Not yet formally charged

When is person considered to have been “formally charged” in an administrative and/or criminal proceedings? This is the issue that cropped up in this case of Atty. Sally, while applying for the position of Clerk of Court of the Regional Trial Court (RTC).

Sally had been administratively and criminally charged together with her former Regional Election Director before the Ombudsman by Tomas. The latter charged them with violation of Section 4 (c) R.A. 6713 and Section 3 (e) of R.A. 3019. But at the time she was applying for the position of Clerk of Court, Sally wrote “No” in Item number 37 (a) of her Personal Data Sheet (PDS) after the question “Have you ever been formally charged?”

So Tomas wrote a letter to the Supreme Court (SC) also charging Atty. Sally with dishonesty for falsifying her PDS. Tomas stated that Sally may not have disclosed to the SC, in the course of her application as clerk of Court, her pending administrative and criminal charges before the Ombudsman.

In her comment, Sally admitted that she was aware of the two complaints filed against her and her former Regional Election Director before the Ombudsman. She however pointed out that these cases are still in the preliminary investigation and pre-charge stages, since probable cause has not yet been determined by the investigating officer. In fact at that time the Ombudsman had merely issued an order requiring them to submit their counter affidavits, affidavits of their witnesses and such other controverting evidence. The order further stated that “the case shall thereafter be considered submitted for final disposition or taking of further action as may be warranted. As such Sally said that she should not be considered as formally charged yet. Hence she was not guilty of dishonesty. Was Sally correct?

Yes. Dishonesty is “intentionally making a false statement in any material fact; or practicing or attempting to practice any deception or fraud in securing registration, examination, appointment or promotion. It is not simply bad judgment or negligence. It is a question of intention.

The intention to falsify or misrepresent is absent on the part of Sally when she answered the question, “have you ever been formally charged” When she filled up her PDS she had in mind the Uniform Rules on Administrative Case in Civil Service which state that a person shall be considered formally charged in administrative proceedings: (a) upon the filing of the complaint at the instance of the disciplining authority, or (b) upon the finding of the existence of a prima facie case by the disciplining authority, in case of a complaint filed by a private person. So Sally has not yet been formally charged administratively.

In criminal cases, the determination of whether a person is formally charged is found in Rule 122 of the Revised Rules on Criminal Procedure which is “upon the finding of probable cause by the investigating prosecutor and the filing of Information in Court with the written authority and approval of the Ombudsman”. Clearly, there were no formal charges against Sally yet. In fact Tomas himself stated in his complaint that these cases were not yet resolved by the Ombudsman. Hence the complaint of dishonesty against Sally should be dismissed for lack of merit (Plopinio vs. Zabala-Carino, A.M. P-08-2458, March 22, 2010 616, SCRA 269).

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