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ADMINISTRATIVE ORDERS
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ADMINISTRATIVE ORDER NO. 331 -
IMPOSING THE PENALTY OF SIX (6) MONTHS SUSPENSION ON CEBU FIRST
ASSISTANT PROVINCIAL PROSECUTOR GLORIA LASTIMOSA-DALAWAMPU
This refers to the 27 July 1994 complaint
filed before the Office of the Ombudsman by Julian Menchavez, a
concerned citizen, against Cebu Provincial Prosecutor Oliveros Kintanar
and 1st Assistant Provincial Prosecutor Gloria Lastimosa-Dalawampu. The
respondents were charged of violating the provisions of R.A. No. 6713
(Code of Conduct and Ethical Standards for Public Officials and
Employees) and P.D. No. 807 (Civil Service Law) by their alleged
refusal and defiance to comply with the directive of the Office of the
Ombudsman to file the information for Attempted Rape against Santa Fe
Mayor Rogelio Ilustrisimo.
The facts and proceedings of the
case may be gleaned from the Supreme Court decision in G.R. No. 116801
dated April 6, 1995 entitled "Lastimosa vs. Vasquez" (243 SCRA
497).
"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 Mayor
Rogelio Ilustrisimo of Santa Fe, Cebu. The cases were filed with Office
of Ombudsman-Visayas where they were docketed as OMB-VIS-(CRIM)-93-0410
and OMB-VIS-(CRIM)-93-0036, respectively.
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 reviewing the matter, however, the Ombudsman, Hon.
Conrado Vasquez, disapproved the recommendation and instead directed
that Mayor Ilustrisimo be charged with attempted rape in the Regional
Trial Court.
Accordingly, in a letter dated
May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C.
Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E.
Kintanar for the "filing of appropriate information with the Regional
Trial Court of Danao City, . . ." The case was eventually assigned to
herein petitioner, First Assistant Provincial Prosecutor Gloria G.
Lastimosa.
It appears that petitioner
conducted a preliminary investigation on the basis of which she found
that only acts of lasciviousness had been committed. With the approval
of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an
information for acts of lasciviousness against Mayor Ilustrisimo with
the Municipal Circuit Trial Court of Santa Fe.
In two letters written to the
Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy
Ombudsman Mojica inquired as to any action taken on the previous
referral of the case, more specifically the directive of the Ombudsman
to charge Mayor Ilustrisimo with attempted rape.
As no case for attempted rape
had 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.
For this purpose a hearing was
set on August 1, 1994. Petitioner and the Provincial Prosecutor were
given until August 3, 1994 within which to submit their answer. An
answer was timely filed by them and hearings were there upon conducted.
It appears that earlier, on July
22, 1994, two cases had been filed against the two prosecutors with the
Office of the Ombudsman for Visayas by Julian Menchaves, a resident of
Santa Fe, Cebu. One was an administrative complaint for violation of
Sec. 3 (e) of Republic Act No. 3019 and Art. 208 of the Revised Penal
Code. The complaints were based on the alleged refusal of petitioner
and Kintanar to obey the orders of the Ombudsman to charge Mayor
Ilustrisimo with attempted rape.
In the administrative case
(OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica
issued an order on August 15, 1994 placing petitioner Gloria G.
Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under
preventive suspension for a period of six (6) months, pursuant to Rule
111, Sec. 9 of the Rules of Procedure of the Office of the Ombudsman
(Administrative Order No. 7), in relation to Sec. 24 of R. A. No. 6670.
The order was approved by Ombudsman Conrado M. Vasquez on August 16,
1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag
designated Eduardo Concepcion of Region VII as Acting Provincial
Prosecutor of Cebu."
From the order of preventive
suspension, respondent Lastimosa filed the aforementioned case before
the Supreme Court questioning her preventive suspension and the
proceedings against her, raising the issue of whether a prosecutor is
duty bound to file an information in respect of a case not personally
investigated by him. On April 6, 1995, the Supreme Court en banc, found
the preventive suspension justified and dismissed the petition for lack
of merit.
Meanwhile, the Office of the
Ombudsman (Visayas) as a result of the hearings conducted, issued a
resolution finding respondents guilty of Grave Misconduct, Neglect of
Duty and Insubordination, and recommended to the Ombudsman the penalty
of reprimand against respondent Kintanar and the six months suspension
without pay of Lastimosa.
The Ombudsman approved the
resolution subject to the modification recommended by the Chief Legal
Counsel that the reprimand with respect to respondent Kintanar can no
longer be implemented in the light of Kintanar's filing of certificate
of candidacy for Congressman in the 1995 elections. By operation of
law, Kintanar is deemed resigned from public office, thus bringing his
person beyond the reach of the Ombudsman's disciplinary authority; and
rendering the instant case, insofar as he is concerned, moot and
academic.
A review of the aforementioned
acts showed not only respondent's refusal but her defiance to comply
with the directive for them to file the Information for Attempted Rape
after a preliminary investigation of the case had been conducted by the
Office of the Ombudsman. The duty of a prosecutor designated or
deputized by the Office of the Ombudsman "to act as special
investigator or prosecutor" is mandated by Sec. 31 of the Ombudsman
Act of 1989 (R.A. No. 6770), as follows:
"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)"
When a prosecutor is deputized
pursuant to the foregoing provision of law, 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) decision. Petitioner cannot legally
act on her own and refuse to prepare and file the information as
directed by the Ombudsman.
Underscoring respondent's
refusal to file the information for Attempted Rape is the belligerent
manner in which she expressed her contrary position vis-a-vis the
directive issued by the Ombudsman who had supervision and control over
her. The respondent further arrogated to herself the authority to pass
upon the resolution of the Ombudsman in OMB-VIS-CRIM-93-0140, a
prerogative that only the Supreme Court may, but is generally loathe
to, exercise. Respondent Lastimosa in fact virtually reviewed, and
substituted with her own, the final resolution of the Office of the
Ombudsman in said case, resulting in the filing of a different charge.
Considering further her open defiance to and contempt for the authority
of the Office of the Ombudsman with the resulting obstruction of that
Office's functions, administrative sanctions are called for.
WHEREFORE, in view of the nature
and gravity of the infractions committed, 1st Assistant Provincial
Prosecutor Gloria Lastimosa-Dalawampu of the province of Cebu is hereby
suspended from office for six (6) months without pay effective upon
receipt of this Order.
SO ORDERED.
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