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Can the Ombudsman take over Kian case?

Lian Buan

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Can the Ombudsman take over Kian case?
(UPDATED) The DOJ can endorse the case to the Ombudsman, or the Ombudsman can start an investigation on its own

MANILA, Philippines (UPDATED) – A formal petition was filed before the Department of Justice (DOJ) on Tuesday, August 29, to ask the DOJ to inhibit from conducting a preliminary investigation on the murder and torture complaints against Caloocan policemen in relation to the drug raid that killed 17-year-old Kian delos Santos.

“The Office of the Ombudsman is the best forum to conduct the preliminary investigation for this case given the impartiality of this Constitutionally-mandated body,” said the petition.

But can the Ombudsman indeed attain jurisdiction of this case?

Laws on jurisdiction

The petition cites Section 15 (1) of Republic Act No. 6770 or the Ombudsman law which says that the Office can 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.”

Caloocan policemen are public officers. (READ: DOJ urged to turn over Kian case to Ombudsman)

The same provision however says that the Ombudsman has primary jurisdiction over cases to be heard before the Sandiganbayan. According to Republic Act 10660 or the Sandiganbayan law, the anti-graft court exercises exclusive original jurisdiction over officers of Philippine National Police (PNP) occupying provincial director and those holding the rank of senior superintendent and higher.

The murder and torture complaints were filed against policemen lower than the superintendent rank:  Police Officer 3 Arnel Oares, Police Officer 1 Jerwin Cruz, Police Officer 1 Jeremias Pereda and their station commander Chief Inspector Amor Cerillo.

But, if the public officers fall outside the exclusive jurisdiction of the Sandiganbayan like the Caloocan policemen in the Delos Santos’ case, the Ombudsman and the DOJ still have concurrent jurisdiction over them, according to a 2004 Memorandum of Agreement (MOA). 

Before the Delos Santos’ case, similar murder complaints have already been filed before the Office of the Ombudsman against Quezon City cops with ranks lower than Superintendent.

They were filed last March by Efren Morillo who claimed to be sole survivor of a summary killing in Payatas by policemen conducting an anti-drugs raid, and the kin of Morillo’s companions who died during the raid.

Morillo et al’s lawyer Rommel Bagares from the Center for International Law (CenterLaw) cites Memorandum Circular No. 02 Series 2003 which says that the Ombudsman has jurisdiction over the PNP.


Like CenterLaw, Delos Santos’ lawyers could have filed the complaint before the Ombudsman. Instead, the Public Attorney’s Office (PAO), which is handling the case, filed it before the DOJ.

Under the MOA, the DOJ can endorse the complaint filed before them to the Ombudsman.

But there is no sign of that happening. 

Justice Vitaliano Aguirre II has been given the directive to investigate the case by no less than President Rodrigo Duterte, when the two met with Delos Santos’ parents Lorenza and Saldy at the Malacañang Golf Clubhouse on Monday.

“PRRD (President Rodrigo Roa Duterte) instructed SOJ (Secretary of Justice) to prosecute parties charged,” Justice Undersecretary Erickson Balmes told reporters.

The Office of the Ombudsman, as provided by law, can start an investigation on its own, but the Office has yet to respond to queries on the issue.

So what is the value of filing the petition to inhibit before the DOJ?

“For people to see at least to understand that there is something fundamentally wrong with the DOJ handling it….The pressure should be intensified to tell the DOJ Secretary Aguirre that if you handle this case, we will laugh at you. Whatever decision that you make with regards the case will not be accepted and respected by the people,” said Fr. Robert Reyes who went with the petitioners to the DOJ on Tuesday.

Reyes also called on Aguirre to resign as justice secretary.

“I serve at the pleasure of the President po, while I respect the view of everyone to express themselves freely, I will stay for as long as I enjoy the trust and confidence of the President,” Aguirre said.

Aguirre also criticized the activist priest for allegedly keeping silent on clerical abuses such as priests molesting children.

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.