016 ZALDIVAR v.
SANDIGANBAYAN (COSCOLLUELA) Gonzalez is a mere subordinate of the Ombudsman and can investigate
27 April 1988 | Per Curiam | Powers of the Ombudsman
G.R. Nos. 79690-707
PETITIONER: Enrique A. Zaldivar
RESPONDENTS: The Honorable Sandiganbayan and Honorable Raul
M. Gonzalez, claiming to be and Acting as Tanodbayan-Ombudsman
Under The 1987 Constitution
G.R. No. L-80578
PETITIONER: Enrique A. Zaldivar
RESPONDENT: Hon. Raul M. Gonzalez, claiming to be and acting as
Tanodbayan-Ombudsman under the 1987 Constitution
SUMMARY: Governor Enrique A. Zaldivar of Antique sought to restrain
the Sandiganbayan and Tanodbayan/Special Prosecture Raul Gonzalez
from proceeding with the prosecution and hearing of 18 Criminal cases on
the ground that the Tanodbayan/Special Prosecutor did not have legal and
constitutional authority to do so. In GR No. 80578, Governor Zaldivar also
prayed that Tanodbayan/Special Prosecutor Gonzalez be restrained from
conducting preliminary investigations and similar cases with the
Sandiganbayan.
The issue is W/N the Tanodbayan/Special Prosecutor can conduct
preliminary investigation and 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. Furthermore, the Constitution
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.” Therefore, the incumbent Tanodbayan Gonzalez, aka
Special Prosecutor under the 1987 Constitution, has clearly no authority to
conduct preliminary investigation and to direct the filing of criminal cases
with the Sandiganbayan, except upon oders of the Ombudsman. The right
to do so lost effect upon the effectivity of the 1987 Constitution on Feb. 2,
1987. Under the present Constitution, Special Prosecutor/Tanodbayan
and prosecute cases only upon the latter’s authority or orders. 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.
DOCTRINE: Constitution 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.”
FACTS:
1. In GR Nos. 79690-707 Governor Enrique A. Zaldivar of Antique
sought to restrain the Sandiganbayan and Tanodbayan Raul
Gonzalez from proceeding with the prosecution and hearing of 18
Criminal Cases (12159-12161; 12163-12177) on the ground that the
Tanodbayan did not have legal and constitutional authority to do so.
a. That under the 1987 Constitution, it is the Ombudsman who
has the authority to file cases with the Sandiganbayan.
2. In GR No. 80578, Governor Zaldivar also prayed that Tanodbayan
Gonzalez be restrained from conducting preliminary investigations
and similar cases with the Sandiganbayan.
ISSUE/s:
1. Whether or not the Special Prosecutor can conduct preliminary
investigation and direct the filing of criminal cases with the
Sandiganbayan — NO, such powers have been given to the
Ombudsman under the 1987 Constitution.
RULING: 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 Ombudsman.
SO ORDERED.
RATIO:
 1. 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.”
2. Furthermore, the Constitution 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.” 
3. Therefore, the incumbent Tanodbayan Gonzalez, aka Special
Prosecutor under the 1987 Constitution, has clearly no authority to
conduct preliminary investigation and to direct the filing of criminal
cases with the Sandiganbayan, except upon oders of the
Ombudsman. The right to do so lost effect upon the effectivity of the
1987 Constitution on Feb. 2, 1987.
4. Under the present Constitution, Special Prosecutor/Tanodbayan
Gonzalez is a mere subordinate of the Ombudsman and can
investigate and prosecute cases only upon the latter’s authority or
orders.
5. He annot 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 Special Prosecutor in connection with
the cases he is ordered to investigate.
6. 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.

SEPARATE OPINIONS
Sarmient, J., concurring
1.  I maintain, however, consistent with my dissent in De Leon vs.
Esguerra, G.R. No. 78059, that the 1987 Constitution took effect on
February 11, 1987.