The investigation conducted by the Office of the Ombudsman violated due process, inasmuch as it commenced its investigation by issuing the subpoena duces tecum without first furnishing petitioner with a summary of the complaint and requiring it to submit a written answer

With regard to the manner in which the investigation was conducted, petitioner asserts that the investigation conducted by the Office of the Ombudsman violated due process, inasmuch as it commenced its investigation by issuing the subpoena duces tecum without first furnishing petitioner with a summary of the complaint and requiring it to submit a written answer.[33] The Ombudsman labels this assertion of the BIR as premature maintaining that it is only when the Ombudsman finds reasonable ground to investigate further that it is required to furnish respondent with the summary of the complaint.  The Ombudsman insists that in the instant case, it has yet to make that determination.

On this score, we rule in favor of petitioner BIR.  Records show that immediately upon receipt of the information from an “informer-for-reward”, Graft Investigator Soquilon, in a Memorandum dated November 26, 1993 addressed to then Ombudsman Conrado M. Vasquez, requested that the “case” be docketed and assigned to him for a “full-blown fact-finding investigation.”[34] In his Memorandum, Soquilon averred that he is “certain that these refunds can be recovered by reason of the Tanduay precedent xxx and using the power of this Office, we will not only bring back to the government multi-million illegal refunds but, like the Tanduay case, we will be establishing graft and corruption against key BIR officials.”[35] In a marginal note dated November 26, 1993,[36] Ombudsman Vasquez approved the docketing of the case and its assignment to Soquilon. Likewise, in the Preliminary Evaluation Sheet[37] of the Office of the Ombudsman, the Fact Finding Investigation Bureau of the Ombudsman was named as complainant against Concerned High Ranking and Key Officials of the Bureau of Internal Revenue who granted multi-million tax refunds to Limtuaco and La Tondeña Distilleries for alleged violation of RA 3019.  On November 29, 1993 and December 9, 1993 Soquilon issued the assailed subpoena duces tecum requiring the concerned BIR officials to appear before the Ombudsman and to bring with them the complete case dockets of the tax refunds granted to Limtuaco and La Tondeña.

It is our view and we hold that the procedure taken by the respondent did not comply with the safeguards enumerated in Sec. 26, §(2) of RA 6770 or the Ombudsman Act of 1989, which clearly provides that –

(2) The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an official act or omission.  It shall act on the complaint immediately and if it finds the same entirely baseless, it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefore.  If it finds a reasonable, ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two hours from receipt hereof.  If the answer is found satisfactory, it shall dismiss the case.

The procedure which was followed by the respondent likewise contravened the Rules of Procedure of the Office of the Ombudsman,[38] Sec. 4, Rule 11 of which provides that –

(a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the complaint or supporting witnesses to execute affidavits to substantiate the complaints.

(b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant.  The complainant may file reply affidavits within ten (10) days after service of the counter-affidavits xxx

It is clear from the initial comments of Soquilon in his Memorandum to Ombudsman Vasquez that he undoubtedly found reasonable grounds to investigate further.  In fact, he recommended that the “case” be docketed immediately and assigned to him for a “full-blown fact-finding investigation.” Even during that initial stage, Soquilon was convinced that the granting of the tax refunds was so anomalous that he assured Ombudsman Vasquez of the eventual recovery of the tax refunds and the prosecution and conviction of key BIR officials for graft and corruption.

We commend the graft investigators of the Office of the Ombudsman in their efforts to cleanse our bureaucracy of scalawags.  Sometimes, however, in their zeal and haste to pin down the culprits they tend to circumvent some procedures.  In this case, Graft Investigation Officer Soquilon forgot that there are always two (2) sides to an issue and that each party must be given every opportunity to air his grievance or explain his side as the case may be.  This is the essence of due process.

The law clearly provides that if there is a reasonable ground to investigate further, the investigator of the Office of the Ombudsman shall first furnish the respondent public officer or employee with a summary of the complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof.  In the instant case, the BIR officials concerned were never furnished by the respondent with a summary of the complaint and were not given the opportunity to submit their counter-affidavits and controverting evidence.  Instead, they were summarily ordered to appear before the Ombudsman and to produce the case dockets of the tax refunds granted to Limtuaco and La Tondeña.  They are aggrieved in that, from the point of view of the respondent, they were already deemed probably guilty of granting anomalous tax refunds.  Plainly, respondent Office of the Ombudsman failed to afford petitioner with the basics of due process in conducting its investigation.

http://sc.judiciary.gov.ph/jurisprudence/2002/apr2002/115103.htm

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About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Due Process, Ombudsman and tagged . Bookmark the permalink.

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