The speculation that a plunder case will be filed by the Ombudsman in the Sandiganbayan against Vice President Jejomar Binay should be laid to rest. The Ombudsman lacks the legal authority to initiate a criminal action against an impeachable official during his tenure. An incumbent vice president is an impeachable official.
Section 21 of Republic Act No. 6770, also known as the Ombudsman Act of 1989, empowers the Ombudsman with disciplinary authority over all government officials and employees, except those removable by impeachment, members of Congress and members of the judiciary. Section 22 of the same law specifically provides that the Ombudsman may investigate an impeachable official only for the purpose of impeachment.
In other words, the Ombudsman lacks the authority to investigate an impeachable official during his tenure for purposes of criminal prosecution. Thus, the Office of the Ombudsman is barred by law from prosecuting a sitting president, vice president, justice of the Supreme Court, or member of constitutional bodies, including the Ombudsman himself/herself.
It simply means that the Ombudsman lacks the authority to approve the filing of an information (which is a requirement of Section 4, Rule 112 of the Rules of Court) in the Sandiganbayan against a sitting impeachable official like Vice President Binay. In the 1958 Villa vs Ibañez case (88 Phil. 420), the Supreme Court held that an information initiated by an officer not authorized to do so is void, and the trial court would not acquire the jurisdiction over the case. Any information that the Ombudsman might initiate before the Sandiganbayan against a sitting impeachable official would be void. It could not be a basis for the issuance of a warrant of arrest because the Sandiganbayan would never acquire the jurisdiction over the subject matter of a void information. The doctrine in Villa vs Ibañez is still a good case law having been reiterated in People vs Garfin (GR No. 153176, March 29, 2004) and Tolentino vs Paqueo (GR No. 150606, June 7, 2007.)
—FRANK E. LOBRIGO, Graduate School of Law, San Beda College, franklob.sbc@gmail.com
Ombudsman, Sandiganbayan, Jejomar Binay