Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 95367 May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA

RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and
orders issued by respondent Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as
chief accountant and record custodian, respectively, of the Economic Intelligence and Investigation
Bureau (EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and all
evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from
enforcing his orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of
the EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by the
Ombudsman in connection with his investigation of an anonymous letter alleging that funds
representing savings from unfilled positions in the EIIB had been illegally disbursed. The letter,
purporting to have been written by an employee of the EIIB and a concerned citizen, was addressed
to the Secretary of Finance, with copies furnished several government offices, including the Office of
the Ombudsman.

The letter reads in pertinent parts:

1 These are the things that I have been observing. During the
implementation of E.O. 127 on May 1, 1988, one hundred ninety
(190) personnel were dismissed. Before that implementation, we had
a monthly savings of P500,000.00 from unfilled plantilla position plus
the implementation of RA 6683 wherein seventy (70) regular
employees availed a total amount of P1,400,000.00 was saved from
the government monthly. The question is, how do they used or
disbursed this savings? The EIIB has a syndicate headed by the
Chief of Budget Division who is manipulating funds and also the brain
of the so called "ghost agents" or the "Emergency Intelligence
Agents" (EIA). The Commissioner of EIIB has a biggest share on
this. Among his activities are:

a) Supporting RAM wherein he is involved. He gives

big amount especially during the Dec. Failed coup.

b) Payment for thirty five (30) mini UZI's.

 c) Payment for the purchased of Maxima '87 for
personal used of the Commissioner.

d) Another observation was the agents under the

Director of NCR EIIB is the sole operating unit within
Metro Manila which was approved by no less than
the Commissioner due to anomalous activities of
almost all agents assigned at the central office
directly under the Commissioner. Retired Brig. Gen.
Almonte as one of the Anti-Graft board member of
the Department of Finance should not tolerate this.
However, the Commissioner did not investigate his
own men instead, he placed them under the 15-30
payroll.

e) Many more which are personal.

2. Sir, my question is this. Can your good office investigate EII

intelligence funds particularly Personal Services (01) Funds? I
wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to
submit an actual filled up position because almost half of it are
vacant and still they are releasing it. Are EIIB plantilla position
classified? It is included in the Personal Services Itemization (PSI)
and I believe it is not classified and a ruling from Civil Service
Commission that EIIB is not exempted from Civil Service. Another
info, when we had salary differential last Oct '88 all money for the
whole plantilla were released and from that alone, Millions were
saved and converted to ghost agents of EIA.

3. Another thing that I have observed was the Chief Budget Division
possesses high caliber firearms such as a mini UZI, Armalite rifle and
two (2) 45 cal. pistol issued to him by the Assistant Commissioner
wherein he is not an agent of EIIB and authorized as such according
to memorandum order number 283 signed by the President of the
Republic of the Philippines effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain

civilian who possesses numerous assorted high powered firearms.
Agents plus one personnel from the legal proclaimed only five (5)
firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the
big time smuggler syndicate monthly and brokers every week for
them not to be apprehended.

Another observation is the commissioner allocates funds coming

from the intelligence funds to the media to sustain their good image
of the bureau.

In his comment 1 on the letter-complaint, petitioner Almonte denied that as a result of the separation
of personnel, the EIIB had made some savings. He averred that the only funds released to his agency
by the Department of Budget and Management (DBM) were those corresponding to 947 plantilla
positions which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that
disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of
the agency had been cleared by the Commission on Audit (COA); that the case of the 30 Uzis had
already been investigated by Congress, where it was shown that it was not the EIIB but an agent who
had spent for the firearms and they were only loaned to the EIIB pending appropriation by Congress;
that, contrary to the charge that a Maxima car had been purchased for his use, he was using a
government issued car from the NICA; that it was his prerogative as Commissioner to "ground"
agents in the EIIB main office so that they could be given reorientation and retraining; that the
allegation that the EIIB operatives pilfered smuggled firearms was without factual basis because the
firearms were the subject of seizure proceedings before the Collector of Customs, Port of Manila; that
the EIIB had been uncompromising toward employees found involved in anomalous activities; and
that intelligence funds had not been used for media propaganda and if media people went to the EIIB
it was because of newsworthy stories. Petitioner asked that the complaint be dismissed and the case
considered closed.

Similarly petitioner Perez, budget chief of the EIIB, denied in his comment 2 dated April 3, 1990 that
savings had been realized from the implementation of E.O. No. 127, since the DBM provided
allocations for only the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the COA and that the high-
powered firearms had been issued for the protection of EIIB personnel attending court hearings and
the Finance Officer in withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F. Saño, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the
points raised by complainant as constitutive of the alleged anomalies." 3 He, therefore, asked for
authority to conduct a preliminary investigation. Anticipating the grant of his request, he issued a
subpoena 4 to petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the
affidavits of their witnesses, as well as a subpoena duces tecum 5 to the Chief of the EIIB's
Accounting Division ordering him to bring "all documents relating to Personal Services Funds for the
year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his
Order dated June 15, 1990, 6 respondent Ombudsman granted the motion to quash the subpoena in
view of the fact that there were no affidavits filed against petitioners. But he denied their motion to
quash the subpoena duces tecum. He ruled that petitioners were not being forced to produce
evidence against themselves, since the subpoena duces tecum was directed to the Chief Accountant,
petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the Records a Section of
the EIIB, petitioner Elisa Rivera, to produce before the investigator "all documents relating to
Personnel Service Funds, for the year 1988, and all documents, salary vouchers for the whole
plantilla of the EIIB for 1988, within ten (10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were
EIIB employees under their supervision and that the Ombudsman was doing indirectly what he could
not do directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against
themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this
petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a demand by
a citizen for information under the freedom of information guarantee of the Constitution. 7 Rather it
concerns the power of the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus
petitioners raise the following issues: 8

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN

UNSIGNED AND UNVERIFIED LETTER COMPLAINT IS AN
"APPROPRIATE CASE" WITHIN THE CONCEPT OF THE
CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE
PETITIONERS BY VIRTUE OF HIS SUBPOENA DUCES TECUM
TO PRODUCE TO HIM "ALL DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE
PLANTILLA OF EIIB FOR 1988."
 II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE WHOLE
PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND,
THEREFORE, BEYOND THE REACH OF PUBLIC RESPONDENT'S
SUBPOENA DUCES TECUM.

I.

There are several subsidiary issues raised by petitioners, but the principal ones revolve on the
question whether petitioners can be ordered to produce documents relating to personal services and
salary vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the
documents in question is resisted on the ground that "knowledge of EIIB's documents relative to its
Personal Services Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations,
movements, targets, strategies, and tactics and the whole of its being" and this could "destroy the
EIIB." 9

Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the
relevancy or materiality of the documents required to be produced, to the pending investigation in the
Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of
privilege.

A.

At common law a governmental privilege against disclosure is recognized with respect to state
secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest
of such paramount importance as in and of itself transcending the individual interests of a private
citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. 10

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the confidentiality of his conversations and correspondence,
which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States
v. Nixon: 11

The expectation of a President to the confidentiality of his conversations and

correspondence, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The privilege is fundamental
to the operation of the government and inextricably rooted in the separation of
powers under the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new name,
although not necessarily a new birth. 12

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact
that Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated
their working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged to make such arrangements as
will assure the preservation and eventual availability of their personal papers, especially the deposit of
their papers in the same depository they select for [their] Public Papers" 13 was rebuffed by the
Justices who, in a letter to the Chairman of the Subcommittee on Regulation and Government
Information of the U.S. Senate, referred to "difficult concerns respecting the appropriate separation
that must be maintained between the legislative branch and this Court." 14
There are, in addition to such privileges, statutorily-created ones such as the Government's privilege
to withhold the identity of persons who furnish information of violations of laws. 15

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as
follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of
executive officers. Yet we will not go so far as to say that the court may automatically
require a complete disclosure to the judge before the claim of privilege will be
accepted in any case. It may be possible to satisfy the court, from all the
circumstances of the case, that there is a reasonable danger that compulsion of the
evidence will expose military matters which, in the interest of national security, should
not be divulged. When this is the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the privilege is meant to
protect by insisting upon an examination of the evidence, even by the judge alone, in
chambers. . . . In each case, the showing of necessity which is made will determine
how far the court should probe in satisfying itself that the occasion for invoking the
privilege is appropriate. Where there is a strong showing of necessity, the claim of
privilege should not be lightly accepted, but even the most compelling necessity
cannot overcome the claim of privilege if the court is ultimately satisfied that military
secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege,
made under the circumstances of this case, will have to prevail. 16

On the other hand, where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an absolute privilege of the President
against a subpoena considered essential to the enforcement of criminal laws. 17

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the
production of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering
and evaluation of intelligence reports and information regarding "illegal activities affecting the national
economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, dollar salting." 18
Consequently, while in cases which involve state secrets it may be sufficient to determine from the
circumstances of the case that there is reasonable danger that compulsion of the evidence will
expose military matters without compelling production, 19 no similar excuse can be made for a
privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records of the
EIIB as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to
support their contention that there is adequate safeguard against misuse of public funds, provides that
the "only item of expenditure which should be treated strictly confidential" is that which refers to the
"purchase of information and payment of rewards." Thus, part V, No. 7 of the Circular reads:

The only item of expenditure which should be treated as strictly confidential because
it falls under the category of classified information is that relating to purchase of
information and payment of rewards. However, reasonable records should be
maintained and kept for inspection of the Chairman, Commission on Audit or his duly
authorized representative. All other expenditures are to be considered unclassified
supported by invoices, receipts and other documents, and, therefore, subject to
reasonable inquiry by the Chairman or his duly authorized representative. 20

It should be noted that the regulation requires that "reasonable records" be kept justifying the
confidential or privileged character of the information relating to informers. There are no such
reasonable records in this case to substitute for the records claimed to be confidential.
The other statutes and regulations 21 invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the
confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to account
for its funds to the proper authorities. Indeed by denying that there were savings made from certain
items in the agency and alleging that the DBM had released to the EIIB only the allocations needed
for the 947 personnel retained after its reorganization, petitioners in effect invited inquiry into the
veracity of their claim. If, as petitioners claim, the subpoenaed records have been examined by the
COA and found by it to be regular in all respects, there is no reason why they cannot be shown to
another agency of the government which by constitutional mandate is required to look into any
complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were
filled by fictitious persons and that the allotments for these items in 1988 were used for illegal
purposes. The plantilla and other personnel records are relevant to his investigation. He and his
Deputies are designated by the Constitution "protectors of the people" and as such they are required
by it "to act promptly on complaints in any form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation." 22

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more,
while there might have been compelling reasons for the claim of privilege in 1988 when it was
asserted by petitioners, now, seven years later, these reasons may have been attenuated, if they
have not in fact ceased. The agents whose identities could not then be revealed may have ceased
from the service of the EIIB, while the covert missions to which they might have been deployed might
either have been accomplished or abandoned. On the other hand, the Ombudsman's duty to
investigate the complaint that there were in 1988 unfilled positions in the EIIB for which continued
funding was received by its officials and put to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision
would only justify ordering their inspection in camera but not their nonproduction. However, as
concession to the nature of the functions of the EIIB and just to be sure no information of a
confidential character is disclosed, the examination of records in this case should be made in strict
confidence by the Ombudsman himself. Reference may be made to the documents in any decision or
order which the Ombudsman may render or issue but only to the extent that it will not reveal covert
activities of the agency. Above all, there must be a scrupulous protection of the documents delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of
the parties is achieved. It is not amiss to state that even matters of national security have been
inquired into in appropriate in camera proceedings by the courts. In Lansang v. Garcia 23 this Court
held closed door sessions, with only the immediate parties and their counsel present, to determine
claims that because of subversion there was imminent danger to public safety warranting the
suspension of the writ of habeas corpus in 1971. Again in Marcos v. Manglapus 24 the Court met
behind closed doors to receive military briefings on the threat posed to national security by the return
to the country of the former President and his family. In the United States, a similar inquiry into the
danger to national security as a result of the publication of classified documents on the Vietnam war
was upheld by the U.S. Supreme Court. 25 We see no reason why similar safeguards cannot be
made to enable an agency of the Government, like the Office of the Ombudsman, to carry out its
constitutional duty to protect public interests 26 while insuring the confidentiality of classified
documents.

C.

Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only "in any appropriate case,
and subject to such limitations as may be provided by law" and that because the complaint in this
case is unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As
already stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in
any form or manner" concerning official acts or omissions. Thus, Art. XI, § 12 provides:
 The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations and shall in appropriate cases, notify
the complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in § 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever
form concerning an official act or omission. It shall act on the complaint immediately
and if it finds the same entirely baseless, it shall dismiss the same and inform the
complainant of such dismissal citing the reasons therefor. If it finds a reasonable
ground to investigate further, it shall first furnish the respondent public officer or
employee with a summary of the complaint and require him to submit a written
answer within seventy-two hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case. (Emphasis added)

Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal complaint was really not necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art.
XI, § 12 means any case concerning official act or omission which is alleged to be "illegal, unjust,
improper, or inefficient." 28 The phrase "subject to such limitations as may be provided by law" refers
to such limitations as may be provided by Congress or, in the absence thereof, to such limitations as
may be imposed by the courts. Such limitations may well include a requirement that the investigation
be concluded in camera, with the public excluded, as exception to the general nature of the
proceedings in the Office of the Ombudsman. 29 A reconciliation is thereby made between the
demands of national security and the requirement of accountability enshrined in the Constitution. 30

What has been said above disposes of petitioners' contention that the anonymous letter-complaint
against them is nothing but a vexatious prosecution. It only remains to say that the general
investigation in the Ombudsman' s office is precisely for the purpose of protecting those against
whom a complaint is filed against hasty, malicious, and oppressive prosecution as much as securing
the State from useless and expensive trials. There may also be benefit resulting from such limited in
camera inspection in terms of increased public confidence that the privilege is not being abused and
increased likelihood that no abuse is in fact occurring.

II.

Nor is there violation of petitioner's right to the equal protection of the laws. Petitioners complain that
"in all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed," while in proceedings before the
Office of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there
can be no objection to this procedure because it is provided in the Constitution itself. In the second
place, it is apparent that in permitting the filing of complaints "in any form and in a manner," the
framers of the Constitution took into account the well-known reticence of the people which keep them
from complaining against official wrongdoings. As this Court had occasion to point out, the Office of
the Ombudsman is different from the other investigatory and prosecutory agencies of the government
because those subject to its jurisdiction are public officials who, through official pressure and
influence, can quash, delay or dismiss investigations held against them. 31 On the other hand
complainants are more often than not poor and simple folk who cannot afford to hire lawyers. 32

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right
against self-incrimination. It is enough to state that the documents required to be produced in this
case are public records and those to whom the subpoena duces tecum is directed are government
officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EIIB of funds for personal service has already been cleared by the COA, there is
no reason why they should object to the examination of the documents by respondent Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed
documents be made personally in camera by the Ombudsman, and with all the safeguards outlined in
this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and
Vitug, JJ., concur.

Francisco, J., is on leave.