The Special Prosecutor: The Constitutional Issue

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time[1] became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the discussions on the unconstitutionality of Section 8(2) of RA No. 6770 (The Ombudsman Act of 1989) should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence. (G.R. No. 196231, January 28, 2014)

Under the 1973 Constitution,[2] the legislature was mandated to create the Office of the Ombudsman, known as the Tanodbayan, with investigative and prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand Marcos enacted PD No. 1487.[3]

Under PD No. 1486,[4] however, the “Chief Special Prosecutor” (CSP) was given the “exclusive authority” to conduct preliminary investigation and to prosecute cases that are within the jurisdiction of the Sandiganbayan.[5] PD No. 1486 expressly gave the Secretary of Justice the power of control and supervision over the Special Prosecutor.[6] Consistent with this grant of power, the law also authorized the Secretary of Justice to appoint or detail to the Office of the CSP “any officer or employee of Department of Justice or any Bureau or Office under the executive supervision thereof” to assist the Office of the CSP.

In December 1978, PD No. 1607[7] practically gave back to the Tanodbayan the powers taken away from it by the Office of the CSP. The law “created in the Office of the Tanodbayan an Office of the Chief Special Prosecutor” under the Tanodbayan’s control,[8] with the exclusive authority to conduct preliminary investigation and prosecute all cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law also empowered the Tanodbayan to appoint Special Investigators and subordinate personnel and/or to detail to the Office of the CSP any public officer or employees who “shall be under the supervision and control of the Chief Special Prosecutor.”[9] In 1979, PD No. 1630 further amended the earlier decrees by transferring the powers previously vested in the Special Prosecutor directly to the Tanodbayan himself.[10]

This was the state of the law at the time the 1987 Constitution was ratified. Under the 1987 Constitution, an “independent Office of the Ombudsman” is created.[11] The existing Tanodbayan is made the Office of the Special Prosecutor, “who shall continue to function and exercise its powers as now[12] or hereafter may be provided by law.”[13]

Other than the Ombudsman’s Deputies, the Ombudsman shall appoint all other officials and employees of the Office of the Ombudsman.[14] Section 13(8), Article XI of the 1987 Constitution provides that the Ombudsman may exercise “such other powers or perform such functions or duties as may be provided by law.” Pursuant to this constitutional command, Congress enacted RA No. 6770 to provide for the functional and structural organization of the Office of the Ombudsman and the extent of its disciplinary authority.

In terms of composition, Section 3 of RA No. 6770 defines the composition of the Office of the Ombudsman, including in this Office not only the offices of the several Deputy Ombudsmen but the Office of the Special Prosecutor as well. In terms of appointment, the law gave the President the authority to appoint the Ombudsman, his Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial and Bar Council. In case of vacancy in these positions, the law requires that the vacancy be filled within three (3) months from occurrence.[15]

The law also imposes on the Special Prosecutor the same qualifications it imposes on the Ombudsman himself/herself and his/her deputies.[16] Their terms of office,[17] prohibitions and qualifications,[18] rank and salary are likewise the same.[19] The requirement on disclosure[20] is imposed on the Ombudsman, the Deputies and the Special Prosecutor as well. In case of vacancy in the Office of the Ombudsman, the Overall Deputy cannot assume the role of Acting Ombudsman; the President may designate any of the Deputies or the Special Prosecutor as Acting Ombudsman.[21] The power of the Ombudsman and his or her deputies to require other government agencies to render assistance to the Office of the Ombudsman is likewise enjoyed by the Special Prosecutor.[22]

Given this legislative history, the present overall legal structure of the Office of the Ombudsman, both under the 1987 Constitution and RA No. 6770, militates against an interpretation that would insulate the Deputy Ombudsman from the disciplinary authority of the OP and yet expose the Special Prosecutor to the same ills that a grant of independence to the Office of the Ombudsman was designed for. (G.R. No. 196231, January 28, 2014)

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the Ombudsman and by granting the Ombudsman control and supervision over that office.[23] This power of control and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit. Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in the Executive Department.

Under Section 11(4) of RA No. 6770, the Special Prosecutor handles the prosecution of criminal cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the independence of the Office of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of the Ombudsman, the role it performs as an organic component of that Office militates against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials of that Office who act directly as agents of the Ombudsman herself in the performance of her duties. 

In Acop v. Office of the Ombudsman,[24] the Supreme Court was confronted with an argument that, at bottom, the Office of the Special Prosecutor is not a subordinate agency of the Office of the Ombudsman and is, in fact, separate and distinct from the latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as authority to advocate that the intent of the framers of the 1987 Constitution was to place the Office of the Special Prosecutor under the Office of the President. xxx

In the second place, Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, "shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution." The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. N0. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman.

Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may "exercise such other powers or perform functions or duties as may be provided by law," it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman.[25]
Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman’s deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution.[26]

[1] Under Section 6, Article XIII of the 1973 Constitution, Congress was mandated to create an Office of the Ombudsman to be known as the Tanodbayan.

[2] 1973 CONSTITUTION, Article XIII, Section 6.

[3] Known as the Tanodbayan Decree of 1977 (June 11, 1978). Section 17 of PD No. 1487 gave the Tanodbayan prosecutorial functions.

[4] Creating a Special Court to be known as “Sandiganbayan” and for Other Purposes; likewise enacted on June 11, 1978.

[5] PD No. 1486, Section 4.

[6] PD No. 1486, Section 14.

[7] Known as the Tanodbayan Decree, Revising PD No. 1487.

[8] The last paragraph of Section 17 of PD 1607 reads:

The Chief Special Prosecutor, Assistant State Prosecutor, Special Prosecutor and those designated to assist them as herein provided for shall be under the control and supervision of the Tanodbayan and their resolutions and actions shall not be subject to review by any administrative agency.
However, the law also allowed the President “to designate the Chief State Prosecutor of the Ministry of Justice or any other ranking official in the prosecutory arm of the government as Ex-Officio Chief Special Prosecutor and/or Assistant Chief Special Prosecutor” (Section 17, PD No. 1607).

[9] PD No. 1607, Section 18.

[10] PD No. 1630, Sections 10 and 17.

[11] CONSTITUTION, Article XI, Section 5.

[12] PD No. 1630.

[13] CONSTITUTION, Article XI, Section 7.

[14] Under RA No. 6770, however, it is the President himself which appoints the Special Prosecutor. This may even be an argument of the legislative intent to treat the Special Prosecutor, in much the same way, as the Ombudsman’s Deputies themselves that justify the same recognition of freedom from the disciplinary authority of the President on the same ground of independence of the Office of the Ombudsman.

[15] RA No. 6770, Section 4.

[16] RA No. 6770, Section 5.

[17] RA No. 6770, Section 7.

[18] RA No. 6770, Section 9.

[19] RA No. 6770, Section 6.

[20] RA No. 6770, Section 10.

[21] RA No. 6770, Section 8(3).

[22] RA No. 6770, Section 33.

[23] RA No. 6770, Section 11(3) and (4).

[24] G.R. No. 120422, September 27, 1995, 248 SCRA 568.

[25] Id. at 580-581.

[26] G.R. No. 196231, January 28, 2014.