"We have several good reasons not to grant the request.
Foremost, it is improperly laid."
- Justice Secretary Vitaliano N. Aguirre II
The request is improperly laid as preliminary investigation is not lodged with the Office of the Secretary but with the National Prosecution Service. Venue is jurisdictional in criminal cases. Accordingly, it is the Office of the City Prosecutor of Caloocan City which has jurisdiction to hear the case for preliminary investigation.
However, the Secretary of Justice may take cognizance and has the authority to act directly on any matter involving national security or a probable miscarriage of Justice within the jurisdiction of the prosecution staff, regional prosecution office, and the provincial prosecutor or the city prosecutor.
The present request is premature since the Department has yet to act directly over the case. There is no complaint yet pending before the Office of the Secretary and, as stated above, the case is for preliminary investigation before the City Prosecutor of Caloocan.
Moreover, the motion for inhibition appears to be dilatory as not one of the movants or signatories is a complainant to any pending criminal case against the alleged perpetrators of the killing of Kian Delos Santos.
It is apparent that the motion was made by alleged representatives of civil society groups who filed the same without showing any authority from the family of the victim.
In addition, several procedural and substantive grounds exist that will warrant the denial of the motion.
Foremost, it is the City Prosecutor of Caloocan which has jurisdiction to conduct preliminary investigation over the killing of Mr. Delos Santos.
Although the Office of the Ombudsman has the power and authority to investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient, its primary jurisdiction is however limited to cases cognizable by the Sandiganbayan.
The present case of the killing of Kian Delos Santos is not among those cognizable by the Sandiganbayan, hence, not within the primary jurisdiction of the Ombudsman.
To be certain, these cases are:
- Violations of RA 3019 (Anti-graft and Corrupt Practices Law);
- RA 1379 (Forfeiture of Illegally Acquired Wealth);
Crimes by public officers or employees embraced in Ch. II, Sec.2 Title VII, Book II of the RPC (Crimes committed by Public Officers) namely:
- Direct Bribery (Art. 210 as amended by BP 871, May 29, 1985);
- Indirect Bribery (Art. 211 as amended by BP 871, May 29, 1985);
- Qualified Bribery (Art. 211-A as amended by RA 7659, Dec. 13, 1993);
- Corruption of public officials (Art. 212).
On the other hand, murder, or homicide, as the case may be, and even violations of Republic Act No. 9745 or the Anti-Torture Act of 2009 are well within the jurisdiction of regular courts.
Consequently, it is settled that the local prosecutor has primary jurisdiction to conduct the preliminary investigation on the case of the killing of Kian Delos Santos.
Further, the present request is not grounded on just or valid basis. Excluded outright are those with relationships or direct pecuniary interests over a case. Otherwise, the just or valid ground should be substantially alleged and substantiated in order to establish that there will be no other reasonable outcome for the case other than being influenced by the bias and partiality of the investigator, prosecutor, or judge.
Moreover, the Department of Justice takes serious exception to the statement of the moving parties that “the Department of Justice, by virtue of the Secretary’s public pronouncements, has lost its impartiality to conduct the preliminary investigation,” and that the “DOJ’s involvement would compromise the procedure and would deny the Delos Santoses due process.” These words are unfounded, without basis, and unsubstantiated.
The movants in their letter quoted supposed pronouncements of the Secretary of Justice. Purportedly, these tend to show bias and prejudgment of the case at hand.
A closer reading of the same, however, would reveal that these are statements of arising from an on-going investigation and general sentiments over the situation of violence all-over the country committed by criminals.
Indeed, no bias over the killing of Mr. Delos Santos can be seen in the quoted words - - there is no prejudgment of guilt or innocence handed down in any of the statements given. To the contrary, I even mentioned that despite the numerous killing, no other case has uncovered the abuses committed by some policemen like the case of Kian. Evidently, the only bias on my language, if any, is in favor of facts arising from an on-going investigation.
Lastly, matters of voluntary inhibition are best left to the sound discretion of the investigating prosecutor, which in this case, is the Office of the City Prosecutor of Caloocan.
Presently, there appears no just or valid reason to extricate the case from the local prosecutor, and that there appears no apparent miscarriage of justice at this stage.