In challenging the authority of the Ombudsman to investigate them for possible criminal prosecution, the Comelec Chairman and Commissioners cite the case of Lecaroz vs. Sandiganbayan (L-56384). Their citation however may not be applicable to them because said case was decided on March 22, 1984 before the effectivity of the present Constitution that created the Ombudsman. Indeed, the decision in said case was not about the jurisdiction of the Ombudsman but of the Sandiganbayan to try and decide cases filed against public officers. Concededly the Supreme Court (SC) quite clearly opined in said case that public officers who may be removed by impeachment cannot be charged criminally while holding office with an offense that carries the penalty of removal from office for that would violate the clear mandate of the fundamental law prohibiting their removal by any method other than impeachment (Article XIII Section 2 of the 1973 Constitution, now Article XI section 2 of the 1987 Constitution). This opinion of the SC however is only an obiter dictum that is not binding as a precedent.

To be sure the SC actually used Lecaroz in subsequent cases (In Re: Raul Gonzales, 160 SCRA 771[1988]; Cuenco v. Fernan 158 SCRA 29 [1988] and Jarque v. Desierto, 250 SCRA, xi-xiv [1995]) but the issues therein do not revolve around the jurisdiction of the Ombudsman to investigate public officials for possible criminal liability. The SC cited Lecaroz in said cases because of attempts to remove public officials through another method like disbarment proceedings that clearly circumvent the constitutional mandate requiring their removal only through impeachment.

So far, these SC decisions regarding impeachable offenses committed by impeachable public officials are firm and clear only on the following: that they cannot be removed from office for such offenses by any method other than impeachment; and that they are not immune from criminal liability arising from such offenses committed while in office. Whether the Ombudsman has the power and authority to investigate, charge and prosecute them for possible criminal liability while still holding office has not been squarely resolved or directly touched.

In the ongoing controversy, Comelec officials believe that the Ombudsman has no jurisdiction over them simply because of the SC pronouncements that they have to be removed first before such criminal liability may be determined and enforced. Based on this fundamental procedural requirement they believe that it is Congress rather than the Ombudsman which has jurisdiction over them. This may be valid except that the ruling they invoke originated from a mere obiter dictum (Lecaroz case). Moreover, it was rendered in 1984 when the Office of the Ombudsman has not yet been established by the Constitution.

More useful and to the point in resolving this controversy is perhaps the ruling of the SC in Estrada vs Desierto decided on March 2, 2001 (353 SCRA 452, 523-24). In said case, the court had occasion to emphasize the principle of "public office is a public trust" as one of the great themes of the 1987 Constitution that led to the creation of the Office of the Ombudsman endowed with enormous powers to investigate on its own, or on complaint by any person, any illegal, unjust, improper or inefficient act or omission of any public official. From this plain and explicit ruling can be drawn the logical conclusion that the Ombudsman has the power to investigate the Comelec Officials even while still in office for possible criminal prosecution. The only possible limitation to such power may be the application of the fundamental procedural requirement that they have to be removed first by impeachment. This is precisely the Ombudsman’s action on Comelec Commissioner Borra in the Mega Pacific case. They investigated him first and then recommended his impeachment.

Nevertheless, in the light of the Desierto ruling that the immunity from criminal (or civil) suit while in office only applies to the President, prior removal of the Comelec Officials through impeachment may not even be necessary before they can be criminally prosecuted by the Ombudsman. In other words, the fundamental procedural requirement of removing the impeachable official first through impeachment before criminally prosecuting him is apparently applicable only to the President because of his immunity from suit while in office. It is not applicable to other impeachable public officials like the Comelec Commissioners. This view is reinforced by the recent Mega Pacific ruling (ITF vs. Comelec 419 SCRA 141 [2004]) where the SC directed the Office of the Ombudsman to determine the criminal liability, if any, of the Comelec officials involved in the illegal, imprudent, hasty and gravely abusive actions.

But in the final analysis, for all public officials openly professing innocence and unabashedly claiming a "clear conscience", any forum where he could clear his name as soon as possible should be good enough. Venue is not so material if he is not really guilty.
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