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G.R. Nos. 79690-707, April 27, 1988


Petitioner Enrique A. Zaldivar, governor of the province of Antique, filed a petition for certiorari, prohibition
and mandamus under Rule 65 before the Supreme Court, seeking to restrain the Sandiganbayan and
Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of criminal cases against
him on the ground that said cases were filed by said Tanodbayan without legal and constitutional
authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the
Ombudsman (not the present or incumbent Tanodbayan) who has the authority to file cases with the
Sandiganbayan. Petitioner also prayed that Tanodbayan Gonzalez be restrained from conducting
preliminary investigations with the Sandiganbayan.


Does the Tanodbayan (Special Prosecuter) have the authority to conduct preliminary investigations and
to direct the filing of criminal cases with the Sandiganbayan?


No. Under the 1987 Constitution, the Ombudsman (as distinguished from the incumbent Tanodbayan) is
charged with the duty to:

Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or commission appears to be
illegal, unjust, improper, or inefficient (Sec. 13, par. 1)

The Constitution likewise provides that:

The existing Tanodbayan shall hereafter be known as the office of the Special
Prosecutor. It shall continue to function and exercise its powers as now or hereafter
may be provided by law, contempt except those conferred on the office of the
Ombudsman created under this Constitution. (Art. XI, Section 7).

Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan
(caged Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties
NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to
direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This
right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority.

Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the
Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or
orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if
instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims
under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however,
retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate.
It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has
not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman
is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created
under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The
Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has
never held it in the first place.

WHEREFORE, We hereby:

(1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal
informations filed against him in the Sandiganbayan; and

(2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing
criminal cases with the Sandiganbayan or otherwise exercising the powers and function of the