Lastimosa v.

Vasquez
April 6, 1995
Mendoza

Topic: The Ombudsman

Provision: §31 of the Ombudsman Act of 1989 (R.A. No. 6770):

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 and control.
(Emphasis added)

Doctrine: When a prosecutor is deputized by the ombudsman, he becomes under the supervision
and control of the latter.

Facts:
- On February 18, 1993, Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a
criminal complaint for frustrated rape and an administrative complaint for immoral acts,
abuse of authority and grave misconduct against the Municipal Mayor of Santa Fe, Rogelio
Ilustrisimo. The complaint was assigned to a graft investigation officer who, after an
investigation, found no prima facie evidence and accordingly recommended the
dismissal of the complaint . After review, Omb. Vasquez reversed and directed that the
mayor be charged with attempted rape in the RTC.
- Deputy Ombudsman Visayas referred the case to the Cebu provincial prosecutor. T he case
was eventually assigned to herein petitioner, Lastimosa. She conducted her own
preliminary investigation and found that only acts of lasciviousness had been committed.
She filed a case for acts of lasciviousness with the MCTC.
- Deputy Omb wrote two letters to the Provincial Prosecutor inquiring as to the action taken
on the case.
- As no case for attempted rape has been filed by the Prosecutor's Office, Deputy Ombudsman
Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to
show cause why they should not be punished for contempt for "refusing and failing to obey
the lawful directives" of the Office of the Ombudsman. 
- Petitioner contends, the Office of the Ombudsman has no jurisdiction over the case against
the mayor because the crime involved (rape) was not committed in relation to a public
office. For this reason it is argued that the Office of the Ombudsman has no authority to place
her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow
his orders and to cite them for indirect contempt for such refusal.

Issues:
1. Whether the Office of the Ombudsman has the power to call on the Provincial
Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor
Ilustrisimo. Yes
2. Whether the Office of the Ombudsman may validly punish the petitioner for contempt.
Yes
3. Whether the Office of the Ombudsman has the power to suspend the prosecutor. Yes

Ratio:
Issue 1:
- 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 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 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 Office
of the Ombudsman. 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.
Issue 2:
- §15(g) of the Ombudsman Act gives the Office of the Ombudsman 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." There is no merit in the argument that petitioner and
Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal
arose out of an administrative, rather than judicial, proceeding before the Office of the
Ombudsman.
- 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
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refuse to prepare and file the information as directed by the Ombudsman.

- Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance,
disobedience or resistance of a lawful process, order or command of the Ombudsman thus
making her liable for indirect contempt under Rule 71, §3 of the Rules of Court is for
respondents to determine after appropriate hearing.

Concurring Opinion, Regalado:

- The longer period of six (6) months for preventive suspension under Republic Act No. 6770
was evidently induced by a desire to more meaningfully emphasize and implement the
authority of the Office of the Ombudsman over public officials and employees in order to
serve as a deterrent against illegal, unjust, improper and inefficient conduct on their part. As
the agency mandated by the Constitution to undertake such task, it was invested with the
corresponding authority to enable it to perform its mission. Significantly, it is the only body
authorized to investigate even officials removable by impeachment.  
-
- The Court in Buenaseda vs. Flavier:

The purpose of RA No. 6770 is to give the Ombudsman such powers as he may need
to perform efficiently the task committed to him by the Constitution. Such being the
case, said statute, particularly its provisions dealing with procedure, should be given
such interpretation that will effectuate the purposes and objective of the
Constitution. Any interpretation that will hamper the work of the Ombudsman
should be avoided.

A statute granting powers to an agency created by the Constitution should be

liberally construed for the advancement of the purposes and objectives for
Department of which it was created.  
 Powers, Functions and Duties
The Office of the Ombudsman shall have the following powers, functions and duties
1. 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.  It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take
over, at any stage, from any investigatory agency of Government, the investigation of such
cases (Sec. 15(1) R.A. No. 6770; see also Sec. 13(1), Article XI, 1987 Constitution);
2. Direct, upon complaint or at its own instance, any officer or employee of the
Government, or of any subdivision, agency or instrumentality thereof, as well as any
government-owned or controlled corporations with original charter, to perform and expedite
any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in
the performance of duties (Sec. 15(2) R.A. No. 6770; Sec 13(2) Article XI, 1987
Constitution);
3. Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by law, and
recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided in Section 21 or this
Act: Provided, That the refusal by any officer without just cause to comply with an order of
the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or discharge a duty required by
law shall be ground for disciplinary action against said officer (Sec. 15(3) R.A. No. 6770; see
also Sec 13(3), Article XI, 1987 Constitution);
4. Direct the officer concerned, in any appropriate case, and subject to such limitations
as it may provide in its rules of procedure, to furnish it with copies of documents relating to
contracts or transactions entered into by his office involving the disbursement or use of
public funds or properties, and report any irregularity to the Commission on Audit for
appropriate action (Sec. 15(4) R.A. No. 6770; see also Sec. 13(4), Article XI, 1987
Constitution);
5. Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents (Sec. 15(5), R.A. No.6770; see also Sec. 13(5), Article XI, 1987 Constitution);
6. Publicize matters covered by its investigation of the matters mentioned in paragraphs
(1), (2), (3) and (4) hereof, when circumstances so warrant and with due determine what
cases may not be made public:  Provided further, That any publicity issued by the
Ombudsman shall be balanced, fair, and true (Sec 15(6) R.A. No. 6770; see also Sec 13(6),
Article XI, 1987 Constitution);
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government and make recommendations for their elimination and the
observance of high standards of ethics and efficiency  (Sec 15(7) R.A. No. 6770; see also
Sec 13(7), Article XI, 1987 Constitution);
8. Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in
any investigation or inquiry, including the power to examine and have access to bank
accounts and records  (Sec 15(8), R.A. No. 6770);
9. Punish for contempt in accordance with the Rules of Court and under the same
procedure and with the same penalties provided therein  (Sec 15(9), R.A. No. 6770);
10. Delegate to the Deputies, or its investigators or representatives such authority or
duty as shall ensure the effective exercise of performance of the powers, functions, and
duties herein or hereinafter provided (Sec 15(10), R.A. No. 6770);
11. Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the parties
involved therein (Sec 15(11), R.A. No. 6770);
12. Promulgate its rules of procedure and exercise such other powers or perform such
functions or duties as may be provided by law (Sec 13(7), Article XI, 1987 Constitution; see
also Sec. 18, R.A. No. 6770);