Facts

• Rosa S. Busuego filed a criminal complaint with the Office of the Ombudsman against her husband Alfredo Romulo A. Busuego, then Chief of Hospital of Davao Regional Hospital in Tagum City, for Concubinage§ (Art. 334), violation of R.A. No. 9262, and Grave Threats (Art. 282).
• Finding the complaint "in proper form and substance" and supported by corroborating affidavits, the Ombudsman referred it to Alfredo for a Counter-Affidavit.
• Alfredo's Counter-Affidavit raised the procedural point that decides the case: the complaint was infirm for taking "a procedural shortcut" and failing to implead the alleged mistresses, contrary to Section 5, Rule 110§.
• Rosa replied that the mistresses' names — including Sia — were categorically mentioned in the body of the complaint, and that impleading them in the Information was "a matter of procedure within the competence of the investigating prosecutor."
• On July 17, 2008, after all pleadings had been submitted and the case was ripe, Alfredo moved to refer the case to the Office of the City Prosecutor, the charges not being office-related, under OMB-DOJ Joint Circular No. 95-001. Filed only when the case was ready for resolution — the belatedness the Ombudsman later relies on.
• The Ombudsman held a clarificatory hearing on Article 344§ and facilitated the amendment of the complaint to implead the co-accused mistress.
• On April 17, 2009 the Ombudsman ruled that outright dismissal "would be superfluous" since amendment is allowed; that the referral motion was belated; and that referral under the Joint Circular is directory, not mandatory. It found probable cause to indict only Alfredo and Sia for Concubinage.
• On October 11, 2010 the Ombudsman Mindanao denied reconsideration, holding the partial motion filed out of time and giving "scant attention" to Liza S. Diambangan's affidavit of recantation.
• Alfredo brought Rule 65 certiorari directly to this Court. Decided October 9, 2013 (Second Division).

Issue

Ruling

"WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009 and 11 October 2010 are AFFIRMED.

SO ORDERED."

Ratio

• The jurisdictional premise is statutory and plenary. Under Section 15(1) of R.A. No. 6770§, the Ombudsman may investigate and prosecute on its own or on complaint of any person, any act or omission of a public officer … when such act or omission appears to be illegal, unjust, improper, or inefficient. That authority is concurrent with provincial, city and state prosecutors and is not limited to offenses committed in relation to public office.
• An internal circular cannot divest statutory jurisdiction. The Joint Circular is "merely an 'internal agreement' … to streamline the handling of complaints," and cannot operate to strip the Ombudsman of the jurisdiction concurrently and directly conferred upon it by the Constitution and Section 15(1). Having chosen to exercise that jurisdiction, the Ombudsman "may do so to the exclusion of the DOJ."
• On the private-crime rule, the Court did not dispute the requirement — it held it satisfied by amendment. Section 5 requires the offended spouse's complaint against both guilty parties where both are alive. Here Rosa's complaint carried multiple charges and specifically named the mistresses in the body; the Ombudsman merely acted in accordance with its Rules of Procedure and the Rules of Court by facilitating the amendment … to formally implead the co-accused (Sia).
• The operative sentence: "it would be superfluous to dismiss the complaint when amendment thereof is allowed by its Rules of Procedure and the Rules of Court."
• On review, the Court restated the policy of non-interference with the Ombudsman's executive determination of probable cause: judicial review is "strictly limited to determining whether there is grave abuse of discretion amounting to lack or excess of jurisdiction," which requires a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty.

Doctrine

• Government prosecutors and the Ombudsman have concurrent authority to conduct preliminary investigations of public officers for violations of penal laws, "regardless of whether the offenses are office-related."
• The private-crimes amendment rule. Section 5, Rule 110§ requires the offended spouse to implead both guilty parties, but a technical defect in the initial complaint-affidavit (such as failing to formally list the mistress in the caption) can be validly cured by a procedural amendment facilitated by the investigating body before the Information is formally filed in court.
• Joint circulars are internal. OMB-DOJ Joint Circular No. 95-001 "does not create substantive rights or strip either agency of statutory jurisdiction," and deviation from it "does not result in a loss of jurisdiction."
• Non-interference with the Ombudsman's finding of probable cause, absent grave abuse of discretion.

• Concurrence is not the whole picture — the Ombudsman retains primary jurisdiction over cases cognizable by the Sandiganbayan, and may take over such an investigation from any other agency at any stage.
• The non-interference policy has its own exception: it yields where a petitioner clearly demonstrates patent, gross and despotic abuse amounting to evasion of a positive duty.
• Read the holding narrowly on Section 5: the Court did not hold the impleading requirement dispensable — it held that the names were already in the body and the defect was cured before the Information was filed. A complaint that never identified the co-accused at all, or an Information filed without the amendment, would present a different question.
• And note that the recantation was not weighed — the Ombudsman gave it "scant attention" and this Court did not disturb that, so the case says nothing about the effect of a recanting witness.

Full Digest — Recitation Format

Gist

Facts

• Sometime prior to April 17, 2009 (Exact Date NOT IN RECORD): Private respondent Rosa S. Busuego filed a criminal complaint before the Office of the Ombudsman against her husband, petitioner Alfredo Romulo A. Busuego, who was then the incumbent Chief of Hospital of Davao Regional Hospital in Tagum City. The complaint charged the petitioner with: (1) Concubinage under Article 334 of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code.
• Subsequent Date (Exact Date NOT IN RECORD): Upon the Ombudsman’s perusal, the complaint was found to be supported by affidavits corroborating Rosa's accusations. Deeming that the complaint was in proper form and substance, the Ombudsman referred the complaint to Alfredo, directing him to submit his Counter-Affidavit.
• Subsequent Date (Exact Date NOT IN RECORD): Alfredo filed his Counter-Affidavit pointing out a procedural deficiency in Rosa's initiatory complaint. Specifically, he argued that the complaint was legally infirm because it violated Section 5, Rule 110§ of the Rules of Court by resorting to a "procedural shortcut" and failing to properly implead the alleged mistresses.
• Subsequent Date (Exact Date NOT IN RECORD): Rosa filed a Reply explaining that the names of the mistresses (including Sia) were categorically mentioned in the body of the complaint. She argued that the Office of the Ombudsman is empowered to investigate and prosecute any act or omission of a public official to the exclusion of non-government employees, and that the subsequent inclusion of the alleged concubines in the Information to be filed in court was a matter of procedure within the competence of the investigating prosecutor.
• July 17, 2008: After both parties had already submitted all their respective pleadings and the case was ripe for resolution, Alfredo filed a Motion to Refer the Case to the Office of the City Prosecutor. He contended that because the criminal charges were not committed in relation to his office, the Office of the Provincial/City Prosecutor had sole authority to investigate and prosecute the case under OMB-DOJ Joint Circular No. 95-001, Series of 1995.
• Subsequent Date (Exact Date NOT IN RECORD): The Ombudsman conducted a clarificatory hearing to discuss the applicability of Article 344§ of the Revised Penal Code (private crimes) and facilitated the amendment of the complaint to cure the procedural defect and properly implead the co-accused mistress.
• April 17, 2009: The Office of the Ombudsman issued a Resolution disposing of the procedural issues. The Ombudsman ruled that:
  1. Outright dismissal was superfluous because the Rules of Procedure of the Office of the Ombudsman and the Rules of Court allow the amendment of the complaint to cure the omission of the mistress's name.
  2. The motion of Alfredo to refer the case to the City Prosecutor was filed belatedly.
  3. Referral under the OMB-DOJ Joint Circular No. 95-001 is merely directory and not mandatory. Ultimately, the Ombudsman found probable cause to indict only Alfredo and Sia for Concubinage and directed the filing of an Information against them in the appropriate court.
• Subsequent Date (Exact Date NOT IN RECORD): Alfredo filed a Partial Motion for Reconsideration before the Ombudsman. Liza S. Diambangan subsequently executed and submitted an affidavit of recantation (substance NOT IN RECORD).
• October 2010 (Specifically October 11, 2010): The Office of the Ombudsman Mindanao issued an Order denying the Motion for Reconsideration. The Ombudsman stood pat on its previous ruling, declared that the Partial Motion for Reconsideration was filed out of time, and gave scant attention to Diambangan's affidavit of recantation.
• Subsequent Date (Exact Date NOT IN RECORD): Alfredo filed a Petition for Certiorari under Rule 65 of the Rules of Court directly before the Supreme Court, alleging grave abuse of discretion in the Ombudsman's finding of probable cause to indict him and Sia for Concubinage.
• October 9, 2013: The Supreme Court Second Division promulgated its Decision dismissing the petition and affirming the resolutions of the Office of the Ombudsman.

Arguments of the Parties

1. Violation of the Private Crimes Prosecution Rule (Rule 110§, Section 5): Petitioner argued that under Section 5, Rule 110§ of the Rules of Court, the private crime of concubinage cannot be prosecuted except upon a complaint filed by the offended spouse, and the offended party cannot institute criminal prosecution without including both of the guilty parties (the husband and the mistress) if both are alive. He argued that because Rosa's initial complaint failed to formally implead the mistress as a respondent in the caption and initiatory pleading, the complaint suffered from an incurable legal infirmity and should have been dismissed outright.
2. Lack of Ombudsman Authority Over Non-Office Related Crimes: Alfredo contended that the Ombudsman should have referred Rosa's complaint to the DOJ because the crime of concubinage was purely personal and was not committed "in relation to office" under OMB-DOJ Joint Circular No. 95-001. He asserted that under Section 2 of said Circular, offenses not in relation to office and cognizable by regular courts must be investigated and prosecuted exclusively by the Office of the Provincial/City Prosecutor, which shall rule thereon with finality.

1. Facilitation of Procedural Amendments under Ombudsman Rules: Public respondents argued that the complaint was not legally infirm because the names of the mistresses were categorically mentioned in the body of the complaint. The Ombudsman merely followed its Rules of Procedure by holding a clarificatory hearing, directing the petitioner to comment on the multiple charges (including RA 9262 and grave threats), and facilitating the amendment of the complaint to formally include the mistress to cure the procedural defect. Dismissing the complaint outright would be superfluous when amendment is expressly authorized by the rules.
2. Concurrent and Primary Jurisdictional Authority of the Ombudsman: Respondents maintained that the Ombudsman has full constitutional and statutory authority under Section 15(1) of RA 6770 to investigate and prosecute any illegal act or omission of a public officer, regardless of whether the offense was committed in relation to office. They argued that the OMB-DOJ Joint Circular No. 95-001 is merely an internal agreement between the two agencies and cannot diminish the concurrent jurisdiction conferred upon the Ombudsman by the Constitution and the law.

• Operational Status: It is stipulated that Alfredo was a public officer holding the position of Chief of Hospital of Davao Regional Hospital at the time the complaints were initiated.
• Factual Allegations: It is undisputed that the initiatory complaint filed by Rosa contained charges of Concubinage, Grave Threats, and violations of RA 9262.

Issue

Ruling

• MAIN ISSUE: YES. The Supreme Court ruled that the Office of the Ombudsman has concurrent jurisdiction with the DOJ to investigate and prosecute offenses committed by public officers, including private crimes not committed in relation to office. The procedural requirement under Section 5, Rule 110§ of the Rules of Court does not bar the Ombudsman from facilitating a timely amendment of the complaint to formally implead the co-accused mistress prior to the filing of the Information.
• SECONDARY ISSUE: NO. The Court ruled that the Ombudsman did not commit grave abuse of discretion. The motion to refer the case to the City Prosecutor was filed belatedly, and the OMB-DOJ Joint Circular No. 95-001 is merely an internal agreement that does not bind the courts or divest the Ombudsman of its statutory jurisdiction.

"WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009 and 11 October 2010 are AFFIRMED."

"SO ORDERED."

Ratio

1. Plenary and Concurrent Jurisdiction under the Constitution and RA 6770: The Court emphasized that under Section 15(1) of Republic Act No. 6770§ (The Ombudsman Act of 1989), the Office of the Ombudsman is vested with the authority to investigate and prosecute on its own or on complaint of any person, any act or omission of a public officer or employee, office, or agency when such act or omission appears to be illegal, unjust, improper, or inefficient. This authority is concurrent with other government investigating agencies, such as provincial, city, and state prosecutors, and is not limited to offenses committed in relation to public office.
2. Non-Divestment of Jurisdiction via Internal Administrative Circulars: The Court rejected the petitioner’s reliance on OMB-DOJ Joint Circular No. 95-001. The Court clarified that the circular is merely an "internal agreement" between the Office of the Ombudsman and the DOJ to streamline the handling of complaints and prevent procedural conflicts. It cannot operate to strip the Ombudsman of the jurisdiction concurrently and directly conferred upon it by the Constitution and Section 15(1) of RA 6770. Once the Ombudsman chooses to exercise its concurrent jurisdiction, it may do so to the exclusion of the DOJ, and it is under no legal obligation to refer the case to the local prosecutor.
3. Strict Compliance and Curability under Rule 110§, Section 5: Under Section 5 of Rule 110§, criminal actions for adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse, who cannot institute the prosecution without including both guilty parties if both are alive. However, the Court ruled that the Ombudsman did not violate this rule. Rosa’s initiatory complaint contained multiple charges (including RA 9262 and grave threats) and specifically named the mistresses in the body of the pleading. The Ombudsman merely acted in accordance with its Rules of Procedure and the Rules of Court by facilitating the amendment of the complaint to formally implead the co-accused mistress (Sia). The Court held that "it would be superfluous to dismiss the complaint when amendment thereof is allowed by its Rules of Procedure and the Rules of Court."
4. Limits of Judicial Review Over Prosecutorial Discretion: The Court reiterated the well-settled judicial policy of non-interference in the Ombudsman’s executive determination of probable cause. Judicial review of the Ombudsman’s findings is strictly limited to determining whether there is grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion requires a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty. In the absence of such a showing, courts will not substitute their own judgment for that of the executive branch.

Doctrine

• The Concurrent Jurisdiction Rule for Public Officers: Government prosecutors and the Office of the Ombudsman possess concurrent jurisdiction to conduct preliminary investigations of public officers involving violations of penal laws, regardless of whether the offenses are office-related.
• The Private Crimes Amendment Rule: While Section 5, Rule 110§ mandates that the offended spouse must implead both guilty parties in a prosecution for adultery or concubinage, a technical defect in the initial complaint-affidavit (such as failing to formally list the mistress in the caption) can be validly cured by a procedural amendment facilitated by the investigating body before the Information is formally filed in court.
• The Internal Character of Joint Circulars: OMB-DOJ Joint Circular No. 95-001 does not create substantive rights or strip either the DOJ or the Ombudsman of their statutory jurisdiction. It remains an internal administrative guideline, and any deviation therefrom by either agency does not result in a loss of jurisdiction.

• The Primary Jurisdiction of the Ombudsman: While jurisdiction over public officers is concurrent, the Ombudsman retains "primary jurisdiction" over cases cognizable by the Sandiganbayan. Under this primary jurisdiction, the Ombudsman may take over the investigation of Sandiganbayan-cognizable offenses from any other government agency at any stage of the proceedings.
• Grave Abuse of Discretion Exception: The judicial policy of non-interference does not apply if the petitioner can clearly demonstrate that the Ombudsman’s finding of probable cause or dismissal of a complaint was tainted with patent, gross, and despotic abuse of discretion amounting to an evasion of a positive duty.

Separate Opinions