UP Law F2021 013 Lastimosa v.

Vasquez
Administrative Law RA 6770 §15, 21, 24 & 31 1995 Mendoza

SUMMARY

The Office of the Ombudsman (OMB) referred the criminal complaint for attempted rape against the mayor
of Sta. Fe, Cebu to the Provincial Prosecutor (PP) and this was assigned to Assistant Provincial Prosecutor
(APP) Lastimosa (petitioner), and ordered the said officials to file an Information with the RTC. Lastimosa
instead filed an Information for acts of lasciviousness with the MCTC of Sta. Fe, averring that only acts of
lasciviousness was committed. OMB directed them to show cause why they should not be held for indirect
contempt, and consequently preventively suspended them for six months. Lastimosa filed a certiorari
before the SC questioning the said orders of the OMB, contending that in the first place OMB has no power
to refer the case to the Provincial Prosecutor, and it (OMB) should have been the one to file the Information,
and that in any case, the crime (attempted rape) was not committed in relation to public office, hence OMB
had no jurisdiction. SC dismissed the petition, pointing to the provisions of RA 6770 (please see Ratio for
the specifics) of the expressly conferred powers of the OMB.

FACTS

▪ A criminal complaint for frustrated rape and administrative complaint for immoral acts, abuse of
authority and grave misconduct were filed before the Ombudsman against the Mayor of Sta. Fe, Cebu
(Mayor Rogelio Ilustrisimo);
▪ After investigation, OMB referred the case to Cebu PP Oliveros Kintanar for filing of the Information
before the RTC for attempted rape. It was assigned to the petitioner First APP Gloria Lastimosa;
▪ APP Lastimosa did not file the corresponding information, and instead filed before the MCTC of Sta.
Fe Information for Acts of Lasciviousness
▪ She averred that after her preliminary investigation, only acts of lasciviousness had been committed;
▪ Due to failure to file the Information as referred to by the OMB, PP Kintanar and APP Lastimosa were
ordered to show cause why they should not be punished for indirect contempt;
▪ Relative to this, both administrative and criminal complaints were filed by a resident of Sta. Fe
(Julian Menchavez) before the OMB for their alleged refusal to obey orders of the OMB;
▪ The OMB preventively suspended Lastimosa and Kintanar for a period of six months;
▪ Lastimosa filed the present petition for certiorari;
▪ She claimed that the OMB and the PP's office have concurrent authority to investigate and that when
the former first took cognizance of the case, it did so to the exclusion of the latter hence it became
the duty of the OMB, to finish the preliminary investigation by filing the information in court itself;
▪ Petitioner defends her actuations in conducting a preliminary investigation as having been made
necessary by the insistence of the OMB to delegate the filing of the case to her office.
▪ She also contended that, in any case, the OMB has no jurisdiction over the case against Mayor
Ilustrisimo because the crime (rape) was not committed in relation to public office;
▪ Corollarily, the Ombudsman has no authority to put her and PP Kintanar in preventive suspension,
cite them for indirect contempt.

RATIO

W/N OMB has power to call on the Provincial Prosecutor to assist it in the prosecution of the case for
attempted rape against Mayor Ilustrisimo
Yes.

The Court cited §311of RA 6770 as the basis of this power. It does not matter that the Office of the Provincial
Prosecutor had already conducted the preliminary investigation and all that remained to be done was for

1
Designation of Investigators and Prosecutors. — The Ombudsman may utilize the personnel of his office and/or designate or deputize
any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or deputized to assist him as herein provided shall be under his supervision or
control.
the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary
investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature
of the offense to be charged would still be subject to the approval of the OMB. This is because under §31
of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and
control" of the Ombudsman which means that he is subject to the power of the Ombudsman to
direct, review, approve, reverse or modify his (prosecutor's) decision. Petitioner cannot legally act on
her own and refuse to prepare and file the information as directed by the Ombudsman.

W/N Ombudsman has jurisdiction over the case of Mayor Ilustrisimo

Yes.

The Office of the Ombudsman has the power to "investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient.” This power has been held to include the
investigation and prosecution of any crime committed by a public official regardless of whether the acts
or omissions complained of are related to, or connected with, or arise from, the performance of his
official duty. It is enough that the act or omission was committed by a public official. Hence, the
crime of rape, when committed by a public official like a municipal mayor, is within the power of the
Ombudsman to investigate and prosecute.

W/N the OMB has power to cite in contempt preventively suspend, and discipline the PP and APP
Yes.

Power to cite in contempt: The Court cited §15(g) of RA 6770 stating the power to "punish for contempt, in
accordance with the Rules of Court and under the same procedure and with the same penalties provided
therein."
Power to preventively suspend: The Court cited §24.2
Power to discipline: The Court cited §21.3

FALLO

WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive
Suspension is DENIED.

SO ORDERED.

SEPARATE OPINION
J. Regalado
Concurred, and pointed that for the power to preventively suspend is conferred to OMB via §24. Compared
the preventive suspension in RA 6770 with other enactments (but this is irrelevant to the topic at hand).

2
Officials Subject to Disciplinary Authority; Exceptions. — The Office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the
Cabinet, local government, government owned or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary.
3
Preventive Suspension. — The Ombudsman or his Deputy may suspend any officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the
disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the
period of such delay shall not be counted in computing the period of suspension herein provided.