Selective Prosecution

Hole of Justice
by Peter G. Jimenea

 Indictment by Choice

This story explains why there are corrupt public officials never indicted despite the number of graft and corruption cases filed against them at the Office of Monalisa ehe.... este Ombudsman Merceditas Gutierrez.

In 1999, the Director of the National Library filed a complaint with the office of the Ombudsman, against her Asst. Director (the herein Petitioner), for violation of RA 3019, or the Anti-Graft and Corrupt Practices Act, as amended.

The alleged misrepresentation was committed by the assistant when she applied for the present position in 1996. In her bio-data, petitioner claimed she had been consultant of the National Library from Mar. - Dec. 2003 and February 24, 1999.

But after investigation, the Office of the Ombudsman discovered that she merely held the position from March 1, 1993 to December 1994. She asserted the bio-data was used by her in applying for jobs in 1994, and was inadvertently attached to her application for Asst. Director of the National Library in 1996. She also controverted its authenticity since it did not bear her initial or signature.

Graft Investigation Officer I Marlyn M. Reyes found petitioner not guilty and ordered the complaint against her be dismissed for lack of merit. Upon review by the OMB Office of Legal Affairs, however, the petitioner was found guilty of dishonesty and it reversed the earlier decision. Thru a Memo, she was eventually dismissed from gov't. Service on October 21, 1999.

She sought recourse before the Court of Appeals in CA-G.R. SP No. 57158, arguing that:

1. The honorable Office of the Ombudsman, through its office of the Chief legal counsel, erred in holding that it had the requisite jurisdiction to act on the complaint for an act committed three years ago against the petitioner who is not within the scope of applicability of RA 6770;

On August 11, 2006, the CA denied the instant petition and the Memo dated October 21, 1999 of the Office of the Ombudsman in OMB-ADM-0-99-0517 was AFFIRMED on January 5, 2000.

Hence the Petition. She argues that the CA erred when it ruled that the Office of the Ombudsman has jurisdiction over the administrative case three years ago and before her entry into government service when nobody has shown interest over it.

SEC. 21. 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 like Members of Congress and the Judiciary.

SEC. 20. Exceptions. The Ombudsman “may” not conduct the necessary investigation of any administrative act or omission complained of if she believes the complaint was filed after one year from the occurrence of the act of omission complained of: Office of the Ombudsman v. De Sahagun. 

TheCourt held that the period stated in Section 20 (5) of R.A. No. 6770 does not refer to the prescription of the offense, but to the discretion given to the Office of the Ombudsman on whether it would investigate a particular administrative offense or not.

The use of the word "may" in the provision is construed as permissive and operating to confer discretion. Where the words of a statute are clear, plain and free from ambiguity, they must be given their literal meaning and applied without attempted interpretation.

SEC. 46.(18), Title I, Book V of the Administrative Code of 1987 provides.... Discipline: General Provisions. (b) even if the dishonest act was committed by the employee prior to entering the government service, such act is still a ground for disciplinary action.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated August 11, 2006 and the Resolution dated October 23, 2006, of the Court of Appeals in CA G.R. SP No. 57158, are AFFIRMED. (SC Third Division. G.R. No. 175115 : December 23, 2009).