Dominador Awiten .
THE rule is that an administrative offense in the civil service does not prescribe. An administrative disciplinary action is instituted not for the purpose of punishment of the offender (which is only consequential) but for the improvement of the public service and the preservation of the people’s faith and confidence in our government.
For that consideration, it has been the consistent ruling of the Supreme Court that Section 20( 5) of Republic Act No. 6770, The Ombudsman Act of 1989, is not mandatory. Said provision states:
“Section 20 — The Office of the Ombudsman may not conduct the necessary investigation of any administrative act or omission complained of if it believes that:
x x x
(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.
The issue of prescription allegedly under said Section 20 (paragraph 5) was raised in the case of Office of the Ombudsman versus Merceditas de Sahagun, (G.R. 167982, August 13, 2008).
An anonymous complaint was filed with the Office of the Ombudsman against a head of office for entering into a contract of services for the production of a video documentary and another contract of services to produce print collaterals, both contracts with the same supplier and both were awarded without strict compliance with the rules on bidding.
The head of the office was dismissed by the President on recommendation of the Presidential Anti-Graft Commission. Separately, the Fact-Finding Investigation Bureau of the Office of the Ombudsman filed criminal and administrative charges against the members of the Bids and Awards Committee, for alleged violation of the Anti-Graft and Corrupt Practices Act and for grave misconduct, conduct grossly prejudicial to the best interest of the service and gross violation of rules and regulations.
The decision of the Ombudsman that found substantial evidence against the respondents and imposing on them the penalty of dismissal from the service was appealed to the Court Appeals on a petition for review. The CA held that respondents may no longer be prosecuted since the complaint was filed more than seven years after the alleged irregularities were committed; moreover, the nature of the function of the Ombudsman was purely recommendatory.
The Supreme Court reversed the Court of Appeals, reiterating the principle that an administrative offense does not prescribe. Referring to previous decisions, the Court held that the period stated in Section 20(5) of RA 6770 does not refer to the prescription of the offense but to the discretion given to the Ombudsman on whether it would investigate a particular administrative offense. The use of the word “may” in the provision is construed as permissive and conferring 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.”
The Court further said that the statement in a previous ruling relied upon by the CA was only an obiter dictum (Latin for “in passing”), a mere remark in a judgement that does not resolve the issue, and not the ratio decidendi, the conclusion of facts and of law that is the reason for the decision.
Highlighting the Constitutional status of the Office of the Ombudsman, the Court said that its powers are not recommendatory. The Ombudsman may directly impose the administrative penalty as well as direct the criminal prosecution of a public officer, except only a member of Congress or the judiciary.
In contrast, the Supreme Court’s decision in the case of Ombudsman v. Uldarico Andutan, Jr., (G.R. No. 164679, July 27, 2011) was a departure from its earlier ruling. This time the Court held that a resignation, particularly one that was forced or compelled, divests the Ombudsman of its authority to institute an administrative case, because the resigned officer is no longer in public office not of his own choosing. It is unlike in the previous cases where the resignation was construed to be either to prevent the continuation of a case already filed, or to pre-empt the imminent filing of one.
The Court said the State is not without remedy against a public officer who may have committed an offense while in office, but had already resigned or retired therefrom. By reason of the “threefold liability rule,” the Ombudsman may still proceed with the civil and criminal action against the public officer, forgoing only the administrative aspect by reason of its lack of jurisdiction over the person who is no longer in the service. In the actions still available, the State may exact the penalties of disqualification from reentry in public office and confiscation and forfeiture of the prohibited interest or ill-gotten wealth.