LEGAL NOTE 0057: ONLY THE PUBLIC PROSECUTOR HAS CONTROL OVER PROSECUTION OF CRIMES. STATE MUST BE REPRESENTED BY OSG IN LITIGATION.

 

SOURCE: BUREAU OF CUSTOMS VS. PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL and the COURT OF TAX APPEALS (G.R. NO. 190487, 13 APRIL 2011, CARPIO MORALES, J.) SUBJECT: CRIMES MUST BE PROSECUTED BY PUBLIC PROSECUTOR. (BRIEF TITLE: BUREAU OF CUSTOMS VS. SHERMAN ET AL.)

 

DIGEST: 

MARK SENSING CAUSED IMPORTATION OF BET SLIPS AND THERMAL PAPERS FOR PCSO BUT DID NOT PAY TAXES. BUREAU OF CUSTOMS FILED A CRIMINAL CASE AGAINST OFFICERS OF MARK SENSING. THE FISCAL FILED INFORMATION AT CTA. DOJ REVERSED FISCAL’S RESOLUTION. CTA WITHDREW INFORMATION UPON MOTION OF THE FISCAL. CUSTOMS LAWYER FILED A MOTION FOR RECON. CTA NOTED SUCH MOTION WITHOUT ACTION. CUSTOMS LAWYER FILED PETITION FOR CERTIORARI BEFORE THE SC.

 ISSUE: DID CTA COMMIT GRAVE ABUSE OF DISCRETION?

 RULING. NO. PETITION MUST BE DISMISSED BECAUSE THE MOTION OF CUSTOMS DOES NOT BEAR THE IMPRIMATUR OF THE PUBLIC PROSECUTOR. ALSO, CUSTOMS IS NOT REPRESENTED BY THE OSG.

 SAID THE COURT:

 Parenthetically, petitioner is not represented by the Office of the Solicitor General (OSG) in instituting the present petition, which contravenes established doctrine[1][20] that “the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers.”[2][21]

 IN FINE, as petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the present petition fails. 

 

TO WHOM DOES PROSECUTION OF CRIMES PERTAIN?

It is well-settled that prosecution of crimes pertains to the executive department of the government whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to this power is the right to prosecute violators.[3][18]

 

CAN LAWYERS IN GOVERNMENT AGENCIES PROSECUTE CRIMES?

 YES, BUT THEY MUST BE DESIGNATED AS SPECIAL PROSECUTORS. THEIR ROLE IS MERELY TO ASSIST. THE PUBLIC PROSECUTOR MUST STILL HAVE CONTROL OVER THE CASE.

 All criminal actions commenced by complaint or information are prosecuted under the direction and control of public prosecutors.[4][19]  In the prosecution of special laws, the exigencies of public service sometimes require the designation of special prosecutors from different government agencies to assist the public prosecutor.  The designation does not, however, detract from the public prosecutor having control and supervision over the case.

[1][20]          Ong v. Genio,  G.R. No. 182336,December 23, 2009, 609 SCRA 188, 194.

[2][21]          Citing Section 35 (1), Chapter 12, Title III, Book IV of the Administrative Code of 1987.

[3][18]          Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652, 685.

[4][19]          Rules of Court, Rule 110, Sec. 5.