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2015

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 196842

October 9, 2013

ALFREDO ROMULO A. BUSUEGO, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN MINDANAO and ROSA S. BUSUEGO, Respondents.
DECISION
PEREZ, J.:
Before us is a petition for certiorari seeking to annul and set aside the Resolution of the Ombudsman dated 17 April
20091 and Order dated October 2010,2 which directed the tiling of an Information for Concubinage under Article 334
of the Revised Penal Code against petitioner Alfredo Romulo A. Busuego (Alfredo).
We chronicle the facts thus.
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (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, before the Office of the Ombudsman against her
husband, Alfredo, with designation Chief of Hospital, Davao Regional Hospital, Apokon, Tagum City.
In her complaint, Rosa painted a picture of a marriage in disarray.
She and Alfredo were married on 12 July 1975 at the Assumption Church, Davao City. Their union was blessed with
two (2) sons, Alfred and Robert, born in 1976 and 1978, respectively. Sometime in 1983, their marriage turned sour.
At this time, Rosa unearthed photographs of, and love letters addressed to Alfredo from, other women. Rosa
confronted Alfredo who claimed ignorance of the existence of these letters and innocence of any wrongdoing.
Purportedly, Alfredo very rarely stayed at home to spend time with his family. He would come home late at night on
weekdays and head early to work the next day; his weekends were spent with his friends, instead of with his family.
Rosa considered herself lucky if their family was able to spend a solid hour with Alfredo.
Around this time, an opportunity to work as nurse in New York City, United States of America (US) opened up for
Rosa. Rosa informed Alfredo, who vehemently opposed Rosas plan to work abroad. Nonetheless, Rosa completed
the necessary requirements to work in the US and was scheduled to depart the Philippines in March 1985.
Before leaving, Rosa took up the matter again with Alfredo, who remained opposed to her working abroad. Furious
with Rosas pressing, Alfredo took his loaded gun and pointed it at Rosas right temple, threatening and taunting
Rosa to attempt to leave him and their family. Alfredo was only staved off because Rosas mother arrived at the
couples house. Alfredo left the house in a rage: Rosa and her mother heard gun shots fired outside.
Because of that incident, Rosa acted up to her plan and left for the US. While in the US, Rosa became homesick
and was subsequently joined by her children who were brought to the US by Alfredo. Rosa singularly reared them:
Alfred, from grade school to university, while Robert, upon finishing high school, went back to Davao City to study
medicine and lived with Alfredo.
During that time his entire family was in the US, Alfredo never sent financial support. In fact, it was Rosa who would
remit money to Alfredo from time to time, believing that Alfredo had stopped womanizing. Rosa continued to spend
her annual vacation in Davao City.
Sometime in 1997, Rosa learned that a certain Emy Sia (Sia) was living at their conjugal home. When Rosa asked

Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital in Tagum who was in a sorry
plight as she was allegedly being raped by Rosas brother-in-law. To get her out of the situation, Alfredo allowed Sia
to live in their house and sleep in the maids quarters. At that time, Rosa gave Alfredo the benefit of the doubt.
In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert, who was already living in
Davao City, called Rosa to complain of Alfredos illicit affairs and shabby treatment of him. Rosa then rang up
Alfredo which, not surprisingly, resulted in an altercation. Robert executed an affidavit, corroborating his mothers
story and confirming his fathers illicit affairs:
1. In varying dates from July 1997 to January 1998, Robert found it strange that Sia slept with his father in the
conjugal bedroom.
2. He did not inform his mother of that odd arrangement as he did not want to bring trouble to their family.
3. Eventually, Sia herself confirmed to Robert that she was Alfredos mistress.
4. During this period of concubinage, Sia was hospitalized and upon her discharge, she and Alfredo resumed
their cohabitation.
5. The relationship between Alfredo and Sia ended only when the latter found another boyfriend. 6. His father
next took up an affair with Julie de Leon (de Leon) whom Robert met when de Leon fetched Alfredo on one
occasion when their vehicle broke down in the middle of the road.
7. Robert read various Short Message Service (SMS) exchanges between Julie and Alfredo on Alfredos
mobile phone.
8. On 23, 24, 30 and 31 December 2004, de Leon stayed in Rosas and Alfredos conjugal dwelling and
stayed in the conjugal room the entire nights thereof.
The househelpers, Melissa S. Diambangan and Liza S. Diambangan, likewise executed a joint affidavit in support of
Rosas allegations:
1. They had seen Sia sleep and stay overnight with Alfredo in the conjugal bedroom.
2. Sia herself, who called Alfredo "Papa," confirmed the twos sexual relationship.
3. On 23, 24, 30 and 31 December 2004, de Leon stayed in the conjugal dwelling and slept overnight with
Alfredo in the conjugal room.
As a result, Rosa and their other son Alfred forthwith flew to Davao City without informing Alfredo of their impending
return. Upon Rosas return, she gathered and consolidated information on her husbands sexual affairs.
Pursuant to her charges of violation of Republic Act No. 9262 and Grave Threats, Rosa averred that during the
course of their marriage, apart from the marital infidelity, Alfredo physically and verbally abused her and her family.
On one occasion after Rosa confirmed the affairs, Alfredo threatened their family, including other members of their
household that he will gun them down should he chance upon them in Tagum City. Lastly, on 22 March 2006,
Alfredo purportedly dismissed house helper Liza Diambangan and threatened her.
As expected, Alfredo, in his counter-affidavit, denied all accusations against him and alleged that:
1. Rosa, despite his pleas for them to remain and raise their family in the Philippines, chose to live in the US,
separate from him.
2. Rosas allegations that he had kept photographs of, and love letters from, other women, were only made to
create a cause of action for the suit for Legal Separation which Rosa filed sometime in 1998.
3. It was highly improbable that he committed acts of concubinage with Sia and de Leon since from the time
he became Chief of Hospital of the Davao Regional Hospital in Tagum City, he practically stayed all days of
the work week in the hospital. The instances he went home were few and far between, only to check on the
house and provide for household expenses.
4. When Robert returned to Davao City and lived with him, it became more impossible for him to have
shacked up with Sia and de Leon in the conjugal dwelling.
5. With respect to his alleged relationship with Sia, without admitting to anything, that Sia, for a time, may
have lived in his and Rosas conjugal house, staying at the maids quarters. However, at no instance did he

keep Sia as his mistress in the conjugal dwelling.

6. As regards the dates of December 23, 24, 30 and 31, 2004 when he supposedly stayed with de Leon in the
conjugal room, Alfredo pointed out that said dates were busiest days of the year in the hospital where his
presence as Chief of Hospital is most required.
7. By Rosas own admission, she first learned of Alfredos alleged concubinage in 1997, and yet she still
continued with her yearly visits to Alfredo in Davao City. Those instances ought to be construed as
condonation of the concubinage.
8. Significantly, the alleged concubines, Sia and de Leon, were not impleaded along with Alfredo as partyrespondents in the complaint in violation of Article 344 of the Revised Penal Code.
Alfredo made short shrift of Rosas charges of violation of Republic Act No. 9262 and Grave Threats. He claimed
that, at no time, did he threaten, the lives or, to harm his wife, their family and members of their household. He only
berated the help for perpetrating gossip about his behavior and conduct.
In their subsequent exchange of responsive pleadings, Rosa maintained Alfredos culpability, and naturally, Alfredo
claimed innocence.
In the course thereof, the procedural issue of Rosas failure to implead Sia and de Leon as respondents cropped up.
Alfredo insisted that Rosas complaint ought to be dismissed for failure to implead his alleged concubines as
respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where both Rosa and Alfredo
were represented by their respective counsels:
x x x Rosa was apprised of the need to implead the two alleged mistresses in the complaint for Concubinage
pursuant to Article 344 of the Revised Penal Code. Although Alfredo objected to the amendment of the complaint, at
this point in time, due to the alleged procedural lapse committed by Rosa, this Office explained to the parties that
the position of Alfredo would just prolong the conduct of the preliminary investigation since Rosa can just re-file her
complaint. The doctrine of res judicata does not apply in the preliminary investigation stage. Hence, the counsel for
Rosa was directed to submit to this Office the addresses of the alleged mistresses so that they could be served with
the Order directing them to file their counter-affidavits.
Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon and Emy Sia. x x x.3
On 24 June 2008, the Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-respondents in the
complaint for Concubinage and directing them to submit their respective counter-affidavits within a period of time.
Copies of the Joint Order were mailed to Sias and de Leons last known addresses, as provided by Rosa to the
Ombudsman.
Sia and de Leon did not submit their respective counter-affidavits: a copy of the Joint Order sent to Sias last known
address was returned to the Ombudsman with the notation on the Registry Return Receipt No. 1624 "Return to
Sender; removed," while a copy thereof to de Leon was received on 3 September 2008 by Ananias de Leon.5
Apparently still opposed to the Ombudsmans ruling to simply amend the complaint and implead therein Alfredos
alleged mistresses, Alfredo filed his Comment to the 24 June 2008 Order with Motion to Dismiss and/or Refer the
charges to the Appropriate Provincial/City Prosecutor6 praying for dismissal of the complaint for: (1) failure to
implead the two mistresses in violation of Article 344 of the Revised Penal Code; and in the alternative, (2) referral
of the complaint to the Office of the City Prosecutor as provided in OMB-DOJ Circular No. 95-001.
Rosa filed a Reply to that latest pleading of Alfredo.
On 17 April 2009, the Ombudsman issued the herein assailed Resolution, disposing of the procedural issues:
Before dwelling into the merits of the case, this Office finds an urgent need to resolve the ancillary issues raised by
petitioner Dr. Busuego on: 1.) the alleged legal infirmity of Rosass initiatory pleading by resorting to a procedural
short cut which would result to the delay in the disposition of this case; and 2.) the criminal charges imputed are not
in relation to office, hence, the Office of the Provincial/City Prosecutor shall investigate and prosecute this case
pursuant to OMB-DOJ Joint Circular No. 95-001, Series of 1995.
On the first issue, this Office observed that Busuego had already pointed out in his counter-Affidavit the alleged
deficiency in the complaint. Rosa also explained in her Reply that the names of the mistresses were categorically

mentioned in the complaint. She averred that this Office is empowered to investigate and prosecute any act or
omission of a public official or employee to the exclusion of non-government employees. She stated that the
inclusion of the alleged concubines in the Information to be filed in court is a matter of procedure, within the
competence of the investigating prosecutor.
In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was conducted. It
was explained in the said hearing the need to implead the alleged concubines in this case pursuant to Article 344 of
the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged
concubines. Busuegos position that the said short cut procedure would delay the proceedings is misplaced. If the
case will be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-file this case since
the doctrine of res judicata does not apply in the preliminary investigation stage of the proceedings.
On the second issue, the motion of Busuego to refer this case to the Office of the City Prosecutor was belatedly
filed. Record would show that the motion praying for the referral of this case to the Office of the City Prosecutor was
filed on 17 July 2008, after the parties have already filed all their pleadings and the case is now ripe for resolution.
Further, referral to the said office is not mandatory as cited in the said Joint Circular.7
In the same Resolution, the Ombudsman, ultimately, found probable cause to indict only Alfredo and Sia of
Concubinage and directed the filing of an Information against them in the appropriate court:
WHEREFORE, in view of the foregoing, this Office finds a prima facie case for violation of Article 334 of the Revised
Penal Code (concubinage) and that petitioner ALFREDO ROMULO BUSUEGO y ABRIO, and EMY SIA, are
probably guilty thereof.
Let the herewith Information be filed in the appropriate court.
The charges for: 1.) Concubinage against Alfredo Romulo Busuego y Abrio and Julie de Leon; 2.) Grave Threats
against Alfredo Romulo y Abrio; and 3.) violation of RA 9262 (Anti-Violence Against Women and Children Act), are
hereby DISMISSED for lack of merit.8
Alfredo filed a Partial Motion for Reconsideration excepting to the Ombudsmans ruling on the automatic inclusion of
Sia as respondent in the complaint and their indictment for the crime of Concubinage. Alfredo is adamant that
Rosas complaint should have, at the outset, impleaded his alleged concubines. Failing such, the Ombudsman
cannot resort to automatic inclusion of party-respondents, erroneously finding him and Sia prima facie culpable for
Concubinage. For good measure, Alfredo pointed out that from Rosas own allegations, she had condoned or
pardoned Alfredos supposed concubinage. Alfredo likewise submitted Liza S. Diambangans affidavit, recanting her
previous affidavit corroborating Rosas charges.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for Reconsideration was filed
out of time, and gave scant attention to Liza S. Diambangans affidavit of recantation:
WHEREFORE, all the foregoing considered, this instant Motion for Reconsideration is hereby DENIED. The findings
in the questioned Resolution hereby remains undisturbed. Let the Information for Concubinage be filed in the proper
court against herein Busuego.9
Alfredo now comes to us on petition for certiorari alleging grave abuse of discretion in the Ombudsmans finding of
probable cause to indict him and Sia for Concubinage. Alfredos badges of grave abuse of discretion are the
following:
1. The Ombudsman railroaded the inclusion of Sia and de Leon as party-respondents in the complaint;
2. The Ombudsman did not refer the complaint to the Department of Justice, considering that the offense of
Concubinage is not committed in relation to his office as Chief of Hospital;
3. The Ombudsman glossed over Rosas condonation of Alfredos supposed Concubinage when she alleged
in the complaint that she had known of Alfredos womanizing and believed him to have changed his ways;
4. The Ombudsman did not take into consideration the affidavit of recantation of Liza Diambangan; and
5. The Ombudsman found probable cause to indict Alfredo and Sia for Concubinage.
We sustain the Ombudsman.
The Ombudsman has full discretionary authority in the determination of probable cause during a preliminary
investigation.10 This is the reason why judicial review of the resolution of the Ombudsman in the exercise of its

power and duty to investigate and prosecute felonies and/or offenses of public officers is limited to a determination
of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts are not
empowered to substitute their judgment for that of the Ombudsman.11
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment tantamount to lack of
jurisdiction.12 The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or
a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or hostility.13 In this regard, petitioner failed to
demonstrate the Ombudsman's abuse, much less grave abuse, of discretion.
First. Alfredo insists that the Ombudsmans automatic inclusion, over his vehement objections of Sia and de Leon as
party-respondents, violates Article 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Court,
which respectively provide:
Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both
alive, nor, in any case, if he shall have consented or pardoned the offenders.
Section 5. Who must prosecute criminal action. xxx.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended
spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive,
nor, in any case, if the offended party has consented to the offense or pardoned the offenders.
We do not agree.
The submission of Alfredo is belied by the fact that the Ombudsman merely followed the provisions of its Rules of
Procedure. Thus:
Rule II
PROCEDURE IN CRIMINAL CASES
xxxx
Section 2. Evaluation Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxxx
Section 4. Procedure The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:
a) x x x
b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant may
file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondents does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction.
Neither may a motion for a bill of particulars be entertained.
If respondent desires any matter in the complainants affidavit to be clarified, the particularization
thereof may be done at the time of the clarificatory questioning in the manner provided in
paragraph (f) of this section.
e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on the record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may conduct a
clarificatory hearing during which the parties shall be afforded the opportunity to be present but
without the right to examine or cross-examine the witness being questioned. Where the
appearance of the parties or witnesses is impracticable, the clarificatory questioning may be
conducted in writing, whereby the questions desired to be asked by the investigating officer or a
party shall be reduced into writing and served on the witness concerned who shall be required to
answer the same in writing and under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward the
records of the case together with his resolution to the designated authorities for their appropriate
action thereon.
No information may be filed and no complaint may be dismissed without the written authority or approval of the
ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the proper Deputy Ombudsman in all
other cases. (Emphasis supplied).
Notably, Rosas complaint contained not just the Concubinage charge, but other charges: violation of Republic Act
No. 9262 and Grave Threats. Upon the Ombudsmans perusal, the complaint was supported by affidavits
corroborating Rosas accusations. Thus, at that stage, the Ombudsman properly referred the complaint to Alfredo
for comment. Nonetheless, while the Ombudsman found no reason for outright dismissal, it deemed it fit to hold a
clarificatory hearing to discuss the applicability of Article 344 of the Revised Penal Code, the issue having been
insisted upon by Alfredo.
Surely the procedural sequence of referral of the complaint to respondent for comment and thereafter the holding of
a clarificatory hearing is provided for in paragraph b, Section 2 and paragraphs d and f, Section 4 of Rule II, which
we have at the outset underscored. Thus did the Ombudsman rule:
In order to clarify some matters, including the said issue, with the parties, the clarificatory hearing was conducted. It
was explained in the said hearing the need to implead the alleged concubines in this case pursuant to Article 344 of
the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the addresses of the alleged
concubines. Busuegos position that the said short cut procedure would delay the proceedings is misplaced. If the
case will be dismissed based on procedural infirmity, Rosa could still amend her complaint and re-file this case since
the doctrine of res judicata does not apply in the preliminary investigation stage of the proceedings.14
The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out by Alfredo. We
agree with the Ombudsman that it would be superfluous to dismiss the complaint when amendment thereof is
allowed by its Rules of Procedure15 and the Rules of Court.16
Second. Alfredo claims that the Ombudsman should have referred Rosas complaint to the Department of Justice
(DOJ), since the crime of Concubinage is not committed in relation to his being a public officer. This is not a new
argument.
The Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation of
crimes involving public officers, without regard to its commission in relation to office, had long been settled in Sen.
Honasan II v. The Panel of Investigating Prosecutors of DOJ,17 and affirmed in subsequent cases:
The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as

amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers
or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is
concurrent with other government investigating agencies such as provincial, city and state prosecutors. However,
the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take
over, at any stage, from any investigating agency of the government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public
officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan,
the respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct
preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for
the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit:
OMB-DOJ JOINT CIRCULAR NO. 95-001
Series of 1995
ALL GRAFT INVESTIGATION/SPECIAL PROSECUTIONOFFICERS OF THE OFFICE OF THE
OMBUDSMAN
TO: ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY
PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS ANDPROSECUTING
ATTORNEYS OF THE DEPARTMENT OFJUSTICE.
SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLICOFFICERS AND EMPLOYEES, THE
CONDUCT OFPRELIMINARY INVESTIGATION, PREPARATION OFRESOLUTIONS AND
INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS
AND THEIR ASSISTANTS.
x---------------------------------------------------------------------------------------x
In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion
centered around the latest pronouncement of the SUPREME COURT on the extent to which the OMBUDSMAN may
call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases
cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975
otherwise known as "AN ACT TO STRENGTHEN THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF
THE SANDIGANBAYAN, AMENDING FOR THE PURPOSE PRESIDENTIAL DECREE NO. 1606, AS AMENDED"
and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public
officers and employees.
Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the
OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, and by procedural conflicts in the filing of
complaints against public officers and employees, the conduct of preliminary investigations, the preparation of
resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as
DEPUTIZED PROSECUTORS OF THE OMBUDSMAN.
Recognizing the concerns, the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, in a series of
consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases
against public officers and employees:
1. Preliminary investigation and prosecution of offenses committed by public officers and employees IN
RELATION TO OFFICE whether cognizable by the SANDIGANBAYAN or the REGULAR COURTS, and
whether filed with the OFFICE OF THE OMBUDSMAN or with the OFFICE OF THE PROVINCIAL/CITY
PROSECUTOR shall be under the control and supervision of the office of the OMBUDSMAN.
2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses NOT
IN RELATION TO OFFICE and cognizable by the REGULAR COURTS shall be investigated and prosecuted
by the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR, which shall rule thereon with finality.
3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the
preliminary investigation. Resolutions recommending prosecution together with the duly accomplished
criminal informations shall be forwarded to the appropriate approving authority.
4. Considering that the OFFICE OF THE OMBUDSMAN has jurisdiction over public officers and employees
and for effective monitoring of all investigations and prosecutions of cases involving public officers and

employees, the OFFICE OF THE PROVINCIAL/CITY PROSECUTOR shall submit to the OFFICE OF THE
OMBUDSMAN a monthly list of complaints filed with their respective offices against public officers and
employees.
xxxx
A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal
agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective
December 1, 2000, to wit:
SEC. 2. Officers authorized to conduct preliminary investigations
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions.
SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information
that he, or as shown by the record, an authorized officer, has personally examined the complainant and his
witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in
the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct
another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the
parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the
Ombudsman.
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with
them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those
offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses
falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the
records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot
dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file
an Information with the Sandiganbayan without being deputized by, and without prior written authority of the
Ombudsman or his deputy.
xxxx

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any
public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their
assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors
are in effect deputized Ombudsman prosecutors under the OMB-DOJ circular is a mere superfluity. The DOJ Panel
need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints
filed with it because the DOJs authority to act as the principal law agency of the government and investigate the
commission of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case citation omitted as not being contrary to the Constitution. Thus, there is not even a
need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the
first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. (Emphasis
supplied).
In Honasan II, although Senator Gregorio "Gringo" Honasan was a public officer who was charged with coup detat
for the occupation of Oakwood on 27 July 2003, the preliminary investigation therefor was conducted by the DOJ.
Honasan questioned the jurisdiction of the DOJ to do so, proferring that it was the Ombudsman which had
jurisdiction since the imputed acts were committed in relation to his public office. We clarified that the DOJ and the
Ombudsman have concurrent jurisdiction to investigate offenses involving public officers or employees.
Nonetheless, we pointed out that the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable
by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the
investigation of such cases. Plainly, applying that ruling in this case, the Ombudsman has primary jurisdiction, albeit
concurrent with the DOJ, over Rosas complaint, and after choosing to exercise such jurisdiction, need not defer to
the dictates of a respondent in a complaint, such as Alfredo. In other words, the Ombudsman may exercise
jurisdiction to the exclusion of the DOJ.
Third. Alfredo next argues that Rosa had pardoned his concubinage, having admitted to knowing of his womanizing
and yet continuing with their relationship as demonstrated in Rosas annual visits to him in Davao City.
We are not convinced.
Old jurisprudence has held that the cynosure in the question of whether the wife condoned the concubinage lies in
the wifes "line of conduct under the assumption that she really believed [her husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I
Bouver's Law Dictionary, p. 585, condonation is the conditional forgiveness or remission, by a husband or wife of a
matrimonial offense which the latter has committed.
xxxx
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly
shows that there was a condonation on the part of the husband for the supposed acts of rank infidelity amounting to
adultery committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery
were committed by the defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and consented to be brought to the
house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night,
and the further fact that in the second night they again slept together in their house likewise as husband and wife
all these facts have no other meaning in the opinion of this court than that a reconciliation between them was
effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten
months after he came to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that condonation is implied from sexual
intercourse after knowledge of the other infidelity. Such acts necessarily implied forgiveness. It is entirely consonant
with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the
husband's guilt, her consent should operate as a pardon of his wrong.
In Tiffanys Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce.
But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the
offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will
revive the original offense as a ground for divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a
single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient
to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases
cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various
decisions above-cited, the inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct
of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the
offended spouse, of any action for legal separation against the offending wife, because his said conduct comes
within the restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of
the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to
conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).18
Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the holding therein
applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosas admission was that she
believed her husband had stopped womanizing, not that she had knowledge of Alfredos specific acts of
concubinage with Sia and de Leon, specifically keeping them in the conjugal dwelling. This admission set against
the specific acts of concubinage listed in Article 33419 of the Revised Penal Code does not amount to condonation.
Their continued cohabitation as husband and wife construed from Rosas annual visits to Davao City is not
acquiescence to Alfredos relations with his concubines. On that score, we have succinctly held:
We can find nothing in the record which can be construed as pardon or condonation. It is true that the offended
party has to a considerable extent been patient with her husband's shortcomings, but that seems to have been due
to his promises of improvement; nowhere does it appear that she has consented to her husband's immorality or that
she has acquiesced in his relations with his concubine.20
Fourth. Alfredo next grasps at Liza S. Diambangans affidavit of recantation to eliminate his probable culpability for
concubinage.
Again, we are not swayed by Alfredos asseverations.
We have generally looked with disfavor upon retraction of testimonies previously given in court. Affidavits of
recantation are unreliable and deserve scant consideration. The asserted motives for the repudiation are commonly
held suspect, and the veracity of the statements made in the affidavit of repudiation are frequently and deservedly
subject to serious doubt.21
In Firaza v. People, we intoned:
Merely because a witness says that what he had declared is false and that what he now says is true, is not sufficient
ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of
credibility. The rule is that a witness may be impeached by a previous contradictory statement x x x not that a
previous statement is presumed to be false merely because a witness now says that the same is not true. The
jurisprudence of this Court has always been otherwise, i.e., that contradictory testimony given subsequently does
not necessarily discredit the previous testimony if the contradictions are satisfactorily explained. [Citations omitted].
Indeed, it is a dangerous rule to set aside a testimony which has been solemnly taken before a court of justice in an
open and free trial and under conditions precisely sought to discourage and forestall falsehood simply because one
of the witnesses who had given the testimony later on changed his mind. Such a rule will make solemn trials a
mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. Unless there be special
circumstances which, coupled with the retraction of the witness, really raise doubt as to the truth of the testimony
given by him at the trial and accepted by the trial judge, and only if such testimony is essential to the judgment of
conviction, or its elimination would lead the trial judge to a different conclusion, an acquittal of the accused based on
such a retraction would not be justified.22
In this case, Liza S. Diambangans testimony merely corroborates the still standing story of Robert and Melissa
Diambangan, the other helper in the Busuego household. Clearly, the twos consistent story may still be the basis of
the Ombudsmans finding of a prima facie case of concubinage against Alfredo and Sia.
Finally. Despite his vigorous arguments, Alfredo claims that there is simply no basis for indicting him and Sia for
concubinage.
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous circumstances, with a
woman who is not his wife; and (3) cohabiting with a woman who is not his wife in any other place.

The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of Robert, Melissa S.
Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal dwelling where Sia even stayed at
the conjugal room. We completely agree with the Ombudsmans disquisition:
x x x. It is ingrained in human behavior that a child has love, respect and loyalty to his family and would strive to
keep the family harmonious and united. This is the very reason why Robert did not inform his mother about his
fathers infidelities during the time when his father was keeping his mistress at the conjugal dwelling. A son would
never turn against his father by fabricating such a serious story which will cause his home to crumble, if such is not
true. His natural instinct is to protect his home, which he did when he kept silent for a long time. What broke the
camels back was the abusive treatment he allegedly suffered and the thought that things would change for the
better if his mom would intervene.
The story of Robert in his Affidavit was reinforced by the two house helpers Melissa S. Diambangan and Liza S.
Diambangan, who were employed by the family. Melissa was with the Busuego family in their conjugal home in
1997. She left the family in 2005 but returned in 2006. Liza started working with the family in 2002. Melissa
revealed that it was Emy Sia who recruited her to work with the Busuego family. They both attested to the fact that
Alfredo and Emy Sia slept together in the bedroom of Alfredo but Emy Sia would sleep in the maids quarter when
Rosa and Alfred came home for a visit in 1997. They recalled that Emy Sia calls Alfredo "papa". They narrated that
Emy Sia would even confide to them some private matters relating to her sexual proclivities with Alfredo.23
1wphi1

We further note that the presence of Sia at the Busuego household and her interim residence thereat was not
disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in the conjugal dwelling, but never
as his mistress, and Sia supposedly slept in the maids quarters.
While such a claim is not necessarily preposterous we hold that such is a matter of defense which Alfredo should
raise in court given that Rosa s complaint and its accompanying affidavits have created a prima facie case for
Concubinage against Alfredo and Sia.
WHEREFORE the petition is DISMISSED The Resolutions of the Ombudsman dated 17 April 2009 and 11 October
2010 are AFFIRMED.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson s Attestation, I certify that the
conclusions in the above Decision had been reached n consultation before the case was assigned to the writer of
the opinion of the Court s Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1 Rollo, pp. 242-272.
2 Id. at 317-321.
3 Id. at 255-256.
4 Id. at 233-236.
5 Id. at 256.
6 Id. at 237-241.
7 Id. at 258-259.
8 Id. at 270-271.
9 Id. at 320.
10 Kalalo v. Office of the Ombudsman, G.R. No. 158189, 23 April 2010, 619 SCRA 141, 148.
11 Asetre v. Asetre, G.R. No. 171536, 7 April 2009, 584 SCRA 471, 483.
12 Casing v. Ombudsman, G.R. No. 192334, 13 June 2012, 672 SCRA 500, 508.
13 Id.
14 Rollo, pp. 258-259.
15 Rule V, Section 3. Rules of Court, application. In all matters not provided in these rules, the Rules of Court

shall apply in a suppletory character, or by analogy whenever practicable and convenient.

16 Rule 110, Section 14. Amendment or substitution. A complaint or information may be amended, in form

or in substance, without leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done without
causing prejudice to the rights of the accused.
17 G.R. No, 159747, 13 April 2004, 427 SCRA 46, 70-75.
18 Bugayong v. Ginez, 100 Phil. 616, 620-623 (1956).
19 Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal dwelling, or, shall have

sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with
her in any other place, shall be punished by prision correccional in its minimum and medium periods. The
concubine shall suffer the penalty of destierro.
20 People v. Francisco, 55 Phil. 1008, 1011 (1930).
21 Firaza v. People, 547 Phil. 572, 584 (2007).
22 Id. at 584-585.
23 Rollo, pp. 262-263.
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