23)

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONDRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the City Prosecutor, Manila, respondents. DECISION

ground that Prosecutor Carisma was partial to the petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr. Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba. Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas resolution, the investigative pingpong continued when the case was again assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero. Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No. 3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing the complaint for lack of evidence. In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019. Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the following: investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain information, and function to adopt, institute and implement preventive measures. [4] As protector of the people, the Office of the Ombudsman has the power, function and duty to act promptly on complaints filed in any form or manner against public officials and to investigate any act or omission of any public official when such act or omission appears to be illegal, unjust, improper or inefficient. [5] While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed, this Court is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the 1987 Constitution. [6] In this regard, grave abuse of discretion has been defined as where a power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. [7] From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to another were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating authority with respect to misfeasance, nonfeasance and malfeasance of public officials, the Ombudsman should have been more vigilant and assiduous in determining the reasons behind the buckpassing to ensure that no irregularity took place. Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One would have expected the Ombudsman, however, to inquire into what could hardly qualify as standard operating procedure, given the surrounding circumstances of the case. While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to discover who may be charged with a crime, its function is merely to determine the existence of probable cause. [8] Probable cause has been defined as the existence of such fact and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecution, that the person charged was guilty of the crime for which he was prosecuted.[9]

ROMERO, J.: May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated in Ocampo v. Ombudsman [1] which states: In the exercise of its investigative power, this Court has consistently held that courts will not interfere with the discretion of the fiscal or the Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may dismiss the complaint forthwith if he finds it to be insufficient in form and substance or if he otherwise finds no ground to continue with the inquiry; or he may proceed with the investigation of the complaint if, in his view, it is in due and proper form. Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of conducting a preliminary investigation to each other with contradictory recommendations, ping-pong style, perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her complaint against said City Prosecutors on the ground of lack of evidence. Much as we sympathize with the bereaved widow, however, this Court is of the opinion that the general rule still finds application in instant case. In other words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against filing the necessary information against public respondents of the Office of the City Prosecutor. The following facts are borne out by the records. Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of unknown cause, according to officials of the UST Hospital.[2] Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy on her husbands body. Consequently, the NBI ruled that Florencios death was due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor. During the preliminary investigation, what transpired was a confounding series of events which we shall try to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon O. Carisma, who issued a resolution recommending that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio be dismissed. The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the interest of justice and peace of mind of the parties, recommended that the case be re -raffled on the

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean actual and positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.[10] In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed negligence on the part of the attending physicians in administering the anaesthesia. [11] The fact of want of competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not in a competent position to pass judgment on such a technical matter, especially when there are conflicting evidence and findings. The bases of a partys accusation and defenses are better ventilated at the trial proper than at the preliminary investigation. A word on medical malpractice or negligence cases. In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. [12] Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients.[13] They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice.[14] Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence.[15] Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper anaesthesia.[16]Essentially, it requires two-pronged evidence: evidence as to the recognized standards of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment.[17] Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctors actions in fact caused the harm to the patient and whether these were the proximate cause of the patients injury.[18] Indeed here, a causal connection is discernible from the occurrence of the victims death after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the symptoms of malignant

hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. [19] Why these precautionary measures were disregarded must be sufficiently explained. The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act which requires the following facts: 1. The accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; 2. The public officer committed the prohibited act during the performance of his official duty or in relation to his public position; 3. The public officer acted with manifest partiality, evident bad faith or gross, inexcusable negligence; and 4. His action caused undue injury to the Government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties. [20] Why did the complainant, petitioner in instant case, elect to charge respondents under the above law? While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from the armory, it is with no little surprise that this Court views the choice made by the complainant widow. To our mind, the better and more logical remedy under the circumstances would have been to appeal the resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the Department of Justices Order No. 223, [21] otherwise known as the 1993 Revised Rules on Appeals From Resolutions In Preliminary Investigations/Reinvestigations, as amended by Department Order No. 359, Section 1 of which provides: Section 1. What May Be Appealed. - Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof. What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: The Secretary of Justice may reverse, affirm or modify the appealed resolution. On the other hand, He may motu proprio or on motion of the appellee, dismiss outright the appeal on specified grounds. [22] In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority in dismissing the complaint against the Prosecutors and this Court will not interfere with the same. WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the respondent City Prosecutors. No costs. SO ORDERED.

24) FRIVALDO vs. COMELEC

Facts: Petitioner Juan G. Frivaldo was proclaimed governor-elect and assume office in due time. The League of Municipalities filed with the COMELEC a petition for annulment of Frivaldos election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States. Frivaldo admitted the allegation

but pleaded the special and affirmative defenses that his naturalization was merely forced upon himself as a means of survival against the unrelenting prosecution by the Martial Law Dictators agent abroad.

Issue: Whether or not Frivaldo was a citizen of the Philippines at the time of his election.

Held: No. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution.

when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Private respondent is considered as a dual citizen because he is born of Filipino parents but was born in San Francisco, USA. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. By filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippine, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.

Even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced.

Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire tenure.

Frivaldo declared not a citizen of the Philippines and therefore disqualified from serving as a Governor of the Province of Sorsogon.

26) CAASI vs. COMELEC Case Digest

25) Mercado Vs. Manzano Case Digest Facts: Petitioner Ernesto Mercado and Private respondent Eduardo Manzano are candidates for the position of Vice-Mayor of Makati City in the May, 1998 elections. Private respondent was the winner of the said election but the proclamation was suspended due to the petition of Ernesto Mamaril regarding the citizenship of private respondent. Mamaril alleged that the private respondent is not a citizen of the Philippines but of the United States. COMELEC granted the petition and disqualified the private respondent for being a dual citizen, pursuant to the Local Government code that provides that persons who possess dual citizenship are disqualified from running any public position. Private respondent filed a motion for reconsideration which remained pending until after election. Petitioner sought to intervene in the case for disqualification. COMELEC reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC and to declare the private respondent disqualified to hold the office of the vice mayor of Makati. Issue: Whether or Not private respondent is qualified to hold office as Vice-Mayor. Held: Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. For instance, such a situation may arise

Facts: Private respondent Merito Miguel was elected as municipal mayor of Bolinao, Pangasinan during the local elections of January 18, 1988. His disqualification, however, was sought by herein petitioner, Mateo Caasi, on the ground that under Section 68 of the Omnibus Election Code private respondent was not qualified because he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.

Issues: 1. Whether or not a green card is proof that the holder is a permanent resident of the United States. 2. Whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Held: The Supreme Court held that Miguels application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green

card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local election on January 18, 1988, the Courts conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

"6. It appears from the foregoing facts and circumstances on record that the provisions of Section 3 (e) and (g) of RA 3019 among other laws, were violated: "Sec. 3. Corrupt Practice of Public Officers. - In addition to the acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

27) PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman & ORLANDO L. SALVADOR, as Consultant, Technical Working Group of the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, petitioner, vs. HON. ANIANO A. DESIERTO, as Ombudsman, P.O. DOMINGO, MARIO ORTIZ & ALEJANDRO CRUZ, Philippine National Bank Officers, and ENRIQUE T. GALAN, SEBASTIAN C. COSCOLLUELA, ARSENIO L. DEL ROSARIO & JOSE HAUTEA, Officers of Calinog-Lambunao Sugar Mills, Inc., respondents.

xxx "7. x x x

xxx

xxx

"8. As of April 30, 1986, (the) firm has an outstanding and unpaid balance of P348.291 million representing bid price of foreclosed assets (Evidence 8)"[9] On May 29, 1997, the Ombudsman dismissed the complaint on the ground of prescription. The resolution reads:

DECISION PARDO, J.:

The Case

The case before the Court is a special civil action for certiorari to annul and set aside the resolution of the Ombudsman [1] dismissing the complaint against respondents and to order the Ombudsman to file the necessary information for violation of the Anti-Graft and Corrupt Practices Act against them.[2]

"The loan transactions subject of this complaint occurred in the years 1968, 1978, 1979 and 1982, respectively. A cursory look at the said loan transactions would readily disclose the fact that the fifteen (15) year prescriptive period for offenses punishable under R.A. 3019, as amended has already passed from the time the alleged offenses were committed. If there is nothing that was concealed or needed to be discovered, because the entire series of transactions was by public instruments, duly recorded, the crime of estafa committed in connection with said transactions was known to the offended party when it was committed and the period of prescription commenced to run from the date of its commission (People vs. Dinsay, C.A. 40 O.G., 12 Supp. 50). "Applying now the foregoing decision of the Court in the case at bar, the prescriptive period of fifteen (15) years shall commence to run from the date of commission. Hence, the subject offenses have already prescribed following the pronouncement of the Court in the foregoing case. "WHEREFORE, in view of the foregoing, it is respectfully recommended that the instant charges against herein respondents be dismissed on the ground of prescription. "SO RESOLVED. "Manila, Philippines, May 29, 1997."[10] Hence, this petition.[11] On October 28, 1999, the Ombudsman manifested to the Court his willingness to have the case remanded to his Office for preliminary investigation. Thus "In view of the fact that the case involves an alleged behest loan which Public Respondent dismissed on the sole ground of prescription, Public Respondent manifests its willingness to have the case remanded to the Office of the Ombudsman for preliminary investigation. Prayer "Wherefore, it is respectively prayed of this Honorable Court that this Manifestation be NOTED.[12]

The Facts

Atty. Orlando Salvador was PCGG Consultant on detail with the Presidential Ad Hoc Committee on Behest Loans.[3] Likewise, he was the coordinator of the Technical Working Group (TWG) composed of officers and employees of different Government Financing Institutions (GFI). [4] Among the accounts referred to the TWG of the Behest Loans Committee was the loan of Calinog-Lambunao Sugar Mills, Inc.[5] with the Philippine National Bank (PNB). In 1968, Calinog applied to the PNB for a stand-by irrevocable confirmed letter of credit amounting to $22,109,412.00 to cover importation of sugar machinery and equipment on turn-key basis, construction, plantation and money loans in connection with its proposed 4,000 TCD Sugar Central. On March 20, 1968, the PNB approved the loan.[6] On May 8, 1968, the approved loan was increased to$22,132,377.00.[7] On March 24, 1997, Atty. Orlando Salvador filed with the Ombudsman[8] a complaint against Calinog-Lambunao Sugar Mills, Inc. (Calinog), alleging: "5. Pursuant to Administrative Order No. 13 dated October 18, 1992, creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans and further defined its scope under Memorandum Order No. 61 dated November 9, 1992, (copies attached), the Committee unanimously resolved that the presence of two or more of the eight (8) criteria mentioned under Memorandum No. 61 will classify the account as Behest Loan. "In the instant case, the Committee endorsed the account to be behest loan. "1. It is undercollateralized; "2. The borrower corporation is undercapitalized; "3. Non-feasibility of the project for which financing is being sought.

The Court's Ruling

The subject loans were given in 1968, 1978, 1979 and 1982. On March 24, 1997, petitioner filed a complaint with the Ombudsman for violation of R. A. No. 3019.[13] Respondents contend that the action is barred by prescription inasmuch as petitioner filed the complaint twenty nine (29) years after the crime was committed, well beyond the 15-year prescriptive period provided by law.

In resolving the issue of prescription of the offense charged, the following shall be considered: ( 1) the period of prescription for the offense charged; (2) the time the period of prescription started to run; and (3) the time the prescriptive period was interrupted.[14] Looking closely at the provisions of R. A. No. 3019 (Anti-Graft and Corrupt Practices Act), the law provides for its own prescriptive period. "Section 11. Prescription of offenses. - All offenses punishable under this Act shall prescribe in fifteen years." (Underscoring supplied) However, since R.A. No. 3019, as amended, is a special law, the applicable rule in the computation of the prescriptive period is provided in Act No. 3326, Section 2[15] as amended, which provides: "Section 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. "The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy." This implies that if the commission of the crime were known, the prescriptive period shall commence to run on the day the crime was committed. However, if the violation of the special law was not known at the time of its commission, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature of the constitutive act or acts. [16] In cases involving violations of R. A. No.3019 committed prior to the February 1986 Edsa Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the questioned transactions were made. [17] Moreover, no person would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans. As to when the period of prescription was interrupted, the second paragraph of Section 2, Act No. 3326, as amended, provides that prescription is interrupted "when proceedings are instituted against the guilty person." In this case, the prescriptive period was interrupted upon the filing of the complaint with the Ombudsman on March 24, 1997, five (5) years from the time of discovery in 1992. Thusly, the filing of the complaint was well within the prescriptive period. WHEREFORE, the Court hereby GRANTS the petition and SETS ASIDE the Resolution of the Ombudsman in Case No. OMB-0-97-0724, dated May 29, 1997. The Court further DIRECTS the Ombudsman to conduct preliminary investigation in Case No. OMB-0-97-0724 with deliberate dispatch. No costs. SO ORDERED.

OF THE SOLICITOR GENERAL and FRANCISCO I. CHAVEZ, respondents. Taada Vivo & Tan and Benjamin C. Santos Law Office for petitioner in 88578.

GANCAYCO, J.: Can the Office of the Solicitor General represent a public officer or employee in the preliminary investigation of a criminal action against him or in a civil action for damages against him? This is the principal issue in these two consolidated Petitions. G.R. No. 87977 Sometime in 1988, the petitioners in G.R. No. 87977, namely, Iluminado Urbano and Marcial Acapulco, instituted a criminal case against Secretary Luis Santos of the Department of Local Government as well as Sectoral Representatives Pacifico Conol and Jason Ocampos, Jr. of the Sangguniang Panlungsod of Tangub City, for alleged violation of the provisions of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The complaint against them was filed with the Office of the Ombudsman and was docketed as OSP Case No. 88-02780. The Office of the Solicitor General, through Solicitor General Francisco I. Chavez, Assistant Solicitor General Ramon A. Barcelona and Solicitor Amy C. Lazaro-Javier, entered its appearance as counsel for the said respondents as far as the preliminary investigation of the case is concerned. By way of a special civil action for prohibition filed with this Court, the said petitioners seek to enjoin the Solicitor General and his associates from acting as counsel for the said respondents in the course of the preliminary investigation. The said petitioners submit that in the event that the corresponding information is filed against the said respondents with the Sandiganbayan and a judgment of conviction is rendered by the said court, the appearance of the Office of the Solicitor General on behalf of the said respondents during the preliminary investigation will be in conflict with its role as the appellate counsel of the People of the Philippines. In its Comment filed on June 13, 1989, the Office of the Solicitor General manifested that the issue raised by the petitioners had been squarely resolved in favor of the said Office in Anti-Graft League of the Philippines, Inc. v.Hon. Ortega 1 and Solicitor General v. Garrido. 2 G.R. No. 88578 On December 29, 1987, the petitioner in G.R. No. 88578, namely, Nemesio G. Co, filed an Amended Complaint for damages against Solicitor General Francisco I. Chavez, the Businessworld Publishing Corporation, Raul L. Locsin and one John Doe. The Amended Complaint was filed with Branch 165 of the Regional Trial Court in Pasig, Metro Manila and was docketed as Civil Case No. 55379. The Honorable Milagros V. Caguioa was the presiding judge therein. In sum, the Amended Complaint alleged, inter alia, that the defendant Chavez knowingly, willfully and maliciously published and/or caused to be published certain defamatory imputations against the petitioner in an article which appeared in the December 4, 1987 issue of Business World, a periodical publication in Metro Manila, and that he caused the publication thereof by way of an interview characterized by bad faith and actual malice. The petitioner also alleged that the defamatory remarks impute that he was a close associate of former President Ferdinand Marcos and his daughter Imee Marcos-Manotoc and that he was involved in some anomalous transactions relating to the funds of the national government during the time that President Marcos was in office. It appears that at the time of the publication of the questioned article, Solicitor General Chavez was the counsel of the Presidential Commission on Good Government (PCGG), the government agency responsible for the investigation of alleged graft and corrupt practices relating to the former President, his relatives and his close associates.

29) .R. No. 87977 March 19, 1990 ILUMINADO URBANO and MARCIAL ACAPULCO, petitioners, vs. FRANCISCO I. CHAVEZ, RAMON BARCELONA and AMY LAZAROJAVIER, respondents. G.R. No. 88578 March 19, 1990 NEMESIO G. CO, petitioner, vs. REGIONAL TRIAL COURT OF PASIG (BRANCH 165), THE OFFICE

On February 11, 1988, the private defendants Businessworld Publishing Corporation and Raul L. Locsin filed a joint Motion to Dismiss. On February 12, 1988, the Office of the Solicitor General sought an extension of time to file the required responsive pleading. On March 14, 1988, the said Office filed a Motion to Dismiss on behalf of Solicitor General Chavez. Thereafter, the trial court set the case for oral argument on June 23, 1988. During the scheduled oral argument, the counsel of the petitioner objected to the appearance of the Office of the Solicitor General on behalf of Solicitor General Chavez. The trial court issued an Order suspending the proceedings and instructed the parties to submit their respective positions on the propriety of the appearance of the said Office for the Solicitor General himself. The parties complied with the instructions of the trial court. By way of a Motion seeking the disqualification of the Office of the Solicitor General to act as counsel of Solicitor General Chavez, the petitioner manifested to the trial court that he is suing the Solicitor General in his personal capacity for acts which he committed beyond the scope of his authority and as such he cannot be represented by the said Office in the civil suit instituted with the trial court. 3 On the other hand, the Office of the Solicitor General manifested that the objection raised by the petitioner is an afterthought on account of its belated character, and that this objection notwithstanding, it is authorized to represent any public official even if the said official is sued in his personal capacity pursuant to the unconditional provisions of Presidential Decree No. 478 which defines the functions of the said Office, as well as Executive Order No. 300 issued on July 26, 1987 which made the said office an independent agency under the Office of the President of the Philippines. 4 In support of this contention, the said Office cited the pronouncement of this Court in Anti-Graft League of the Philippines, Inc. 5 The said office also maintained that the cause of action against the Solicitor General is for acts committed by him in his official capacity, i.e., as legal counsel of the PCGG under Executive Order No. 14, series of 1986, and that the assailed actuations of a public official are presumed to have been done in the lawful performance of his duties. 6 In support thereof, the said Office cited the ruling of this Court in Peralta v. Firme. 7 In addition to the arguments above, the Office of the Solicitor General argued that public policy militates against the disqualification of the said Office from representing the Solicitor General in his capacity as a public official because, if it where the other way around, public officials will hesitate to perform their official functions for fear of being haled to court by almost anybody for the purpose of accounting for official acts, not to mention the trouble of having to hire a private lawyer at his own expense in order to defend himself. 8 The petitioner submitted his Reply thereto, alleging therein, among others, that the argument of the Solicitor General is untenable inasmuch as the expression of his views by way of an interview subsequently featured in a newspaper article is not an official function of the Solicitor General and that the jurisprudence cited by the Office of the Solicitor General opposes the position it had taken. 9 In an Order dated November 9, 1988, the trial court denied the Motion of the petitioner for lack of merit. 10 The petitioner sought a reconsideration of the Order. On the other hand, the Office of the Solicitor General opposed the reconsideration sought by the petitioner. 11 The petitioner filed a Reply to the opposition on the part of the said Office 12 which, in turn, filed a Rejoinder to the Reply. 13 In another Order dated May 26, 1989, the trial court denied the reconsideration sought by the petitioner. The pertinent portion of the said Order is as follows After a careful study, assessment and dissertation of the grounds, arguments advanced by the parties in their respective pleadings now under consideration, as well as the applicable laws and jurisprudence cited therein, the Court has arrived at

the inescapable conclusion, and so holds that the plaintiff failed to satisfactorily convince the Court that the Office of the Solicitor General cannot and/or does not have the authority to represent the defendant Francisco I. Chavez in this case, for the simple reason that it is indisputable that at the time said defendant allegedly made the malicious imputations against the plaintiff, he was then and still is the incumbent Solicitor General, and at the same time the counsel for the Presidential Commission on Good Government or PCGG. 14 Thus, the Order of the trial court dated May 26, 1989 is challenged before this Court on the ground that the same amounts to a grave abuse of discretion amounting to lack of jurisdiction on the part of the trial court. 15The petitioner now asks the Court to order the Office of the Solicitor General to desist from representing the Solicitor General in the civil suit for damages. On August 21, 1989, the Office of the Solicitor General filed its Comment on the Petition, reiterating therein its position before the trial court. 16 On August 31, 1989, the Court resolved to consider the said Comment as the Answer to the Petition and to give due course to the Petition. 17 Nonetheless, on October 4, 1989, the petitioner filed his Reply to the Comment, reiterating therein his arguments raised before the trial court. 18 The issue raised in G.R. No. 87977 relates to the authority of the Office of the Solicitor General to appear for certain government officials in the course of the preliminary investigation of their case before the Office of the Ombudsman. The issue raised in G.R. No. 88578 pertains to the authority of the said Office to appear for the Solicitor General who was haled to court in a civil suit for damages arising from an alleged defamatory remark which appeared in a newspaper. Both petitioners raise pure questions of law inasmuch as there are no evidentiary matters to be evaluated by this Court. Moreover, if the only issue is whether or not the conclusions of the trial court are in consonance with law and jurisprudence, then the issue is a pure question of law. 19Thus, the Court resolved to consolidate both Petitions and to treat them as Petitions for certiorari on pure questions of law in accordance with the provisions of the Rules of Court. 20 In due time, both Petitions were deemed submitted for decision. In resolving both Petitions, the Court must take into account the duties and functions of the Office of the Solicitor General. Presidential Decree No. 478 21 defines such duties and functions, to wit Sec. 1. Functions and Organization. 1) The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. . . (Emphasis supplied) The Office of the Solicitor General submits that on the basis of this provision, it can represent or otherwise defend any public official without any qualification or distinction in any litigation, and that an intepretation thereof to the effect that it is authorized to represent a public official only when the said official is clearly shown to be sued in his official capacity is erroneous. In short, the said Office argues that inasmuch as the law does not make a distinction as to the type of litigation wherein the said Office can enter its appearance as counsel, there should be no distinction made. 22 A similar provision can be found in Section 1661 of the Revised Administrative Code. It reads as follows: "As principal law officer of the Government, the Solicitor General shall have the authority to act for and represent the Government of the Philippine Islands, its officers and agents in any official investigation, proceeding or matter requiring the services of a lawyer." Like the cited provision of Presidential Decree No. 478, this provision does not have any qualifying phrase. The argument of the Office of the Solicitor General as regards Presidential Decree No.

478 seems to apply to this provision as well. Executive Order No. 300, series of 1987 cited by the said Office merely reiterates the provisions of the aforementioned Presidential Decree. In Anti-Graft League of the Philippines, Inc., 23 this Court pointed out that the phrase "official investigation, proceeding or matter requiring the services of a lawyer" found in Section 1661 of the Revised Administrative Code embraces a preliminary investigation in a criminal case initiated against a public official considering that the law makes no qualification as to the nature or character of the "official investigation" contemplated. The Court emphasized, however, that where the investigation results in an information filed against the public official concerned, then that official may no longer be represented by the Office of the Solicitor General and that, accordingly, he will have to get his own private counsel. Thus, this Court held that the Office of the Solicitor General can represent the public official at the preliminary investigation of his case, and that if an information is eventually filed against the said public official, the said Office may no longer represent him in the litigation. This ruling was reiterated in Solicitor General v. Garrido. 24 What is the rationale behind this rule which allows the Office of the Solicitor General to represent a public official during the preliminary investigation of his case, and which prohibits the said office from further representing the said public official when an information is filed against him with the appropriate court? In Anti-Graft League of the Philippines, Inc., this Court stressed that in the performance of their duties, public officials can be subjected to numerous suits, whether ill-founded or not, and that by threats of possible criminal prosecution, parties adversely affected by official action can stay the hand of the public official concerned. The Court observed that there may be hesitancy and diffidence in the execution of their duties if public officials are deterred by the thought that they could be brought to court and face criminal charges. The Court conluded that as an assurance against timidity the Office of the Solicitor General sees to it that the public officials concerned are duly represented by counsel in the preliminary investigation. As to why the public official concerned may no longer be represented by the Office of the Solicitor General, the ostensible reason is this: the said Office may no longer represent him considering that its position as counsel for the accused will be in direct conflict with its responsibilities as the appellate counsel of the People of the Philippines in all criminal cases. The Court believes that the ruling announced in Anti-Graft League of the Philippines, Inc. and reiterated inGarrido should be re-examined in the light of the nature of a suit against a public official. Under the Presidential Decree No. 478 aforecited, the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. This is as it should be as he is the principal law officer of the Government. 25 In Anti-Graft League of the Philippines, Inc., this Court interpreted this to embrace "both civil and criminal investigation, proceeding or matter requiring the services of a lawyer. 26 In Garrido, the Court sustained the authority of the Solicitor General to enter his appearance on behalf of public officials charged with violating a penal statute for acts connected with the performance of their official duties.27 It is undisputed that the Office of the Solicitor General is the appellate counsel of the People of the Philippines in all criminal cases. As such, the said Office participates in a criminal case only when the same has reached the appellate courts. It is the office of the city, provincial or state prosecutor, as the case may be, and not the Office of the Solicitor General, which attends to the investigation and the prosecution of criminal cases in the first instance. However, under the doctrine announced in Anti-Graft League of the Philippines, Inc. and Garrido, the Office of the Solicitor General is authorized to enter its appearance as counsel for any public official, against whom a criminal charge had been instituted, during the preliminary investigation stage thereof. Nevertheless, in the same case, this Court held that once an information is filed against the public official,

the Office of the Solicitor General can no longer represent the said official in the litigation. The anomaly in this paradigm becomes obvious when, in the event of a judgment of conviction, the case is brought on appeal to the appellate courts. The Office of the Solicitor General, as the appellate counsel of the People of the Philippines, is expected to take a stand against the accused. More often than not, it does. Accordingly, there is a clear conflict of interest here, and one which smacks of ethical considerations, where the Office of the Solicitor General as counsel for the public official, defends the latter in the preliminary investigation stage of the criminal case, and where the same office, as appellate counsel of the People of the Philippines, represents the prosecution when the case is brought on appeal. This anomalous situation could not have been contemplated and allowed by the law, its unconditional terms and provisions notwithstanding. It is a situation which cannot be countenanced by the Court. Otherwise, if the Solicitor General who represents the state on appeal in criminal cases can appear for the accused public official in a preliminary investigation, then by the same token a provincial or city fiscal, his assistant or any government prosecutor who represents the People of the Philippines at the preliminary investigation of a case up to the trial thereof can appear for an accused public official at the preliminary investigation being conducted by another fiscal, prosecutor or municipal judge. The situation would simply be scandalous, to say the least. There is likewise another reason, as earlier discussed, why the Office of the Solicitor General cannot represent an accused in a criminal case. Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name. 28 Therefore, the accused public official should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime. Thus, the Court rules that the Office of the Solicitor General is not authorized to represent a public official at any stage of a criminal case. For this reason, the doctrine announced in Anti-Graft League of the Philippines, Inc.v. Hon. Ortega and Solicitor General v. Garrido, and all decided cases affirming the same; in so far as they are inconsistent with this pronouncement, should be deemed abandoned. The principle of stare decisisnotwithstanding, it is well-settled that a doctrine which should be abandoned or modified should be abandoned or modified accordingly. After all, more important than anything else is that this Court should be right. 29 This observation should apply as well to a public official who is haled to court on a civil suit for damages arising from a felony allegedly committed by him. 30 Any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The State is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no authority to represent him in such a civil suit for damages. For all these reasons, the argument of the Office of the Solicitor General to the effect that it has the authority to represent or otherwise defend any public official without any qualification or distinction in any litigation pursuant to the unconditional provisions of Presidential Decree No. 478 and the other cited laws is untenable. Applying these principles to the case at bar, the Office of the Solicitor General has no authority to represent Solicitor General Chavez in the civil suit for damages filed against him in the Regional Trial Court arising from allegedly defamatory remarks uttered by him. The issues raised in these two Petitions have been resolved on the basis of law and jurisprudence as well as the pertinent arguments of the parties concerned. The other points raised by them are irrelevant to the proper disposition of these cases and need not be considered. The Court is aware of the possibility of public officials being haled to court in an endless array of civil suits. With or without this pronouncement, and considering the nature of a public office in the

Philippines vis-a-vis the litigious character of most Filipinos as demonstrated by the number of cases filed in the courts daily, this scenario is a fact that must be accepted. The possibility of being brought to court is an occupational hazard of both the public officer and the citizen, in the same way that every occupation has its own hazards to reckon with. This grim reality notwithstanding, public officials should know that nobody is above the law. Of course, there is the Citizens Legal Aid Office of the Department of Justice that may be made to assist in the defense of any such public official. As to respondent Francisco I. Chavez, he may appear in his own defense in his private capacity in the action for damages against him. The services of private counsel may also be availed of. And if it is the intention of the State to protect public officials from alleged harassment suits, then the creation of a separate office of government lawyers for this purpose may be in order. But certainly the Office of the Solicitor General can not assume a responsibility in defense of such public officials beyond its statutory authority. Accordingly, the Court is of the opinion, and so holds that the Office of the Solicitor General is not authorized to represent a public official at any stage of a criminal case or in a civil suit for damages arising from a felony. This pronouncement applies to all public officials and employees in the executive, legislative and judicial branches of the Government. WHEREFORE, in view of the foregoing, the herein Petitions are hereby GRANTED. The Office of the Solicitor General is permanently prohibited from representing the said respondents in OSP Case No. 88-02780 pending in the Office of the Ombudsman and respondent Francisco I. Chavez in Civil Case No. 55379 pending before the Regional Trial Court of Pasig, Metro Manila. No pronouncement as to costs. SO ORDERED.