power to preventively suspend, which is not part of the investigatory function but a separate statutory grant limited to the Ombudsman and Deputies.

• Rank does not determine powers — Under civil service laws, rank classification determines the salary and status of government officials and employees. Although there is substantial equality in the level of functions between officials of the same rank, those occupying the same rank do not necessarily have the same powers or perform the same functions. The Court used this principle to reject the argument that the Special Prosecutor, having the same rank as a Deputy Ombudsman, could exercise the Deputy's power to preventively suspend.

• Voluntary inhibition of the Ombudsman — The rule on voluntary inhibition of judges finds application to the Ombudsman in the performance of his functions, particularly in administrative proceedings. The decision on whether to inhibit is left to the Ombudsman's sound discretion and conscience, but the inhibition must be for just and valid causes; the Ombudsman has no unfettered discretion to inhibit himself.

• "It is observed that R.A. No. 6770 has invariably mentioned the Special Prosecutor alongside the Ombudsman and/or the Deputy Ombudsmen with respect to the manner of appointment, qualifications, term of office, grounds for removal from office, prohibitions and disqualifications and disclosure of relationship requirement. However, with respect to the grant of the power to preventively suspend, Section 24 of R.A. No 6770 makes no mention of the Special Prosecutor. The obvious import of this exclusion is to withhold from the Special Prosecutor the power to preventively suspend." — This passage articulates the ratio decidendi: the Court's application of expressio unius est exclusio alterius to Section 24, establishing that the statutory omission of the Special Prosecutor was deliberate and dispositive.

• "Stated differently, with respect to the conduct of administrative investigation, the Special Prosecutor's authority, insofar as preventive suspension is concerned, is akin to that of the PIAB-A, i.e., recommendatory in nature. It bears stressing that the power to place a public officer or employee under preventive suspension pending an investigation is lodged only with the Ombudsman or the Deputy Ombudsmen." — This passage defines the precise scope of the Special Prosecutor's authority in administrative investigation: recommendatory, not decisional, when it comes to preventive suspension.

• "The petitioners' contention that since the Special Prosecutor is of the same rank as that of a Deputy Ombudsman, then the former can rightfully perform all the functions of the latter, including the power to preventively suspend, is not persuasive. Under civil service laws, rank classification determines the salary and status of government officials and employees. Although there is substantial equality in the level of their respective functions, those occupying the same rank do not necessarily have the same powers nor perform the same functions." — This passage establishes the principle that rank equivalence does not confer functional equivalence, distinguishing status from statutory grants of power.

• Zaldivar vs. Sandiganbayan, 160 SCRA 843 (1988) — Cited as controlling authority for the proposition that the Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may act only under the supervision and control and upon the authority of the Ombudsman.
• Acop vs. Office of the Ombudsman, 248 SCRA 566 (1995) — Followed for the same proposition regarding the limited authority of the Special Prosecutor as a component office under the Ombudsman's supervision and control.
• Uy vs. Sandiganbayan, 354 SCRA 651 (2001) — Cited for two propositions: (1) the Ombudsman's power to investigate and prosecute is plenary and unqualified; and (2) the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of R.A. No. 6770.
• Concerned Officials of the Metropolitan Waterworks and Sewerage System vs. Vasquez, 240 SCRA 502 (1995) — Cited for the categorization of the Ombudsman's powers into investigatory, prosecutory, public assistance, authority to inquire and obtain information, and preventive measures.
• City Government of San Pablo, Laguna vs. Reyes, 305 SCRA 353 (1999) — Cited as authority for the maxim expressio unius est exclusio alterius, applied to Section 24 of R.A. No. 6770.
• Ledesma vs. Court of Appeals, 278 SCRA 656 (1997) — Cited for the definition of supervision and control in administrative law.
• Garcia vs. Mojica, 314 SCRA 207 (1999) — Cited for the proposition that Section 24 of R.A. No. 6770 expressly grants only to the Ombudsman and the Deputy Ombudsmen the power to place government officials and employees under preventive suspension.
• Argana vs. Republic, 443 SCRA 184 (2004) — Cited for the rule that the decision on whether to inhibit is left to the Ombudsman's sound discretion and conscience.
• Chin vs. Court of Appeals, 409 SCRA 206 (2003) — Cited for the principle that inhibition must be for just and valid causes and that the Ombudsman has no unfettered discretion to inhibit himself.
• Twin Towers Condominium Corp. vs. Court of Appeals, 398 SCRA 203 (2003) — Cited for the proposition that compelling reasons may justify relaxation of the rule on non-forum shopping.

• Section 24, R.A. No. 6770 (Ombudsman Act of 1989) — The provision governing preventive suspension, expressly granting the power to the Ombudsman and his Deputy. The Court held that the deliberate omission of the Special Prosecutor from this provision, by application of expressio unius est exclusio alterius, withholds the power to preventively suspend from the Special Prosecutor.
• Section 11(4), R.A. No. 6770 — Enumerates the powers of the Office of the Special Prosecutor: (a) to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) to enter into plea bargaining agreement; and (c) to perform such other duties assigned to it by the Ombudsman. The Court held that these powers are exercised under the supervision and control and upon the authority of the Ombudsman, and that the Ombudsman may delegate his investigatory function—including administrative investigation—under subsection (c), but not the power to preventively suspend.
• Section 15(10), R.A. No. 6770 — Authorizes the Ombudsman to delegate to the Deputies, investigators, or representatives such authority or duty as shall ensure the effective exercise or performance of the Ombudsman's powers, functions, and duties. The Court read this provision complementarily with Section 11(4)(c) to support the delegation of investigatory functions to the Special Prosecutor.
• Section 13, Article XI, 1987 Constitution — Enumerates the powers, functions, and duties of the Office of the Ombudsman, including the power to investigate, direct, request assistance, publicize, determine causes of inefficiency, and promulgate rules.
• Section 12, Article XI, 1987 Constitution — States that the Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints against public officials. The Court cited this provision to show that the power to preventively suspend inheres in the mandate of the Ombudsman and his Deputies under the Constitution.
• Section 5, Article XI, 1987 Constitution — Describes the composition of the Office of the Ombudsman as the Ombudsman, one overall Deputy, and at least one Deputy each for Luzon, Visayas, and Mindanao, with a separate Deputy for the military establishment. The Court of Appeals had cited this provision; the Supreme Court's analysis focused on the statutory grant in Section 24 of R.A. No. 6770.
• Section 38(1), Chapter 7, Book IV, Administrative Code of 1987 — Defines "supervision and control" to include authority to act directly, direct performance of duty, restrain acts, review, approve, reverse, or modify decisions of subordinates, determine priorities, and prescribe standards. The Court used this definition to delineate the scope of the Ombudsman's supervision and control over the Special Prosecutor.
• Section 2316, Tariff and Customs Code of the Philippines — Provides that the Commissioner of Customs may compromise cases subject to the approval of the Secretary of Finance. This provision was cited by the Special Prosecutor as the basis for finding that Valera lacked authority to enter into the compromise agreement with Steel Asia.
• Section 2401, Tariff and Customs Code of the Philippines — Provides for supervision and control over criminal and civil proceedings instituted on behalf of the government, requiring the approval of the Commissioner before filing civil or criminal actions. The Court of Appeals cited this provision as possibly authorizing Valera's compromise; the Supreme Court did not rule on this point as it was rendered academic.

Chief Justice Hilario G. Davide, Jr., and Associate Justices Reynato S. Puno, Artemio V. Panganiban, Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio Morales, Adolfo S. Azcuna, Dante O. Tinga, and Minita V. Chico-Nazario concurred. Associate Justice Cancio C. Garcia took no part.