Limkaichong vs. COMELEC Jocelyn Limkaichong v. COMELEC G.R.

178831-32 April 1, 2009 FACTS Limkaichong rans as a representative in the 1st district of Negros Oriental, with Paras as her rival. Paras, together with other concerned citizens, filed a disqualification case against Limkaichong. They alleged that she was not a natural born citizen of teh Philippines because when she was born, her father was still a Chinese, although her mom was a Filipino, also lost her citizenship by virtue of marriage. When the case was still pending in the Commission on Elections (COMELEC), election still continued and votes were casted. The results showed that Limkaichong won over her rival, Paras. COMELEC, after due hearing declared Limkaichong disqualified, at about 2 days after the counting of votes. On the following days however, notwithstanding their proclamation discqualifying Limkaichong, the COMELEC issued a proclamation announcing Limkaichong as the winner of the conducted elections. This is in compliance with Resolution No. 8062 adopting the policy guidelines of not suspending the proclamation of winning candidates with pending disqualification cases which shall be without prejudice to the continuation of the hearing and resolution of the involved cases. Paras then petitioned before the COMELEC, regarding its proclamation. Limkaichong, on the other hand argued that the Commission had already proclaimed her as winner, and with that, COMELEC could no longer exercise jurisdiction over the matter. It should be the House of Representatives Electoral Tribunal (HRET) which should exercise jurisdiction from then on, not the COMELEC. And the COMELEC agreed. ISSUE When does the jursidiction of the COMELEC end and when does the jurisdiction of the HRET begin? HELD In Limkaichong's case, the HRET must exercise jurisdiction after Limkaichong's proclamation. The Supreme Court has invariably held that once awinning candidate has been proclaimed, taken oath, and assumed office as a Member of the House of Representatives (HOR), the COMELEC's jurisdiction over election contests relating to his election, returns, and disqualification ends. With that, the HRET's own jurisdiciton begins. It follows that the proclamation of a winning candidate divests the COMELEC of its jurisdiction over matters pending before it at the time of the proclamation. The party questioning COMELEC's proclamation should now present his case before the HRET, which is the constitutionally mandated tribunal to hear and decide a case involving a Member of the House of Representatives. Under Section 17 of Article VI of the Constitution and Section 250 of the OEC underscores, the word "sole" is used to emphasize the exclusivity of the Electoral Tribunal's jurisdiction over election contests relating to its members.

Vinzons-Chato vs. Fortune

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 141309 December 23, 2008

LIWAYWAY VINZONS-CHATO, petitioner, vs. FORTUNE TOBACCO CORPORATION, respondent. RESOLUTION NACHURA, J.: It is a fundamental principle in the law of public officers that a duty owing to the public in general cannot give rise to a liability in favor of particular individuals.1 The failure to perform a public duty can constitute an individual wrong only when a person can show that, in the public duty, a duty to himself as an individual is also involved, and that he has suffered a special and peculiar injury by reason of its improper performance or non-performance.2 By this token, the Court reconsiders its June 19, 2007 Decision3 in this case. As culled from the said decision, the facts, in brief, are as follows: On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3, 1993. Prior to its effectivity, cigarette brands 'Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad valorem tax. RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA 7654, specifically, to Sec. 142, (c)(1) on locally manufactured cigarettes which are currently classified and taxed at 55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos (P5.00) per pack." On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993. The same letter assessed respondent for ad valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and demanded payment within 10 days from receipt thereof. On August 3, 1993, respondent filed a petition for review with the Court of Tax Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the implementation of RMC 37-93. In its decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v. Court of Appeals. It was held, among others, that RMC 37-93, has fallen short of the requirements for a valid administrative issuance. On April 10, 1997, respondent filed before the RTC a complaint for damages against petitioner in her private capacity. Respondent contended that the latter should be held liable for damages under Article 32 of the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right against deprivation of property without due process of law and the right to equal protection of the laws. Petitioner filed a motion to dismiss contending that: (1) respondent has no cause of action against her because she issued RMC 37-93 in the performance of her official function and within the scope of her authority. She claimed that she acted merely as an agent of the Republic and therefore the latter is the one responsible for her

Vinzons-Chato vs. Fortune acts; (2) the complaint states no cause of action for lack of allegation of malice or bad faith; and (3) the certification against forum shopping was signed by respondent's counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioner's motion to dismiss holding that to rule on the allegations of petitioner would be to prematurely decide the merits of the case without allowing the parties to present evidence. It further held that the defect in the certification against forum shopping was cured by respondent's submission of the corporate secretary's certificate authorizing its counsel to execute the certification against forum shopping. x x x x xxxx The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However, same was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if the defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38, Book I of the Administrative Code is the general law on the civil liability of public officers while Article 32 of the Civil Code is the special law that governs the instant case. Consequently, malice or bad faith need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the defect of the certification against forum shopping was cured by the submission of the corporate secretary's certificate giving authority to its counsel to execute the same.4 [Citations and underscoring omitted.] In the aforesaid June 19, 2007 Decision, we affirmed the disposition of the Court of Appeals (CA) and directed the trial court to continue with the proceedings in Civil Case No. 97-341-MK.5 Petitioner, on July 20, 2007, subsequently moved for the reconsideration of the said decision.6 After respondent filed its comment, the Court, in its April 14, 2008 Resolution,7 denied with finality petitioner's motion for reconsideration. Undaunted, petitioner filed, on April 29, 2008 her Motion to Refer [the case] to the Honorable Court En Banc.8 She contends that the petition raises a legal question that is novel and is of paramount importance. The earlier decision rendered by the Court will send a chilling effect to public officers, and will adversely affect the performance of duties of superior public officers in departments or agencies with rule-making and quasi-judicial powers. With the said decision, the Commissioner of Internal Revenue will have reason to hesitate or refrain from performing his/her official duties despite the due process safeguards in Section 228 of the National Internal Revenue Code.9 Petitioner hence moves for the reconsideration of the June 19, 2007 Decision.10 In its June 25, 2008 Resolution,11 the Court referred the case to the En Banc. Respondent consequently moved for the reconsideration of this resolution. We now resolve both motions. There are two kinds of duties exercised by public officers: the "duty owing to the public collectively" (the body politic), and the "duty owing to particular individuals, thus: 1. Of Duties to the Public. - The first of these classes embraces those officers whose duty is owing primarily to the public collectively --- to the body politic --- and not to any particular individual; who act for the public at large, and who are ordinarily paid out of the public treasury. The officers whose duties fall wholly or partially within this class are numerous and the distinction will be readily recognized. Thus, the governor owes a duty to the public to see that the laws are properly executed, that fit and competent officials are appointed by him, that unworthy and ill-considered acts of the legislature do not receive his approval, but these, and many others of a like nature, are duties which he owes to the public at large and no one individual could single himself out and assert that they were duties owing to him alone. So, members of the legislature owe a duty to the public to pass only wise and proper laws, but no one person could pretend that the duty was owing to himself rather than to another. Highway commissioners owe a duty that they will be governed only by considerations of the public good in deciding upon the opening or closing of highways, but it is not a duty to any particular individual of the community.

Vinzons-Chato vs. Fortune These illustrations might be greatly extended, but it is believed that they are sufficient to define the general doctrine.
2. Of Duties to Individuals. - The second class above referred to includes those who, while they owe to the public the general duty of a proper administration of their respective offices, yet become, by reason of their employment by a particular individual to do some act for him in an official capacity, under a special and particular obligation to him as an individual. They serve individuals chiefly and usually receive their compensation from fees paid by each individual who employs them. A sheriff or constable in serving civil process for a private suitor, a recorder of deeds in recording the deed or mortgage of an individual, a clerk of court in entering up a private judgment, a notary public in protesting negotiable paper, an inspector of elections in passing upon the qualifications of an elector, each owes a general duty of official good conduct to the public, but he is also under a special duty to the particular individual concerned which gives the latter a peculiar interest in his due performance.12 In determining whether a public officer is liable for an improper performance or non-performance of a duty, it must first be determined which of the two classes of duties is involved. For, indeed, as the eminent Floyd R. Mechem instructs, "[t]he liability of a public officer to an individual or the public is based upon and is co-extensive with his duty to the individual or the public. If to the one or the other he owes no duty, to that one he can incur no liability."13 Stated differently, when what is involved is a "duty owing to the public in general", an individual cannot have a cause of action for damages against the public officer, even though he may have been injured by the action or inaction of the officer. In such a case, there is damage to the individual but no wrong to him. In performing or failing to perform a public duty, the officer has touched his interest to his prejudice; but the officer owes no duty to him as an individual.14 The remedy in this case is not judicial but political.15 The exception to this rule occurs when the complaining individual suffers a particular or special injury on account of the public officer's improper performance or non-performance of his public duty. An individual can never be suffered to sue for an injury which, technically, is one to the public only; he must show a wrong which he specially suffers, and damage alone does not constitute a wrong.16 A contrary precept (that an individual, in the absence of a special and peculiar injury, can still institute an action against a public officer on account of an improper performance or non-performance of a duty owing to the public generally) will lead to a deluge of suits, for if one man might have an action, all men might have the like-the complaining individual has no better right than anybody else.17 If such were the case, no one will serve a public office. Thus, the rule restated is that an individual cannot have a particular action against a public officer without a particular injury, or a particular right, which are the grounds upon which all actions are founded.18 Juxtaposed with Article 3219 of the Civil Code, the principle may now translate into the rule that an individual can hold a public officer personally liable for damages on account of an act or omission that violates a constitutional right only if it results in a particular wrong or injury to the former. This is consistent with this Court's pronouncement in its June 19, 2007 Decision (subject of petitioner's motion for reconsideration) that Article 32, in fact, allows a damage suit for "tort for impairment of rights and liberties."20 It may be recalled that in tort law, for a plaintiff to maintain an action for damages for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed the plaintiff, meaning a concurrence of injury to the plaintiff and legal responsibility by the person causing it. Indeed, central to an award of tort damages is the premise that an individual was injured in contemplation of law.21 Thus, in Lim v. Ponce de Leon,22 we granted the petitioner's claim for damages because he, in fact, suffered the loss of his motor launch due to the illegal seizure thereof. In Cojuangco, Jr. v. Court of Appeals,23 we upheld the right of petitioner to the recovery of damages as there was an injury sustained by him on account of the illegal withholding of his horserace prize winnings. In the instant case, what is involved is a public officer's duty owing to the public in general. The petitioner, as the then Commissioner of the Bureau of Internal Revenue, is being taken to task for Revenue Memorandum Circular (RMC) No. 37-93 which she issued without the requisite notice, hearing and publication, and which, inCommissioner of Internal Revenue v. Court of Appeals,24 we declared as having "fallen short of a valid and effective administrative issuance."25 A public officer, such as the petitioner, vested with quasi-legislative or rule-making power, owes a duty to the public to promulgate rules which are compliant with the requirements of valid administrative regulations. But it is a duty owed not

Vinzons-Chato vs. Fortune to the respondent alone, but to the entire body politic who would be affected, directly or indirectly, by the administrative rule.
Furthermore, as discussed above, to have a cause of action for damages against the petitioner, respondent must allege that it suffered a particular or special injury on account of the non-performance by petitioner of the public duty. A careful reading of the complaint filed with the trial court reveals that no particular injury is alleged to have been sustained by the respondent. The phrase "financial and business difficulties"26 mentioned in the complaint is a vague notion, ambiguous in concept, and cannot translate into a "particular injury." In contrast, the facts of the case eloquently demonstrate that the petitioner took nothing from the respondent, as the latter did not pay a single centavo on the tax assessment levied by the former by virtue of RMC 37-93. With no "particular injury" alleged in the complaint, there is, therefore, no delict or wrongful act or omission attributable to the petitioner that would violate the primary rights of the respondent. Without such delict or tortious act or omission, the complaint then fails to state a cause of action, because a cause of action is the act or omission by which a party violates a right of another.27 A cause of action exists if the following elements are present: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of defendant to plaintiff for which the latter may maintain an action for recovery of damages.28 The remedy of a party whenever the complaint does not allege a cause of action is to set up this defense in a motion to dismiss, or in the answer. A motion to dismiss based on the failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein. However, the hypothetical admission is limited to the "relevant and material facts well-pleaded in the complaint and inferences deducible therefrom. The admission does not extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice."29 The complaint may also be dismissed for lack of cause of action if it is obvious from the complaint and its annexes that the plaintiff is not entitled to any relief.30 The June 19, 2007 Decision and the dissent herein reiterates that under Article 32 of the Civil Code, the liability of the public officer may accrue even if he/she acted in good faith, as long as there is a violation of constitutional rights, citing Cojuangco, Jr. v. Court of Appeals,31 where we said: Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. To be liable, it is enough that there was a violation of the constitutional rights of petitioners, even on the pretext of justifiable motives or good faith in the performance of duties.32 The complaint in this case does not impute bad faith on the petitioner. Without any allegation of bad faith, the cause of action in the respondent's complaint (specifically, paragraph 2.02 thereof) for damages under Article 32 of the Civil Code would be premised on the findings of this Court in Commissioner of Internal Revenue v. Court of Appeals (CIR v. CA),33 where we ruled that RMC No. 37-93, issued by petitioner in her capacity as Commissioner of Internal Revenue, had "fallen short of a valid and effective administrative issuance." This is a logical inference. Without the decision in CIR v. CA, the bare allegations in the complaint that respondent's rights to due process of law and to equal protection of the laws were violated by the petitioner's administrative issuance would be conclusions of law, hence not hypothetically admitted by petitioner in her motion to dismiss. But in CIR v. CA, this Court did not declare RMC 37-93 unconstitutional; certainly not from either the due process of law or equal protection of the laws perspective. On due process, the majority, after determining that RMC 37-93 was a legislative rule, cited an earlier Revenue Memorandum Circular (RMC No. 10-86) requiring prior notice before RMC's could become "operative." However, this Court did not make an express finding of violation of the right to due process of law. On the aspect of equal protection, CIR v. CA said: "Not insignificantly, RMC 37-93might have likewise infringed on uniformity of taxation;" a statement that does not amount to a positive indictment of petitioner for violation of respondent's constitutional right. Even if one were to ascribe a constitutional infringement by RMC 37-93 on the non-

Vinzons-Chato vs. Fortune uniformity of tax provisions, the nature of the constitutional transgression falls under Section 28, Article VI-not Section 1, Article III-of the Constitution.
This Court's own summation in CIR v. CA: "All taken, the Court is convinced that the hastily promulgated RMC 37-93 has fallen short of a valid and effective administrative issuance," does not lend itself to an interpretation that the RMC is unconstitutional. Thus, the complaint's reliance on CIR v. CA-which is cited in, and a copy of which is annexed to, the complaint-as suggestive of a violation of due process and equal protection, must fail. Accordingly, from the foregoing discussion, it is obvious that paragraph 2.02 of respondent's complaint loses the needed crutch to sustain a valid cause of action against the petitioner, for what is left of the paragraph is merely the allegation that only respondent's "Champion", "Hope" and "More" cigarettes were reclassified. If we divest the complaint of its reliance on CIR v. CA, what remains of respondent's cause of action for violation of constitutional rights would be paragraph 2.01, which reads: 2.01. On or about July 1, 1993, defendant issued Revenue Memorandum Circular No. 37-93 (hereinafter referred to as RMC No. 37-93) reclassifying specifically "Champion", "Hope" and "More" as locally manufactured cigarettes bearing a foreign brand. A copy of the aforesaid circular is attached hereto and made an integral part hereof as ANNEX "A". The issuance of a circular and its implementation resulted in the "deprivation of property" of plaintiff. They were done without due process of law and in violation of the right of plaintiff to the equal protection of the laws. (Italics supplied.) But, as intimated above, the bare allegations, "done without due process of law" and "in violation of the right of plaintiff to the equal protection of the laws" are conclusions of law. They are not hypothetically admitted in petitioner's motion to dismiss and, for purposes of the motion to dismiss, are not deemed as facts. In Fluor Daniel, Inc. Philippines v. EB. Villarosa & Partners Co., Ltd.,34 this Court declared that the test of sufficiency of facts alleged in the complaint as constituting a cause of action is whether or not, admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint. In the instant case, since what remains of the complaint which is hypothetically admitted, is only the allegation on the reclassification of respondent's cigarettes, there will not be enough facts for the court to render a valid judgment according to the prayer in the complaint. Furthermore, in an action for damages under Article 32 of the Civil Code premised on violation of due process, it may be necessary to harmonize the Civil Code provision with subsequent legislative enactments, particularly those related to taxation and tax collection. Judicial notice may be taken of the provisions of the National Internal Revenue Code, as amended, and of the law creating the Court of Tax Appeals. Both statutes provide ample remedies to aggrieved taxpayers; remedies which, in fact, were availed of by the respondent-without even having to pay the assessment under protest-as recounted by this Court in CIR v. CA, viz.: In a letter, dated 19 July 1993, addressed to the appellate division of the BIR, Fortune Tobacco requested for a review, reconsideration and recall of RMC 37-93. The request was denied on 29 July 1993. The following day, or on 30 July 1993, the CIR assessed Fortune Tobacco for ad valorem tax deficiency amounting to P9,598,334.00. On 03 August 1993, Fortune Tobacco filed a petition for review with the CTA.35 The availability of the remedies against the assailed administrative action, the opportunity to avail of the same, and actual recourse to these remedies, contradict the respondent's claim of due process infringement. At this point, a brief examination of relevant American jurisprudence may be instructive. 42 U.S. Code 1983, a provision incorporated into the Civil Rights Act of 1871, presents a parallel to our own Article 32 of the Civil Code, as it states:

Vinzons-Chato vs. Fortune Every person who, under color of any statute, ordinance, regulation, custom, usage, or any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.
This provision has been employed as the basis of tort suits by many petitioners intending to win liability cases against government officials when they violate the constitutional rights of citizens. Webster Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation,36 has emerged as the leading case on the victim's entitlement to recover money damages for any injuries suffered as a result of flagrant and unconstitutional abuses of administrative power. In this case, federal narcotics officers broke into Bivens' home at 6:30 a.m. without a search warrant and in the absence of probable cause. The agents handcuffed Bivens, searched his premises, employed excessive force, threatened to arrest his family, subjected him to a visual strip search in the federal court house, fingerprinted, photographed, interrogated and booked him. When Bivens was brought before a United States Commissioner, however, charges against him were dismissed. On the issue of whether violation of the Fourth Amendment "by a federal agent acting under color of authority gives rise to a cause of action for damages consequent upon his constitutional conduct," the U.S. Supreme Court held that Bivens is entitled to recover damages for injuries he suffered as a result of the agents' violation of the Fourth Amendment. A number of subsequent decisions have upheld Bivens. For instance, in Scheuer v. Rhodes,37 a liability suit for money damages was allowed against Ohio Governor James Rhodes by petitioners who represented three students who had been killed by Ohio National Guard troops at Kent State University as they protested against U.S. involvement in Vietnam. In Wood v. Strickland,38 local school board members were sued by high school students who argued that they had been deprived of constitutional due process rights when they were expelled from school for having spiked a punch bowl at a school function without the benefit of a full hearing. In Butz v. Economou,39 Economou, whose registration privilege as a commodities futures trader was suspended, without prior warning, by Secretary of Agriculture Earl Butz, sued on a Bivens action, alleging that the suspension was aimed at "chilling" his freedom of expression right under the First Amendment. A number of other cases40 with virtually the same conclusion followed. However, it is extremely dubious whether a Bivens action against government tax officials and employees may prosper, if we consider the pronouncement of the U.S. Supreme Court in Schweiker v. Chilicky,41 that a Bivens remedy will not be allowed when other "meaningful safeguards or remedies for the rights of persons situated as (is the plaintiff)" are available. It has also been held that a Bivens action is not appropriate in the civil service system42 or in the military justice system.43 In Frank Vennes v. An Unknown Number of Unidentified Agents of the United States of America,44 petitioner Vennes instituted a Bivens action against agents of the Internal Revenue Service (IRS) who alleged that he (Vennes) owed $250,000 in tax liability, instituted a jeopardy assessment, confiscated Vennes' business, forced a total asset sale, and put Vennes out of business, when in fact he owed not a dime. The U.S. Court of Appeals, Eighth Circuit, ruled: The district court dismissed these claims on the ground that a taxpayer's remedies under the Internal Revenue Code preclude such a Bivens action. Vennes cites to us no contrary authority, and we have found none. Though the Supreme Court has not addressed this precise question, it has strongly suggested that the district court correctly applied Bivens: When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies. xxxx Congress has provided specific and meaningful remedies for taxpayers who challenge overzealous tax assessment and collection activities. A taxpayer may challenge a jeopardy assessment both administratively and judicially, and may sue the government for a tax refund, and have authorized taxpayer actions against the United States to recover limited damages resulting from specific types of misconduct by IRS employees. These carefully crafted legislative remedies confirm that, in the politically sensitive realm of taxation, Congress's

Vinzons-Chato vs. Fortune refusal to permit unrestricted damage action by taxpayers has not been inadvertent. Thus, the district court correctly dismissed Vennes's Bivens claims against IRS agents for their tax assessment and collection activities.
In still another Bivens action, instituted by a taxpayer against IRS employees for alleged violation of due process rights concerning a tax dispute, the U.S. District Court of Minnesota said: In addition, the (Tax) Code provides taxpayers with remedies, judicial and otherwise, for correcting and redressing wrongful acts taken by IRS employees in connection with any collection activities. Although these provisions do not provide taxpayers with an all-encompassing remedy for wrongful acts of IRS personnel, the rights established under the Code illustrate that it provides all sorts of rights against the overzealous officialdom, including, most fundamentally, the right to sue the government for a refund if forced to overpay taxes, and it would make the collection of taxes chaotic if a taxpayer could bypass the remedies provided by Congress simply by bringing a damage suit against IRS employees.45 American jurisprudence obviously validates the contention of the petitioner. Finally, we invite attention to Section 227, Republic Act No. 8424 (Tax Reform Act of 1997), which provides: Section 227. Satisfaction of Judgment Recovered Against any Internal Revenue Officer. - When an action is brought against any Internal Revenue officer to recover damages by reason of any act done in the performance of official duty, and the Commissioner is notified of such action in time to make defense against the same, through the Solicitor General, any judgment, damages or costs recovered in such action shall be satisfied by the Commissioner, upon approval of the Secretary of Finance, or if the same be paid by the person sued shall be repaid or reimbursed to him. No such judgment, damages or costs shall be paid or reimbursed in behalf of a person who has acted negligently or in bad faith, or with willful oppression. Because the respondent's complaint does not impute negligence or bad faith to the petitioner, any money judgment by the trial court against her will have to be assumed by the Republic of the Philippines. As such, the complaint is in the nature of a suit against the State.46 WHEREFORE, premises considered, we GRANT petitioner's motion for reconsideration of the June 19, 2007 Decision and DENY respondent's motion for reconsideration of the June 25, 2008 Resolution. Civil Case No. CV-97-341-MK, pending with the Regional Trial Court of Marikina City, is DISMISSED. SO ORDERED.

CSC NCR vs Albao

EN BANC
CIVIL SERVICE COMMISSION, NATIONAL CAPITAL REGION, Petitioner, G.R. No. 155784

Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. Promulgated:

- versus -

RANULFO P. ALBAO, Respondent.

October 13, 2005 x-----------------------------------------------------------------------------------------x

DECISION
AZCUNA, J.:
This is a petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 64671 promulgated on April 22, 2002 and its Resolution promulgated on September 26, 2002, denying the motion for reconsideration of petitioner Civil Service Commission, National Capital Region (CSC-NCR). The Decision of the Court of Appeals

CSC NCR vs Albao

annulled and set aside Resolutions Nos. 001826 and 010315 of the Civil Service Commission. The antecedents[1] of the case are as follows: On September 1, 1998, the Office of the Vice President of the Republic of the Philippines issued an original and permanent appointment[2] for the position of Executive Assistant IV to respondent Ranulfo P. Albao. Respondent was then a contractual employee at said Office.[3] In a letter[4] dated September 28, 1998 addressed to the Director of the Civil Service Commission Field Office, Manila, the Office of the Vice President requested the retrieval of the said appointment paper. Instead of heeding the request, petitioner CSC-NCR disapproved the appointment. On October 5, 1998, petitioner issued an Order[5] holding that it has found, after a fact-finding investigation, that a prima facie case exists against respondent Albao for Dishonesty and Falsification of Official Documents, committed as follows:
1. That in support of his permanent appointment as Executive Assistant IV, in the Office of the Vice-President, he stated in his Personal Data Sheet (PDS) accomplished on July 1, 1998 that he took and passed the Assistant Electrical Engineer Examination held on October 15 and 16, 1988 with a rating of 71.64%; To support his claim, he submitted a Report of Rating showing he obtained a rating of 71.64% during the aforesaid Assistant Electrical Engineering Examination, all purportedly issued by the Professional Regulation Commission (PRC); and That the Professional Regulation Commission (PRC) has informed CSC-NCR that the name Ranulfo P. Albao does not appear in the Table of Results and Masterlists of examinees of the Board of Electrical Engineering which contain the names of those who took the Assistant Electrical Engineer Examination given in October, 1988; and That the examinee number appearing in his Report of Rating is assigned to one Bienvenido Anio, Jr.[6]

2.

3.

4.

After filing his Answer, respondent Albao filed on February 18, 1999 an Urgent Motion to Resolve the issue of whether or not the Civil Service Commission has original

CSC NCR vs Albao

jurisdiction over the administrative case. Respondent contended that the Commission has no jurisdiction over the same for the following reasons: (1) The permanent appointment issued to him never became effective, even if it was later disapproved, because he never assumed such position in the first place. Moreover, he is already out of government service since he resigned from his position effective at the closing hour of October 30, 1998. (2) As he is no longer with the civil service, the Commission has no disciplinary jurisdiction over him as a private person. (3) While it is true that the Commission has original disciplinary jurisdiction over all its officials and employees and cases involving civil service examination anomalies or irregularities (Sec. 28, Omnibus Rules[7] of 1991), as well as over sworn complaints directly filed before it against any other official or employee (Sec. 29, Omnibus Rules of 1991), the administrative case commenced against him did not fall under any of those instances.

(4) Since the Commission has no jurisdiction to institute the administrative case, it cannot delegate the same to the CSC-NCR. On August 11, 2000, the Civil Service Commission rendered Resolution No. 001826, the dispositive portion of which reads:
WHEREFORE, the Commission hereby rules that the Civil Service Commission National Capital Region has jurisdiction over disciplinary cases against employees of agencies, local or national for offenses committed within its geographical area.[8]

Respondent filed a motion for reconsideration, which was denied by the Civil Service Commission on February 1, 2001, in Resolution No. 010315, thus:

WHEREFORE, the instant Motion for Reconsideration is hereby DENIED. The Civil Service Commission - National Capital Region is hereby ordered to continue with the formal investigation of Ranulfo Albao.[9]

CSC NCR vs Albao

Respondent filed a petition for review before the Court of Appeals alleging that the Civil Service Commission committed grave abuse of discretion in issuing the said Resolutions. The Court of Appeals found merit in the petition. It held that based on Executive Order No. 292, otherwise known as the Administrative Code of 1987, particularly Section 12 (11), Section 47 (1), (2) and Section 48, Title 1 (A), Book V thereof, the CSC-NCR does not have jurisdiction to investigate and decide the case of respondent. Consequently, the CSC-NCR exceeded its authority in initiating the administrative case against him. The dispositive portion of the Decision of the Court of Appeals, dated April 22, 2002, reads:
WHEREFORE, the Petition is hereby GRANTED, and as a consequence, Resolution Nos. 001826 and 010315, dated August 11, 2000, and February 1, 2001, respectively, of the Civil Service Commission, are hereby ANNULLED and SET ASIDE. No costs. SO ORDERED.[10]

The motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution promulgated on September 26, 2002. Hence, this petition. Petitioner raises the following issues:
1. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT CSC-NCR EXCEEDED ITS JURISDICTION WHEN IT INSTITUTED THE ADMINISTRATIVE PROCEEDINGS AGAINST HEREIN RESPONDENT. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THE POWER CONFERRED UPON THE PETITIONER TO HEAR AND DECIDE ADMINISTRATIVE CASES DOES NOT INCLUDE THE POWER TO ITSELF INITIATE AND PROSECUTE SAID CASES.[11]

2.

The main issue in this case is whether or not the Civil Service Commission has original jurisdiction to institute the instant administrative case against respondent Albao through its regional office, the CSC-NCR.

CSC NCR vs Albao

Petitioner argues that as the central personnel agency of the government, it is expressly conferred the power and authority to initiate the proceedings herein involved against a public official and employee. It asserts that such authority is contained in Section 12 (11), (16) in relation to Section 16 (15 [c]), Title 1(A), Book V of Executive Order No. 292, thus:
Section 12. Powers and Functions -- The Commission shall have the following powers and functions: ... (11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. . . .[12] ... (16) Delegate authority for the performance of any function to departments, agencies and offices where such function may be effectively performed; ... Sec. 16. Offices in the Commission. -- The Commission shall have the following offices: ... (15) The Regional and Field Offices.-- . . . . Each Regional Office shall have the following functions: ... (c) Perform such other functions as may be delegated by the Commission.

Petitioner contends that Section 12 (11) above categorically states that the Commission has the power to hear and decide administrative cases instituted by or brought before it directly or on appeal.[13] As such, when the Commission, in the course of the performance of its official and other duties, comes to know of any transgression committed by a government employee, it can initiate the necessary proceedings. In this case, it initiated the administrative proceedings against respondent after the discovery of

CSC NCR vs Albao

the latters spurious eligibility. Hence, petitioner contends that the Court of Appeals erred in ruling that it exceeded its jurisdiction in instituting the administrative case against respondent. Settled is the rule that jurisdiction is conferred only by the Constitution or the law.[14] Republic v. Court of Appeals[15] also enunciated that only a statute can confer jurisdiction on courts and administrative agencies. Article IX-B, Section 3 of the Constitution declares the Civil Service Commission as the central personnel agency of the Government, thus:
Section 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

Section 12, Title 1 (A), Book V of EO No. 292 enumerates the powers and functions of the Civil Service Commission, one of which is its quasi-judicial function under paragraph 11, which states:
Section 12. Powers and Functions -- The Commission shall have the following powers and functions: ... (11)Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. . . .[16]

Section 47, Title 1 (A), Book V of EO No. 292, on the other hand, provides, as follows:
SEC. 47. Disciplinary Jurisdiction.(1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank

CSC NCR vs Albao

or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.[17]

Furthermore, Section 48, Title 1(A), Book V of EO No. 292 provides for the procedure in administrative cases against non-presidential appointees, thus:
SEC. 48. Procedure in Administrative Cases Against Non-Presidential Appointees. - (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.

Respondent Albao was a contractual employee in the Office of the Vice President before his appointment to a permanent position, which appointment was, however, requested to be retrieved by the Office of the Vice President and at the same time disapproved by the Civil Service Commission. Pursuant to Section 47 (1), (2) and Section 48 above, it is the Vice President of the Philippines, as head of office, who is vested with jurisdiction to commence disciplinary action against respondent Albao. Nevertheless, this Court does not agree that petitioner is helpless to act directly and motu proprio, on the alleged acts of dishonesty and falsification of official document committed by respondent in connection with his appointment to a permanent position in the Office of the Vice President.

CSC NCR vs Albao

It is true that Section 47 (2), Title 1 (A), Book V of EO No. 292 gives the heads of government offices original disciplinary jurisdiction over their own subordinates. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. It is only when the penalty imposed exceeds the aforementioned penalties that an appeal may be brought before the Civil Service Commission which has appellate jurisdiction over the same in accordance with Section 47 (1) Title 1(A), Book V of EO No. 292, thus:
SEC. 47. Disciplinary Jurisdiction.(1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. . . . [18]

The present case, however, partakes of an act by petitioner to protect the integrity of the civil service system, and does not fall under the provision on disciplinary actions under Sec. 47. It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly. This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the Constitution, by removing from its list of eligibles those who falsified their qualifications. This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or omissions that constitute violations of the law or the rules of the service. WHEREFORE, the petition is GRANTED and the Decision of the Court of Appeals in CA-G.R. SP No. 64671 and its Resolution promulgated on September 26, 2002 are REVERSED and SET ASIDE and petitioner is declared vested with the power to institute the administrative proceedings against respondent for alleged falsification of eligibility. No costs. SO ORDERED.

Gloria vs. CA

EN BANC

[G.R. No. 131012. April 21, 1999]

HON. RICARDO T. GLORIA, in his capacity as Secretary of the Department of Education, Culture, and Sports, petitioner, vs. COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR MARGALLO,respondents.
SYNOPSIS This is a petition for review on certiorari filed by petitioner assailing the Court of Appeals resolution dated July 15, 1997. The appellate court ruled that private respondents were entitled to the payment of their salaries, allowances and other benefits during the period of their suspension beyond the 90-day period of preventive suspension although they were found guilty of violation of reasonable office rules and regulations for having been absent without leave during the teachers strike and were reprimanded. Petitioner contended that the continued suspension of private respondents was due to their appeal, hence, the government should not be held answerable for payment of their salaries. Moreover, petitioner claimed that private respondents are considered under preventive suspension during the period of their appeal, thus, they are not entitled to the payment of their salaries during their suspension. The Court ruled that the preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct or neglect of duty is authorized by the Civil Service Law. It cannot be considered unjustified even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the employee shall be automatically reinstated. However, although employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, the Court did not agree with the petitioner that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exornerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. To sustain the governments theory would be to make the administrative decision not only executory but final and executory. Consequently, the Supreme Court affirmed the decision of the Court of Appeals with modification as to the computation of the salaries awarded to private respondents. SYLLABUS
1. ADMINISTRATIVE LAW; CIVIL SERVICE LAW; CIVIL SERVICE EMPLOYEE; PREVENTIVE SUSPENSION; KINDS. -- There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47[4]). 2. ID.; ID.; ID.; ID.; NOT CONSIDERED UNJUSTIFIED EVEN IF EMPLOYEE IS EXONERATED OF CHARGES OF DISHONESTY, GRAVE MISCONDUCT OR NEGLECT OF DUTY. -- The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered unjustified, even if later the charges are dismissed so as to justify the payment of salaries to t he employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to

Gloria vs. CA
ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated. 3. ID.; ID.; ID.; PREVENTIVE SUSPENSION PENDING INVESTIGATION; NOT CONSIDERED A PENALTY. -- Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated. 4. ID.; ID.; ID.; ID.; DIFFERENTIATED FROM PREVENTIVE SUSPENSION PENDING APPEAL. -- Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirm ed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. 5. ID.; ID.; ID.; ID.; EXONERATED EMPLOYEE NOT ENTITLED TO COMPENSATION FOR THE PERIOD THEREOF. -Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits beyond the ninety (90) day preventive suspension. In other words, no compensation was due for the period of the preventive suspension pending investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated. Sec. 35 of the Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. However, the law was revised in 1975 and the provision on the payment of salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) was reproduced in 52 of the present Civil Service Law. It is noteworthy that Sec. 24 of the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be without pay. It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. 6. ID.; ID.; ID.; ID.; PRINCIPLE GOVERNING ENTITLEMENT TO SALARY DURING SUSPENSION, CITED. -- The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechem's A Treatise on the Law of Public Offices and Officers as follows: 864. Officer not entitled to Salary during Suspension from Office. -- An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even though it be subsequently determined that the cause for which he was suspended was insufficient . The reason given is that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services. Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified. 7. ID.; ID.; ID.; PUBLIC INTEREST IN AN UPRIGHT CIVIL SERVICE MUST BE UPHELD. -- It is argued in the separate opinion that to deny employees salaries on the frivolous ground that the law does not provide for their payment would be to provide a tool for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses. Indeed, the possibility of abuse is not an argument against the recognition of the existence of power. As Justice Story aptly put it, It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere -- wherever it may be vested it is susceptible of abuse. It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their naysaying function. Until then, however, the public interest in an upright civil service must be upheld. 8. ID.; ID.; ID.; PREVENTIVE SUSPENSION PENDING APPEAL; EXONERATED EMPLOYEE ENTITLED TO COMPENSATION FOR THE PERIOD THEREOF; RATIONALE. -- But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the governments theory would be to make the administrative decision not only executory but final and exec utory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require. 9. ID.; ID.; ID.; ID.; ID.; COMPUTATION THEREOF. -- Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation,

Gloria vs. CA
the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But though an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed. 10. ID.; ID.; ID.; PRIVATE RESPONDENTS ARE ENTITLED TO SALARIES DURING THE PERIOD OF SUSPENSION ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE RULES AND REGULATIONS. --Private respondents were exonerated of all charges against them for acts connected with the teachers strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated: x x x Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service. 11. ID.; ID.; CIVIL SERVICE COMMISSION; PETITIONERS BOUND BY THE FINDINGS THEREOF IN CASE AT BAR. -Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by the three citing reasons for their absences, to wit: Abad, because she decided to stay home to correct student papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and Somebang because of economic reasons. Petitioner did not appeal from this ruling. Hence, he is bound by the factual findings of the CSC and the appellate court. PANGANIBAN, J., separate opinion: 1. ADMINISTRATIVE LAW; CIVIL SERVICE LAW; CIVIL SERVICE EMPLOYEE; PENALTY OF REPRIMAND PROPER FOR VIOLATION OF THE LAW OR REASONABLE RULES AND REGULATIONS. -- Like the majority, I do not find any reversible error or abuse of discretion in the factual finding of the Court of Appeals that private respondents did not actually participate in the September 1991 mass actions staged in violation of law by various public schoolteachers. They were, however, found to have absented themselves from their classes without filing an application for leave of absence. For this lapse, they indeed deserve a reprimand, pursuant to Section 23, Rule XlV (Discipline) of the Rules Implementing the Civil Service Law, as well as existing jurisprudence. 2. ID.; ID.; ID.; PREVENTIVE SUSPENSION PENDING INVESTIGATION; EXONERATED EMPLOYEES ENTITLED TO FULL BACK SALARIES CORRESPONDING TO THE PERIOD THEREOF; RATIONALE. --Indeed, where the suspension of civil servants has, from the very beginning, no reason other than to ensure an unhampered investigation, there is no justification for withholding their salaries, whether immediately upon investigation or after appeal or petition for review, much less after their exoneration. They need not even be found fully innocent of any misdemeanor, as the public schoolteachers concerned in Bangalisan andJacinto who were actually found to have violated reasonable office rules and regulations. Such administrative offense, however, is punishable with reprimand only, not suspension or dismissal. Hence, they were granted their back salaries for the period of their suspension, because they had not committed any grave act warranting their suspension. The rationale for the grant of back salaries to suspended public servants is their exoneration from the charges leveled against them that were punishable with either dismissal or suspension. Needless to say, only when the charges carry either of these extreme administrative penalties may they be preventively suspended pending investigation. If, after investigation, they are found to be innocent or culpable of lesser offenses not punishable with suspension or dismissal, they must be immediately reinstated AND granted full back salaries corresponding to the period of their suspension. In the first place, if they have been found to be not guilty of any offense warranting even just a suspension, there is no justifiable reason to deprive them of work and of income therefor. In these cases, their preventive suspension must be deemed unjustified. 3. ID.; ID.; ID.; ID.; WITHHOLDINGS OF EXONERATED EMPLOYEE'S PAY FOR THE PERIOD OF THEREOF, CONSIDERED UNCONSTITUTIONAL. -- The majority admits that preventive suspension pending investigation is not a penalty, but is only a means of enabling the disciplining authority to conduct an unhampered investigation. Not being a penalty, there is therefore NO reason to deny employees their salaries for such period, especially after they are proven innocent of any offense punishable with suspension or dismissal. I respectfully submit that to withhold an exonerated employee's pay for such period would in fact transform the nature of preventive suspension into a penalty -- a penalty which is unauthorized by law, in contravention of the fundamental right of every individual to due process, and therefore unconstitutional.

Gloria vs. CA
4. ID.; ID.; ID.; ID.; PRINCIPLE OF NO-WORK-NO-PAY NOT APPLICABLE IN CASE AT BAR. -- The no-work-no-pay principle should not be applied in these cases. We must consider that, ordinarily, suspended employees are willing to work, but they do not have a choice. Because of some serious charges leveled against them, they are not allowed to report for work. Investigations may take up to ninety (90) days or three (3) months. In the meantime, they do not receive their salaries and other benefits. And yet, the charges against them may have been baseless or aggravated without good reason, in which case their suspensions are unjustified ab initio. In these instances, I repeat, it is but right to grant them full back pays. Admittedly, the purpose behind. preventive suspensions pending investigation is noble. It is intended to enable the disciplining authorities or the investigating officials to probe the charges against respondents by preventing the latter from intimidating or in any way influencing witnesses against them. But, I submit, it would be totally unfair to respondents who are undeserving of the penalty of suspension or dismissal to be deprived of their salaries for such period. To repeat, they cannot be faulted for not rendering any work during the period of preventive suspension, because that is merely what the law mandates. 5. ID.; ID.; ID.; ID.; IN THE ABSENCE OF AN EXPRESS PROHIBITION ON THE PAYMENT OF BACK SALARIES, ANY DOUBT SHOULD BE SETTLED IN FAVOR OF THE EMPLOYEE. -- Significantly, the Civil Service Law does not state that exonerated employees are not entitled to back salaries corresponding to the preventive suspension period. Such silence of the law should not ipso facto be interpreted as a denial of the right, pursuant to rules on statutory construction. In any event, the rules on the interpretation of laws are mere tools used to ascertain legislative intent. They are not necessarily applicable at all times, particularly when the intention to change the meaning of the previous law is not clear. In the case of the present Civil Service Law, which is found in Executive Order No. 292 issued by then President Corazon Aquino in the exercise of her legislative powers under the Freedom Constitution, its legislative purpose cannot be clearly established, because it has no recorded deliberations from which to verify such intent. Consequently, we should not completely rely on the general rule on amendment by deletion. We should not hold the omission of words in the later statute as necessarily altering the construction of the earlier one, for we may do so only where the intent of the legislature to make such change is clear of construction. In any event, in the absence of an express prohibition on the payment of back salaries, any doubt should be settled, in favor of the employee. As our fundamental law explicitly mandates, The State shall afford full protection to labor x x x. This Court has invariably declared that it will not hesitate to tilt the scales of Justice in favor of the working class, for the Constitution dictates that the State x x x shall protect the rights of workers and promote their welfare. There is no reason not to apply this principle in favor of civil service employees as well, for they are very much part of the working class. And the government as their employer should set the example in upholding the constitutional mandate to safeguard their rights and interests. 6. ID.; ID.; ID.; INTERPRETATION OF GENERAL LAWS ON PUBLIC OFFICER IN FOREIGN JURISDICTION, NOT APPLICABLE IN CASE AT BAR. -- Needless to say, our Constitution stands above all laws; more so, above any treatise including that of Mechem which the ponencia cites. The interpretation of general laws on public officers in foreign jurisdictions has no application in the present case, as our law has no explicit injunction against the payment of back salaries for preventively suspended employees. Moreover, the United States Constitution provides no express mandate, similar to that found in our Constitution, to afford full protection to labor and to protect the rights of workers and promote their welfare. 7. ID.; ID.; ID.; ID.; GRANT OF BACK PAY TO EMPLOYEES TEMPORARILY SUSPENDED, A MATTER OF JUSTICE AND EQUITY. -- The grant of back pay is a matter not merely of compassion and mercy for employees temporarily suspended from work but, more important, of justice and equity. The exoneration of the employees proves that there was no reason at all to suspend them in the first place. To deny them their incomes on the frivolous ground that the law does not expressly provide for the grant thereof would provide a tool for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses. It plainly opens the door to harassment of public officials and employees by unjustly depriving them of their meager incomes and consequently subjecting them and their families to difficult circumstances. 8. ID.; ID.; DIFFERENT FROM OMBUDSMAN ACT (R.A. 6770). -- In this regard, I believe the Civil Service Law should be distinguished from the Ombudsman Act (RA 6770) which categorically and expressly provides that the suspended employee who is exonerated after preventive suspension is entitled to reinstatement, but not back salaries. Hence, in Callanta v. Ombudsman, although some of the petitioners were only reprimanded by the Court for violation of the Ethical Standards Law, no back pay was awarded. 9. LABOR AND SOCIAL LEGISLATION; LABOR RELATIONS; TERMINATION; UNJUSTLY DISMISSED EMPLOYEES ARE ENTITLED TO REINSTATEMENT WITH FULL BACK SALARIES. -- Even in the private sector, the law and the existing jurisprudence grant employees who are unjustly dismissed from work not only reinstatement without loss of seniority rights and other privileges, but also full back wages, inclusive of allowances and other benefits or their monetary equivalent, computed from the time their compensation was withheld from them up to the time they were actually reinstated.

APPEARANCE OF COUNSEL The Solicitor General for petitioner. Froilan M. Bacungan for private respondents.

Gloria vs. CA

DECISION
MENDOZA, J.:

This case arose out of the unfortunate strikes and walk-outs staged by public school teachers on different dates in September and October 1990. The illegality of the strikes was declared in our 1991 decision in Manila Public School Teachers Association v. Laguio, Jr., [1] but many incidents of those strikes are still to be resolved. At issue in this case is the right to back salaries of teachers who were either dismissed or suspended because they did not report for work but who were eventually ordered reinstated because they had not been shown to have taken part in the strike, although reprimanded for being absent without leave. The facts are as follows: Private respondents are public school teachers. On various dates in September and October 1990, during the teachers strikes, they did not report for work. For this reason, they were administratively charged with (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules and Regulations and reasonable office regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct prejudicial to the best interest of the service, and (7) absence without leave (AWOL), and placed under preventive suspension. The investigation was concluded before the lapse of their 90-day suspension and private respondents were found guilty as charged. Respondent Nicanor Margallo was ordered dismissed from the service effective October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang were ordered suspended for six months effective December 4, 1990.[2] Respondent Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him guilty of conduct prejudicial to the best interest of the service and imposed on him a six-month suspension.[3] The other respondents also appealed to the MSPB, but their appeal was dismissed because of their failure to file their appeal memorandum on time. [4] On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only of violation of reasonable office rules and regulations by failing to file applications for leave of absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them reinstated to their former positions. Respondents filed a petition for certiorari under Rule 65 in this Court. Pursuant to Revised Administrative Circular No. 1-95, the case was referred to the Court of Appeals which, on September 3, 1996, rendered a decision (1) affirming the decision of the CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found him guilty of violation of reasonable office rules and regulations only and imposed on him the penalty of reprimand. [5] Private respondents moved for a reconsideration, contending that they should be exonerated of all charges against them and that they be paid salaries during their suspension. In its resolution, dated July 15, 1997, the Court of Appeals, while maintaining its finding that private respondents were guilty of violation of reasonable office rules and regulations for which they should be reprimanded, ruled that private respondents were entitled to the payment of salaries during their suspension beyond ninety (90) days. Accordingly, the appellate court amended the dispositive portion of its decision to read as follows:

Gloria vs. CA

WHEREFORE, IN VIEW OF THE FOREGOING, petition is hereby DENIED. CSC Resolution Nos. 93-2302 dated June 24, 1993 and 93-3124 dated August 10, 1993 (In re: Amparo Abad), CSC Resolution Nos. 93-2304 dated June 24, 1993 and 93-3227 dated August 17, 1993 (In re: Virgilia Bandigas) and CSC Resolution Nos. 93-2301 undated and 93-3125 dated August 10, 1993 (In re: Elizabeth Somebang) are hereby AFFIRMED while CSC Resolution Nos. 93-2211 dated June 21, 1993 are hereby MODIFIED finding petitioner Nicanor Margallo guilty of a lesser offense of violation of reasonable office rules and regulations and meting upon him the penalty of reprimand. Respondent DECS is ordered to pay petitioners Amparo Abad, Virgilia Bandigas, Elizabeth Somebang and Nicanor Margallo their salaries, allowances and other benefits during the period of their suspension/dismissal beyond the ninety (90) day preventive suspension. No pronouncement as to costs.[6]
Petitioner Ricardo T. Gloria, then Secretary of Education, Culture, and Sports, moved for a reconsideration insofar as the resolution of the Court of Appeals ordered the payment of private respondents salaries during the period of their appeal. [7] His motion was, however, denied by the appellate court in its resolution of October 6, 1997.[8]Hence, this petition for review on certiorari. Petitioner contends that the administrative investigation of respondents was concluded within the 90day period of preventive suspension, implying that the continued suspension of private respondents is due to their appeal, hence, the government should not be held answerable for payment of their salaries. Moreover, petitioner lays so much store by the fact that, under the law, private respondents are considered under preventive suspension during the period of their appeal and, for this reason, are not entitled to the payment of their salaries during their suspension. [9] Petitioners contentions have no merit.
I. Preventive Suspension and the Right to Compensation in Case of Exoneration

The present Civil Service Law is found in Book V, Title I, Subtitle A of the Administrative Code of 1987 (E.O. 292). So far as pertinent to the questions in this case, the law provides:

SEC. 47. Disciplinary Jurisdiction. .... (2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. ....

Gloria vs. CA

(4) An appeal shall not stop the decision from being executory, and in case the penalty is suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the appeal in the event he wins an appeal. SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service. SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.
There are thus two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension: (1) preventive suspension pending investigation (51) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (47(4)). Preventive suspension pending investigation is not a penalty. [10] It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation respondent is found innocent of the charges and is exonerated, he should be reinstated.
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period of suspension? As already stated, the Court of Appeals ordered the DECS to pay private respondents their salaries, allowances, and other benefits beyond the ninety (90) day preventive suspension. In other words, no compensation was due for the period of the preventive suspension pending investigation but only for the period of preventive suspension pending appeal in the event the employee is exonerated. The separate opinion of Justice Panganiban argues that the employee concerned should be paid his salaries after his suspension. The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries in case of exoneration. Sec. 35 read:

Sec. 35. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent, the respondent shall be reinstated in the service. If

Gloria vs. CA

the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension.[11]
However, the law was revised in 1975 and the provision on the payment of salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807) read:

Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.
This provision was reproduced in 52 of the present Civil Service Law. It is noteworthy that the Ombudsman Act of 1989 (R.A. No. 6770) categorically provides that preventive suspension shall be without pay. Sec. 24 reads:

Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.
It is clear that the purpose of the amendment is to disallow the payment of salaries for the period of suspension. This conclusion is in accord with the rule of statutory construction that -

As a rule, the amendment by deletion of certain words or phrases in a statute indicates that the legislature intended to change the meaning of the statute, for the presumption is that the legislature would not have made the deletion had the intention been not in effect a change in its meaning. The amended statute should accordingly be given a construction different from that previous to its amendment.[12]
The separate opinion of Justice Panganiban pays no heed to the evident legislative intent to deny payment of salaries for the preventive suspension pending investigation. First, it says that to deny compensation for the period of preventive suspension would be to reverse the course of decisions ordering the payment of salaries for such period. However, the cases[13] cited are based either on the former rule which expressly provided that if the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension [14] or that upon subsequent reinstatement of the suspended person or upon his exoneration, if death should

Gloria vs. CA

render reinstatement impossible, any salary so withheld s hall be paid,[15] or on cases which do not really support the proposition advanced. Second, it is contended that the exoneration of employees who have been preventively suspended is proof that there was no reason at all to suspend them and thus makes their preventive suspension a penalty. The principle governing entitlement to salary during suspension is cogently stated in Floyd R. Mechems A Treatise on the Law of Public Offices and Officers as follows:

864. Officer not entitled to Salary during Suspension from Office. - An officer who has been lawfully suspended from his office is not entitled to compensation for the period during which he was so suspended, even though it be subsequently determined that the cause for which he was suspended was insufficient. The reason given is that salary and perquisites are the reward of express or implied services, and therefore cannot belong to one who could not lawfully perform such services.[16]
Thus, it is not enough that an employee is exonerated of the charges against him. In addition, his suspension must be unjustified. The case of Bangalisan v. Court of Appeals itself similarly states that payment of salaries corresponding to the period [1] when an employee is not allowed to work may be decreed if he is found innocent of the charges which caused his suspension and [2] when the suspension is unjustified.[17] The preventive suspension of civil service employees charged with dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot, therefore, be considered unjustified, even if later the charges are dismissed so as to justify the payment of salaries to the employee concerned. It is one of those sacrifices which holding a public office requires for the public good. For this reason, it is limited to ninety (90) days unless the delay in the conclusion of the investigation is due to the employee concerned. After that period, even if the investigation is not finished, the law provides that the employee shall be automatically reinstated. Third, it is argued in the separate opinion that to deny employees salaries on the frivolous ground that the law does not provide for their payment would be to provide a too l for the oppression of civil servants who, though innocent, may be falsely charged of grave or less grave administrative offenses. Indeed, the possibility of abuse is not an argument against the recognition of the existence of power. As Justice Story aptly put it, It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. . . . [For] from the very nature of things, the absolute right of decision, in the last resort, must rest somewhere - wherever it may be vested it is susceptible of abuse.[18] It may be added that if and when such abuse occurs, that would be the time for the courts to exercise their nay-saying function. Until then, however, the public interest in an upright civil service must be upheld. Finally, it is argued that even in the private sector, the law provides that employees who are unjustly dismissed are entitled to reinstatement with full pay. But that is because R.A. No. 6715 expressly provides for the payment to such employees of full backwages, inclusive of allowances, and . . . other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.[19] In the case of the public sector, as has been noted, the provision for payment of salaries during the preventive suspension pending investigation has been deleted.
B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is Exonerated

Gloria vs. CA

But although we hold that employees who are preventively suspended pending investigation are not entitled to the payment of their salaries even if they are exonerated, we do not agree with the government that they are not entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent. Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. It is precisely because respondent is penalized before his sentence is confirmed that he should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his pay as a result of the immediate execution of the decision against him and continue to do so even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to sustain the governments theory would be to make the administrative decision not only executory but final and executory. The fact is that 47(2) and (4) are similar to the execution of judgment pending appeal under Rule 39, 2 of the Rules of Court. Rule 39, 5 provides that in the event the executed judgment is reversed, there shall be restitution or reparation of damages as equity and justice may require. Sec. 47 of the present law providing that an administrative decision meting out the penalty of suspension or dismissal shall be immediately executory and that if the respondent appeals he shall be considered as being merely under preventive suspension if eventually he prevails is taken from 37 of the Civil Service Decree of 1975 (P.D. No. 807). There was no similar provision in the Civil Service Act of 1959 (R.A. No. 2260), although under it the Commissioner of Civil Service could order the immediate execution of an administrative decision in the interest of the public service. [20] Nor was there provision for immediate execution of administrative decisions ordering dismissal or suspension in 695 of the Administrative Code of 1917, as amended by C.A. No. 598, 1. [21] Nonetheless, under R.A. No. 2260 the payment of salaries was ordered in cases in which employees were found to be innocent of the charges[22] or their suspension was held to be unjustified, because the penalty of suspension or dismissal was executed without a finding by the Civil Service Commissioner that it was necessary in the interest of the public service.[23] On the other hand, payment of back salaries was denied where it was shown that the employee concerned was guilty as charged and the immediate execution of the decision was ordered by the Civil Service Commissioner in the interest of the public service.[24] Nothing in what has thus far been said is inconsistent with the reason for denying salaries for the period of preventive suspension. We have said that an employee who is exonerated is not entitled to the payment of his salaries because his suspension, being authorized by law, cannot be unjustified. To be entitled to such compensation, the employee must not only be found innocent of the charges but his suspension must likewise be unjustified. But though an employee is considered under preventive suspension during the pendency of his appeal in the event he wins, his suspension is unjustified because what the law authorizes is preventive suspension for a period not exceeding 90 days. Beyond that period the suspension is illegal. Hence, the employee concerned is entitled to reinstatement with full pay. Under existing jurisprudence, such award should not exceed the equivalent of five years pay at the rate last received before the suspension was imposed. [25]
II. Private Respondents Entitled to Back Salaries Although Found Guilty of Violation of Office Rules and Regulations and Reprimanded

Gloria vs. CA

Private respondents were exonerated of all charges against them for acts connected with the teachers strike of September and October 1990. Although they were absent from work, it was not because of the strike. For being absent without leave, they were held liable for violation of reasonable office rules and regulations for which the penalty is a reprimand. Their case thus falls squarely within ruling in Bangalisan, which likewise involved a teacher found guilty of having violated reasonable office rules and regulations. Explaining the grant of salaries during their suspension despite the fact that they were meted out reprimand, this Court stated:

With respect to petitioner Rodolfo Mariano, payment of his backwages is in order. A reading of the resolution of the Civil Service Commission will show that he was exonerated of the charges which formed the basis for his suspension. The Secretary of the DECS charged him with and he was later found guilty of grave misconduct, gross neglect of duty, gross violation of the Civil Service Law, rules and regulations and reasonable office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the best interest of the service, and absence without official leave, for his participation in the mass actions on September 18, 20 and 21, 1990. It was his alleged participation in the mass actions that was the basis of his preventive suspension and, later, his dismissal from the service. However, the Civil Service Commission, in the questioned resolution, made a finding that Mariano was not involved in the mass actions but was absent because he was in Ilocos Sur to attend the wake and interment of his grandmother. Although the CSC imposed upon him the penalty of reprimand, the same was for his violation of reasonable office rules and regulations because he failed to inform the school of his intended absence and neither did he file an application for leave covering such absences. Under Section 23 of the Rules Implementing Book V of Executive Order No. 292 and other pertinent civil service laws, in violations of reasonable office rules and regulations, the first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service.[26]
In Jacinto v. Court of Appeals,[27] a public school teacher who was found guilty of violation of reasonable office rules and regulations for having been absent without leave and reprimanded was given back salaries after she was exonerated of the charge of having taken part in the strikes. Petitioner Secretary of Education contends, however, that respondents Abad, Bandigas, and Somebang signed a letter in which they admitted having taken part in the mass action. This question cannot be raised now. The Civil Service Commission gave no weight to this letter in view of individual letters written by the three citing reasons for their absences, to wit: Abad, because she decided to stay home to correct student papers; Bandigas, because she had to accompany her brother to the Commission on Immigration, and Somebang because of economic reasons. Petitioner did not appeal from this ruling. Hence, he is bound by the factual findings of the CSC and the appellate court. WHEREFORE, the decision, dated September 3, 1996, as amended by the resolutions, dated July 15, 1997 and October 6, 1997, of the Court of Appeals, is hereby AFFIRMED with the MODIFICATION that the award of salaries to private respondents shall be computed from the time of their dismissal/suspension by the Department of Education, Culture, and Sports until their actual reinstatement, for a period not exceeding five years.

Gloria vs. CA

SO

ORDERED.

Quimbo vs. Gervacio

THIRD DIVISION

[G.R. No. 155620. August 9, 2005]

PRUDENCIO QUIMBO, petitioner, vs. ACTING OMBUDSMAN MARGARITO GERVACIO and DIRECTRESS MARY SUSAN S. GUILLERMO OF THE OMBUDSMAN OFFICE, respondents. DECISION
CARPIO-MORALES, J.:

Culled from the records of the case are the following facts: Petitioner, Prudencio C. Quimbo, Provincial Engineer of Samar, was on May 21, 1995 administratively charged for harassment and oppression by Elmo V. Padaon (Padaon), a general foreman who was detailed to the Motor Pool Division, Provincial Engineering, Barangay Payao, Catbalogan, Samar by then Provincial Governor Jose Roo. During the pendency of the administrative case before the Office of the Deputy Ombudsman, petitioner, on motion of the complainant Padaon, was by November 28, 1997 Order of the Ombudsman[1] placed under preventive suspension without pay to commence upon receipt of the order and until such time that it is lifted but in no case beyond Six (6) Months. Petitioner began serving his preventive suspension on March 18, 1998. After petitioner had presented on direct examination his last two witnesses, the Office of the Ombudsman, by Order of April 27, 1998,[2] lifted petitioners preventive suspension. He was thus thereupon ordered, by Memorandum of June 3, 1998 issued by the OIC Provincial Governor, to resume performing his duties as Provincial Engineer.[3] By Decision of April 5, 2000,[4] the Office of the Deputy Ombudsman found petitioner guilty of oppression and recommended that he be suspended from office for a period of eight (8) months without pay, this case being the second commission by him of the same offense. [5] The Deputy Ombudsmans recommendation was approved by the Ombudsman on April 28, 2000. Petitioners motion for reconsideration of the Ombudsmans decision having been denied, he elevated the case to the Court of Appeals. The appellate court, by Decision of March 1, 2001,[6] modifying the decision of the Ombudsman, found petitioner guilty of simple misconduct only and penalized him with suspension from office for a period of Two (2) Months without pay. Following the finality of the appellate courts decision, the Office of the Ombudsman, by Order dated June 24, 2002,[7] directed the Provincial Governor to implement its decision, as modified by the appellate court. Petitioner filed, however, before the Office of the Ombudsman a Motion for Modification/Reconsideration[8] of its June 24, 2002 Order, calling attention to the fact that he had been on preventive suspension from March 18, 1998 to June 1, 1998 and praying that the order under reconsideration be modified to take into account the period of [his] PREVENTIVE SUSPENSION of

Quimbo vs. Gervacio

TWO (2) MONTHS and SEVENTEEN (17) [DAYS] WITHOUT PAY as part of the final penalty imposed.[9] In a similar move, Provincial Governor Milagrosa Tan sent a letter[10] also dated July 23, 2002 to the Ombudsman seeking clarification on the merits of petitioners c ontention that he should no longer be required to serve the penalty of Two (2) Months suspension without pay, he having priorly served preventive suspension for more than Two (2) Months. By letter dated August 21, 2002[11] addressed to the Provincial Governor, the Office of the Ombudsman clarified that preventive suspension is not a penalty but a preliminary step in an investigation; [and that] [i]f after such investigation, the charge is established and the person investigated upon is found guilty . . . warranting the imposition of penalty, then he shall accordingly be penalized. The order for the implementation of its decision, as modified by the appellate court, was thus reiterated in the letter. Unperturbed, petitioner, via certiorari, assailed before the Court of Appeals the Office of the Ombudsmans denial of his plea to be considered having served the modified penalty. By Resolution dated October 2, 2002,[12] the Court of Appeals dismissed petitioners petition for certiorari, it affirming the Ombudsmans ruling that preventive suspension pending investigation is not a penalty. Hence, the present petition for review on certiorari raising as sole issue whether the appellate court committed reversible error when it dismissed his petition. Petitioner contends in the affirmative, he arguing that the dismissal of his petition is in violation of the doctrine enunciated in Gloria v. Court of Appeals[13] and the rule on equity that a person should not be punished twice nor be made to suffer the suspension penalty after [he] had [served] the same (although in a preventive suspension). [14] The petition fails. Jurisprudential law[15] establishes a clear-cut distinction between suspension as preventive measure and suspension as penalty. The distinction, by considering the purpose aspect of the suspensions, is readily cognizable as they have different ends sought to be achieved. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him.[16] If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.[17] That preventive suspension is not a penalty is in fact explicitly provided by Section 24 of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292) and other Pertinent Civil Service Laws.

SEC. 24. Preventive suspension is not a punishment or penalty for misconduct in office but is considered to be a preventive measure. (Emphasis supplied).
Not being a penalty, the period within which one is under preventive suspension is not considered part of the actual penalty of suspension. So Section 25 of the same Rule XIV provides:

SEC. 25. The period within which a public officer or employee charged is placed under preventive suspension shall not be considered part of the actual penalty of suspension imposed upon the employee found guilty. (Emphasis supplied).

Quimbo vs. Gervacio

Clearly, service of the preventive suspension cannot be credited as service of penalty. To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative Code of 1987 and render nugatory the substantial distinction between, and purposes of imposing preventive suspension and suspension as penalty. Petitioners reliance on Gloria fails. In said case, this Court recognized two kinds of preventive suspension of civil service employees who are charged with offenses punishable by removal or suspension, to wit: (1) preventive suspension pending investigation (Section 51 of the Civil Service Law [Book V, Title I, Subtitle A of the Administrative Code of 1987]), and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated (Section 47(4) of The Civil Service Law).[18] The foregoing classification has significant implications in determining the entitlement of the employee to compensation during the period of suspension, and to credit the preventive suspension to the final penalty of suspension. Thus, in Gloria, this Court held:

Preventive suspension pending investigation, as already discussed, is not a penalty but only a means of enabling the disciplining authority to conduct an unhampered investigation. On the other hand, preventive suspension pending appeal is actually punitive although it is in effect subsequently considered illegal if respondent is exonerated and the administrative decision finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the suspension. Thus, 47(4) states that respondent shall be considered as under preventive suspension during the pendency of the appeal in the event he wins. On the other hand, if his conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of the final penalty of suspension or dismissal. (Emphasis and underscoring supplied).
[19]

In fine, as petitioners preventive suspension was carried out pending his investigation, not while his appeal from his conviction was pending, the same cannot be credited to form part of the final penalty of suspension. En passant, neither may the concept of crediting, in criminal law, preventive imprisonment in the service of a convicts term of imprisonment[20] be applied to preventive suspension during investigation in administrative law in the service of a respondents final penalty of suspension. For not only are they distinct in the objective or purpose, or in their nature as preventive imprisonment involves restriction of personal liberties which is not the case with preventive suspension; the respective laws covering them are explicit. Finally, as shown above, since the law explicitly prescribes the rules on crediting of preventive suspension to the final penalty of suspension, petitioners invocation of equity may not lie. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

Romagos vs. MCWD

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 156100 September 12, 2007

VILMA E. ROMAGOS, petitioner, vs. METRO CEBU WATER DISTRICT, EDITHA D. LUZANO and DULCE M. ABANILLA, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the July 5, 2002 Decision1 of the Court of Appeals (CA) which dismissed the appeal2 from Resolutions No. 0107133 and No. 0112224 of the Civil Service Commission (CSC); and the October 29, 2002 CA Resolution5 which denied the motion for reconsideration. The antecedent facts are summarized as follows: Metro Cebu Water District (MCWD) employed Vilma E. Romagos (Romagos) as Clerk-Processor B. On August 9, 1999, MCWD barred Romagos from entering the work premises unless she undergoes psychiatric treatment and is certified by her doctor to be mentally fit to work.6 Thereafter, in a letter dated December 1, 1999,7 MCWD informed Romagos that, effective January 1, 2000, she was being dropped from the rolls for mental incapacity as shown by the following evidence: First, the incident reports submitted by MCWD employees Samuela M. Suan,8 Editha Luzano9 and Jocelyn Lebumfacil10 stating that, during office hours on January 25, 1999, Romagos suddenly and without provocation began rambling loudly and incoherently, causing alarm and anxiety among office visitors and employees; Second, the incident report issued by Jocelyn Lebumfacil11 stating that, during the August 4, 1999 HRD staff meeting, Romagos suddenly and without provocation began rambling loudly and incoherently, thereby disrupting the meeting and causing unease among the staff; and Third, the November 18, 1989 Certification issued by Dr. Augustus B. Costas that Romagos is suffering from Major Depression;12 and the January 11, 1991 Certification of Dr. Renato D. Obra that Romagos is under treatment for Major Depression.13 MCWD also cited Romagos irregular attendance.14 Romagos filed with the CSC Regional Office (CSCRO) a Complaint-Appeal,15 questioning the procedure and factual basis of her dismissal. The CSCRO dismissed the appeal in its Decision dated June 23, 2000,16 holding that the evidence cited by MCWD in its December 1, 1999 letter, as well as new evidence presented by MCWD General Manager Dulce M. Abanilla (Abanilla), established that Romagos was mentally incapacitated, thus: Furthermore, there are other additional evidence submitted by General Manager Abanilla showing that there were incidents which happened after August 20, 1999 involving Ms. Romagos where the latter was observed to again utter incoherent words and become hysterical. A narration of the incidents which happened on September 6 and 7, 1999 are contained in the affidavits executed by Ms. Diosdada Faelnar and Atty. Vesmindo M. Santiago, the Chief of the Medical and Dental Services and the Asst. General Manager for Administration, respectively. Even as of December 1999, Ms. Romagos mental problems were still observed by the OIC of the

Romagos vs. MCWD HRD, per the Inter-Office Memorandum dated December 21, 1999, with the latter even going to the extent of asking for the assistance of the security guards out of fear on what the appellant might do.
Moreover, we note the different letters and reports/studies/ researches penned by the appellant clearly manifesting her mental disorder. Her report to General Manager Abanilla dated December 27 and 29, 1999 are incomprehensible, incoherent, muddled and so disorganized that we cant help but conclude that indeed appellant is not in her right frame of mind. This observa[tion] also holds true when we examine and read the papers and letters written and prepared by the appellant dated August 6, 10, 30, 1999 and January 28, 1994. xxxx All of these foregoing discussion would clearly prove that appellant is really suffering from some form of mental disorder and, as a natural consequence, she is incapable of discharging her functions x x x.17 In her motion for reconsideration, Romagos questioned the CSCRO for giving weight to new evidence regarding her alleged abnormal behavior in September and December 1999, even when MCWD neither cited said evidence in its December 1, 1999 letter nor disclosed them to her at any time thereafter.18 The CSCRO denied the motion for reconsideration in a Decision dated July 26, 2000.19 Romagos appealed20 to the CSC which issued Resolution No. 01-0713 dated March 29, 2001, affirming the CSCRO decisions, to wit: As culled from the records, several incidents (as evidenced by the reports submitted by several officials and employees) occurred showing the abnormal behavior of the appellant, two (2) of which are, as follows: 1. Incident Report dated January 25, 1999 of Mrs. Samuela M. Susan, Senior Industrial Relations Development Officer A, the pertinent portion of which states, "I was stunned when the next thing I knew, she was already behind me at a very close range and bombarded me with insensible statements. I remained silent and intentionally observed what would be her next move while she was at the height of her outburst of deep seated anger and suspicion. She addressed to me all her sentiments telling me about corruption, illegal practices, unfair practices in a loud, emotionally charged voice." 2. Inter-Office Memorandum dated January 25, 1999 of Editha D. Luzano, Officer-in-Charge of the Human Resources Department of the said agency, to wit, "On January 25, 1999, Ms. Vilma Romagos behavior became unstable again. She began talking to herself and then started scolding other people in the HRD office. Her actions caused anxieties to the other employees, thus disturbing their work. Since December 1998, she has been behaving like this." Hence, the continuous abnormal behavior of Romagos cannot be denied. The Commission is convinced that the dropping of the appellant from the rolls is justified. On the issue of due process, the Commission is not convinced that the right of Romagos to due process was violated. As specifically provided in Section 2, Rule XII of the Rules abovementioned, "notice shall be given to the employee containing a brief statement of the nature of his incapacity to work, and moreover, the said notice of separation shall be signed by the appointing authority or head of office." A perusal of the Notice dated December 1, 1999, sent to Romagos reveals that these requirements were strictly followed.21 Her motion for reconsideration was denied by the CSC in Resolution No. 01122222 dated July 18, 2001. In a petition for review23 with the CA, Romagos questioned the CSC Resolutions for insufficiency of evidence and lack of due process. The CA issued the July 5, 2002 Decision assailed herein, the dispositive portion of which reads: WHEREFORE, finding the instant petition not impressed with merit, the same is hereby DENIED DUE COURSE. Costs against petitioner.

Romagos vs. MCWD SO ORDERED.24

Romagos filed a motion for reconsideration but the CA denied the same in the questioned October 29, 2002 Resolution. Hence, the present Petition, raising the following issues: i. Whether or not the Honorable Court of Appeals gravely abused its discretion in failing to squarely rule upon an issue raised in the petition for review; ii. Whether or not the Honorable Court of Appeals gravely abused its discretion in lightly adopting the findings of fact of the Honorable Civil Service Commission Regional Office without the documents and evidence, which were the very basis of the latters findings, brought before it for studied appreciation; iii. Whether or not the Honorable Court of Appeals gravely abused its discretion in adopting the findings of the Honorable Civil Service Commission Regional Office which findings were based on evidence not disclosed to the petitioner, in violation of her right to administrative due process; iv. Whether or not the Honorable Court of Appeals gravely abused its discretion in sustaining the petitioners dropping from the rolls when there is no shred of proof of the alleged abnormal behavior manifested in continuing incapacity to work; v. Whether or not the Honorable Court of Appeals gravely abused its discretion in affirming the petitioners dropping from the rolls when the requirement of the rules are not complied with; vi. Whether or not the Honorable Court of Appeals and the Honorable Commission gravely abused their discretion in holding that no prior notice or opportunity to contest the alleged unauthorized absences, so included as ground in Ms. Romagos separation letter, is required by law; vii. Whether or not the Honorable Court of Appeals gravely abused its discretion in not finding any bad faith on the part of Editha D. Luzon and Dulce M. Abanilla when adequate evidence points to the contrary.25 The foregoing issues actually boil down to the question: whether the CA correctly held that there was proper procedure and substantial basis for MCWD (respondent) to declare petitioner mentally unfit to work and drop her from the rolls. Normally, we do not entertain such purely factual issues we avoid weighing conflicting evidence, and substituting our evaluation for that of the lower courts and administrative or quasi-judicial tribunals. We accord great respect, even finality, to the latters factual findings, especially when these are adopted and confirmed by the CA; instead, we confine ourselves to merely reviewing and revising their errors of law.26 But when their findings are not supported by evidence,27 we step in to review their factual evaluation and correct their gross error.28 In the present case, existing evidence controvert the CA finding that respondent correctly declared petitioner mentally unfit. A review of its finding is called for. Under Section 46, Book V of Executive Order (E.O.) No. 292,29 one of the causes for separation from government service of an officer or employee is mental incapacity,30 viz.: Sec. 46. x x x (b) The following shall be grounds for disciplinary actions: x x x (19) Physical or mental incapacity or disability due to immoral or vicious habits. (Emphasis added) Separation from the service for such cause is done by way of a disciplinary proceeding governed by Rule II of CSC Memorandum Circular No. 19, series of 1999 (MC 19-99).31 The minimum procedural requirements thereof are: a) that notice of the charge be served on the officer or employee; and, b) that the latter be given opportunity to be heard.

Romagos vs. MCWD While Section 46 of E.O. No. 292 is silent on this matter, mental incapacity not arising from immoral or vicious habits is also a cause for separation under Section 2632 of E.O. No. 292 and Section 2(2), Article IX(B) of the 1987 Constitution,33 which demand of government officers and employees continuing merit and fitness. Separation from the service for such cause is carried out through a non-disciplinary process governed by CSC Memorandum Circular No. 40,34 series of 1998 (MC 40-98).
The only difference between the two modes of separation is that the first carries administrative disabilities, such as forfeiture of retirement benefits and perpetual disqualification from employment in the government service,35 while the second does not.36 But both result in loss of employment a property right protected under the due process clause.37 Hence, even if considered a non-disciplinary mode of separation, dropping from the rolls due to mental incapacity not arising from immoral or vicious habits is subject to the requirements of due process,38 as prescribed in the following provisions of MC 40-98: Rule XII Section 2. Dropping from the Rolls. Officers and employees who are either habitually absent or have unsatisfactory or poor performance or have shown to be physically and mentally unfit to perform their duties may be dropped from the rolls subject to the following procedures: xxxx 2.3 Physically and Mentally Unfit a. An officer or employee who is continuously absent for more than one (1) year by reason of illness may be declared physically unfit to perform his duties and the head of office in the exercise of his sound judgment may consequently drop him from the rolls. b. An officer or employee who is intermittently absent by reason of illness for at least 260 working days during a 24-month period may also be declared physically unfit by the head of office. c. An officer or employee who is behaving abnormally for an extended period which manifests continuing mental disorder and incapacity to work as reported by his co-workers or immediate supervisor and confirmed by the head of office, may likewise be dropped from the rolls. For the purpose of the three (3) preceding paragraphs, notice shall be given to the employee containing a brief statement of the nature of his incapacity to work. xxxx 2.6 This mode of separation from the service for unauthorized absences or unsatisfactory or poor performance or physical and mental incapacity is non-disciplinary in nature and shall not result in the forfeiture of any benefits on the part of the official or employee nor in disqualifying him from employment in the government; 2.7 The written notice mentioned in the preceding paragraphs may be signed by the person exercising immediate supervision over the official or employee. However, the notice of separation shall be signed by the appointing authority or head of office. (Emphasis ours) Clearly, before an officer or employee may be dropped from the rolls for mental incapacity, the following elements and process must obtain: first, that it has been observed that the subject officer or employee has been behaving abnormally for an extended period; second, that it has been established through substantial evidence that such abnormal behavior manifests a continuing mental disorder and incapacity to work; third, that a written notice is issued by the subjects immediate supervisor, describing the formers continuing mental disorder and incapacity to work and citing the reports of his co-workers or immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by the appointing authority or head of office, informing the subject of his separation from the service due to mental incapacity.

Romagos vs. MCWD Thus, a declaration of mental disorder does not automatically translate to a judgment of mental incapacity to perform work. A window remains open for the affected officer or employee to counter opinion on his mental condition and to show that his ability to work remains unimpaired. Only then may the appointing authority or head of office decide on whether said officer or employee is no longer mentally capable of performing his work and should be discharged. These requirements are designed to obviate misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment.
The procedure adopted by respondent in dropping petitioner from the rolls substantially complied with the two-notice requirement of MC 40-98. Respondent issued to petitioner the August 5, 1999 letter, requiring her to undergo psychiatric evaluation. Although the letter was addressed to petitioners spouse (Mr. Romagos), petitioner was sufficiently notified for she even replied to said letter.39 However, the factual bases relied upon by respondent in declaring petitioner mentally unfit to work appear inadequate as they failed to comply with the elements and process provided for in the MC 40-98, as earlier pointed out. Petitioner protests the finding that she suffers from mental incapacity. She disputes the relevance of the medical reports cited by respondent which refer to her mental condition in 1989 and 1991 but not to her mental state or capacity to work at the time she was dropped from the rolls in 1999. She claims that said medical reports have even been superseded by the August 20, 1999 Certification issued by Dr. Renato D. Obra,40 which reads: This is to certify that Mrs. Vilma Romagos, 41 years old, married, an employee of MCWD, sought consultation last Aug. 19, 1999 and today. Psychotherapy done, she is advised to come back for check-up after one month. Rec: Physically and mentally fit to go back to work.41 (Emphasis added) She also questions the finding that her purported abnormality has lasted for an extended period, pointing out that respondents December 1, 1999 letter cited only two incidents in January and August 1999. She impugns the validity of the admission of additional evidence referring to other incidents in September and December 1999, of which she was never apprised.42 We only partly agree. Respondent sufficiently established that petitioner suffers from a mental disorder. There is overwhelming evidence of this condition. The 1989 and 1991 medical certifications issued by Dr. Costas and Dr. Obra establish that petitioner was diagnosed to be suffering from Major Depression. The 1999 medical certification of Dr. Obra proves that, at the time of her separation from the service, petitioner was undergoing psychiatric treatment. The incident reports submitted by respondents employees uniformly indicate that petitioner is mentally disturbed. The latters own letters and reports also reveal an abnormal mental condition.43 Moreover, petitioners abnormal mental condition appears to be in a continuing state, considering that she was first diagnosed to be suffering from Major Depression in 1989, yet, in 1999, she was still undergoing psychiatric evaluation. The question, however, is whether respondent sufficiently proved that petitioners mental condition has rendered her incapacitated to work as to justify her being dropped from the rolls. It did not. All that the 1989 and 1991 medical certifications established is that, during said periods, petitioner was diagnosed to be suffering from Major Depression. These certifications hardly prove that petitioners behavior manifests a continuing mental disorder and incapacity to work. In fact, the 1991 medical certification of Dr. Obra points to the contrary for it states that petitioner "may go back to work provided that she will come back for check up as scheduled."44 This view is bolstered by other documents of record, which respondent did not dispute, such as petitioners school transcripts, indicating that from 1980 to 1995 the latter took a graduate course in business administration at the Southwestern University.45 Such endeavor negates the notion that from the time of her first diagnosis in 1989 to the time of her separation in 1999, petitioner was suffering from a mental impediment to work.

Romagos vs. MCWD Another evidence of petitioner's continuing capacity to work despite her mental condition is her performance ratings for 1996 and 1998, copies of which are of record.46 In both evaluations, petitioners work performance was rated "very satisfactory". Petitioners ratee, Editha Luzano, even remarked about an improvement in petitioners performance.47
More telling is the August 20, 1999 medical certification issued by Dr. Obra which categorically declared petitioner "physically and mentally fit to go back to work."48 It is bewildering that the CSCRO belittled the significance of this certification, when it held: As to the bearing to the case of the Certification of Dr. Obra dated August 20, 1999, we are of the view that it is not of sufficient weight to negate or outweigh the actual observations of appellant's co-workers on her abnormal behavior. It cannot be denied that the time a patient stays with the doctor during consultation and check-up is so much less than the time co-workers spend with one another during working hours. It cannot be denied also that stress-wise employees during working time are subject to various work-related pressures. As the person who are with the appellant in the workplace for a considerable length of time, co-workers are the ones who can observe the actuations and behavior of the appellant especially when she is beset with problems and pressures.49 Such reasoning is flawed. To begin with, it was respondent which elicited the opinion of Dr. Obra when, in a letter dated August 5, 1999, it required petitioner to undergo evaluation and conditioned her return to work only upon being certified as mentally fit, thus: This has reference to Mrs. Vilma Romagos observed abnormal behavior, We know you are fully aware of this considering that every time she creates trouble, Mrs. Faelnar always sought assistance from you. This year alone, she has been behaving abnormally on three occasions specifically on January 25-30, July 12-16 and the most recent incident was that of yesterday, August 4, 1999 during HRDs departmental meeting, per attached HRD report. Thus, for our mutual benefit, you are advised to bring her to her psychiatrist, Dr. Pureza Trinidad Onate or Dr. Renato D. Obra, for check-up/treatment immediately. Starting on Monday, August 9, 1999, we regret that we cannot allow entry for her. She may go back to work only when certified by her doctor that she is already mentally fit.50 Hence, respondent cannot impugn the August 20, 1999 medical certification of Dr. Obra merely because said document is not favorable to it. Moreover, respondent itself relied on the 1989 and 1991 medical certifications in declaring petitioner mentally unfit to work. The CSCRO, CSC and CA also cited said medical certifications. There is no reason for them not to assign equal probative value to the August 20, 1999 medical certification of Dr. Obra. In sum, the CA gravely erred in affirming the dismissal of petitioner. While there is no question that at the time she was dropped from the rolls, petitioner was suffering from a protracted mental disorder, the same did not render her incapable of performing her work. There was therefore an incomplete cause or justification to drop her from the rolls. Her separation from the service being invalid, petitioner is entitled to reinstatement to her former position with payment of backwages computed in accordance with our ruling in Batangas State University v. Bonifacio,51 viz.: The Court of Appeals correctly ordered respondents reinstatement. However, the award of backwages and other monetary benefits should not be limited to 5 years and must therefore be modified in line with the recent case of Civil Service Commission v. Gentallan. We held in said case that an illegally dismissed government employee who is later ordered reinstated is entitled to backwages and other monetary benefits from the time of her illegal dismissal up to her reinstatement. This is only fair and just because an employee who is reinstated after having been illegally dismissed is considered as not having left her office and should be given the corresponding compensation at the time of her reinstatement. WHEREFORE, the petition is GRANTED. The July 5, 2002 Decision and the October 29, 2002 Resolution of the Court of Appeals are REVERSED and SET ASIDE. The dropping from the rolls of petitioner Vilma A. Romagos

Romagos vs. MCWD isDECLARED ILLEGAL and respondent Metro Cebu Water District is DIRECTED to reinstate petitioner to her previous position and pay her backwages.
No costs. SO ORDERED.

Yenko vs. Gungon

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 165450 August 13, 2009

FRANCIS F. YENKO, as Administrator & MAYOR JINGGOY E. ESTRADA, both of the Municipality of San Juan, Metro Manila, Petitioners, vs. RAUL NESTOR C. GUNGON, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 165452 RAUL NESTOR C. GUNGON, Petitioner, vs. FRANCIS F. YENKO, as Administrator, & MAYOR JINGGOY E. ESTRADA, both of the Municipality of San Juan, Metro Manila, Respondents. DECISION PERALTA, J.: These are consolidated petitions for review on certiorari, under Rule 45 of the Rules of Court, of the Amended Decision1 of the Court of Appeals in CA-G.R. SP No. 51093 dated September 28, 2004, reinstating Raul Nestor C. Gungon to his former position as Local Assessment Operations Officer III in the Assessors Office of the Municipal Government of San Juan, Metro Manila, without loss of seniority rights, at the discretion of the appointing authority and subject to Civil Service law, rules and regulations; and ordering the payment to Gungon of back salaries equivalent to five years from the date he was dropped from the rolls. The facts are as follows: On February 28, 1987, Raul Nestor C. Gungon, who holds a professional career service eligibility, was extended a permanent appointment as Local Assessment Operations Officer III in the Assessors Office of the Municipality of San Juan, Metro Manila. On January 7, 1998, San Juan Municipal Administrator Francisco F. Yenko issued a Memorandum2 temporarily reassigning Gungon to the Public Order and Safety Office (POSO) of the said municipality effective January 8, 1998 in the exigency of the service. Gungon was directed to report to Mr. Felesmeno Oliquino for further instruction. When Gungon received the Memorandum, Mr. Oliquino was confined at the San Juan Medical Center and he passed away on January 9, 1998. On January 8, 1998, Gungon, in compliance with the reassignment Memorandum, reported to the POSO. The officerin-charge (OIC) of the POSO, Arnulfo Aguilar, issued a Memorandum3 dated January 8, 1998 requiring Gungon to report as Duty Agent, whose responsibility was "to conduct inspections within the municipal compound, apprehend any suspicious characters roaming within the vicinity of the municipal hall and compound," and setting his tour of duty at 12:01 a.m. to 8:00 a.m. from Monday to Friday. In a letter4 dated January 9, 1998 to the OIC of the POSO, Gungon protested his reassignment for being violative of the Administrative Code of 1987, which prohibits reassignment that results in reduction in rank, status or salary of an employee. Gungon went on sick leave from January 8 to 21, 1998 after filing the proper application with supporting medical certificate.5

Yenko vs. Gungon On January 20, 1998, Gungon, through counsel, wrote a letter6 to Municipal Administrator Yenko, objecting to his reassignment because it amounted to a demotion in rank; it was arbitrary, unwarranted and illegal; and it violated his constitutional right to security of tenure. Gungon requested the recall of the Memorandum dated January 7, 1998 and his reinstatement to his position as Local Assessment Operations Officer III.
On January 22, 1998, Gungon, whose leave of absence had by then expired, reported back to his office at the Municipal Assessors Office and continued to do so even if he was not given work there. On February 13, 1998, Gungon received from Municipal Administrator Yenko a Memorandum,7 which called his attention to his failure to report for duty at the POSO since the date of his reassignment. Gungon was informed that his action was a violation of Civil Service Rules which might constitute a ground for dismissal from the service. In a letter dated February 18, 1998, Gungon replied to Municipal Administrator Yenkos Memorandum, the pertinent portion of which reads: Dear Sir: This is in response to your memorandum of 13 February 1998 concerning my alleged failure to report to my designated place of assignment since the effectivity of the reassignment order on January 8, 1998 up to this date. xxxx The transfer/reassignment is arbitrary, malicious, patently illegal, and palpably constitutes a violation of the Anti-Graft and Corrupt Practices Act (RA No. 3019) x x x. You know very well that there is no factual nor legal basis to transfer and assign me from the assessors office, where I work as assessor, to the POSO where I will be working as a security guard in the guise of "exigency of service" which, no matter how one looks at it, is false and beyond comprehension. In fact, your memorandum is silent as to why I am purposely selected to work as security guard amidst the pendency of more important assessors work I was doing and am still to perform being the number three man in the assessors office, and availability of others subordinate to me who are more qualified to perform a police work, thus, establishing that the only purpose is to cause injury to me. Your charge that I have not reported for work is equally untrue. I have been reporting to the assessors office from 8:00 a.m. to 5:00 p.m., but my time card has not been signed by my superior, evidently for fear that he could be administratively dealt with. On the other hand, I have not reported to the POSO because, instead of being assigned from 8:00 a.m. to 5:00 p.m., I was given a graveyard assignment from 12:01 in the morning up to 8:00 a.m. I certainly cannot work with that kind of schedule and work, placing my personal safety and life in peril. There is no contumacy on my part not to report because, by your memorandum and implemented by the POSO head, I had been given an assignment impossible to perform, dangerous to undertake, and beyond my personal competence to discharge.8 In a Memorandum9 dated February 23, 1998, then San Juan Mayor Jinggoy Estrada informed Gungon that he was "considered dropped from the rolls because of [his] absence without official leave from x x x January 22, 1998 up to the present x x x." Gungon appealed the Memoranda dated January 7, 1998 and February 23, 1998 of Municipal Administrator Yenko and Mayor Estrada, respectively, to the Civil Service Commission (CSC). He alleged that the Municipal Administrator committed abuse of authority amounting to oppression in reassigning him from the Assessors Office, where he was working as Local Assessment Operations Officer III, to the POSO, where he would be required to work as a security guard, even if the Municipal Administrator knew that he never had the knowledge, background or training as a security guard. He also alleged that the Municipal Administrator violated the Civil Service Law when he effected the reassignment, because he knew that such personnel action was meant to demote, humiliate and subject him to ridicule, risk, harassment and undue injury rather than enhance the so-called "exigency of service." Further, he contended that Mayor Estrada approved the illegal transfer by dropping him from the rolls on the pretext that he was absent from January 22 to February 23, 1998, although his failure to report to the POSO was based on justifiable, meritorious and valid grounds, thereby rendering the Mayors Memorandum dropping him from the rolls as illegal and void.10

Yenko vs. Gungon The CSC dismissed Gungons appeal in CSC Resolution No. 982525 dated September 28, 1998. The dispositive portion of the Resolution reads:
WHEREFORE, the Appeal of Raul Nestor C. Gungon is hereby dismissed. Accordingly, the decision of Mayor Jinggoy Estrada, Municipality of San Juan, Metro Manila, dropping him from the rolls, is affirmed.11 The CSC held that even if Gungon suffered a reduction in rank when he was reassigned from the Office of the Municipal Assessor to the POSO, it was improper for him to defy the reassignment order. It cited its ruling in CSC Resolution No. 95-0114 dated January 5, 1995, thus: A reassignment order is generally implemented immediately even if the employee does not agree with it. x x x The rule is a reassigned employee who does not agree with the order must nevertheless comply until its implementation is restrained or it is declared to be not in the interest of service or have been issued with grave abuse of discretion.12
lawphi 1

The CSC held that Gungons failure to report for work for more than 30 days was violative of CSC Memorandum Circular No. 38, series of 1993, as amended, which provides that "[a]n officer or employee who is continuously absent without approved leave (AWOL) for at least thirty (30) calendar days shall be separated from the service or dropped from the rolls without prior notice." Gungons motion for reconsideration was denied in CSC Resolution No. 99019413 dated January 15, 1999. Gungon filed a petition for review of the CSCs Resolutions with the Court of Appeals. He alleged that the CSC erred (1) in not nullifying the reassignment order and order of separation from the service notwithstanding its finding that as a result thereof, he suffered a reduction in rank; (2) in holding that his failure and refusal to comply with the reassignment order was justified; and (3) in holding that for his failure and refusal to report for duty at the disputed job he was deemed to have incurred continuous absences.14 Gungon also raised the following issues: 1) Whether or not a transfer of a Career Civil Service Employee amounting to a reduction in rank, thus violative of the Civil Service Law, is valid and enforceable; 2) Whether or not a transfer to a new position which entails a job that is completely and entirely different from the previous assignment is valid and enforceable; 3) Whether or not a refusal or failure to comply with a transfer which amounts to a reduction in rank and/or involving a work completely and entirely different from the previous designation constitutes a ground for dismissal or dropping from the rolls.15 On October 2, 2003, the Court of Appeals rendered a Decision in favor of Gungon, the dispositive portion of which reads: WHEREFORE, premises considered, the assailed Civil Service Commission Resolution Nos. 982525 and 990194 are hereby SET ASIDE and payment of petitioners back salaries from February 23, 1998 up to October 13, 1998 is hereby ORDERED.16 The Court of Appeals held that Gungon, who occupied the position of Local Assessment Operations Officer III under a permanent appointment, enjoyed security of tenure, which is guaranteed by the Constitution and Civil Service Law. His reassignment from Local Assessment Operations Officer III to security guard involved a reduction in rank and status, which is proscribed under Section 10, Rule 7 of the Omnibus Rules Implementing Book V of Executive Order No. 292 (Omnibus Civil Service Rules and Regulations).17 Hence, his reassignment, which was directed by Municipal Administrator Yenko in the Memorandum dated January 7, 1998, was void ab initio. Consequently, Mayor Estrada's Memorandum dated February 13, 1998, which ordered Gungons dismissal from the service, must suffer from the same fatal infirmity.18

Yenko vs. Gungon However, the Court of Appeals, pursuant to Section 35 of Rule XVI of the Omnibus Civil Service Rules and Regulations,19 as amended, did not grant Gungons plea for reinstatement on the ground that Gungon applied for terminal leave on October 13, 1998, which application was approved. He was paid his terminal leave benefits in the amount of P151,514.39 on November 10, 1998.
The Court of Appeals held that having voluntarily opted to sever his employment by applying for terminal leave and having accepted his terminal leave benefits, Gungon should only be awarded back salaries from the date of his dismissal until the date he applied for terminal leave, which was from February 23, 1998 up to October 13, 1998. The parties filed separate motions for reconsideration of the Decision of the Court of Appeals. Gungon contended: 1. The receipt by the dismissed employee of his terminal leave pay is not fatal to his appeal for reinstatement; 2. Sec. 35 of the Amended Rule XVI (Leave of Absence) of the Omnibus Rules finds no application in the case x x x since Sec. 35 of the Amended Rule XVI was an amendment made only on December 14, 1998, published in the Manila Times on December 30, 1998, and took effect only on January 15, 1999; 3. The applicable Omnibus Rule in fact is the original or un-amended Sec. 6 of Rule XVI (Leave of Absence) which was in force and effect at the time petitioner applied for terminal leave on [October] 13, 1998; 4. The petitioner is entitled to reinstatement with back salaries to a maximum of five (5) years in view of the Honorable Courts Decision in setting aside the Memoranda of Municipal Administrator Yenko and Mayor Estrada, and the CSC Resolutions.20 On the other hand, Municipal Administrator Yenko and Mayor Estrada contended that the conclusion and the order of payment of Gungons back salaries be reconsidered based on the following grounds: 1. Petitioner Gungon was away on leave from January 22, 1998 to February 23, 1998. 2. There was a prohibition to transfer any employee from one office to another effective January 11, 1998 until June 30, 1998 relative to the May 1998 election; 3. The Memorandum of respondent Municipal Administrator Yenko did not assign petitioner Gungon to work as security guard.21 In an Amended Decision dated September 28, 2004, the Court of Appeals modified its Decision, the dispositive portion of which reads: WHEREFORE, the decision dated October 2, 2003 is hereby MODIFIED. Petitioner is hereby reinstated to his former position as Local Assessment Operations Officer III (LAOO III), without loss of seniority rights, at the discretion of the appointing authority and subject to Civil Service Law, rules and regulations. Petitioner is likewise entitled to be paid five (5) years back salaries from the date he was dropped from the rolls on March 3, 1998.22 Citing Dytiapco v. Civil Service Commission,23 the Court of Appeals held that Gungons application for terminal leave and his subsequent acceptance of terminal leave benefits could not be construed as an abandonment of his claim for reinstatement or indicative of his intent to voluntarily sever his employment with the government considering that Gungon had appealed his case to the CSC and had a pending motion for reconsideration of CSC Resolution No. 982525 before he received his terminal leave benefits. Gungons appeal to the CSC and then to the Court of Appeals strongly indicated his desire to be reinstated, not separated from the government service. The Court of Appeals stated that Section 35 of the amended Rule XVI24 of the Omnibus Civil Service Rules and Regulations, which was its basis for denying Gungons reinstatement, does not apply to this case, because the amended Rule took effect on January 15, 1999, after Gungon had applied for terminal leave on October 13, 1998 and

Yenko vs. Gungon had received his terminal leave benefits on November 10, 1998. The appellate court held that the applicable rule is Sec. 6 of the original Rule XVI, which was the prevailing rule when Gungon received his terminal leave benefits.
Section 6 of the original Rule XVI of the Omnibus Civil Service Rules and Regulations gives two options to a person whose leave credits have been commuted following his separation from the service, but who is thereafter reappointed in the government service before the expiration of the leave commuted. These options are: (a) Refund the money value of the unexpired portion of the leave commuted; or (b) May not refund the money value of the unexpired portion of the leave commuted, but insofar as his leave credits is concerned, he shall start from zero balance. The Court of Appeals noted that the original provision in Section 6 of Rule XVI of the Omnibus Civil Service Rules and Regulations was substantially carried in Section 26 of the amended Rule XVI, except that the first option to refund the money value of the unexpired portion of the leave commuted was no longer included. Hence, the Court of Appeals held that Gungon may start from zero balance of his leave upon reemployment in the government service. As regards the motion for reconsideration filed by Municipal Administrator Yenko and Mayor Estrada, the Court of Appeals found no reason to change the position it had taken on the said issues since no new matters were raised. Both parties filed a petition for review on certiorari of the Amended Decision of the Court of Appeals. The petition of Municipal Administrator Yenko and Mayor Estrada was docketed as G.R. No. 165450, while that of Gungon was docketed as G.R. No. 165452. The Court resolved to consolidate both cases in a Resolution25 dated December 14, 2004. Municipal Administrator Yenko and Mayor Estrada raised the following issues: 1. Whether or not the Court of Appeals erred in ordering the reinstatement of Gungon to his former position as Local Assessment Operations Officer III without loss of seniority rights despite the fact that Gungon subsequently opted to sever his employment by applying for terminal leave and receiving the equivalent payments thereon. 2. Whether or not the Court of Appeals erred in ordering the payment to Gungon of five years back salaries from the date he was dropped from the rolls on March [1], 1998 despite the undisputed fact that Gungon did not render any service to the Municipal Government of San Juan from the time he was reassigned to POSO up to the time he opted to voluntarily sever his employment when he applied for terminal leave.26 Gungon raised these issues: 1) Whether or not the appellate court was correct in declaring the reassignment of petitioner and the dropping of petitioner from the rolls as void ab initio and in setting aside the questioned CSC Resolutions; 2) Whether or not the petitioner, who was illegally dismissed, has the vested right to his former position; hence, the right to be reinstated; 3) Whether or not the reinstatement of a career government employee who was illegally dismissed, through no delinquency or misconduct, is discretionary upon the appointing authority as ordered in the decretal portion of the Amended Decision of the Court of Appeals. 4) Whether or not the Supreme Court, based on the realities of the time and situation, may now change its principle adopted in the "Mercury Drug Rule" in fixing the amount of back wages at a reasonable level without qualification and deduction.27 As regards the first issue raised by petitioner Gungon in G.R. No. 165452, the Court agrees with the decision of the Court of Appeals that the reassignment of Gungon from the Municipal Assessors Office, where his primary function

Yenko vs. Gungon was that of land appraiser, to the POSO, where he was required to work as a security guard/duty agent, was void ab initio because it clearly involved a reduction in rank and status. The CSC affirmed the reduction in rank; petitioners Municipal Administrator Yenko and Mayor Estrada did not dispute it. Such reassignment is expressly prohibited by Executive Order No. 292, otherwise known as the Administrative Code of 1987, under Book V, Title 1, Subtitle A, Chapter 5, Sec. 26 (7), thus:
(7) Reassignment.An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries.28 The above provision is reflected in Section 10, Rule VII of the Omnibus Civil Service Rules and Regulations: Sec. 10. A reassignment is the movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salaries and does not require the issuance of an appointment.29 Reassignments involving a reduction in rank, status or salary violate an employees security of tenure, which is assured by the Constitution, the Administrative Code of 1987, and the Omnibus Civil Service Rules and Regulations.30 Security of tenure covers not only employees removed without cause, but also cases of unconsented transfers and reassignments, which are tantamount to illegal/constructive removal.31 Since Gungons reassignment order was void ab initio, his alleged failure to report for duty at the POSO, where he was reassigned, had no legal basis. Gungon could not have incurred absences in the POSO, because his reassignment was void. Thus, the cause of his separation from the service, which was unauthorized absences from the post where he was reassigned, was not a valid cause for dismissing him from the service. It is undisputed that Gungon reported at the Municipal Assessors Office after his leave of absence, instead of the POSO. Under the circumstances, Gungon is considered to have been illegally dismissed from the service and entitled to reinstatement. Gungon contends that the Court of Appeals erred in subjecting his reinstatement to the discretion of the Municipal Government of San Juan. The contention is meritorious. The Court of Appeals misconstrued CSC Memorandum Circular No. 12, series of 1994 when it cited the Circular as the basis for holding Gungons reappointment as "subject to the discretion of the appointing authority and Civil Service Law, rules and regulations." CSC Memorandum Circular No. 12, Series of 1994 has for its subject Amendment No. 1 to the Omnibus Guideline on Appointments and Other Personnel Actions, CSC Memorandum Circular No. 38, Series of 1993 (Dropped from the Rolls). The pertinent portion of the Memorandum provides: In order to promote efficient and effective personnel administration in government and to obviate any prejudice to the service, the Civil Service Commission pursuant to Resolution No. 94-1464 dated March 10, 1994 hereby promulgates the following procedure to be followed in separating from the service officials and employees who are either habitually absent or have unsatisfactory or poor performance or have shown physical and mental unfitness to perform their duties. Accordingly, Item 2 of Section VI of the Omnibus Guidelines on Appointments and other Personnel Actions (MC No. 38, s. 1993- Dropped from the Rolls), now reads as follows: 2. Dropped from the Rolls 2.1 . Absence without Approved Leave a. An officer or employee who is continuously absent without approved leave (AWOL) for at least thirty (30) calendar days shall be separated from the service or dropped from the rolls without prior notice. He shall however be informed of his separation from the service not later

Yenko vs. Gungon

than five (5) days from its effectivity which shall be sent to the address appearing on his 201 files; and b. If the number of unauthorized absences incurred is less than thirty (30) calendar days, written return to work order shall be served on the official or employee at his last known address on record. Failure on his part to report for work within the period stated in the order shall be a valid ground to drop him from the rolls. 2.2 . Unsatisfactory or Poor Performance xxxx 2.3. Physical and Mental Unfitness xxxx 2.4. The officer or employee who is separated from the service through any of the above modes has the right to appeal his case to the CSC or its Regional Office within fifteen (15) days from receipt of such order or notice of separation; 2.5. The order of separation is immediately executory pending appeal, unless the Commission on meritorious grounds, directs otherwise; 2.6. This mode of separation from the service for unauthorized absences or unsatisfactory or poor performance or physical and mental incapacity is non-disciplinary in nature and shall not result in the forfeiture of any benefits on the part of the official or employee nor in disqualifying him from reemployment in the government; 2.7. The written notice mentioned in the preceding paragraphs may be signed by the person exercising immediate supervision over the official or employee. However, the notice of separation shall be signed by the appointing authority or head of office. This shall likewise be without prejudice to the reappointment of the official or employee to government at the discretion of the appointing authority and subject to Civil Service law, rules and regulations.32 To reiterate, the italicized paragraph above was used by the Court of Appeals as the basis for subjecting Gungons reinstatement to the discretion of the appointing authority. The basis is misplaced, because what the provision means is that the separation of an employee from government service through any of the modes enumerated in the Memorandum Circular, which includes unauthorized absences, shall be without prejudice to his reappointment in the government service at the discretion of the appointing authority and subject to Civil Service law, rules and regulations. Hence, an employee who is validly dismissed due to unauthorized absences may still be reappointed in the government service, but the reappointment is at the discretion of the appointing authority and subject to Civil Service law, rules and regulations. In this case, Gungon was not validly dismissed from the service. His reassignment to the POSO, which involved a reduction in rank and status, was void for being violative of Executive Order No. 292 and the Omnibus Civil Service Rules and Regulations. Hence, Gungon could not have incurred absences in the office where he was reassigned since the reassignment was void. Consequently, his dismissal for unauthorized absences in the office where he was reassigned was not valid. Therefore, Memorandum Circular No. 12, series of 1994, does not apply in the case of Gungon. In fine, Gungon is entitled to reinstatement, without qualification, for having been illegally dismissed. A government official or employee reinstated for having been illegally dismissed is considered as not having left his office.33 His position does not become vacant and any new appointment made in order to replace him is null and void ab initio.34

Yenko vs. Gungon As regards the award of Gungons back salaries, it is settled jurisprudence that an illegally terminated civil service employee is entitled to back salaries limited only to a maximum period of five years,35 and not full back salaries from his illegal termination up to his reinstatement.
In G.R. No. 165450, petitioners Municipal Administrator Yenko and Mayor Estrada contend that an application for commutation of vacation and sick leaves under Section 6 of the original Rule XVI of the Omnibus Civil Service Rules and Regulations is similar to an application for terminal leave under Section 35 of the amended Rule XVI of the Omnibus Civil Service Rules and Regulations, because in both provisions the application for the respective leaves requires prior severance of employment. Thus, petitioners assert that when Gungon applied for terminal leave or commutation of his leave credits, the application ended his employment with the Municipal Government of San Juan. The subsequent payment was merely the result of his severance from employment. Consequently, the municipal governments obligation to pay Gungons salaries ended. Hence, the Court of Appeals erred in ordering the municipal government to pay Gungon back salaries equivalent to five years. The arguments of petitioners Municipal Administrator Yenko and Mayor Estrada do not persuade. When Gungon applied for terminal leave on October 13, 1998 and received his terminal leave pay on November 10, 1998, there was no specific provision on terminal leave. The applicable rule was Section 6, Rule XVI (Leave of Absence) of the Omnibus Civil Service Rules and Regulations, before Rule XVI was amended by CSC Memorandum Circular No. 41, series of 1998. Section 6 of Rule XVI provides: Sec. 6. Vacation and sick leave shall be cumulative and any part thereof which may not be taken within the calendar year in which earned may be carried over the succeeding years. Whenever any officer or employee retires, voluntarily resigns or is allowed to resign or is separated from the service through no fault of his own, he shall be entitled to the commutation of all the accumulated vacation and/or sick leave to his credit, provided his leave benefits are not covered by special law. The proper head of Department, local government agency, government-owned or controlled corporation with original charter and state college and university may, in his discretion, authorize the commutation of the salary that would be received during the period of vacation and sick leave of any appointive officer and employee and direct its payment on or before the beginning of such leave from the fund out of which the salary would have been paid. When a person whose leave has been commuted following his separation from the service is reappointed in the government before the expiration of the leave commuted, he is given two options, as follows: (a) Refund the money value of the unexpired portion of the leave commuted; or (b) May not refund the money value of the unexpired portion of the leave commuted, but insofar as his leave credits is concerned, he shall start from zero balance.36 On December 24, 1998, the CSC issued Memorandum Circular No. 41, which, pursuant to CSC Resolution No. 983142, series of 1998, adopted the amendment to Rule XVI (Leave of Absence) and the definitions of leave terms under Rule I of the Omnibus Civil Service Rules and Regulations. The amended Rule XVI contained a specific provision on terminal leave in Sec. 35, and substantially reflected in Sec. 26 the provision in Sec. 6 of the original Rule XVI. The pertinent provisions of Rule XVI, as amended, are as follows: Sec. 26. Accumulation of vacation and sick leave. -- Vacation and sick leave shall be cumulative and any part thereof which may not be taken within the calendar year may be carried over to the succeeding years. Whenever any official or employee retires, voluntarily resigns or is allowed to resign or is separated from the service through no fault of his own, he shall be entitled to the commutation of all the accumulated vacation and/or sick leave to his credit, exclusive of Saturdays, Sundays, and holidays, without limitation as to the number of days of vacation and sick leave that he may accumulate provided his leave benefits are not covered by special law. When a person whose leave has been commuted following his separation from the service is reemployed in the government before the expiration of the leave commuted, he shall no longer refund the money value of the unexpired portion of the said leave. Insofar as his leave credits is concerned, he shall start from zero balance.

Yenko vs. Gungon

xxxx Sec. 35. Terminal leave.Terminal leave is applied for by an official or an employee who intends to sever his connection with his employer. Accordingly, the filing of application for terminal leave requires as a condition sine qua non, the employees resignation, retirement or separation from the service without any fault on his part. It must be shown first that public employment ceased by any of the said modes of severance.37 Section 6 of the original Rule XVI of the Omnibus Civil Service Rules and Regulations, which is applicable to this case, provides two options for an employee like Gungon whose leave credits have been commuted after separation from the service through no fault of his, and who is subsequently reinstated. These options are: (1) He may refund the money value of the unexpired portion of the leave commuted; or (2) he may not refund the money value of the unexpired portion of the leave commuted, but insofar as his leave credits is concerned, he shall start from zero balance. Hence, the Court of Appeals correctly held that Gungon may start from zero balance of his leave upon re-employment in the government. Notably, the second option of Section 6 of the original Rule XVI is still contained in Sec. 26 of the amended Rule XVI. The Court cannot subscribe to the assertion of Municipal Administrator Yenko and Mayor Estrada that mere application for terminal leave or the commutation of leave credits ended Gungons employment because an application for terminal leave and receipt of terminal leave benefits are not legal causes for the separation or dismissal of an employee from the service. The Constitution explicitly states that "[n]o officer or employee of the civil service shall be removed or suspended except for cause provided by law."38 At most, an application for terminal leave under Sec. 35 of the amended Rule XVI of the Omnibus Civil Service Rules and Regulations shows the intent of an employee to sever his employment, which intent is clear if he has resigned or retired from the service. However, such intent may be disproved in cases of separation from the service without the fault of the employee, who questions his separation, even if the government agency, pending the employees appeal, grants his application for terminal leave because it has already dropped him from the rolls. In Dytiapco v. Civil Service Commission,39 the Court understood the predicament of an employee who accepted terminal leave benefits because of economic necessity rather than the desire to leave his employment with the government. In this case, the Court of Appeals correctly held that Gungons application for terminal leave and his acceptance of terminal leave benefits could not be construed as an abandonment of his claim for reinstatement or indicative of his intent to voluntarily sever his employment with the government, because Gungon had appealed his case to the CSC and had a pending motion for reconsideration of CSC Resolution No. 982525 before he received his terminal leave benefits. Indeed, Gungons appeal against his dismissal to the CSC and, thereafter, to the Court of Appeals, and his petition before this Court all taken within a span of 11 years show his desire to be reinstated, not separated from the government service. In this connection, the Court of Appeals aptly stated that it would have been unjust for petitioner, who was dropped from the rolls not to claim his terminal leave pay considering that it would take some time for his appeal to be resolved. Gungon had no permanent employment and had to sustain the needs of his two sons. Further, Municipal Administrator Yenko and Mayor Estrada contend that the Court of Appeals erred in ordering the payment to Gungon of five years back salaries equivalent to five years from the date he was dropped from the rolls on March 1, 1998 despite the fact that Gungon did not render any service to the Municipal Government of San Juan from the time he was reassigned to POSO up to the time he opted to voluntarily sever his employment when he applied for terminal leave. The contention is without merit. It is settled that a government official or employee who had been illegally dismissed and whose reinstatement was later ordered is considered as not having left his office, so he is entitled to all the rights and privileges that should accrue to him by virtue of the office that he held.40 Thus, Gungon is entitled to payment of back salaries equivalent to a maximum period of five years.41 Lastly, the Court notes that the dispositive portion of the Amended Decision of the Court of Appeals states that Gungon is "entitled to five (5) years back salaries from the date he was dropped from the rolls on March 3, 1998." However, the

Yenko vs. Gungon records showed that per Mayor Estradas Memorandum42 dated February 23, 1998, Gungon was informed that he would be considered dropped from the rolls due to his absences without official leave effective March 1, 1998.
WHEREFORE, the Amended Decision of the Court of Appeals in CA-G.R. SP No. 51093 dated September 28, 2004 is MODIFIED. Petitioner Gungon is hereby reinstated, without qualification, to his former position as Local Assessment Operations Officer III in the Assessors Office of the Municipal Government of San Juan, Metro Manila, without loss of seniority rights. Gungon is entitled to payment of back salaries equivalent to five (5) years from the date he was dropped from the rolls, which is March 1, 1998. No costs. SO ORDERED.

CSC vs. Sojor

EN BANC [G.R. No. 168766, May 22, 2008] THE CIVIL SERVICE COMMISSION, Petitioner, vs. HENRY A. SOJOR, Respondent. DECISION
REYES, R.T., J.: IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil servants and officials? Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom? The twin questions, among others, are posed in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) which annulled two (2) CSC Resolutions[2] against respondent Henry A. Sojor. The Facts The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows: On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the "Higher Education Modernization Act of 1997," was enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of CVPC appointed respondent as president, with a four-year term beginning September 1998 up to September 2002.[3] Upon the expiration of his first term of office in 2002, he was appointed president of the institution for a second four-year term, expiring on September 24, 2006.[4] On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU).[5] A Board of Regents (BOR) succeeded the BOT as its governing body. Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu City, to wit: 1. ADMC DC No. 02-20(A) - Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differentials despite the absence of the required Plantilla and Salary Adjustment Form and valid appointments.[6] ADM DC No. 02-20 - Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by Jocelyn Juanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of the reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of their academic ranks.[7] ADM DC No. 02-21 - Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It was alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions against nepotism under the Administrative Code.[8]

2.

3.

Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping. He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the non-competitive or unclassified service of the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC had no authority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigation, discipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resolved by the Office of the Ombudsman.[9]

CSC vs. Sojor

Finding no sufficient basis to sustain respondent's arguments, the CSC-RO denied his motion to dismiss in its Resolution dated September 4, 2002.[10] His motion for reconsideration[11] was likewise denied. Thus, respondent was formally charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism.[12] Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same arguments in his motion to dismiss.[13] He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the BOT was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter of the jurisdiction granted to CSC by virtue of Presidential Decree (P.D.) No. 807[14] enacted in October 1975, respondent contended that this was superseded by the provisions of R.A. No. 8292,[15] a later law which granted to the BOT the power to remove university officials. CSC Disposition In a Resolution dated March 30, 2004,[16] the CSC dismissed respondent's appeal and authorized its regional office to proceed with the investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states: WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil Service Commission Regional Office No. VII, Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and submit the investigation reports to the Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90) days.[17] In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he was a presidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. We quote: His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. Garcia. Moreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College Board of Trustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), which explicitly provides that, "He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee." Since the President of a state college is appointed by the Board of Regents/Trustees of the college concerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a state college (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission. The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC Board of Trustees have concurrent jurisdiction over cases against officials and employees of the said agency . Since the three (3) complaints against Sojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appellant to the exclusion of the latter agency.[18] (Emphasis supplied) The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proper. Nevertheless, it adopted the formal charges issued by its regional office and ordered it to proceed with the investigation: Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplinary jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge against Sojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charges, the same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance with the procedure outlined in the aforestated Uniform Rules.[19] (Emphasis supplied) No merit was found by the CSC in respondent's motion for reconsideration and, accordingly, denied it with finality on July 6, 2004.[20] Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assailed resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline the president of CVPC was exclusively lodged in the BOT of CVPC. CA Disposition

CSC vs. Sojor

On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist from enforcing its Resolution dated March 30, 2004 and Resolution dated July 6, 2004.[21] Thus, the formal investigation of the administrative charges against Sojor before the CSC-RO was suspended. On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulled the questioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive part of the CA decision reads: WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdiction in issuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are hereby ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent. SO ORDERED.[22] The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that the enactment of R.A. No. 9299[23] in 2004, which converted CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty members, administrative officials, and employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority granted to it under Section 6 of R.A. No. 8292.[24] The power of the BOT to remove and discipline erring employees, faculty members, and administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7 of R.A. No. 9299. The said provision reads: Power and Duties of Governing Boards. - The governing board shall have the following specific powers and duties in addition to its general powers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordance with the requirements of due process of law . (Emphasis added) The CA added that Executive Order (E.O.) No. 292,[25] which grants disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters, is a general law. According to the appellate court, E.O. No. 292 does not prevail over R.A. No. 9299,[26] a special law. Issues Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6, 2004.[27] Our Ruling The petition is meritorious. I. Jurisdiction of the CSC The Constitution grants to the CSC administration over the entire civil service.[28] As defined, the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation.[29] It is further classified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitness or highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenure. These include:
(1) (2) (3) (4) (5) (6) (7)

Open Career positions for appointment to which prior qualification in an appropriate examination is required; Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and Permanent laborers, whether skilled, semi-skilled, or unskilled.[30]

CSC vs. Sojor

Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinations, while entrance to the third level is prescribed by the Career Executive Service Board.[31] The positions covered by each level are:
(a) (b) (c)

The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and The third level shall cover positions in the Career Executive Service.[32]

On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duration of a particular project for which purpose employment was made.[33] The law states: The Non-Career Service shall include:
(1) (2) (3) (4) Elective officials and their personal or confidential staff; Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and Emergency and seasonal personnel.[34]

(5)

It is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in the government service, whether career or non-career. From this grant of general jurisdiction, the CSC promulgated the Revised Uniform Rules on Administrative Cases in the Civil Service.[35] We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart from the general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and the Commission central office (Commission Proper) is specified in the CSC rules as: Section 4. Jurisdiction of the Civil Service Commission. - The Civil Service Commission shall hear and decide administrative cases instituted by, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices and of the agencies attached to it. Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon the removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipline and efficiency of such officers and employees. Section 5. Jurisdiction of the Civil Service Commission Proper. - The Civil Service Commission Proper shall have jurisdiction over the following cases: A. Disciplinary 1. 2. Decisions of Civil Service Regional Offices brought before it on petition for review; Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal; Complaints brought against Civil Service Commission Proper personnel; Complaints against third level officials who are not presidential appointees; Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requiring direct or immediate action, in the interest of justice; Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices; Appeals from the Order of Preventive Suspension; and Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

3. 4. 5.

6. 7. 8.

CSC vs. Sojor

B. Non-Disciplinary 1. 2. 3. 4. Decisions of Civil Service Commission Regional Offices brought before it; Requests for favorable recommendation on petition for executive clemency; Protests against the appointment, or other personnel actions, involving third level officials; and Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations.

Section 6. Jurisdiction of Civil Service Regional Offices. - The Civil Service Commission Regional Offices shall have jurisdiction over the following cases: A. Disciplinary 1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omissions were committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and the persons complained of are employees of agencies, local or national, within said geographical areas; Complaints involving Civil Service Commission Regional Office personnel who are appointees of said office; and Petitions to place respondent under Preventive Suspension. Non-Disciplinary

2. 3. 4.

B.

Non-Disciplinary 1. 2. Disapproval of appointments brought before it on appeal; Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university, is a non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of law, respondent is a non-career civil servant who is under the jurisdiction of the CSC. II. The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a state university. Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed during the time material to the present case, provides that the school's governing board shall have the general powers of administration granted to a corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative officials, and employees for cause: Section 4. Powers and Duties of Governing Boards. - The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: xxxx h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with the requirements of due process of law . (Emphasis supplied)

CSC vs. Sojor

The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exercise of corporate powers of the board of the school shall be exclusive: Sec. 4. Administration. - The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amended, otherwise known as "The Corporation Code of the Philippines." The administration of the University and the exercise of its corporate powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board. Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BOR. But does this exclusive administrative power extend to the power to remove its erring employees and officials? In light of the other provisions of R.A. No. 9299, respondent's argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granted to the BOR "in addition to its general powers of administration." This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the text of the said section is reproduced below: Sec. 7. Powers and Duties of the Board of Regents. - The Board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the Board of Directors of a corporation under existing laws: xxxx i. To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the Revised Compensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of law.[36](Emphasis supplied)

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employees and officials. Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.[37] All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil servant does not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdiction of the CSC. This is not a case of first impression. In University of the Philippines v. Regino,[38] this Court struck down the claim of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then: The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involving members of the Civil Service. Section 9(j) mandates that the Commission shall have the power to "hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal." And Section 37(a) provides that, "The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office." (Emphasis supplied) Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, were considered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states: "The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters." As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution and now continues to be so because it was created by a special law and has an original charter. As a component of the Civil

CSC vs. Sojor

Service, UP is therefore governed by PD 807 and administrative cases involving the discipline of its employees come under the appellate jurisdiction of the Civil Service Commission .[39](Emphasis supplied) In the more recent case of Camacho v. Gloria,[40] this Court lent credence to the concurrent jurisdiction of the CSC when it affirmed that a case against a university official may be filed either with the university's BOR or directly with the CSC. We quote: Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the USP Board of Regents, was contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by the respondents in forming the investigating committee. The Civil Service Rules embodied in Executive Order 292 recognize the power of the Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either with the university's Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a complaint and for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation.[41] (Emphasis supplied) Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violations of civil service rules against respondent. III. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules. Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Academic freedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admitted to study.[42] Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itself the best methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general public so requires.[43] They have the independence to determine who to accept to study in their school and they cannot be compelled by mandamus to enroll a student.[44] That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified to be within the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. He is facing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interest of the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal.[45] This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts without any statutory basis.[46] For that reason, a school official, who is a member of the civil service, may not be permitted to commit violations of civil service rules under the justification that he was free to do so under the principle of academic freedom. Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr.[47] and Aguinaldo v. Santos[48] are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people.[49] Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals isREVERSED and SET ASIDE. The assailed Resolutions of the Civil Service Commission are REINSTATED. SO ORDERED.

OMB vs. Torres

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 168309 January 29, 2008

OFFICE OF THE OMBUDSMAN, petitioner, vs. MARIAN D. TORRES and MARICAR D. TORRES, respondents. DECISION NACHURA, J.: This is a petition1 for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Office of the Ombudsman seeking the reversal of the Decision2 dated January 6, 2004 and the Resolution3 dated May 27, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 69749. The case arose from an administrative complaint for Dishonesty, Grave Misconduct, and Falsification of Official Document filed before the Office of the Ombudsman (docketed as OMB-ADM-0-00-0926) by then BarangayChairman Romancito L. Santos of Concepcion, Malabon, against Edilberto Torres (Edilberto), Maricar D. Torres (Maricar), and Marian D. Torres (Marian), then Municipal Councilor, Legislative Staff Assistant, and Messenger, respectively, of the Sangguniang Bayan of Malabon. Maricar and Marian are daughters of Edilberto. Maricar was appointed as Legislative Staff Assistant on February 16, 1995, while Marian was appointed as Messenger on May 24, 1996. At the time of their public employment, they were both enrolled as full-time regular college students Maricar, as a full-time student at the University of Santo Tomas (UST) and Marian as a dentistry-proper student at the College of Dentistry of Centro Escolar University. During the period subject of this case, they were able to collect their respective salaries by submitting Daily Time Records (DTR) indicating that they reported for work every working day, from 8:00 a.m. to 5:00 p.m. After due proceedings held in the Office of the Ombudsman, Graft Investigation Officer (GIO) Moreno F. Generoso, in the Decision4 dated November 9, 2001, found Maricar and Marian administratively guilty of Dishonesty and Falsification of Official Document and recommended the imposition of the penalty of dismissal from the service. The charge against Edilberto was dismissed, having become moot and academic in view of his re-election on May 14, 2001 in accordance with the ruling in Aguinaldo v. Santos5 that "a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor." Upon recommendation of Deputy Special Prosecutor Robert E. Kallos, Ombudsman Aniano A. Desierto affirmed the findings of GIO Generoso but tempered the penalty to one (1) year suspension from service without pay. Aggrieved, Maricar and Marian went to the CA via a petition6 for certiorari under Rule 65 of the Rules of Court. In a Decision dated January 6, 2004, the CA granted the petition. While affirming the findings of fact of the Office of the Ombudsman, the CA set aside the finding of administrative guilt against Maricar and Marian ratiocinating in this wise: It is undisputed that petitioners are confidential employees of their father. As such, the task they were required to perform, is upon the instance of their father, and the time they were required to report may be intermittent. To our mind, the false entries they made in their daily time records on the specific dates contained therein, had been made with no malice or deliberate intent so as to constitute falsification. The entries made may not be absolutely false, they may even be considered as having been made with a color of truth, not a downright and

OMB vs. Torres willful falsehood which taken singly constitutes falsification of public documents. As Cuello Calon stated: "La mera inexactud no es bastante para integrar este delito." In the present case, the daily time records have already served their purpose. They have not caused any damage to the government or third person because under the facts obtaining, petitioners may be said to have rendered service in the interest of the public, with proper permission from their superior.
It may be true that a daily time record is an official document. It is not falsified if it does not pervert its avowed purpose as when it does not cause damage to the government. It may be different in the case of a public document with continuing interest affecting the public welfare, which is naturally damaged if that document is falsified when the truth is necessary for the safeguard and protection of that general interest. The keeping and submission of daily time records within the context of petitioners employment, should be taken only for the sake of administrative procedural convenience or as a matter of practice, but not for reason of strict legal obligation. Assuming that petitioners are under strict legal obligation to keep and submit daily time records, still we are disposed to the view that the alleged false entries do not constitute falsification for having been made with no malice or deliberate intent. The following pronouncement in the case of Lecaroz vs. Sandiganbayan may serve as a guidepost, to wit: "[I]f what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. x x x. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of duty or indifference to consequences, which is equivalent to criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence. In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners." As a final note, there may be some suspicions as to the real intention of private complainant in instituting the action before public respondent, caution should be taken to prevent the development of circumstances that might inevitably impair the image of the public office. Private complainant is a government official himself, as such he should avoid so far as reasonably possible, a situation which would normally tend to arouse any reasonable suspicion that he is utilizing his official position for personal gain or advantage to the prejudice of party litigants or the public in general. For "there may be occasion then where the needs of the collectivity that is the government may collide with his private interest as an individual." In closing, it must be borne in mind that the evident purpose of requiring government employees to keep a daily time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work no pay, a daily time record is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done. The integrity of the daily time record as an official document, however, remains untarnished if the damage sought to be prevented has not been produced. The obligation to make entries in the daily time records of employees in the government service is a matter of administrative procedural convenience in the computation of salary for a given period, characteristically, not an outright and strict measure of professional discipline, efficiency, dedication, honesty and competence. The insignificant transgression by petitioners, if ever it is one, would not tilt the scales of justice against them, for courts must always be, as they are, the repositories of fairness and justice.7 Petitioner moved to reconsider the reversal of its Decision by the CA, but the motion was denied in the CA Resolution dated May 27, 2005. Hence, this petition based on the following grounds: I THE FILLING-UP OF ENTRIES IN THE OFFICIAL DAILY TIME RECORDS (DTRs) IS NOT A MATTER OF ADMINISTRATIVE PROCEDURAL CONVENIENCE, BUT RATHER REQUIRED BY CIVIL SERVICE LAW TO ENSURE THAT THE PROPER LENGTH OF WORK-TIME IS OBSERVED BY PUBLIC OFFICIALS AND EMPLOYEES, INCLUDING CONFIDENTIAL EMPLOYEES LIKE HEREIN PRIVATE RESPONDENTS. THE FALSIFICATION OF DTRs WOULD RENDER THE AUTHORS THEREOF ADMINISTRATIVELY LIABLE

OMB vs. Torres FOR DISHONESTY AND GRAVE MISCONDUCT FOR THE DAMAGING FALSE NARRATION AND THE COLLECTION OF FULL COMPENSATION FOR INEXISTENT WORK.
II THE ELEMENT OF DAMAGE TO THE GOVERNMENT IS NOT A REQUISITE FOR ONE TO BE HELD ADMINISTRATIVELY LIABLE FOR DISHONESTY AND MISCONDUCT. ASSUMING IT IS FOR ARGUMENTS SAKE, DAMAGE WAS CAUSED THE GOVERNMENT WHEN PRIVATE RESPONDENTS FALSIFIED THEIR DAILY TIME RECORDS IN ORDER TO COLLECT THEIR SALARIES. III THE ELEMENT OF INTENT OR MALICE APPLIES TO CRIMINAL PROSECUTION, NOT TO AN OFFENSE OF DISHONESTY AND MISCONDUCT.8 Petitioners first submission is that the filling-up of entries in the official DTR is not a matter of administrative procedural convenience but is a requirement by Civil Service Law to ensure that the proper length of work-time is observed by all public officials and employees, including confidential employees such as respondents. It argues that DTRs, being representations of the compensable working hours rendered by a public servant, ensure that the taxpaying public is not shortchanged. To bolster this position, petitioner cited Rule XVII on Government Office Hours of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, to wit: SECTION 1. It shall be the duty of each head of department or agency to require all officers and employees under him to strictly observe the prescribed office hours. When the head of office, in the exercise of discretion allows government officials and employees to leave the office during the office hours and not for official business, but to attend socials/events/functions and/or wakes/interments, the same shall be reflected in their time cards and charged to their leave credits. SEC. 2. Each head of department or agency shall require a daily time record of attendance of all the officers and employees under him including those serving in the field or on the water, to be kept in the proper form and, whenever possible, registered in the bundy clock. Service "in the field" shall refer to service rendered outside the office proper and service "on the water" shall refer to service rendered on board a vessel which is the usual place of work. SEC. 3. Chiefs and Assistant Chiefs of agencies who are appointed by the President, officers who rank higher than these chiefs and assistant chiefs in the three branches of government, and other presidential appointees need not punch in the bundy clock, but attendance and all absences of such officers must be recorded. SEC. 4. Falsification or irregularities in the keeping of time records will render the guilty officer or employee administratively liable without prejudice to criminal prosecution as the circumstances warrant. SEC. 5. Officers and employees of all departments and agencies except those covered by special laws shall render not less than eight hours of work a day for five days a week or a total of forty hours a week, exclusive of time for lunch. As a general rule, such hours shall be from eight oclock in the morning to twelve oclock noon and from one oclock to five oclock in the afternoon on all days except Saturdays, Sundays and Holidays. SEC. 6. Flexible working hours may be allowed subject to the discretion of the head of department or agency. In no case shall the weekly working hours be reduced in the event the department or agency adopts the flexitime schedule in reporting for work. SEC. 7. In the exigency of the service, or when necessary by the nature of the work of a particular agency and upon representations with the Commission by the department heads concerned, requests for the rescheduling or shifting of work schedule of a particular agency for a number of working days less than the required five days may be allowed provided that government officials and employees render a total of forty hours a week and

OMB vs. Torres provided further that the public is assured of core working hours of eight in the morning to five in the afternoon continuously for the duration of the entire workweek.
SEC. 8. Officers and employees who have incurred tardiness and undertime regardless of minutes per day exceeding [at least] ten times a month for two (2) consecutive months or for 2 months in a semester shall be subject to disciplinary action.9 Petitioner posits that, by reason of the above provisions, making false entries in the DTRs should not be treated in a cavalier fashion, but rather with a modicum of sacredness because the DTR mirrors the fundamental maxim of transparency, good governance, public accountability, and integrity in the public service pursuant to the constitutional precept that "public office is a public trust." Consequently, the officer or employee who falsifies time records should incur administrative liability. On its second and third submissions, petitioner assailed the position of the CA that respondents cannot be held guilty of falsification because they did not cause any damage to the government and there was no intent or malice on their part when they made the false entries in their respective DTRs during the questioned period of service. According to petitioner, respondents were not criminally prosecuted for falsification under the Revised Penal Code, but were being held administratively accountable for dishonesty, grave misconduct, and falsification of official documents; thus, the elements of damage and intent or malice are not prerequisites. It further claimed that for this purpose, only substantial evidence is required, and this had been strongly established. Petitioner also argued that, even if the element of damage is mandatory, respondents had caused damage to the government when they received their full salaries for work not actually rendered. In their Comment,10 respondents claimed that the CA correctly dismissed the administrative charges against them as the integrity of their DTRs had remained untarnished and that they acted in good faith in making the entries in their DTRs. They said that the CA clearly elaborated the legal basis for its ruling in their favor. They even argued that the administrative charges lodged by Romancito Santos were based on mere conjectures and conclusions of fact, such that it was not impossible for college students to work eight (8) hours a day and attend classes. They further claimed that petitioner failed to prove that they actually attended their classes which they were enrolled in. Respondents also argued that petitioner erred in not having dismissed outright the administrative charges against them because, at the time the complaint was filed, the charges had already prescribed under Section 20 (5) of Republic Act No. 6770 (The Ombudsman Act of 1989), to wit: (5) The complaint was filed after one year from the occurrence of the act or omission complained of. They said that the acts complained of occurred in 1996 to 1997, while the case was filed only on February 2000, or after the lapse of more or less three (3) years. Respondent Maricar also asseverated that the doctrine laid down in Aguinaldo v. Santos11 should also apply to her considering that she was elected as City Councilor of Malabon City in the 2004 elections. She also claimed that the instant case adversely affected their lives, particularly in her case, for while she graduated from the University of the East College of Law in 2004, she was only able to take the bar examinations in 2005 due to the pendency of the administrative case against her. She also cited the fact that the criminal case involving the same set of facts was dismissed, insinuating that, as a result of this, the administrative case should have likewise been dismissed. The petition is impressed with merit. At the outset, it must be stressed that this is an administrative case for dishonesty, grave misconduct, and falsification of official document. To sustain a finding of administrative culpability only substantial evidence is required, not overwhelming or preponderant, and very much less than proof beyond reasonable doubt as required in criminal cases.12 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The following facts are borne out by the records: (1) Maricar was appointed as Legislative Staff Assistant in the Office of then Councilor of Malabon, Edilberto Torres, on February 16, 1995;13 (2) Marian was appointed as Messenger in the

OMB vs. Torres same office on May 24, 1996;14 (3) at the time of Maricars appointment to and employment in her position (1995-1997), she was a full-time regular college student at UST;15 (4) at the time of Marians appointment and employment as messenger in her fathers office (1996-2000), she was a full-time regular dentistry-proper student at the College of Dentistry of Centro Escolar University;16 (5) during the employment of respondents in government service, they submitted DTRs indicating that they religiously reported for work from 8:00 a.m. to 5:00 p.m. during work days;17 (6) by reason thereof, respondents collected their full salaries during the entire time of their employment in their respective positions;18 and, (7) these all occurred with the full knowledge and consent of their father.19
It is also worthy to note that the factual finding made by petitioner, i.e., that respondents made false entries in their respective DTRs for the period subject of this case, was affirmed by the CA in the assailed Decision dated January 6, 2004.20 On the basis of these established facts, petitioner was correct in holding respondents administratively guilty of dishonesty and falsification of official document. Dishonesty is defined as the "disposition to lie, cheat, deceive, or defraud; untrustworthiness, lack of integrity."21 Falsification of an official document, as an administrative offense, is knowingly making false statements in official or public documents. Both are grave offenses under the Uniform Rules on Administrative Cases in the Civil Service, which carry with it the penalty of dismissal on the first offense.22 Falsification of DTRs amounts to dishonesty.23 The evident purpose of requiring government employees to keep a time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work-no pay, a DTR is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done.24 Respondents claim of good faith, which implies a sincere intent not to do any falsehood or to seek any undue advantage, cannot be believed. This Court pronounced Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individuals personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of ones right, ignorance of a superior claim, and absence of intention to overreach another. x x x25 In this case, respondents knew fully well that the entries they made in their respective DTRs were false considering that it was physically impossible for them to have reported for full work days when during those times they were actually attending their regular classes, which undoubtedly would take up most of the daytime hours of the weekdays. With this knowledge, respondents did not bother to correct the DTR entries to honestly reflect their attendance at their workplace and the actual work they performed. Worse, they repeatedly did this for a long period of time, consequently allowing them to collect their full salaries for the entire duration of their public employment as staff members of their father. Respondents protestations that petitioner failed to prove their actual attendance in their regular classes and thus, suggest that they may not have been attending their classes, is preposterous and incredible, simply because this is not in accord with the natural course of things. The voluminous documentary evidence subpoenaed by petitioner from UST and Centro Escolar University showing the schedule of classes of respondents during the questioned period, along with the certificates of matriculation painstakingly perused by GIO Generoso, strongly militates against this claim. It would be the height of absurdity on the part of respondents to voluntarily enroll in their respective courses, pay school fees, and not attend classes but instead report for work. Even if this was remotely possible, such a situation would be irreconcilable with the respondents having graduated from their respective courses. Without doubt, the scrutiny of the numerous school documents, the DTRs submitted, and the payrolls from the office of the then Municipal Accountant of Malabon overwhelmingly revealed that the classes in which respondents enrolled for several school years were in stark conflict with the time entries in the DTRs, and several payroll sheets showed that respondents collected their full salaries corresponding to the DTR entries. These findings of fact made by petitioner, being supported by substantial evidence, are conclusive;26 more so that the finding of false entries in the DTRs was affirmed by the CA.

OMB vs. Torres Thus, the CA gravely erred when it exonerated respondents from administrative guilt based on the findings of fact of petitioner which it even affirmed. The jurisprudence27 adopted by the appellate court in laying the legal basis for its ruling does not apply to the instant case because said cases pertain to criminal liability for Falsification of Public Document under the Revised Penal Code. The element of damage need not be proved to hold respondents administratively liable.
But it cannot even be said that no damage was suffered by the government. When respondents collected their salaries on the basis of falsified DTRs, they caused injury to the government. The falsification of ones DTR to cover up ones absences or tardiness automatically results in financial losses to the government because it enables the employee concerned to be paid salaries and to earn leave credits for services which were never rendered. Undeniably, the falsification of a DTR foists a fraud involving government funds.28 Likewise, the existence of malice or criminal intent is not a prerequisite to declare the respondents administratively culpable. What is merely required is a showing that they made entries in their respective DTRs knowing fully well that they were false. This was evident in the many documents viewed and reviewed by petitioner through GIO Generoso. On the issue of prescription, we agree with petitioners contention that the Office of the Ombudsman is given by R.A. No. 6770 a wide range of discretion whether or not to proceed with an investigation of administrative offenses even beyond the expiration of one (1) year from the commission of the offense.29 Likewise, the dismissal of the criminal case involving the same set of facts cannot benefit respondents to cause the dismissal of the administrative charges against them. As we held in Tecson v. Sandiganbayan30 -[I]t is a basic principle of the law on public officers that a public official or employee is under a three-fold responsibility for violation of a duty or for a wrongful act or omission. This simply means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the penal and civil liabilities. x x x Hence, there was no impropriety committed by petitioner when it conducted the administrative investigation which led to the finding of guilt against respondents. As regards the applicability of Aguinaldo, our pronouncement therein is clear that condonation of an administrative offense takes place only when the public official is re-elected despite the pendency of an administrative case against him. In the case of Maricar, prior to her election as Councilor of now Malabon City, she held an appointive, not an elective, position, i.e., Legislative Staff Assistant, appointed by her very own father, then Councilor Edilberto Torres. As mentioned above, falsification of a DTR (an official document) amounts to dishonesty. Thus, respondents should be held administratively liable. While dismissal was originally recommended for imposition on respondents, the penalty was eventually tempered to suspension of one (1) year without pay. We agree with the imposition of the lower penalty considering that respondents public employment with the thenSangguniang Bayan of Malabon, even while they were regular college students, was of a confidential character, and the arrangement was with the full knowledge and consent of their father who appointed them to their positions. While this Court recognizes the relative laxity given to confidential employees in terms of adjusted or flexible working hours, substantial non-attendance at work as blatant and glaring as in the case of respondents cannot be countenanced. Collecting full salaries for work practically not rendered is simply, downright reprehensible. Inevitably, this leads to the erosion of the publics faith in and respect for the government. WHEREFORE, the Decision dated January 6, 2004 and the Resolution dated May 27, 2005 of the Court of Appeals are REVERSED and SET ASIDE, and the Decision of the Office of the Ombudsman dated November 9, 2001 is REINSTATED.

OMB vs. Torres SO ORDERED.

Reyes Jr. Vs. Belissario

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 154652 August 14, 2009

PRUDENCIO M. REYES, JR., Petitioner, vs. SIMPLICIO C. BELISARIO and EMMANUEL S. MALICDEM, Respondents. DECISION BRION, J.: This petition for review on certiorari1 challenges the Court of Appeals (CA) decision of November 27, 20012 and resolution of August 1, 20023 that commonly reversed the Office of the Ombudsman Decision of July 19, 2000.4The petitioner imputes error on the CA for entertaining the respondents appeal of the Ombudsmans decision, and for the reversal that followed. He maintains that the Ombudsmans decision was final and unappealable under Section 7, Rule III of the Rules of Procedure of the Office of the Ombudsman (the Ombudsman Rules)5 and the CA should not have entertained it on appeal. THE FACTS The factual antecedents, based on the records before us, are summarized below. On March 3, 2000, respondents Deputy Administrators Simplicio Belisario, Jr. and Emmanuel B. Malicdem6(respondents), along with Daniel Landingin and Rodolfo S. De Jesus, all officers of the Local Water Utilities Administration (LWUA), filed before the Office of the Ombudsman a criminal complaint against LWUA Administrator Prudencio M. Reyes, Jr. (petitioner) for violation of Section 3(e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act. On March 16, 2000, or only 13 days after the filing of the graft charge, the petitioner issued Office Order No. 69 reassigning respondents together with De Jesus from the offices they then held to the Office of the Administrator. Supposedly, the reassigned officers were to act as a core group of a LWUA Task Force and their specific assignments were to be given by petitioner; Officers-in-Charge (OICs) were designated for the offices they vacated. The following day, March 17, 2000 a Friday, the OIC for Administration issued a directive to the Magilas Security Agency to bar the respondents from using the rooms and facilities they occupied prior to their reassignments. On Monday, March 20, 2000, the petitioner, through Office Order No. 82, further directed the respondents to "vacate [their] offices and remove [their] personal belongings and transfer the same to the former PROFUND Office which has been designated as the Office of the Special Task Force." On March 24, 2000, Atty. Arnaldo M. Espinas, LWUA corporate legal counsel, sought the opinion of the Civil Service Commission (CSC) regarding the regularity of the reassignments of respondents and of De Jesus. On March 30, 2000, the petitioner, via Office Order No. 99, directed the respondents to "desist in performing and exercising the functions and activities pertaining to [their] previous positions" and relieved them of their designations or assignments as 6th Member and interim Directors of the Water Districts under their responsibility. To implement this latest Office Order, and in the respondents absence, entry was effected into their respective rooms with the help of police officers; their room locks were replaced with new ones; and their cabinet drawers were sealed with tapes.7

Reyes Jr. Vs. Belissario The CSC responded on April 3, 2000 through a legal opinion (CSC legal opinion) issued by Assistant Commissioner Adelina B. Sarmiento. It categorically ruled that the reassignments were not in order, were tainted with bad faith, and constituted constructive dismissal.8 The legal opinion stated:
Worthy of note is the provision of Section 6a of CSC MC No. 40, s. 1998 which provides that: a. Reassignment movement of an employee from one organizational unit to another in the same department or agency which does not involve a reduction in rank, status or salary. If reassignment is without the consent of the employee being reassigned it shall be allowed only for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal. On the basis thereof, although the reassignment is presumed regular and made in the interest of public service, there is an iota of bad faith attendant to the herein case evidenced by the fact that the reassignment was issued barely ten days after the reassigned officials filed a criminal complaint against the Administrator for violation of the Anti-Graft and Corrupt Practices Act. Moreover, while the reassigned officials used to head their specific departments, being Deputy Administrators at that, their reassignment resulted to a diminution of their respective ranks. To apply the ruling of the Court of Appeals in the Fernandez case to the herein case, it is clear that there was such a diminution in rank because the reassignment order "did not state any justifiable reason for the reassignment, has no specificity as to the time, functions, duties and responsibilities, making it a floating assignment, and removes from their supervision employees who are part of their staff and subordinates." And more importantly, the recent development wherein the reassigned officials were directed to desist from performing and exercising the functions of their respective positions constituted constructive dismissal x x x. x x x (Emphasis supplied.) On April 13, 2000, the respondents filed before the Office of the Ombudsman an administrative complaint9 for Oppression and Harassment against the petitioner and the OICs. The petitioner duly filed a counter-affidavit raising as defense his authority to terminate the respondents employment and forum shopping. The petitioner denied as well that force and intimidation were used in taking over the respondents' offices. The Office of the Ombudsman resolved the administrative case through a decision dated July 19, 2000.10 The Ombudsman desisted from ruling on the validity of the respondents reassignments, acknowledging the primary jurisdiction of the CSC over the issue: The CSC is the central personnel agency of the government and as such it is the Office tasked with the duty of rendering opinions and rulings on all personnel and other civil service matters which shall be binding on all heads of departments, offices and agencies. x x x. Hence, this Office can hardly arrogate unto itself the task of resolving the said issue. As stated by the Supreme Court, the doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. x x x (Emphasis supplied.) but at the same time denied weight to the CSC legal opinion, contending that it was "not a final and categorical ruling" on the validity of the reassignments. On this premise, the Ombudsman declared that the reassignments enjoyed the presumption of regularity and were thus considered valid. For this reason and for lack of evidence of force or intimidation on the part of the petitioner and co-defendant OICs in the implementation of the reassignments, the Ombudsman exonerated the petitioner and his co-defendants and dismissed the administrative case against them. Meanwhile, the CSC en banc rendered Resolution No. 00172911 dated July 26, 2000 fully affirming the CSC opinion earlier given by Asst. Commissioner Sarmiento. By this action, the CSC en banc declared the reassignments invalid, tainted with bad faith, and constitutive of the respondents constructive dismissal. The CSCen banc emphasized that the LWUA Administrator has no authority under the law to issue the questioned reassignment order, and ordered the respondents reinstatement.

Reyes Jr. Vs. Belissario The petitioner responded by filing a motion for reconsideration of CSC Resolution No. 001729 and thus avoided the implementation of the respondents reinstatement.
In the administrative case before the Ombudsman, the respondents moved for the reconsideration of the Ombudsman's 28 July 2000 decision, attaching to their motion a copy of CSC Resolution No. 001729. Nevertheless, the Ombudsman denied the requested reconsideration,12 stressing that CSC Resolution No. 001729 was not yet final in view of the petitioners pending motion for reconsideration. The pertinent part of the Ombudsman resolution of denial reads: While it is true that the CSC en banc thru the aforecited resolution appears to have affirmed the earlier opinion of Assistant Commissioner ADELINA B. SARMIENTO that the reassignment of the complainants by respondent REYES is not in order, the same is not yet final considering the timely filing before the said Commission of a Motion for Reconsideration by respondent REYES on August 29, 2000 x x x. Certainly, this is not the final and categorical ruling which this Office had in mind when it issued the questioned DECISION. (Emphasis supplied.) The same order expressed that under Section 7, Rule III of the Ombudsman Rules, the Ombudsmans July 28, 2000 decision thus affirmed should now be final and unappealable. The CSC en banc denied the petitioner's motion for reconsideration of Resolution No. 001729 through CSC Resolution No. 00234813 dated October 17, 2000, and thus affirmed the illegality of the reassignments and the reassignment order. On October 31, 2000, the respondents challenged the Ombudsman's rulings through a petition for review14 filed with the CA, citing among others the Ombudsmans grave abuse of discretion in issuing its rulings. The CA ruled in the respondents favor in its decision of November 27, 2001 and thus reversed the assailed Ombudsmans July 28, 2000 decision.15 The appellate court observed that the "Ombudsman did not decide the [respondents'] complaint for Harassment and Oppression on its merits, but relied on the non-finality of the Resolution of the Civil Service Commission."16 It also found the Ombudsmans decision incongruous, as the Ombudsman recognized the CSCs jurisdiction to determine the legality of the reassignments, but did not pursue this recognition to its logical end; he simply "ignored the legal premises" when he applied the presumption of regularity to the petitioner's reassignment orders and, on this basis, absolved the petitioner and his co-defendants of the administrative charge. To quote the CA rulings on this regard: [The Ombudsman] was right the first time when it ruled in the assailed Decision that it can "hardly arrogate unto itself the task of resolving the issue" of whether the personnel actions ordered by [the petitioner] against [the respondents] were within the scope of the former's authority. It correctly ruled that the CSC is tasked with the "duty of rendering opinions and rulings on all personnel and other civil service matters." It then ruled that "unless there is a final and categorical ruling of the CSC that the reassignment of the complainants by [petitioner] Administrator Reyes is not valid, the said Order of Reassignment enjoys the presumption of regularity." Unfortunately, however, without pursuing its initial ruling to its logical conclusion, the Ombudsman ultimately ignored the legal premises presented before it and acted to absolve the [petitioner and his co-defendants], thereby sustaining the illegal reassignments of the [complainants], which only the LWUA Board of Trustees as the proper appointing power was authorized to do pursuant to Section 3.1 of Executive Order No. 286, s. 1995. (Emphasis supplied.) The CA likewise declared that the Ombudsmans exoneration of the petitioner could not have become final and unappealable pursuant to Section 7, Rule III of the Ombudsman Rules because it is void for lack of substantial evidentiary basis. Again, to quote the appellate court: [W]e cannot consider the Decision of the Ombudsman as valid. Section 27 of Republic Act 6770 otherwise known as "An Act Providing for the Functional and Structural Organization of the Office of the Ombudsman" provides that findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive.

Reyes Jr. Vs. Belissario However, per our examination of the evidence on hand, the findings of fact and conclusion by the Office of the Ombudsman in the questioned Decision are not supported by substantial evidence, and in fact, havedeviated from the correct ruling it earlier made as to the proper body to determine the validity of the reassignments of petitioners, which is the Civil Service Commission. Consequently such findings are not binding and the decision it rendered has not attained finality. (Emphasis supplied.)
The appellate court denied the petitioners motion for reconsideration in its Resolution17 of August 1, 2002. The petitioner lodged before this Court the present petition for review on certiorari18 on the sole ground that the Ombudsman's July 28, 2000 decision exonerating him of the administrative charge is final and unappealable under the express terms of Section 7, Rule III of the Ombudsman Rules. The petitioner thus argues that the CA erred in taking cognizance of the appeal and in reversing the Ombudsmans decision. The Court's Ruling The Propriety of the Recourse Taken Before the CA The threshold issue in this petition is the procedural question of whether a complainant in an administrative case before the Office of the Ombudsman has the right to appeal a judgment exonerating the respondent from liability. By statute and regulation, a decision of the Ombudsman absolving the respondent of the administrative charge is final and unappealable. Section 7, Rule III of the Ombudsman Rules provides: SECTION 7. Finality of decision. Where the respondent is absolved of the charge, and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him (referring to the respondent) as prescribed in Section 27 of RA 6770. (Emphasis and insertion supplied.) This rule is based on Section 27 of Republic Act No. 677019 (RA No. 6770) or the Ombudsman Act, that in turn states: SECTION 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory. xxx Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary shall be final and unappealable.20 (emphasis supplied). Notably, exoneration is not mentioned in Section 27 as final and unappealable. However, its inclusion is implicit for, as we held in Barata v. Abalos,21 if a sentence of censure, reprimand and a one-month suspension is considered final and unappealable, so should exoneration.22 The clear import of Section 7, Rule III of the Ombudsman Rules is to deny the complainant in an administrative complaint the right to appeal where the Ombudsman has exonerated the respondent of the administrative charge, as in this case. The complainant, therefore, is not entitled to any corrective recourse, whether by motion for reconsideration in the Office of the Ombudsman, or by appeal to the courts, to effect a reversal of the exoneration. Only the respondent is granted the right to appeal but only in case he is found liable and the penalty imposed is higher than public censure, reprimand, one-month suspension or fine a equivalent to one month salary. The absence of any statutory right to appeal the exoneration of the respondent in an administrative case does not mean, however, that the complainant is left with absolutely no remedy. Over and above our statutes is the Constitution whose Section 1, Article VIII empowers the courts of justice to determine whether or not there has been a grave abuse

Reyes Jr. Vs. Belissario of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. This is an overriding authority that cuts across all branches and instrumentalities of government and is implemented through the petition for certiorari that Rule 65 of the Rules of Court provides. A petition for certiorari is appropriate when a tribunal, clothed with judicial or quasi-judicial authority, acted without jurisdiction (i.e., without the appropriate legal power to resolve a case), or in excess of jurisdiction (i.e., although clothed with the appropriate power to resolve a case, it oversteps its authority as determined by law, or that it committed grave abuse of its discretion by acting either outside the contemplation of the law or in a capricious, whimsical, arbitrary or despotic manner equivalent to lack of jurisdiction).23 The Rules of Court and its provisions and jurisprudence on writs of certiorari fully apply to the Office of the Ombudsman as these Rules are suppletory to the Ombudsmans Rules.24 The Rules of Court are also the applicable rules in procedural matters on recourses to the courts and hence, are the rules the parties have to contend with in going to the CA.
In the present case, the respondents did not file a Rule 65 petition for certiorari, and instead filed a petition for review under Rule 43 of the Rules of Court. A Rule 43 petition for review is effectively an appeal to the CA that RA 6770 and the Ombudsman Rules do not allow in an exoneration situation as above discussed. The respondents petition for review, however, addressed the grave abuse of discretion that the Ombudsman committed in exonerating the present petitioner. This appeal to our overriding constitutional duty and the results of our own examination of the petition compel us to exercise our liberality in applying the Rules of Court and to recognize that the recourse made to the CA had the effect of a Rule 65 petition. We consider, therefore, the respondents petition before the CA as properly filed. The Grave Abuse of Discretion a. Effect of Grave Abuse of Discretion We fully support the finding of the CA that grave abuse of discretion attended the Ombudsmans decision. As discussed above, grave abuse of discretion is a circumstance beyond the legal error committed by a decision-making agency or entity in the exercise of its jurisdiction; this circumstance affects even the authority to render judgment. Grave abuse of discretion shares this effect with such grounds as the lack of substantial supporting evidence,25 and the failure to act in contemplation of law,26 among others. In the absence of any authority to take cognizance of a case and to render a decision, any resulting decision is necessarily null and void. In turn, a null decision, by its very nature, cannot become final and can be impugned at any time.27 In the context of the Ombudsman operations, a void decision cannot trigger the application of Section 7, Rule III of the Ombudsman Rules. This is the step-by-step flow that arises from a finding of grave abuse of discretion, in relation with the finality and uappealability of an Ombudsman decision involving the penalties o exoneration, censure, reprimand, and suspension for not more than one month. b. The Grave Abuse of Discretion in the Context of the Case The factual starting point in the consideration of this case is the propriety of the reassignments that the petitioner, as the LWUA Administrator, ordered; this event triggered the dispute that is now before us. The reassignments, alleged to be without legal basis and arbitrary, led to the highhanded implementation that the respondents also complained about, and eventually to the CSC rulings that the respondents were constructively dismissed. They led also to the charge of harassment and oppression filed against the petitioner, which charge the Ombudsman dismissed. This dismissal, found by the CA to be attended by grave abuse of discretion, is the primary factual and legal issue we have to resolve in passing upon the propriety of the actions of the Ombudsman and the CA in the case. As the CSC and Ombudsman cases developed, the validity of the reassignments was the issue presented before CSC; the latter had the authority to declare the reassignments invalid but had no authority to penalize the petitioner for his acts. The character of the petitioners actions, alleged to be harassments and to be oppressive, were brought to the Ombudsman for administrative sanctions against the petitioner; it was the Ombudsman who had the authority to penalize the petitioner for his actions against the respondents.

Reyes Jr. Vs. Belissario Under this clear demarcation, neither the CSC nor the Ombudsman intruded into each others jurisdictional domain and no forum shopping issue could have succeeded because of simultaneous recourses to these agencies. While both entities had to examine and to rule on the same set of facts, they did so for different purposes and for different resulting actions.
The CSC took the graft charges the respondents brought against the petitioner into account, but this was for purposes of looking at the motive behind the reassignments and of viewing the petitioners acts in their totality. The same is true in viewing the manner of the implementation of the reassignments. Largely, however, the CSC based its ruling on a legal point that the LWUA Board, not the LWUA Administrator, can order reassignments. Thus, the CSC ruled that the reassignments constituted constructive dismissal. On the other hand, the Ombudsman, also relying on the events that transpired, should have judged the petitioners actions mainly on the basis of whether they constituted acts of harassment and oppression. In making this determination, the Ombudsman could not have escaped considering the validity of the reassignments made a determination that is primarily and authoritatively for the CSC to make. The charge of harassment and oppression would have no basis if the reassignments were in fact valid as they were alleged to be the main acts of harassment and oppression that drove the commission of the petitioners other similarly-motivated acts. In this sense, the validity of the reassignments must necessarily have to be determined first as a prior question before the full consideration of the existence of harassment or oppression could take place. Stated otherwise, any finding of harassment and oppression, or their absence, rendered without any definitive ruling on the validity of the reassignments would necessarily be premature. The finding would also suffer from the lack of factual and legal bases. We note that the Office of the Ombudsman duly noted in its decision that the CSC has primary jurisdiction over the issue of the reassignments validity, declaring that it "can hardly arrogate unto itself the task of resolving the said issue." This is a correct reading of the law as the CSC is the central personnel agency of the government whose powers extend to all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.28 Constitutionally, the CSC has the power and authority to administer and enforce the constitutional and statutory provisions on the merit system; promulgate policies, standards, and guidelines for the civil service; subject to certain exceptions, approve all appointments, whether original or promotional, to positions in the civil service; hear and decide administrative disciplinary cases instituted directly with it; and perform such other functions that properly belong to a central personnel agency.29Pursuant to these powers, the CSC has the authority to determine the validity of the appointments and movements of civil service personnel. Along the way, however, the Ombudsmans decision diverged from its basic legal premise when it refused to apply the rule it had acknowledged that the CSC is the "administrative body of special competence" to decide on the validity of the reassignments; it refused to accord due respect to the CSC opinion and, later, to the CSC Resolution No. 001729 on the flimsy ground that these were not yet final and conclusive. On the strength of this "non-finality" argument, the Ombudsman proceeded to declare the reassignments presumptively regular and, finding insufficient evidence of force and intimidation in the implementation of the reassignments by the petitioner and the OICs, sustained the invalid reassignments and their complementary acts. The effect, of course, was the exoneration of the petitioner and his codefendants of the administrative charge of oppression and harassment. To the respondents and to the CA as well, the exoneration was attended by grave abuse of discretion. c. Prematurity and Arbitrariness After due consideration reflected in the discussions below, we find the Ombudsmans decision fatally flawed for prematurity and arbitrariness, particularly for its lack of legal and factual bases. As discussed above, a CSC determination of the validity of the reassignments is a ruling that the Ombudsman must consider in reaching its own conclusion on whether the reassignments and their implementation were attended by harassment or oppression. With the CSC rulings duly pleaded, the Ombudsman should have accorded these rulings due respect and recognition. If these rulings had not attained finality because of a properly filed motion for reconsideration, the Ombudsman should have at least waited so that its own ruling on the allegations of harassment and oppression would be grounded on the findings of the governmental agency with the primary authority to resolve the validity of the reassignments.

Reyes Jr. Vs. Belissario An alternative course of action for the Ombudsman to ensure that his decision would have legal and factual bases and would not be tainted with arbitrariness or abuse of discretion, would have been to undertake its own examination of these reassignments from the perspective of harassment and oppression, and to make its own findings on the validity of the petitioners actions. It should have explained in clear terms and on the basis of substantial evidence on record why no harassment or oppression attended the reassigments and their implementation. Given the duly-pleaded CSC rulings, the Office of the Ombudsman should have explained why it did not need the CSCs pronouncements in making its determination, or if needed, why they should not be followed, stating clearly what exactly was wrong with the CSC's reasoning and why, contrary to the CSCs pronouncement, the reassignments were in fact valid and regular.
Unfortunately, no such determination was ever made. Instead, the Office of the Ombudsman simply relied on the presumption of regularity in the performance of duty that it claimed the petitioner enjoyed, and from this premise, ruled that no harassment or oppression transpired in the absence of force or intimidation that attended the implementation of the reassignments. As a general rule, "official acts" enjoy the presumption of regularity, and the presumption may be overthrown only by evidence to the contrary.30 When an act is official, a presumption of regularity exists because of the assumption that the law tells the official what his duties are and that he discharged these duties accordingly. But not all acts of public officers are "official acts," i.e., acts specified by law as an official duty or as a function attached to a public position, and the presumption does not apply when an officials acts are not within the duties specified by law,31 particularly when his acts properly pertain or belong to another entity, agency, or public official. In the present case, the CSC had spoken by way of an en banc resolution, no less, that the petitioner LWUA Administrators reassignment orders were illegal because, by law, the authority to reassign officers and employees of the LWUA lies with the LWUA Board; the LWUA Administrators authority is merely to recommend a reassignment to the Board. For reason of its own, the Office of the Ombudsman disregarded this clear statement of the legal allocation of authority on the matter of reassignments. This omission cannot but have fatal consequences for the Ombudsmans decision, anchored as it is on the presumption that the petitioner regularly performed his duty. For, shorn of any basis in law, the petitioner could not have acted with official authority and no presumption of regularity could have been applied in his behalf. Without a valid presumption of regularity, the major linchpin in the Ombudsmans decision is totally removed and the decision is left with nothing to support itself.
1avv phi1

An administrative decision, in order to be valid, should have, among others, "something to support itself."32 It must supported by substantial evidence, or that amount of relevant evidence adequate and acceptable enough for a reasonable mind to justify a conclusion or support a decision,33 even if other minds equally reasonable might conceivably opine otherwise.34 We note in this regard that the Office of the Ombudsman, other than through its "non-finality" argument, completely failed to explain why the reassignment orders were valid and regular and not oppressive as the respondents alleged. Effectively, it failed to rebut the CSCs declaration that a constructive dismissal took place. This omission is critical because the constructive dismissal conclusion relates back to the filing of graft charges against the petitioner as motive; explains why the respondents were transferred to ad hoc positions with no clear duties; and relates forward to the manner the respondents were ejected from their respective offices. If the Ombudsman made any factual finding at all, the finding was solely on the lack of violence or intimidation in the respondents ejectment from their offices. Violence or intimidation, however, are not the only indicators of harassment and oppression as jurisprudence shows.35 They are not the sole indicators in the context of the Ombudsmans decision because the findings in this regard solely relate to the implementation aspect of the reassignments ordered. We take judicial notice that harassments and oppression do not necessarily come in single isolated acts; they may come in a series of acts that torment, pester, annoy, irritate and disturb another and prejudice him; in the context of this case, the prejudice relates to the respondents work. Thus, a holistic view must be taken to determine if one is being harassed or oppressed by another. In this sense, and given the facts found by the CA, the Ombudsman ruling dwelling solely with the absence of violence and intimidation is a fatally incomplete ruling; it is not a ruling negating harassment and oppression that we can accept under the circumstances of this case. Effectively, it was an arbitrary ruling for lack of substantial support in evidence.

Reyes Jr. Vs. Belissario The other end of the spectrum in viewing the reassignments and its related events, is the position the CSC and the CA have taken. The appellate court stated in its own decision:
We likewise agree with the Civil Service Commission that respondent Administrator acted in bad faith in reassigning the petitioners barely ten (10) days after the latter filed their complaint against him for violation of the Anti-Graft and Corrupt Practices Act. No reassignment shall be undertaken if done whimsically because the law is not intended as a convenient shield for the appointing/disciplining authority to harass or suppress a subordinate on the pretext of advancing and promoting public interest (Section 6, Rule III of Civil Service Commission Memorandum Circular No. 40. S. 1998). Additionally, the reassignments involved a reduction in rank as petitioners were consigned to a "floating assignment with no specificity as to functions, duties, and responsibilities" resulting in the removal from their supervision over their regular staff, subordinates, and even offices. Finally, the subsequent Order of respondent Administrator directing petitioners to desist from performing and exercising the functions of their respective positions constituted constructive dismissal. We hold that, based on the evidence presented, respondent Administrator is guilty of harassment and oppression as charged, penalized as grave offense under Executive Order No. 292 (Civil Service Law), section 22 (n) with suspension for six (6) months and one (1) day to one (1) year." We fully agree that the reassignments the petitioner ordered were done in bad faith amounting to constructive dismissal and abuse of authority. We affirm as well the CAs ruling finding that petitioner should be liable for oppression against the respondents. d. The Appropriate Penalty Oppression is characterized as a grave offense under Sec. 52(A)(14)36 of the Uniform Rules on Administrative Cases in the Civil Service37 and Sec. 22(n)38 of the Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws,39 penalized with suspension of 6 months and 1 day to 1 year on the first offense.
1avv phi 1

Considering that the oppression found was not a simple one, but was in response to the respondents filing of an antigraft complaint against the petitioner, the penalty we should impose should reflect the graft-related origin of this case and should be in the maximum degree. Consequently, we modify the CA decision by increasing the penalty to suspension for one (1) year, in lieu of the six (6) months and one (1) day that the appellate court imposed. If the petitioner is no longer in the service, then the suspension should automatically take the form of a fine equivalent to the petitioners one-year salary at the time of his separation from the service. WHEREFORE, the petition is DENIED. We AFFIRM the Court of Appeals Decision and Resolution dated November 27, 2001 and August 1, 2002, respectively, with the MODIFICATION that the penalty imposed is suspension of one (1) year, or, alternatively, a fine equivalent to one-year salary if the petitioner has been separated from the service at the time of the finality of this Decision. Costs against the petitioner. SO ORDERED.

OMB vs CA

SECOND DIVISION

[G.R. No. 146486. March 4, 2005]

OFFICE OF THE OMBUDSMAN, petitioner, vs. HONORABLE COURT OF APPEALS AND FORMER DEPUTY OMBUDSMAN FOR THE VISAYAS ARTURO C. MOJICA, respondents. DECISION
CHICO-NAZARIO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65 of the Decision[1] of the Court of Appeals of 18 December 2000 in CA-G.R. SP No. 58460 entitled, Arturo C. Mojica, Deputy Ombudsman for the Visayas v. Ombudsman Aniano Desierto, Over-all Deputy Ombudsman Margarito Gervacio, Jr. and the Committee of Peers composed of Deputy Ombudsman Jesus F. Guerrero, Deputy Ombudsman Rolando Casimiro and Special Prosecutor Leonardo P. Tamayo. The case had its inception on 29 December 1999, when twenty-two officials and employees of the Office of the Deputy Ombudsman (OMB) for the Visayas, led by its two directors, filed a formal complaint[2] with the Office of the Ombudsman requesting an investigation on the basis of allegations that then Deputy Ombudsman for the Visayas, herein private respondent Arturo Mojica, committed the following:
1. Sexual harassment against Rayvi Padua-Varona; 2. Mulcting money from confidential employees James Alueta and Eden Kiamco; and 3. Oppression against all employees in not releasing the P7,200.00 benefits of OMB-Visayas employees on the date the said amount was due for release.

The complainants further requested that an officer-in-charge from the OMB-Manila be appointed to manage their office to prevent the Deputy Ombudsman from harassing witnesses and wielding his influence over them. To underscore the seriousness of their intentions, they threatened to go on a mass leave of absence, and in fact took their cause to the media.[3] The subsequent events, as stated by the Ombudsman and adopted by the Court of Appeals, [4] are as follows: The Ombudsman immediately proceeded to the OMB-Visayas office in Cebu City to personally deal with the office rebellion. Reaching Cebu, the Ombudsman was informed by Petitioner that Petitioner wanted to proceed to Manila, apparently because of his alienation and the fear for reprisal from his alleged lady victims husbands. Petitioner in fact already had a ticket for the plane leaving two hours later that day. The Ombudsman assented to the quick movement to Manila for Petitioners safety and the interest of the Offices operations. Subsequently, the Ombudsman installed Assistant Ombudsman Nicanor J. Cruz as the Officer-in-Charge of OMB-Visayas. Acting on the formal complaint against petitioner, the Ombudsman directed his Fact-Finding and Intelligence Bureau (FFIB) to conduct a verification and fact-finding investigation on the matter. The

OMB vs CA

FFIB, later in its Report, found the evidence against Petitioner strong on the charges of acts of extortion, sexual harassment and oppression. The FFIB report was referred by the Ombudsman to a constituted Committee of Peers composed of the Deputy Ombudsman for Luzon, The Special Prosecutor and the Deputy Ombudsman for the Military. The Committee of Peers initially recommended that the investigation be converted into one solely for purposes of impeachment. However, this recommendation was denied by the Ombudsman after careful study, and following the established stand of the Office of the Ombudsman that the Deputy Ombudsmen and The Special Prosecutor are not removable through impeachment. As succintly (sic) stated by the Ombudsman in his Memorandum dated March 27, 2000 (in reiteration of the March 13, 2000 Order of Overall Deputy Ombudsman) Acting on your query as to whether or not the Ombudsman confirms or affirms the disapproval by Overall Deputy Ombudsman Margarito P. Gervacio, Jr., of your recommendation to conduct instead an investigation of the complaint against Deputy Ombudsman Arturo C. Mojica solely for the purpose of impeachment, I hereby confirm the action of disapproval. xxx Moreover, as demonstrated in many previous cases against Deputy Ombudsman Arturo C. Mojica, Deputy Ombudsman Manuel B. Casaclang, Deputy Ombudsman Jesus F. Guerrero, Special Prosecutor Leonardo P. Tamayo and former Overall Deputy Ombudsman Francisco A. Villa, the official position of the Office is that the Constitution, R.A. 6770 and the Supreme Court in Zaldivar vs. Gonzales, G.R. No. 80578, 19 May 1988, exclude the Deputy Ombudsman and the Special Prosecutor from the list of impeachable officials and the Jarque case involves Ombudsman Aniano A. Desierto as respondent, hence, the mention therein of the Deputy Ombudsmen is merely an obiter dictum. Two of your present members in fact participated in the investigation of the previous Mojica cases and thereafter recommended the dismissal thereof for lack of merit. In the same Memorandum, the Ombudsman directed the Committee of Peers to evaluate the merits of the case and if warranted by evidence, to conduct administrative and criminal investigation(s) immediately thereafter. Upon evaluation, the Committee recommended the docketing of the complaint as criminal and administrative cases. The Committee of Peers Evaluation dated 30 March 2000, stated as follows: On the basis of the foregoing facts, duly supported with sworn-statements executed by all concerned parties, the undersigned members of the COP find sufficient cause to warrant the conduct of preliminary investigation and administrative adjudication against Deputy Ombudsman Arturo C. Mojica for the following criminal and administrative offenses, namely: I. CRIMINAL Violation of Section 3, paragraph[s] (b) and (e) of R.A. 3019 (Anti-Graft and Corrupt Practices Act); Violation of R.A. 7877 (Anti-Sexual Harassment Act of 1995), II. ADMINISTRATIVE a. Dishonesty

OMB vs CA

b. c. d. e.

Grave Misconduct Oppression Conduct grossly prejudicial to the best interest of the service Directly or indirectly having financial and material interest in any transaction requiring the approval of his Office; (Section 22, paragraphs (A), (C), (N), (T) and (U), Rule XIV of Executive Order No. 292, otherwise known as the Administrative Code of 1987.)

Accordingly, let the instant case be docketed separately, one for the criminal case and another for the administrative case covering all the offenses specified above and, thereafter, a formal investigation be simultaneously and jointly conducted by the Committee of Peers, pursuant to Administrative Order No. 7. Accordingly, on 6 April 2000, the Committee of Peers (COP) directed the herein private respondent Mojica in OMB-0-00-0615 entitled, Padua-Varona v. Mojica, for violation of Republic Act No. 7877 (AntiSexual Harassment Act of 1995) and Sec. 3, par. (b) and (c) of Rep. Act No. 3019 (Anti-Graft and Corrupt Practices Act) to submit his controverting evidence. On 10 April 2000, the complainants in OMB-0-00-0615 filed a Motion to Place Respondent Under Preventive Suspension,[5] claiming that the offenses for which private respondent Mojica was charged warranted removal from office, the evidence against him was strong, and that Mojicas co ntinued stay in office would prejudice the case, as he was harassing some witnesses and complainants to recant or otherwise desist from pursuing the case. On the same date, the Ombudsman issued a Memorandum[6] to the COP, directing them to conduct administrative proceedings in OMB-ADM-0-00-0316 entitled,OMB Visayas Employees v. Mojica (for dishonesty, grave misconduct, oppression, conduct grossly prejudicial to the best interest of the service, and directly or indirectly having financial and material interest in any transaction requiring the approval of his office), and submit a recommendation on the propriety of putting Mojica under preventive suspension. Subsequently, the COP issued an Order[7] in OMB-ADM-0-00-0316 finding prima facie evidence against Mojica and requiring him to submit an answer to the above-mentioned offenses within ten days, as well as his counter-affidavit and supporting evidence.[8] Aggrieved, the private respondent filed a petition[9] for Certiorari before the Court of Appeals praying that a resolution be issued: 1. . . . issuing a Temporary Restraining Order (TRO) upon the filing of the petition to enjoin and restrain the respondents, (the Ombudsman, the Over-all Deputy Ombudsman, the Committee of Peers, and the Special Prosecutor) their agents and representatives, from suspending the petitioner (herein private respondent Mojica); 2. thereafter, converting said TRO into a Writ of Preliminary Injunction; 3. after hearing, a decision be rendered declaring the following acts of the Ombudsman null and void ab initio:

OMB vs CA

a.

detailing and assigning indefinitely the petitioner to OMB-Manila in a [special] capacity, thus effectively demoting/suspending petitioner, and preventing him from preparing his defense; authorizing or directing the docketing of the complaints against the petitioner, which is equivalent to authorizing the filing of the administrative and/or criminal cases against the petitioner, who is an impeachable official;

b.

c. denying the request of petitioner for leave of absence, which acts were done without lawful authority, in a malevolent and oppressive manner and without jurisdiction. On 04 May 2000, the Court of Appeals resolved to grant the prayer for Temporary Restraining Order and required the Ombudsman to comment and show cause why no writ of preliminary injunction should be issued, which reads in part: Meanwhile, to maintain the status quo and in order to forestall the petition at bench from becoming moot and academic, and considering that upon examination of the records we believe that there is an urgent need for the issuance of a temporary restraining order to prevent great and irreparable injury that would result to herein petitioner before the matter could be heard on notice, the herein respondents, their agents and representatives acting for and in their behalf or under their authority, are hereby enjoined and restrained from proceeding with the hearing of the Motion to Place Respondent Under Preventive Suspension dated April 10, 2000, which hearing is set on May 9, 2000 at 2:00 oclock in the afternoon and/or from conducting any further proceedings relative to the suspension from (o)ffice of the herein petitioner until further order and/or notice from this Court.[10] Nevertheless, on 6 June 2000, the COP issued an Order[11] in both OMB-0-00-0615 and OMB-ADM0-00-0316 to the effect that having failed to submit the required counter-affidavits despite the lapse of seventeen days from the expiration of the extended reglementary period for filing the same, respondent Mojica was deemed to have waived his right to present his evidence. The COP thus deemed both criminal and administrative cases submitted for resolution on the basis of the evidence on record. Thus, on 13 June 2000, the private respondent thus filed an urgent motion [12] before the Court of Appeals to enjoin the Ombudsman from taking any action whatsoever in the criminal and administrative cases aforementioned. The following day, the private respondent filed another urgent motion, this time praying that the Court of Appeals issue an order requiring the Ombudsman to show cause why it should not be cited for contempt for failing to conform with the 4 May 2000 Resolution of the Court of Appeals. On 20 June 2000, the Court of Appeals directed[13] the Ombudsman to comment on the above pleadings, and to comply with the formers Temporary Restraining Order of 4 May 2000. The parties subsequently exchanged various pleadings that culminated in a Resolution [14] by the Court of Appeals on 5 July 2000 that, among other things, directed the issuance of a writ of preliminary injunction enjoining all therein respondents from taking any action whatsoever in cases No. OMB-0-000615 (criminal) and No. OMB-ADM-0-00-0316 (administrative) against Mojica, and deemed the instant petition submitted for resolution on the merits upon the submission of the comment or explanation on the appellate courts show cause Resolution of 20 June 2000. Meanwhile, on 19 June 2000, the Office of the Deputy Ombudsman for the Military directed the private respondent Mojica ostensibly to answer a different set of charges for violation of Art. 266 and Sec. 3(e) of Rep. Act No. 3019 (OMB-00-0-1050) and for grave misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service[15] (OMB-ADM-0-00-0506). Feeling that this was merely an attempt at circumventing the directives of the Court of Appeals, Mojica filed an urgent motion

OMB vs CA

before the Court of Appeals for respondents to show cause again why they should not be cited for contempt. By way of opposition, the Ombudsman pointed out that the writ of preliminary injunction issued by the appellate court was against any action taken in cases No. OMB-0-00-0615 and No. OMB-ADM-0-000316, and not against any new cases filed against the private respondent thereafter. The Ombudsman further pointed out that since Mojicas term of office had already expired as of 6 July 2000, the private respondent could no longer invoke his alleged immunity from suit. On 14 August 2000, the Office of the Deputy Ombudsman for the Military issued an order deeming that cases No. OMB-0-00-1050 and No. OMB-ADM-0-00-0506 had been deemed submitted for resolution on the basis of the evidence at hand. On 17 August 2000, the private respondent filed an urgent motion for the immediate issuance of an order enjoining the Ombudsman from taking any further action whatsoever in OMB-ADM-0-00-0506 and OMB-0-00-1050.[16] On 18 December 2000, despite the expiration of private respondent Mojicas term of office, the Court of Appeals nevertheless rendered the assailed Decision[17] on the grounds of public interest. In essence, the appellate court held that although the 1987 Constitution, the deliberations thereon, and the commentaries of noted jurists, all indicate that a Deputy Ombudsman is not an impeachable official, it was nevertheless constrained to hold otherwise on the basis of this Courts past rulings. Thus, the dispositive portion thereof reads: WHEREFORE, in view of the foregoing, the order of the Committee of Peers in its Evaluation dated March 30, 2000 directing the docketing separately of the criminal case as well as the administrative case against the petitioner is hereby SET ASIDE and DECLARED NULL AND VOID. Accordingly, the complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316, respectively, filed against the petitioner are hereby DISMISSED. All acts or orders of the Ombudsman, the Overall Deputy Ombudsman and the Committee of Peers, subjecting the petitioner [herein private respondent] to criminal and administrative investigations, or pursuant to such investigations, are likewise hereby DECLARED INVALID.[18] Thereupon, on 15 January 2001, the Office of the Ombudsman filed before this Court a petition f or review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, and alternatively, an original special civil action for certiorari under Sec. 1, Rule 65 of the same rules, of the above decision, on the following grounds: I THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN ERRONEOUSLY RULING THAT PRIVATE RESPONDENT, AS THEN DEPUTY OMBUDSMAN FOR THE VISAYAS, IS AN IMPEACHABLE OFFICIAL, CONSIDERING THAT THE PLAIN TEXT OF SEC. 2, ART. XI OF THE 1987 CONSTITUTION, AS WELL AS THE INTENT OF THE FRAMERS THEREOF, EXCLUDES A DEPUTY OMBUDSMAN FROM THE LIST OF IMPEACHABLE OFFICIALS. II THE PRINCIPLE OF STARE DECISIS ET NON QUIETA MOVERE MAY NOT BE INVOKED TO PERPETUATE AN ERRONEOUS OBITER DICTUM.

OMB vs CA

III THE HONORABLE COURT OF APPEALS HAS NO JURISDICTION TO ORDER THE DISMISSAL OF A CRIMINAL CASE AGAINST A RETIRED DEPUTY OMBUDSMAN, WHICH IS STILL PENDING PRELIMINARY INVESTIGATION BEFORE PETITIONER OMBUDSMAN.[19] At the outset, it bears noting that instead of assailing the Court of Appeals Decision solely by petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, petitioner lodged the present petition alternatively as an original special civil action for certiorari under Sec. 1, Rule 65 of the same rules. It is settled that the appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil action under Rule 65 of the 1997 Rules of Civil Procedure. Rule 45 is clear that the decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceeding involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. Under Rule 45, the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of motion for reconsideration.[20] The records show that following the petitioners receipt on 5 January 2001 of a copy the Court of Appeals Decision, it filed the present petition on 16 January 2001, well within the reglementary period so indicated. We go now into the substantive aspect of this case, where we are presented an attack upon a prior interpretation of Article XI, Sec. 2 in relation to Article XI, Sec. 8 of our Constitution. The interpretation in question first appears in Cuenco v. Fernan,[21] a disbarment case against then Associate Justice Marcelo Fernan filed by Atty. Miguel Cuenco, a former member of the House of Representatives, where we held in part: There is another reason why the complaint for disbarment here must be dismissed. Members of the Supreme Court must, under Article VIII (7)(1) of the Constitution, be members of the Philippine Bar and may be removed from office only by impeachment (Article XI [2], Constitution). To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI (2) of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2], id.), a majority of the members of the Commission on Elections (Article IX [C] [1] [1] in relation to Article XI [2], id.), and the members of the Commission on Audit who are not certified public accountants (Article XI [D] [1] [1], id.), all of whom are constitutionally required to be members of the Philippine Bar. (Emphasis supplied.) Barely two months later, we issued another Resolution in In Re: Raul M. Gonzales,[22] concerning the same charges for disbarment brought against Justice Fernan, wherein we cited the above ruling to underscore the principle involved in the case, that [a] public officer who under the Constitution is required to be a member of the Philippine Bar as a qualification for the office held by him and who may be removed from office only by impeachment, cannot be charged with disbarment during the incumbency of such public officer.[23] In 1995, we subsequently anchored our Resolution in Jarque v. Desierto,[24] a disbarment case against then Ombudsman Aniano Desierto, on the above ruling, adding that:

OMB vs CA

. . . [T]he court is not here saying that the Ombudsman and other constitutional officers who are required by the Constitution to be members of the Philippine Bar and are remova[ble] only by impeachment, are immunized from liability possibly for criminal acts or for violation of the Code of Professional Responsibility or other claimed misbehavior. What the Court is saying is that there is here a fundamental procedural requirement which must be observed before such liability may be determined and enforced. The Ombudsman or his deputies must first be removed from office via the constitutional route of impeachment under Sections 2 and 3 of Article XI of the 1987 Constitution. Should the tenure of the Ombudsman be thus terminated by impeachment, he may then be held to answer either criminally or administratively e.g., in disbarment proceedings for any wrong or misbehavior which may be proven against him in appropriate proceedings. (Emphasis supplied) Finally, in Lastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella,[25] the Court, citing its Resolution in Jarque v. Desierto,[26]dismissed, in a minute resolution, the complaint for disbarment against the herein private respondent Mojica in his capacity as Deputy Ombudsman for the Visayas, stating that: Anent the complaint for disbarment against respondent Arturo C. Mojica in his capacity as Deputy Ombudsman for Visayas, suffice it to state that a public officer whose membership in the Philippine Bar is a qualification for the office held by him and removable only by impeachment cannot be charged with disbarment during his membership (In Re: Raul M. Gonzales, 160 SCRA 771, 774 [1988]; Cuenco vs. Fernan, 158 SCRA 29, 40 [1988]). And we have held in the case of Jarque vs. Desierto(A.C. No. 4509, En Banc Resolution December 5, 1995), that the Ombudsman or his deputies must first be removed from office via impeachment before they may be held to answer for any wrong or misbehavior which may be proven against them in disbarment proceedings. The above Resolution was subsequently made the basis of the appellate courts assailed Decision of 18 December 2000. Thus, in holding that a Deputy Ombudsman is an impeachable officer, the appellate court stated that it had to defer to the loftier principle of adherence to judicial precedents, otherwise known as the doctrine of Stare Decisis.... necessary for the uniformity and continuity of the law and also to give stability to society.[27] Nevertheless, the court a quo took pains to point out that the 1987 Constitution, the deliberations thereon, and the opinions of constitutional law experts all indicate that the Deputy Ombudsman is not an impeachable officer. Is the Deputy Ombudsman, then, an impeachable officer? Section 2, Article XI of the 1987 Constitution, states that: Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. To determine whether or not the Ombudsman therein mentioned refers to a person or to an office, reference was made by the appellate court to the Records of the Constitutional Commission, as well as to the opinions of leading commentators in constitutional law. Thus: . . . It appears that the members of the Constitutional Commission have made reference only to the Ombudsman as impeachable, excluding his deputies. The pertinent portions of the record read, to wit:

OMB vs CA

... MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform his duties because he is something like a guardian of the government. This recalls the statement of Juvenal that while the Ombudsman is the guardian of the people, Quis custodiet ipsos custodies, who will guard the guardians? I understand here that the Ombudsman who has the rank of a chairman of a constitutional commission is also removable only by impeachment. MR. ROMULO. MR. REGALADO. MR. MONSOD. That is the intention, Madam President. Only the Ombudsman? Only the Ombudsman.

MR. REGALADO. So not his deputies, because I am concerned with the phrase have the rank of. We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and read our discussions into the Record for purposes of the Commission and the Committee. MR. ROMULO. Yes. If I may just comment: the Ombudsman in this provision is a rank in itself really. That is how we look at it. But for purposes of government classification and salary, we thought we have to give him a recognizable or an existing rank as a point of reference more than anything else. MR. REGALADO. Yes, but my concern is whether or not he is removable only by impeachment, because Section 2 enumerates the impeachable officials, and it does not mention public officers with the rank of constitutional commissioners. MR. ROMULO. But we do mention them as the Ombudsman is mentioned in that enumeration. We used the word Ombudsman because we would like it to be his title; we do not want him called Chairman or Justice. We want him called Ombudsman. ... (Records of the 1986 Constitutional Commission, Vol. II, July 26, 1986, pp. 273-274) MR. DAVIDE. I will not insist. On lines 13 and 14, I move for the deletion of the words and the Ombudsman. The Ombudsman should not be placed on the level of the President and the Vice-President, the members of the judiciary and the members of the Constitutional Commissions in the matter of removal from office. MR. MONSOD. Madam President. THE PRESIDENT. Commissioner Monsod is recognized.

OMB vs CA

MR. MONSOD. We regret we cannot accept the amendment because we feel that the Ombudsman is at least on the same level as the Constitutional Commissioners and this is one way of insulating it from politics. MR. DAVIDE. Madam President, to make the members of the Ombudsman removable only by impeachment would be to enshrine and install an officer whose functions are not as delicate as the others whom we wanted to protect from immediate removal by way of an impeachment. MR. MONSOD. We feel that an officer in the Ombudsman, if he does his work well, could be stepping on a lot of toes. We would really prefer to keep him there but we would like the body to vote on it, although I would like to ask if we still have a quorum, Madam President. THE PRESIDENT. Do we have a quorum? There are members who are in the lounge. The Secretary-General and the pages conduct an actual count of the Commissioners present. THE PRESIDENT. We have a quorum. MR. MONSOD. May we restate the proposed amendment for the benefit of those who were not here a few minutes ago. MR. DE LOS REYES. Madam President, parliamentary inquiry. I thought that amendment was already covered in the amendment of Commissioner Rodrigo. One of those amendments proposed by Commissioner Rodrigo was to delete the word Ombudsman and, therefore, we have already voted on it. MR. DAVIDE. Madam President, may I comment on that. THE PRESIDENT. Yes, the Gentleman may proceed. MR. DAVIDE. The proposed amendment of Commissioner Rodrigo was the total deletion of the Office of the Ombudsman and all sections relating to it. It was rejected by the body and, therefore, we can have individual amendments now on the particular sections. THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the Ombudsman among those officials who have to be removed from office only on impeachment. Is that right? MR. DAVIDE. Yes, Madam President. MR. RODRIGO. Before we vote on the amendment, may I ask a question? THE PRESIDENT. Commissioner Rodrigo is recognized. MR. RODRIGO. The Ombudsman, is this only one man? MR. DAVIDE. Only one man.

OMB vs CA

MR. RODRIGO. Not including his deputies. MR. MONSOD. No. ... (Ibid., p. 305, emphasis supplied)

Moreover, this Court has likewise taken into account the commentaries of the leading legal luminaries on the Constitution as to their opinion on whether or not the Deputy Ombudsman is impeachable. All of them agree in unison that the impeachable officers enumerated in Section 2, Article XI of the 1986 Constitution is exclusive. In their belief, only the Ombudsman, not his deputies, is impeachable. Foremost among them is the erudite Justice Isagani A. Cruz (ret.), who opined: The impeachable officers are the President of the Philippines, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. (see Art. XI, Sec. 2) The list is exclusive and may not be increased or reduced by legislative enactment. The power to impeach is essentially a non-legislative prerogative and can be exercised by the Congress only within the limits of the authority conferred upon it by the Constitution. This authority may not be expanded by the grantee itself even if motivated by the desire to strengthen the security of tenure of other officials of the government. It is now provided by decree (see P.D. No. 1606) that justices of the Sandiganbayan may be removed only through process of impeachment, the purpose evidently being to withdraw them from the removal power of the Supreme Court. This prohibition is of dubious constitutionality. In the first place, the list of impeachable officers is covered by the maxim expressio unius est exclusio alterius. Secondly, Article VIII, Section 11, of the Constitution states that all judges of inferior courts and this would include the Sandiganbayan are under the disciplinary power of the Supreme Court and may be removed by it. This view is bolstered by the last sentence of Article XI, Section 2, which runs in full as follows: Sec. 2. The President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. (Cruz, Isagani A., Philippine Political Law, 1996 ed., pp. 333-334) Equally worth noting is the opinion of no less than Rev. Fr. Joaquin G. Bernas, S.J., himself who was a member of the Constitutional Commission which drafted the 1987 Constitution, (who) asserted: Q. A. Is the list of officers subject to impeachment found in Section 2 exclusive? As presently worded, yes.

(Bernas, Joaquin G., S.J., The 1987 Philippine Constitution, A Reviewer-Primer, 1997 ed., p. 401)

OMB vs CA

Last but certainly not the least is the equally erudite Representative Antonio B. Nachura himself, who, as a professor of law, commented that the enumeration of impeachable officers in Section 2, Article XI of the 1987 Constitution, is exclusive. (Nachura, Antonio B., Outline/Reviewer in Political Law, 1998 ed., p. 192)[28] From the foregoing, it is immediately apparent that, as enumerated in Sec. 2 of Article XI of the 1987 Constitution, only the following are impeachable officers: the President, the Vice President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman. [29] How then to explain our earlier pronouncement in Cuenco v. Fernan, as later cited in In Re: Raul M. Gonzales, Jarque v. Desierto and Lastimosa-Dalawampu v. Dep. Ombudsman Mojica and Graft Investigator Labella? By way of reiteration, said Resolution reads in part: . . . To grant a complaint for disbarment of a Member of the Court during the Members incumbency, would in effect be to circumvent and hence to run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment for and conviction of certain offenses listed in Article XI [2] of the Constitution. Precisely the same situation exists in respect of the Ombudsman and his deputies (Article XI [8] in relation to Article XI [2]), . . . all of whom are constitutionally required to be members of the Philippine Bar.[30] (Emphasis supplied) In cross-referencing Sec. 2, which is an enumeration of impeachable officers, with Sec. 8, which lists the qualifications of the Ombudsman and his deputies, the intention was to indicate, by way of obiter dictum, that as with members of this Court, the officers so enumerated were also constitutionally required to be members of the bar. A dictum is an opinion that does not embody the resolution or determination of the court, and made without argument, or full consideration of the point. Mere dicta are not binding under the doctrine of stare decisis.[31] The legal maxim "stare decisis et non quieta movere" (follow past precedents and do not disturb what has been settled) states that where the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue.[32] The succeeding cases of In Re: Raul M. Gonzales and Jarque v. Desierto do not tackle the impeachability of a Deputy Ombudsman either. Nor, for that matter, doesLastimosa-Dalawampu v. Deputy Ombudsman Mojica and Graft Investigator Labella, which, as previously mentioned, is a minute resolution dismissing a complaint for disbarment against the herein private respondent on the basis of the questioned obiter in Cuenco v. Fernan and the succeeding cases without going into the merits. Thus, where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the previous case is not stare decisis of the question presented.[33] As to whether or not the private respondent, then Deputy Ombudsman for the Visayas, may be held criminally and/or administratively liable, we likewise resolve the issue in favor of the petitioner. The rule that an impeachable officer cannot be criminally prosecuted for the same offenses which constitute grounds for impeachment presupposes his continuance in office. [34] Hence, the moment he is no longer in office because of his removal, resignation, or permanent disability, there can be no bar to his criminal prosecution in the courts.[35] Nor does retirement bar an administrative investigation from proceeding against the private respondent, given that, as pointed out by the pet itioner, the formers retirement benefits have been

OMB vs CA

placed on hold in view of the provisions of Sections 12[36] and 13[37] of the Anti-Graft and Corrupt Practices Act. WHEREFORE, the Order of the Court of Appeals dated 18 December 2000 is hereby REVERSED and SET ASIDE. The complaints in Criminal Case No. OMB-0-00-0615 and Administrative Case No. OMB-ADM-0-00-0316 are hereby REINSTATED and the Office of the Ombudsman is ordered to proceed with the investigation relative to the above cases. SO ORDERED.

Gutierrez vs HRCJ
Republic of the Philippines SUPREME COURT Manila G.R. No. 193459 February 15, 2011

MA. MERCEDITAS N. GUTIERREZ Petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS), Respondents. FELICIANO BELMONTE, JR., Respondent-Intervenor. DECISION CARPIO MORALES, J.: The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via petition for certiorari and prohibition the Resolutions of September 1 and 7, 2010 of the House of Representatives Committee on Justice (public respondent). Before the 15th Congress opened its first session on July 26, 2010 (the fourth Monday of July, in accordance with Section 15, Article VI of the Constitution) or on July 22, 2010, private respondents Risa Hontiveros-Baraquel, Danilo Lim, and spouses Felipe and Evelyn Pestao (Baraquel group) filed an impeachment complaint1 against petitioner, upon the endorsement of Party-List Representatives Arlene Bag-ao and Walden Bello.2 A day after the opening of the 15th Congress or on July 27, 2010, Atty. Marilyn Barua-Yap, Secretary General of the House of Representatives, transmitted the impeachment complaint to House Speaker Feliciano Belmonte, Jr.3who, by Memorandum of August 2, 2010, directed the Committee on Rules to include it in the Order of Business.4 On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon (Reyes group) filed another impeachment complaint5 against petitioner with a resolution of endorsement by Party-List Representatives Neri Javier Colmenares, Teodoro Casio, Rafael Mariano, Luzviminda Ilagan, Antonio Tinio and Emerenciana de Jesus.6 On even date, the House of Representatives provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress. By letter still of even date,7 the Secretary General transmitted the Reyes groups complaint to Speaker Belmonte who, by Memorandum of August 9, 2010,8 also directed the Committee on Rules to include it in the Order of Business. On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the Committee on Rules,9instructed Atty. Artemio Adasa, Jr., Deputy Secretary General for Operations, through Atty. Cesar Pareja, Executive Director of the Plenary Affairs Department, to include the two complaints in the Order of Business,10which was complied with by their inclusion in the Order of Business for the following day, August 11, 2010. On August 11, 2010 at 4:47 p.m., during its plenary session, the House of Representatives simultaneouslyreferred both complaints to public respondent.11 After hearing, public respondent, by Resolution of September 1, 2010, found both complaints sufficient in form, which complaints it considered to have been referred to it at exactly the same time. Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was published on September 2, 2010.

Gutierrez vs HRCJ On September 6, 2010, petitioner tried to file a motion to reconsider the September 1, 2010 Resolution of public respondent. Public respondent refused to accept the motion, however, for prematurity; instead, it advised petitioner to await the notice for her to file an answer to the complaints, drawing petitioner to furnish copies of her motion to each of the 55 members of public respondent.
After hearing, public respondent, by Resolution of September 7, 2010, found the two complaints, which both allege culpable violation of the Constitution and betrayal of public trust,12 sufficient in substance. The determination of the sufficiency of substance of the complaints by public respondent, which assumed hypothetically the truth of their allegations, hinged on the issue of whether valid judgment to impeach could be rendered thereon. Petitioner was served also on September 7, 2010 a notice directing her to file an answer to the complaints within 10 days.13 Six days following her receipt of the notice to file answer or on September 13, 2010, petitioner filed with this Court the present petition with application for injunctive reliefs. The following day or on September 14, 2010, the Court En Banc RESOLVED to direct the issuance of a status quo ante order14 and to require respondents to comment on the petition in 10 days. The Court subsequently, by Resolution of September 21, 2010, directed the Office of the Solicitor General (OSG) to file in 10 days its Comment on the petition The Baraquel group which filed the first complaint, the Reyes group which filed the second complaint, and public respondent (through the OSG and private counsel) filed their respective Comments on September 27, 29 and 30, 2010. Speaker Belmonte filed a Motion for Leave to Intervene dated October 4, 2010 which the Court granted by Resolution of October 5, 2010. Under an Advisory15 issued by the Court, oral arguments were conducted on October 5 and 12, 2010, followed by petitioners filing of a Consolidated Reply of October 15, 2010 and the filing by the parties of Memoranda within the given 15-day period. The petition is harangued by procedural objections which the Court shall first resolve. Respondents raise the impropriety of the remedies of certiorari and prohibition. They argue that public respondent was not exercising any judicial, quasi-judicial or ministerial function in taking cognizance of the two impeachment complaints as it was exercising a political act that is discretionary in nature,16 and that its function is inquisitorial that is akin to a preliminary investigation.17 These same arguments were raised in Francisco, Jr. v. House of Representatives.18 The argument that impeachment proceedings are beyond the reach of judicial review was debunked in this wise: The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride."

Gutierrez vs HRCJ But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,"judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review.
xxxx There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Taada v. Angara, in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Taada v. Cuenco, it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.19 (citations omitted; italics in the original; underscoring supplied) Francisco characterizes the power of judicial review as a duty which, as the expanded certiorari jurisdiction20 of this Court reflects, includes the power to "determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."21 In the present case, petitioner invokes the Courts expanded certiorari jurisdiction, using the special civil actions of certiorari and prohibition as procedural vehicles. The Court finds it well-within its power to determine whether public respondent committed a violation of the Constitution or gravely abused its discretion in the exercise of its functions and prerogatives that could translate as lack or excess of jurisdiction, which would require corrective measures from the Court. Indubitably, the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will.22 Respondents do not seriously contest all the essential requisites for the exercise of judicial review, as they only assert that the petition is premature and not yet ripe for adjudication since petitioner has at her disposal a plain, speedy and adequate remedy in the course of the proceedings before public respondent. Public respondent argues that when petitioner filed the present petition23 on September 13, 2010, it had not gone beyond the determination of the sufficiency of form and substance of the two complaints. An aspect of the "case-or-controversy" requirement is the requisite of ripeness.24 The question of ripeness is especially relevant in light of the direct, adverse effect on an individual by the challenged conduct.25 In the present petition, there is no doubt that questions on, inter alia, the validity of the simultaneous referral of the two complaints and on the need to publish as a mode of promulgating the Rules of Procedure in Impeachment Proceedings of the House (Impeachment Rules) present constitutional vagaries which call for immediate interpretation.

Gutierrez vs HRCJ The unusual act of simultaneously referring to public respondent two impeachment complaints presents a novel situation to invoke judicial power. Petitioner cannot thus be considered to have acted prematurely when she took the cue from the constitutional limitation that only one impeachment proceeding should be initiated against an impeachable officer within a period of one year.
And so the Court proceeds to resolve the substantive issue whether public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its two assailed Resolutions. Petitioner basically anchors her claim on alleged violation of the due process clause (Art. III, Sec. 1) and of the one-year bar provision (Art. XI, Sec 3, par. 5) of the Constitution. Due process of law Petitioner alleges that public respondents chairperson, Representative Niel Tupas, Jr. (Rep. Tupas), is the subject of an investigation she is conducting, while his father, former Iloilo Governor Niel Tupas, Sr., had been charged by her with violation of the Anti-Graft and Corrupt Practices Act before the Sandiganbayan. To petitioner, the actions taken by her office against Rep. Tupas and his father influenced the proceedings taken by public respondent in such a way that bias and vindictiveness played a big part in arriving at the finding of sufficiency of form and substance of the complaints against her. The Court finds petitioners allegations of bias and vindictiveness bereft of merit, there being hardly any indication thereof. Mere suspicion of partiality does not suffice.26 The act of the head of a collegial body cannot be considered as that of the entire body itself. So GMCR, Inc. v. Bell Telecommunications Phils.27 teaches: First. We hereby declare that the NTC is a collegial body requiring a majority vote out of the three members of the commission in order to validly decide a case or any incident therein. Corollarily, the vote alone of the chairman of the commission, as in this case, the vote of Commissioner Kintanar, absent the required concurring vote coming from the rest of the membership of the commission to at least arrive at a majority decision, is not sufficient to legally render an NTC order, resolution or decision. Simply put, Commissioner Kintanar is not the National Telecommunications Commission. He alone does not speak and in behalf of the NTC. The NTC acts through a three-man body x x x. 28 In the present case, Rep. Tupas, public respondent informs, did not, in fact, vote and merely presided over the proceedings when it decided on the sufficiency of form and substance of the complaints.29 Even petitioners counsel conceded during the oral arguments that there are no grounds to compel the inhibition of Rep. Tupas. JUSTICE CUEVAS: Well, the Committee is headed by a gentleman who happened to be a respondent in the charges that the Ombudsman filed. In addition to that[,] his father was likewise a respondent in another case. How can he be expected to act with impartiality, in fairness and in accordance with law under that matter, he is only human we grant him that benefit. JUSTICE MORALES: Is he a one-man committee? JUSTICE CUEVAS: He is not a one-man committee, Your Honor, but he decides. JUSTICE MORALES:

Gutierrez vs HRCJ Do we presume good faith or we presume bad faith?

JUSTICE CUEVAS: We presume that he is acting in good faith, Your Honor, but then (interrupted) JUSTICE MORALES: So, that he was found liable for violation of the Anti Graft and Corrupt Practices Act, does that mean that your client will be deprived of due process of law? JUSTICE CUEVAS: No, what we are stating, Your Honor, is that expectation of a client goes with the Ombudsman, which goes with the element of due process is the lack of impartiality that may be expected of him. JUSTICE MORALES: But as you admitted the Committee is not a one-man committee? JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: So, why do you say then that there is a lack of impartiality? JUSTICE CUEVAS: Because if anything before anything goes (sic) he is the presiding officer of the committee as in this case there were objections relative to the existence of the implementing rules not heard, there was objection made by Congressman Golez to the effect that this may give rise to a constitutional crisis. JUSTICE MORALES: That called for a voluntary inhibition. Is there any law or rule you can cite which makes it mandatory for the chair of the committee to inhibit given that he had previously been found liable for violation of a law[?] JUSTICE CUEVAS: There is nothing, Your Honor. In our jurisprudence which deals with the situation whereby with that background as the material or pertinent antecedent that there could be no violation of the right of the petitioner to due process. What is the effect of notice, hearing if the judgment cannot come from an impartial adjudicator.30 (emphasis and underscoring supplied) Petitioner contends that the "indecent and precipitate haste" of public respondent in finding the two complaints sufficient in form and substance is a clear indication of bias, she pointing out that it only took public respondent five minutes to arrive thereat.
lawphi1

An abbreviated pace in the conduct of proceedings is not per se an indication of bias, however. So Santos-Concio v. Department of Justice31 holds:

Gutierrez vs HRCJ Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers undue haste. The orderly administration of justice remains as the paramount and constant consideration, with particular regard of the circumstances peculiar to each case.
The presumption of regularity includes the public officers official actuations in all phases of work. Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panels initial task cannot be relegated as shoddy or shady without discounting the presumably regular performance of not just one but five state prosecutors.32 (italics in the original; emphasis and underscoring supplied) Petitioner goes on to contend that her participation in the determination of sufficiency of form and substance was indispensable. As mandated by the Impeachment Rules, however, and as, in fact, conceded by petitioners counsel, the participation of the impeachable officer starts with the filing of an answer. JUSTICE MORALES: Is it not that the Committee should first determine that there is sufficiency in form and substance before she is asked to file her answer (interrupted) JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: During which she can raise any defenses she can assail the regularity of the proceedings and related irregularities? JUSTICE CUEVAS: Yes. We are in total conformity and in full accord with that statement, Your Honor, because it is only after a determination that the complaint is sufficient in form and substance that a complaint may be filed, Your Honor, without that but it may be asked, how is not your action premature, Your Honor, our answer is- no, because of the other violations involved and that is (interrupted).33 (emphasis and underscoring supplied) Rule III(A) of the Impeachment Rules of the 15th Congress reflects the impeachment procedure at the Committee-level, particularly Section 534 which denotes that petitioners initial participation in the impeachment proceedings the opportunity to file an Answer starts after the Committee on Justice finds the complaint sufficient in form and substance. That the Committee refused to accept petitioners motion for reconsideration from its finding of sufficiency of form of the impeachment complaints is apposite, conformably with the Impeachment Rules. Petitioner further claims that public respondent failed to ascertain the sufficiency of form and substance of the complaints on the basis of the standards set by the Constitution and its own Impeachment Rules.35 The claim fails. The determination of sufficiency of form and substance of an impeachment complaint is an exponent of the express constitutional grant of rule-making powers of the House of Representatives which committed such determinative function to public respondent. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to the form and substance of an impeachment complaint. Prudential considerations behoove the Court to respect the compliance by the House of its duty to effectively carry out the constitutional purpose, absent any contravention of the minimum constitutional guidelines. Contrary to petitioners position that the Impeachment Rules do not provide for comprehensible standards in determining the sufficiency of form and substance, the Impeachment Rules are clear in echoing the constitutional

Gutierrez vs HRCJ requirements and providing that there must be a "verified complaint or resolution,"36 and that the substance requirement is met if there is "a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee."37
Notatu dignum is the fact that it is only in the Impeachment Rules where a determination of sufficiency of form and substance of an impeachment complaint is made necessary. This requirement is not explicitly found in the organic law, as Section 3(2), Article XI of the Constitution basically merely requires a "hearing."38 In the discharge of its constitutional duty, the House deemed that a finding of sufficiency of form and substance in an impeachment complaint is vital "to effectively carry out" the impeachment process, hence, such additional requirement in the Impeachment Rules. Petitioner urges the Court to look into the narration of facts constitutive of the offenses vis--vis her submissions disclaiming the allegations in the complaints. This the Court cannot do. Francisco instructs that this issue would "require the Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislature. Such an intent is clear from the deliberations of the Constitutional Commission. x x x x Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power[.]"39 Worse, petitioner urges the Court to make a preliminary assessment of certain grounds raised, upon a hypothetical admission of the facts alleged in the complaints, which involve matters of defense. In another vein, petitioner, pursuing her claim of denial of due process, questions the lack of or, more accurately, delay in the publication of the Impeachment Rules. To recall, days after the 15th Congress opened on July 26, 2010 or on August 3, 2010, public respondent provisionally adopted the Impeachment Rules of the 14th Congress and thereafter published on September 2, 2010 its Impeachment Rules, admittedly substantially identical with that of the 14th Congress, in two newspapers of general circulation.40 Citing Taada v. Tuvera,41 petitioner contends that she was deprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after public respondent ruled on the sufficiency of form of the complaints. She likewise tacks her contention on Section 3(8), Article XI of the Constitution which directs that "Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Public respondent counters that "promulgation" in this case refers to "the publication of rules in any medium of information, not necessarily in the Official Gazette or newspaper of general circulation."42 Differentiating Neri v. Senate Committee on Accountability of Public Officers and Investigations43 which held that the Constitution categorically requires publication of the rules of procedure in legislative inquiries, public respondent explains that the Impeachment Rules is intended to merely enable Congress to effectively carry outthe purpose of Section 3(8), Art. XI of Constitution. Blacks Law Dictionary broadly defines promulgate as To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of court. An administrative order that is given to cause an agency law or regulation to become known or obligatory.44 (emphasis supplied) While "promulgation" would seem synonymous to "publication," there is a statutory difference in their usage. The Constitution notably uses the word "promulgate" 12 times.45 A number of those instances involves the promulgation of various rules, reports and issuances emanating from Congress, this Court, the Office of the Ombudsman as well as other constitutional offices.

Gutierrez vs HRCJ To appreciate the statutory difference in the usage of the terms "promulgate" and "publish," the case of the Judiciary is in point. In promulgating rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the Court has invariably required the publication of these rules for their effectivity. As far as promulgation of judgments is concerned, however, promulgation means "the delivery of the decision to the clerk of court for filing and publication."46
Section 4, Article VII of the Constitution contains a similar provision directing Congress to "promulgate its rules for the canvassing of the certificates" in the presidential and vice presidential elections. Notably, when Congress approved its canvassing rules for the May 14, 2010 national elections on May 25, 2010,47 it did not require the publication thereof for its effectivity. Rather, Congress made the canvassing rules effective upon its adoption. In the case of administrative agencies, "promulgation" and "publication" likewise take on different meanings as they are part of a multi-stage procedure in quasi-legislation. As detailed in one case,48 the publication of implementing rules occurs after their promulgation or adoption. Promulgation must thus be used in the context in which it is generally understoodthat is, to make known. Generalia verba sunt generaliter inteligencia. What is generally spoken shall be generally understood. Between the restricted sense and the general meaning of a word, the general must prevail unless it was clearly intended that the restricted sense was to be used.49 Since the Constitutional Commission did not restrict "promulgation" to "publication," the former should be understood to have been used in its general sense. It is within the discretion of Congress to determine on how to promulgate its Impeachment Rules, in much the same way that the Judiciary is permitted to determine that to promulgate a decision means to deliver the decision to the clerk of court for filing and publication. It is not for this Court to tell a co-equal branch of government how to promulgate when the Constitution itself has not prescribed a specific method of promulgation. The Court is in no position to dictate a mode of promulgation beyond the dictates of the Constitution. Publication in the Official Gazette or a newspaper of general circulation is but one avenue for Congress to make known its rules. Jurisprudence emphatically teaches that x x x in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. In the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to implement them, before the courts may intervene.50 (italics in the original; emphasis and underscoring supplied; citations omitted) Had the Constitution intended to have the Impeachment Rules published, it could have stated so as categorically as it did in the case of the rules of procedure in legislative inquiries, per Neri. Other than "promulgate," there is no other single formal term in the English language to appropriately refer to an issuance without need of it being published. IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the Constitution where there is a categorical directive to duly publish a set of rules of procedure. Significantly notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on the 1987 Constitutions directive, without any reliance on or reference to the 1986 case of Taada v. Tuvera.51 Taada naturally could neither have interpreted a forthcoming 1987 Constitution nor had kept a tight rein on the Constitutions intentions as expressed through the allowance of either a categorical term or a general sense of making known the issuances. From the deliberations of the Constitutional Commission, then Commissioner, now retired Associate Justice Florenz Regalado intended Section 3(8), Article XI to be the vehicle for the House to fill the gaps in the impeachment process.

Gutierrez vs HRCJ MR. REGALADO. Mr. Presiding Officer, I have decided to put in an additional section because, for instance, under Section 3 (2), there is mention of indorsing a verified complaint for impeachment by any citizen alleging ultimate facts constituting a ground or grounds for impeachment. In other words, it is just like a provision in the rules of court. Instead, I propose that this procedural requirement, like indorsement of a complaint by a citizen to avoid harassment or crank complaints, could very well be taken up in a new section 4 which shall read as follows: THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSES THEREOF. I think all these other procedural requirements could be taken care of by the Rules of Congress.52 (emphasis and underscoring supplied)
The discussion clearly rejects the notion that the impeachment provisions are not self-executing. Section 3(8) does not, in any circumstance, operate to suspend the entire impeachment mechanism which the Constitutional Commission took pains in designing even its details. As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.53 (emphasis and underscoring supplied) Even assuming arguendo that publication is required, lack of it does not nullify the proceedings taken prior to the effectivity of the Impeachment Rules which faithfully comply with the relevant self-executing provisions of the Constitution. Otherwise, in cases where impeachment complaints are filed at the start of each Congress, the mandated periods under Section 3, Article XI of the Constitution would already run or even lapse while awaiting the expiration of the 15-day period of publication prior to the effectivity of the Impeachment Rules. In effect, the House would already violate the Constitution for its inaction on the impeachment complaints pending the completion of the publication requirement. Given that the Constitution itself states that any promulgation of the rules on impeachment is aimed at "effectively carry[ing] out the purpose" of impeachment proceedings, the Court finds no grave abuse of discretion when the House deemed it proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to meet the exigency in such situation of early filing and in keeping with the "effective" implementation of the "purpose" of the impeachment provisions. In other words, the provisional adoption of the previous Congress Impeachment Rules is within the power of the House to promulgate its rules on impeachment to effectively carry out the avowed purpose. Moreover, the rules on impeachment, as contemplated by the framers of the Constitution, merely aid or supplement the procedural aspects of impeachment. Being procedural in nature, they may be given retroactive application to pending actions. "It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable. The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws."54 In the present case, petitioner fails to allege any impairment of vested rights. It bears stressing that, unlike the process of inquiry in aid of legislation where the rights of witnesses are involved, impeachment is primarily for the protection of the people as a body politic, and not for the punishment of the offender.55 Even Neri concedes that the unpublished rules of legislative inquiries were not considered null and void in its entirety. Rather,

Gutierrez vs HRCJ x x x [o]nly those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective.56 (emphasis and underscoring supplied)
Petitioner in fact does not deny that she was fully apprised of the proper procedure. She even availed of and invoked certain provisions57 of the Impeachment Rules when she, on September 7, 2010, filed the motion for reconsideration and later filed the present petition. The Court thus finds no violation of the due process clause. The one-year bar rule Article XI, Section 3, paragraph (5) of the Constitution reads: "No impeachment proceedings shall be initiatedagainst the same official more than once within a period of one year." Petitioner reckons the start of the one-year bar from the filing of the first impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. She posits that within one year from July 22, 2010, no second impeachment complaint may be accepted and referred to public respondent. On the other hand, public respondent, respondent Reyes group and respondent-intervenor submit that the initiation starts with the filing of the impeachment complaint and ends with the referral to the Committee, followingFrancisco, but venture to alternatively proffer that the initiation ends somewhere between the conclusion of the Committee Report and the transmittal of the Articles of Impeachment to the Senate. Respondent Baraquel group, meanwhile, essentially maintains that under either the prevailing doctrine or the parties interpretation, its impeachment complaint could withstand constitutional scrutiny. Contrary to petitioners asseveration, Francisco58 states that the term "initiate" means to file the complaint andtake initial action on it.59 The initiation starts with the filing of the complaint which must be accompanied with an action to set the complaint moving. It refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. The initial action taken by the House on the complaint is the referral of the complaint to the Committee on Justice. Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that "no second verified impeachment may be accepted and referred to the Committee on Justice for action"60 which contemplates a situation where a first impeachment complaint had already been referred. Bernas and Regalado, who both acted as amici curiae inFrancisco, affirmed that the act of initiating includes the act of taking initial action on the complaint. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third61 of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.62 (emphasis and underscoring supplied) The Court, in Francisco, thus found that the assailed provisions of the 12th Congress Rules of Procedure in Impeachment Proceedings Sections 1663 and 1764 of Rule V thereof "clearly contravene Section 3(5) of Article XI since they g[a]ve the term initiate a meaning different from filing and referral."65 Petitioner highlights certain portions of Francisco which delve on the relevant records of the Constitutional Commission, particularly Commissioner Maambongs statements66 that the initiation starts with the filing of the complaint. Petitioner fails to consider the verb "starts" as the operative word. Commissioner Maambong was all too keen to stress that the filing of the complaint indeed starts the initiation and that the Houses action on the committee report/resolution is not part of that initiation phase.

Gutierrez vs HRCJ Commissioner Maambong saw the need "to be very technical about this,"67 for certain exchanges in the Constitutional Commission deliberations loosely used the term, as shown in the following exchanges.
MR. DAVIDE. That is for conviction, but not for initiation. Initiation of impeachment proceedings still requires a vote of one-fifth of the membership of the House under the 1935 Constitution. MR. MONSOD. A two-thirds vote of the membership of the House is required to initiate proceedings. MR. DAVIDE. No. for initiation of impeachment proceedings, only one-fifth vote of the membership of the House is required; for conviction, a two-thirds vote of the membership is required. xxxx MR. DAVIDE. However, if we allow one-fifth of the membership of the legislature to overturn a report of the committee, we have here Section 3 (4) which reads: No impeachment proceedings shall be initiated against the same official more than once within a period of one year. So, necessarily, under this particular subsection, we will, in effect, disallow one-fifth of the members of the National Assembly to revive an impeachment move by an individual or an ordinary Member. MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the possibility of a very liberal impeachment proceeding. Second, we were ourselves struggling with that problem where we are faced with just a verified complaint rather than the signatures of one-fifth, or whatever it is we decide, of the Members of the House. So whether to put a period for the Committee to report, whether we should not allow the Committee to overrule a mere verified complaint, are some of the questions we would like to be discussed. MR. DAVIDE. We can probably overrule a rejection by the Committee by providing that it can be overturned by, say, one-half or a majority, or one-fifth of the members of the legislature, and that such overturning will not amount to a refiling which is prohibited under Section 3 (4). Another point, Madam President. x x x68 (emphasis and underscoring supplied) An apparent effort to clarify the term "initiate" was made by Commissioner Teodulo Natividad: MR. NATIVIDAD. How many votes are needed to initiate? MR. BENGZON. One-third. MR. NATIVIDAD. To initiate is different from to impeach; to impeach is different from to convict. To impeach means to file the case before the Senate. MR. REGALADO. When we speak of "initiative," we refer here to the Articles of Impeachment. MR. NATIVIDAD. So, that is the impeachment itself, because when we impeach, we are charging him with the Articles of Impeachment. That is my understanding.69 (emphasis and underscoring supplied) Capping these above-quoted discussions was the explanation of Commissioner Maambong delivered on at least two occasions: [I] MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of

Gutierrez vs HRCJ the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging the words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. Thank you, Mr. Presiding Officer.70 (italics in the original; emphasis and underscoring supplied) [II] MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only with keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of its provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of impeachment OF the committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified complaint of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.71 (emphasis and underscoring supplied) To the next logical question of what ends or completes the initiation, Commissioners Bernas and Regalado lucidly explained that the filing of the complaint must be accompanied by the referral to the Committee on Justice, which is the action that sets the complaint moving. Francisco cannot be any clearer in pointing out the material dates. Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period.72 (emphasis, italics and underscoring supplied)

Gutierrez vs HRCJ These clear pronouncements notwithstanding, petitioner posits that the date of referral was considered irrelevant in Francisco. She submits that referral could not be the reckoning point of initiation because "something prior to that had already been done,"73 apparently citing Bernas discussion.
The Court cannot countenance any attempt at obscurantism. What the cited discussion was rejecting was the view that the Houses action on the committee report initiates the impeachment proceedings. It did not state that to determine the initiating step, absolutely nothing prior to it must be done. Following petitioners line of reasoning, the verification of the complaint or the endorsement by a member of the House steps done prior to the filing would already initiate the impeachment proceedings. Contrary to petitioners emphasis on impeachment complaint, what the Constitution mentions is impeachment "proceedings." Her reliance on the singular tense of the word "complaint"74 to denote the limit prescribed by the Constitution goes against the basic rule of statutory construction that a word covers its enlarged and plural sense.75 The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding. With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time. What is important is that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle. A restrictive interpretation renders the impeachment mechanism both illusive and illusory. For one, it puts premium on senseless haste. Petitioners stance suggests that whoever files the first impeachment complaint exclusively gets the attention of Congress which sets in motion an exceptional once-a-year mechanism wherein government resources are devoted. A prospective complainant, regardless of ill motives or best intentions, can wittingly or unwittingly desecrate the entire process by the expediency of submitting a haphazard complaint out of sheer hope to be the first in line. It also puts to naught the effort of other prospective complainants who, after diligently gathering evidence first to buttress the case, would be barred days or even hours later from filing an impeachment complaint. Placing an exceedingly narrow gateway to the avenue of impeachment proceedings turns its laudable purpose into a laughable matter. One needs only to be an early bird even without seriously intending to catch the worm, when the process is precisely intended to effectively weed out "worms" in high offices which could otherwise be ably caught by other prompt birds within the ultra-limited season. Moreover, the first-to-file scheme places undue strain on the part of the actual complainants, injured party or principal witnesses who, by mere happenstance of an almost always unforeseeable filing of a first impeachment complaint, would be brushed aside and restricted from directly participating in the impeachment process. Further, prospective complainants, along with their counsel and members of the House of Representatives who sign, endorse and file subsequent impeachment complaints against the same impeachable officer run the risk of violating the Constitution since they would have already initiated a second impeachment proceeding within the same year. Virtually anybody can initiate a second or third impeachment proceeding by the mere filing of endorsed impeachment complaints. Without any public notice that could charge them with knowledge, even members of the House of Representatives could not readily ascertain whether no other impeachment complaint has been filed at the time of committing their endorsement. The question as to who should administer or pronounce that an impeachment proceeding has been initiated rests also on the body that administers the proceedings prior to the impeachment trial. As gathered from Commissioner Bernas disquisition76 in Francisco, a proceeding which "takes place not in the Senate but in the House"77precedes the bringing of an impeachment case to the Senate. In fact, petitioner concedes that the initiation of impeachment proceedings is within the sole and absolute control of the House of Representatives.78 Conscious of the legal import of each step, the House, in taking charge of its own proceedings, must deliberately decide to initiate an impeachment proceeding,

Gutierrez vs HRCJ subject to the time frame and other limitations imposed by the Constitution. This chamber of Congress alone, not its officers or members or any private individual, should own up to its processes.
The Constitution did not place the power of the "final say" on the lips of the House Secretary General who would otherwise be calling the shots in forwarding or freezing any impeachment complaint. Referral of the complaint to the proper committee is not done by the House Speaker alone either, which explains why there is a need to include it in the Order of Business of the House. It is the House of Representatives, in public plenary session, which has the power to set its own chamber into special operation by referring the complaint or to otherwise guard against the initiation of a second impeachment proceeding by rejecting a patently unconstitutional complaint. Under the Rules of the House, a motion to refer is not among those motions that shall be decided without debate, but any debate thereon is only made subject to the five-minute rule.79 Moreover, it is common parliamentary practice that a motion to refer a matter or question to a committee may be debated upon, not as to the merits thereof, but only as to the propriety of the referral.80 With respect to complaints for impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired, lest it becomes instrumental in perpetrating a constitutionally prohibited second impeachment proceeding. Far from being mechanical, before the referral stage, a period of deliberation is afforded the House, as the Constitution, in fact, grants a maximum of three session days within which to make the proper referral. As mentioned, one limitation imposed on the House in initiating an impeachment proceeding deals with deadlines. The Constitution states that "[a] verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter." In the present case, petitioner failed to establish grave abuse of discretion on the allegedly "belated" referral of the first impeachment complaint filed by the Baraquel group. For while the said complaint was filed on July 22, 2010, there was yet then no session in Congress. It was only four days later or on July 26, 2010 that the 15th Congress opened from which date the 10-day session period started to run. When, by Memorandum of August 2, 2010, Speaker Belmonte directed the Committee on Rules to include the complaint in its Order of Business, it was well within the said 10-day session period.81 There is no evident point in rushing at closing the door the moment an impeachment complaint is filed. Depriving the people (recall that impeachment is primarily for the protection of the people as a body politic) of reasonable access to the limited political vent simply prolongs the agony and frustrates the collective rage of an entire citizenry whose trust has been betrayed by an impeachable officer. It shortchanges the promise of reasonable opportunity to remove an impeachable officer through the mechanism enshrined in the Constitution. But neither does the Court find merit in respondents alternative contention that the initiation of the impeachment proceedings, which sets into motion the one-year bar, should include or await, at the earliest, the Committee on Justice report. To public respondent, the reckoning point of initiation should refer to the disposition of the complaint by the vote of at least one-third (1/3) of all the members of the House.82 To the Reyes group, initiation means the act of transmitting the Articles of Impeachment to the Senate.83 To respondent-intervenor, it should last until the Committee on Justices recommendation to the House plenary.84 The Court, in Francisco, rejected a parallel thesis in which a related proposition was inputed in the therein assailed provisions of the Impeachment Rules of the 12th Congress. The present case involving an impeachment proceeding against the Ombudsman offers no cogent reason for the Court to deviate from what was settled inFrancisco that dealt with the impeachment proceeding against the then Chief Justice. To change the reckoning point of initiation on no other basis but to accommodate the socio-political considerations of respondents does not sit well in a court of law. x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the

Gutierrez vs HRCJ necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.85 As pointed out in Francisco, the impeachment proceeding is not initiated "when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is theinitiating step which triggers the series of steps that follow."86 Allowing an expansive construction of the term "initiate" beyond the act of referral allows the unmitigated influx of successive complaints, each having their own respective 60-session-day period of disposition from referral. Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a resolution for impeachment or the overriding87 of a contrary resolution (as espoused by public respondent), or the House transmits the Articles of Impeachment (as advocated by the Reyes group),88or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation (as posited by respondent-intervenor). Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed one-year bar. Opening the floodgates too loosely would disrupt the series of steps operating in unison under one proceeding. The Court does not lose sight of the salutary reason of confining only one impeachment proceeding in a year. Petitioner concededly cites Justice Adolfo Azcunas separate opinion that concurred with the Francisco ruling.89Justice Azcuna stated that the purpose of the one-year bar is two-fold: "to prevent undue or too frequentharassment; and 2) to allow the legislature to do its principal task [of] legislation," with main reference to the records of the Constitutional Commission, that reads: MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that.90 (underscoring supplied) It becomes clear that the consideration behind the intended limitation refers to the element of time, and not the number of complaints. The impeachable officer should defend himself in only one impeachment proceeding, so that he will not be precluded from performing his official functions and duties. Similarly, Congress should run only one impeachment proceeding so as not to leave it with little time to attend to its main work of law-making. The doctrine laid down in Francisco that initiation means filing and referral remains congruent to the rationale of the constitutional provision. Petitioner complains that an impeachable officer may be subjected to harassment by the filing of multiple impeachment complaints during the intervening period of a maximum of 13 session days between the date of the filing of the first impeachment complaint to the date of referral. As pointed out during the oral arguments91 by the counsel for respondent-intervenor, the framework of privilege and layers of protection for an impeachable officer abound. The requirements or restrictions of a one-year bar, a single proceeding, verification of complaint, endorsement by a House member, and a finding of sufficiency of form and substance all these must be met before bothering a respondent to answer already weigh heavily in favor of an impeachable officer. Aside from the probability of an early referral and the improbability of inclusion in the agenda of a complaint filed on the 11th hour (owing to pre-agenda standard operating procedure), the number of complaints may still be filtered or

Gutierrez vs HRCJ reduced to nil after the Committee decides once and for all on the sufficiency of form and substance. Besides, if only to douse petitioners fear, a complaint will not last the primary stage if it does not have the stated preliminary requisites.
To petitioner, disturbance of her performance of official duties and the deleterious effects of bad publicity are enough oppression. Petitioners claim is based on the premise that the exertion of time, energy and other resources runs directly proportional to the number of complaints filed. This is non sequitur. What the Constitution assures an impeachable officer is not freedom from arduous effort to defend oneself, which depends on the qualitative assessment of the charges and evidence and not on the quantitative aspect of complaints or offenses. In considering the side of the impeachable officers, the Constitution does not promise an absolutely smooth ride for them, especially if the charges entail genuine and grave issues. The framers of the Constitution did not concern themselves with the media tolerance level or internal disposition of an impeachable officer when they deliberated on the impairment of performance of official functions. The measure of protection afforded by the Constitution is that if the impeachable officer is made to undergo such ride, he or she should be made to traverse it just once. Similarly, if Congress is called upon to operate itself as a vehicle, it should do so just once. There is no repeat ride for one full year. This is the whole import of the constitutional safeguard of one-year bar rule. Applicability of the Rules on Criminal Procedure On another plane, petitioner posits that public respondent gravely abused its discretion when it disregarded its own Impeachment Rules, the same rules she earlier chastised. In the exercise of the power to promulgate rules "to effectively carry out" the provisions of Section 3, Article XI of the Constitution, the House promulgated the Impeachment Rules, Section 16 of which provides that "the Rules ofCriminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House." Finding that the Constitution, by express grant, permits the application of additional adjective rules that Congress may consider in effectively carrying out its mandate, petitioner either asserts or rejects two procedural devices. First is on the "one offense, one complaint" rule. By way of reference to Section 16 of the Impeachment Rules, petitioner invokes the application of Section 13, Rule 110 of the Rules on Criminal Procedure which states that "[a] complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses." To petitioner, the two impeachment complaints are insufficient in form and substance since each charges her with both culpable violation of the Constitution and betrayal of public trust. She concludes that public respondent gravely abused its discretion when it disregarded its own rules. Petitioner adds that heaping two or more charges in one complaint will confuse her in preparing her defense; expose her to the grave dangers of the highly political nature of the impeachment process; constitute a whimsical disregard of certain rules; impair her performance of official functions as well as that of the House; and prevent public respondent from completing its report within the deadline. Public respondent counters that there is no requirement in the Constitution that an impeachment complaint must charge only one offense, and the nature of impeachable offenses precludes the application of the above-said Rule on Criminal Procedure since the broad terms cannot be defined with the same precision required in defining crimes. It adds that the determination of the grounds for impeachment is an exercise of political judgment, which issue respondent-intervenor also considers as non-justiciable, and to which the Baraquel group adds that impeachment is a political process and not a criminal prosecution, during which criminal prosecution stage the complaint or information referred thereto and cited by petitioner, unlike an impeachment complaint, must already be in the name of the People of the Philippines. The Baraquel group deems that there are provisions92 outside the Rules on Criminal Procedure that are more relevant to the issue. Both the Baraquel and Reyes groups point out that even if Sec. 13 of Rule 110 is made to apply, petitioners case falls under the exception since impeachment prescribes a single punishment removal from office and disqualification to hold any public office even for various offenses. Both groups also observe that petitioner concededly and admittedly was not keen on pursuing this issue during the oral arguments.

Gutierrez vs HRCJ Petitioners claim deserves scant consideration.

Without going into the effectiveness of the suppletory application of the Rules on Criminal Procedure in carrying out the relevant constitutional provisions, which prerogative the Constitution vests on Congress, and without delving into the practicability of the application of the one offense per complaint rule, the initial determination of which must be made by the House93 which has yet to pass upon the question, the Court finds that petitioners invocation of that particular rule of Criminal Procedure does not lie. Suffice it to state that the Constitution allows the indictment for multiple impeachment offenses, with each charge representing an article of impeachment, assembled in one set known as the "Articles of Impeachment."94 It, therefore, follows that an impeachment complaint need not allege only one impeachable offense. The second procedural matter deals with the rule on consolidation. In rejecting a consolidation, petitioner maintains that the Constitution allows only one impeachment complaint against her within one year. Records show that public respondent disavowed any immediate need to consolidate. Its chairperson Rep. Tupas stated that "[c]onsolidation depends on the Committee whether to consolidate[; c]onsolidation may come today or may come later on after determination of the sufficiency in form and substance," and that "for purposes of consolidation, the Committee will decide when is the time to consolidate[, a]nd if, indeed, we need to consolidate."95 Petitioners petition, in fact, initially describes the consolidation as merely "contemplated."96 Since public respondent, whether motu proprio or upon motion, did not yet order a consolidation, the Court will not venture to make a determination on this matter, as it would be premature, conjectural or anticipatory.97 Even if the Court assumes petitioners change of stance that the two impeachment complaints were deemedconsolidated,98 her claim that consolidation is a legal anomaly fails. Petitioners theory obviously springs from her "proceeding = complaint" equation which the Court already brushed aside. WHEREFORE, the petition is DISMISSED. The assailed Resolutions of September 1, 2010 and September 7, 2010 of public respondent, the House of Representatives Committee on Justice, are NOT UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court on September 14, 2010 is LIFTED. SO ORDERED.

Gutierrez vs HRCJ EN BANC

MA.

MERCEDITAS

N.

GUTIERREZ

Petitioner,

- versus -

THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLES LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND

Gutierrez vs HRCJ ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); and

JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS),

Respondents.

FELICIANO BELMONTE, JR.,

Respondent-Intervenor.

G.R. No. 193459

Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,*

Gutierrez vs HRCJ NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA, and

SERENO, JJ.

Gutierrez vs HRCJ

Promulgated:

March 8, 2011

x---------------------------------------x

RESOLUTION

CARPIO MORALES, J.:

Gutierrez vs HRCJ
For resolution is petitioners Motion for Reconsideration (of the Decision dated 15 February 2011) dated February 25, 2011 (Motion).

Upon examination of the averments in the Motion, the Court finds neither substantial nor cogent reason to reconsider its Decision. A plain reading of the Decision could very well dispose of petitioners previous contentions, raised anew in the Motion, but the Court finds it proper, in writing finis to the issue, to draw petitioners attention to certain markers in the Decision.

Contrary to petitioners assertion that the Court sharply deviated from the ruling in Francisco, Jr. v. The House of Representatives,[1] the Decision of February 15, 2011 reaffirmed and illuminated the Francisco doctrine in light of the particular facts of the present case.

To argue, as petitioner does, that there never was a simultaneous referral of two impeachment complaints as they were actually referred to the committee separately, one after the other[2] is to dismantle her own interpretation of Francisco that the one-year bar is to be reckoned from the filing of the impeachment complaint. Petitioners Motion concedes[3] that the Francisco doctrine on the initiation of an impeachment proceeding includes the Houses initial action on the complaint. By recognizing the legal import of a referral, petitioner abandons her earlier claim that per Francisco an impeachment proceeding is initiated by the mere filing of an impeachment complaint.

Having uprooted her reliance on the Francisco case in propping her position that the initiation of an impeachment proceeding must be reckoned from the filing of the complaint, petitioner insists on actual initiation and not constructive initiation by legal fiction as averred by Justice Adolfo Azcuna in his separate opinion in Francisco.

Gutierrez vs HRCJ In Justice Azcunas opinion which concurred with the majority, what he similarly found untenable was the stretching of the reckoning point of initiation to the time that the Committee on Justice (the Committee) report reaches the floor of the House.[4] Notably, the provisions of the Impeachment Rules of the 12thFrancisco provided that an impeachment proceeding was to be deemed initiated upon the Committees finding of sufficiency of substance or upon the Houses affirmance or overturning of the Committees finding,[5] which was clearly referred to as the instances presumably for internal purposes of the House, as to the timing of some of its internal action on certain relevant matters.[6] Definitely, constructive initiation by legal fiction did not refer to the aspects of filing and referral in the regular course of impeachment, for this was precisely the gist of Francisco in pronouncing what initiation means. Congress that were successfully challenged in

The Court adhered to the Francisco-ordained balance in the tug-of-war between those who want to stretch and those who want to shrink the term initiate, either of which could disrupt the provisions congruency to the rationale of the constitutional provision. Petitioners imputation that the Courts Decision presents a sharp deviation from Francisco as it defers the operability of the one-year bar rule rings hollow.

Petitioner urges that the word initiate must be read in its plain, ordinary and technical meaning, for it is contrary to reason, logic and common sense to reckon the beginning or start of the initiation process from its end or conclusion.

Petitioner would have been correct had the subject constitutional provision been worded as no initiation process of the impeachment proceeding shall be commenced against the same official more than once within a period of one year, in which case the reckoning would literally point to the start of the beginning. To immediately reckon the initiation to what petitioner herself concedes as the start of the initiation process is to countenance a raw or half-baked initiation.

In re-affirming what the phrase no impeachment proceedings shall be initiated means, the Court closely applied Francisco on what comprises or completes the initiation phase. Nothing can be more unequivocal or well-defined than the elucidation of filing-and-referral in Francisco. Petitioner must come to terms with her denial of the exact terms of Francisco.

Petitioner posits that referral is not an integral or indispensable part of the initiation of impeachment proceedings, in case of a direct filing of a verified complaint or resolution of impeachment by at least one-third of all the Members of the House.[7]

Gutierrez vs HRCJ The facts of the case do not call for the resolution of this issue however. Suffice it to restate a footnote in the Courts Decision that in such case of an abbreviated mode of initiation[, x x x] the filing of the complaint and the taking of initial action [House directive to automatically transmit] are merged into a single act.[8] Moreover, it is highly impossible in such situation to coincidentally initiate a second impeachment proceeding in the interregnum, if any, given the period between filing and referral.

Petitioners discussion on the singular tense of the word complaint is too tenuous to require consideration. The phraseology of the one-year bar rule does not concern itself with a numerical limitation of impeachment complaints. If it were the intention of the framers of the Constitution to limit the number of complaints, they would have easily so stated in clear and unequivocal language.

Petitioner further avers that the demonstrated concerns against reckoning the period from the filing of the complaint are mere possibilities based on a general mistrust of the Filipino people and their Representatives. To her, mere possibility of abuse is not a conclusive argument against the existence of power nor a reason to invalidate a law.

The present case does not involve an invalidation of a legal provision on a grant of power. Since the issue precisely involves upholding an express limitation of a power, it behooves the Court to look into the rationale behind the constitutional proscription which guards against an explicit instance of abuse of power. The Courts duty entails an examination of the same possible scenarios considered by the framers of the Constitution (i.e., incidents that may prove to disrupt the law-making function of Congress and unduly or too frequently harass the impeachable officer), which are basically the same grounds being invoked by petitioner to arrive at her desired conclusion.

Ironically, petitioner also offers the Court with various possibilities and vivid scenarios to grimly illustrate her perceived oppression. And her own mistrust leads her to find inadequate the existence of the pertinent constitutional provisions, and to entertain doubt on the respect for and adherence of the House and the respondent committee to the same.[9]

While petitioner concedes that there is a framework of safeguards for impeachable officers laid down in Article XI of the Constitution, she downplays these layers of protection as illusory or inutile without implementation and enforcement, as if these can be disregarded at will.

Gutierrez vs HRCJ Contrary to petitioners position that the Court left in the hands of the House the question as to when an impeachment proceeding is initiated, the Court merely underscored the Houses conscious role in the initiation of an impeachment proceeding. The Court added nothing new in pinpointing the obvious reckoning point of initiation in light of the Francisco doctrine. Moreover, referral of an impeachment complaint to the appropriate committee is already a power or function granted by the Constitution to the House.

Petitioner goes on to argue that the House has no discretion on the matter of referral of an impeachment complaint and that once filed, an impeachment complaint should, as a matter of course, be referred to the Committee.

The House cannot indeed refuse to refer an impeachment complaint that is filed without a subsisting bar. To refer an impeachment complaint within an existing one-year bar, however, is to commit the apparently unconstitutional act of initiating a second impeachment proceeding, which may be struck down under Rule 65 for grave abuse of discretion. It bears recalling that the one-year bar rule itself is a constitutional limitation on the Houses power or function to refer a complaint.

Tackling on the House floor in its order of business a clearly constitutionally-prohibited second impeachment complaint on the matter of whether to make the appropriate referral goes precisely into the propriety of the referral and not on the merits of the complaint. The House needs only to ascertain the existence or expiry of the constitutional ban of one year, without any regard to the claims set forth in the complaint.

To petitioner, the intervening days from the filing of the complaint to whatever completes the initiation of an impeachment proceeding is immaterial in mitigating the influx of successive complaints since allowing multiple impeachment charges would result to the same harassment and oppression. She particularly cites Constitutional Commissioner Ricardo Romulos concerns on the amount of time spent if multiple impeachment charges[10] are allowed. She fails, however, to establish whether Commissioner Romulo limited or quantified his reference to not more than one complaint or charge.

IN SUM, the Court did not deviate from, as it did apply the twin rule of filing and referral in the present case, with Francisco as the guiding light. Petitioner refuses to see the other half of that light, however.

Gutierrez vs HRCJ II

Petitioner, meanwhile, reiterates her argument that promulgation means publication. She again cites her thesis that Commonwealth Act No. 638, Article 2 of the Civil Code, and the two Taada v. Tuvera[11] cases mandate that the Impeachment Rules be published for effectivity. Petitioner raises nothing new to change the Courts stance on the matter.

To reiterate, when the Constitution uses the word promulgate, it does not necessarily mean to publish in the Official Gazette or in a newspaper of general circulation. Promulgation, as used in Section 3(8), Article XI of the Constitution, suitably takes the meaning of to make known as it should be generally understood.

Petitioner continues to misapply Neri v. Senate Committee on Accountability of Public Officers and Investigations[12] where the Court noted that the Constitution unmistakably requires the publication of rules of procedure pertaining to inquiries in aid of legislation. If the Constitution warranted the publication of Impeachment Rules, then it could have expediently indicated such requirement as it did in the case of legislative inquiries.

The Constitution clearly gives the House a wide discretion on how to effectively promulgate its Impeachment Rules. It is not for this Court to tell a co-equal branch of government on how to do so when such prerogative is lodged exclusively with it.

Still, petitioner argues that the Court erred when it ruled that to require publication of the House Impeachment Rules would only delay the impeachment proceedings and cause the House of Representatives to violate constitutionally mandated periods She insists that the Committee, after publishing the Impeachment Rules, would still have a remainder of 45 days out of the 60-day period within which to finish its business.

Petitioner is mistaken in her assertion. Note that the Court discussed the above-mentioned scenario only in cases where impeachment complaints are filed at the start of each Congress. Section 3, Article XI of the Constitution contains relevant self-executing provisions which must be observed at the start of the impeachment process, the promulgation of the Impeachment Rules notwithstanding.

Gutierrez vs HRCJ

Petitioner rehashes her allegations of bias and vindictiveness on the part of the Committee Chairperson, Rep. Niel Tupas, Jr. Yet again, the supposed actuations of Rep. Tupas partake of a keen performance of his avowed duties and responsibilities as the designated manager of that phase in the impeachment proceeding. Besides, the actions taken by the Committee were never its Chairpersons sole act but rather the collective undertaking of its whole 55-person membership. The Committee members even took to voting among themselves to validate what actions to take on the motions presented to the Committee.

Indubitably, an impeachment is not a judicial proceeding, but rather a political exercise. Petitioner thus cannot demand that the Court apply the stringent standards it asks of justices and judges when it comes to inhibition from hearing cases. Incidentally, the Impeachment Rules do not provide for any provision regarding the inhibition of the Committee chairperson or any member from participating in an impeachment proceeding. The Committee may thus direct any question of partiality towards the concerned member only. And any decision on the matter of inhibition must be respected, and it is not for this Court to interfere with that decision.

Except for the constitutionally mandated periods, the pacing or alleged precipitate haste with which the impeachment proceeding against petitioner is conducted is beyond the Courts control. Again, impeachment is a highly politicized intramural that gives the House ample leg room to operate, subject only to the constitutionally imposed limits.[13] And beyond these, the Court is duty-bound to respect the discretion of a co-equal branch of government on matters which would effectively carry out its constitutional mandate.

FINALLY, the Court has, in its February 15, 2011 Decision, already lifted its September 14, 2010 Status Quo Ante Order[14] which, as said Order clearly stated, was effective immediately and continuing until further orders from this Court.[15] Such further order points to that part of the disposition in the February 15, 2011 Decision that directs the lifting of the Status Quo Ante Order.

The lifting of the Status Quo Ante Order is effective immediately, the filing of petitioners motion for reconsideration notwithstanding, in the same way that the Status Quo Ante Order was made effective immediately, respondents moves to reconsider or recall it notwithstanding. There is thus no faulting the Committee if it decides to, as it did proceed with the impeachment proceeding after the Court released its February 15, 2011 Decision.

Gutierrez vs HRCJ WHEREFORE, the Motion for Reconsideration is DENIED for lack of merit.

SO ORDERED.

People vs Sandiganbayan

THIRD DIVISION

[G.R. Nos. 147706-07. February 16, 2005]

PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE SANDIGANBAYAN (Fifth Division) and EFREN L. ALAS,respondents. DECISION
CORONA, J.:

Does the Sandiganbayan have jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations organized and incorporated under the Corporation Code for purposes of the provisions of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act? The petitioner, represented by the Office of the Special Prosecutor (OSP), takes the affirmative position in this petition for certiorari under Rule 65 of the Rules of Court. Respondent Efren L. Alas contends otherwise, together with the respondent court. Pursuant to a resolution dated September 30, 1999 of the Office of the Ombudsman, two separate informations[1] for violation of Section 3(e) of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, were filed with the Sandiganbayan on November 17, 1999 against Efren L. Alas. The charges emanated from the alleged anomalous advertising contracts entered into by Alas, in his capacity as President and Chief Operating Officer of the Philippine Postal Savings Bank (PPSB), with Bagong Buhay Publishing Company which purportedly caused damage and prejudice to the government. On October 30, 2002, Alas filed a motion to quash the informations for lack of jurisdiction, which motion was vehemently opposed by the prosecution. After considering the arguments of both parties, the respondent court ruled that PPSB was a private corporation and that its officers, particularly herein respondent Alas, did not fall under Sandiganbayan jurisdiction. According to the Sandiganbayan:

After a careful consideration of the arguments of the accused-movant as well as of that of the prosecution, we are of the considered opinion that the instant motion of the accused is well taken. Indeed, it is the basic thrust of Republic Act as well as (sic) Presidential Decree No. 1606 as amended by President Decree No. 1486 and Republic Act No. 7975 and Republic Act No. 8249 that the Sandiganbayan has jurisdiction only over public officers unless private persons are charged with them in the commission of the offenses. The records disclosed that while Philippine Postal Savings Bank is a subsidiary of the Philippine Postal Corporation which is a government owned corporation, the same is not created by a special law. It was organized and incorporated under the Corporation Code which is Batas Pambansa Blg. 68. It was registered with the Securities and Exchange Commission under SEC No. AS094-005593 on June 22, 1994 with a lifetime of fifty (50) years. Under its Articles of Incorporation the purpose for which said entity is formed was primarily for business, xxx

People vs Sandiganbayan

Likewise, a scrutiny of the seven (7) secondary purposes of the corporation points to the conclusion that it exists for business. Obviously, it is not involved in the performance of a particular function in the exercise of government power. Thus, its officers and employees are not covered by the GSIS and are under the SSS law, and actions for reinstatement and backwages are not within the jurisdiction of the Civil Service Commission but by the National Labor Relations Commission (NLRC). The Supreme Court, in the case of Trade Unions of the Philippines and Allied Services vs. National Housing Corp., 173 SCRA 33, held that the Civil Service now covers only government owned or controlled corporations with original or legislative charters, those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general legislation. The Highest Court categorically ruled that the Civil Service does not include government-owned or controlled corporation which are organized as subsidiaries of government-owned or controlled corporation under the general corporation law. In Philippine National Oil Company Energy Development Corporation vs. Leogardo, 175 SCRA 26, the Supreme Court emphasized that: The test in determining whether a government-owned or controlled corporation is subject to the Civil Service Law is the manner of its creation such that government corporation created by special charter are subject to its provision while those incorporated under the general corporation law are not within its coverage. Likewise in Davao City Water District vs. Civil Service Commission, 201 SCRA 601 it was held that by government-owned or controlled corporation with original charter we mean government-owned or controlled corporation created by a special law and not under the Corporation Code of the Philippines while in Llenes vs. Dicdican, et al., 260 SCRA 207, a public officer has been ruled, as a person whose duties involve the exercise of discretion in the performance of the function of government. Clearly, on the basis of the foregoing pronouncements of the Supreme Court, the accused herein cannot be considered a public officer. Thus, this Court may not exercise jurisdiction over his act.

[2]

Dissatisfied, the People, through the Office of the Special Prosecutor (OSP), filed this petition[3] arguing, in essence, that the PPSB was a government-owned or controlled corporation as the term was defined under Section 2(13) of the Administrative Code of 1987. [4] Likewise, in further defining the jurisdiction of the Sandiganbayan, RA 8249 did not make a distinction as to the manner of creation of the government-owned or controlled corporations for their officers to fall under its jurisdiction. Hence, being President and Chief Operating Officer of the PPSB at the time of commission of the crimes charged, respondent Alas came under the jurisdiction of the Sandiganbayan. Quoting at length from the assailed resolution dated February 15, 2001, respondent Alas, on the other hand, practically reiterated the pronouncements made by the respondent court in support of his conclusion that the PPSB was not created by special law, hence, its officers did not fall within the jurisdiction of the Sandiganbayan.[5] We find merit in the petition. Section 2(13) of EO 292[6] defines government-owned or controlled corporations as follows:

People vs Sandiganbayan

Sec. 2. General Terms Defined Unless the specific words of the text or the context as a whole or a particular statute, shall require a different meaning: xxx xxx xxx

(13) government owned or controlled corporations refer to any agency organized as a stock or nonstock corporation vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government directly or indirectly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations to the extent of at least 51% of its capital stock: provided, that government owned or controlled corporations maybe further categorized by the department of the budget, the civil service commission and the commission on audit for the purpose of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.
From the foregoing, PPSB fits the bill as a government-owned or controlled corporation, and organized and incorporated under the Corporation Code as a subsidiary of the Philippine Postal Corporation (PHILPOST). More than 99% of the authorized capital stock of PPSB belongs to the government while the rest is nominally held by its incorporators who are/were themselves officers of PHILPOST. The creation of PPSB was expressly sanctioned by Section 32 of RA 7354, otherwise known as the Postal Service Act of 1992, for purposes of, among others, to encourage and promote the virtue of thrift and the habit of savings among the general public, especially the youth and the marginalized sector in the countryside xxx and to facilitate postal service by receiving collections and making payments, including postal money orders.[7] It is not disputed that the Sandiganbayan has jurisdiction over presidents, directors or trustees, or managers of government-owned or controlled corporations with original charters whenever charges of graft and corruption are involved. However, a question arises whether the Sandiganbayan has jurisdiction over the same officers in government-owned or controlled corporations organized and incorporated under the Corporation Code in view of the delimitation provided for in Article IX-B Section 2(1) of the 1987 Constitution which states that:

SEC. 2. (1) The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters.
It should be pointed out however, that the jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service Commission. The same is governed by Article XI, Section 4 of the 1987 Constitution which provides that the present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. This provision, in effect, retained the jurisdiction of the anti-graft court as defined under Article XIII, Section 5 of the 1973 Constitution which mandated its creation, thus:

Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offense committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law. (Italics ours)
On March 30, 1995, Congress, pursuant to its authority vested under the 1987 Constitution, enacted RA 7975[8] maintaining the jurisdiction of the Sandiganbayan over presidents, directors or trustees, or

People vs Sandiganbayan

managers of government-owned or controlled corporations without any distinction whatsoever. Thereafter, on February 5, 1997, Congress enacted RA 8249[9] which preserved the subject provision:

Section 4, Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense, (1) Officials of the executive branch occupying the positions of regional director, and higher, otherwise classified as grade 27 and higher, of the Compensation and Posit ion Classification Act of 1989 (Republic Act No. 6758) specifically including: xxx xxx xxx

(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics ours)
The legislature, in mandating the inclusion of presidents, directors or trustees, or managers of government-owned or controlled corporations within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption. Had it been otherwise, it could have simply made the necessary distinction. But it did not. It is a basic principle of statutory construction that when the law does not distinguish, we should not distinguish. Ubi lex non distinguit nec nos distinguere debemos. Corollarily, Article XI Section 12 of the 1987 Constitution, on the jurisdiction of the Ombudsman (the governments prosecutory arm against persons charged with graft and corruption), includes officers and employees of government-owned or controlled corporations, likewise without any distinction. In Quimpo v. Tanodbayan,[10] this Court, already mindful of the pertinent provisions of the 1987 Constitution, ruled that the concerned officers of government-owned or controlled corporations, whether created by special law or formed under the Corporation Code, come under the jurisdiction of the Sandiganbayan for purposes of the provisions of the Anti-Graft and Corrupt Practices Act. Otherwise, as we emphasized therein, a major policy of Government, which is to eradicate, or at the very least minimize, the graft and corruption that has permeated the fabric of the public service like a malignant social cancer, would be seriously undermined. In fact, Section 1 of the Anti-Graft and Corrupt Practices Act embodies this policy of the government, that is, to repress certain acts not only of public officers but also of private persons constituting graft or corrupt practices or which may lead thereto. The foregoing pronouncement has not outlived its usefulness. On the contrary, it has become even more relevant today due to the rampant cases of graft and corruption that erode the peoples faith in government. For indeed, a government-owned or controlled corporation can conceivably create as many

People vs Sandiganbayan

subsidiary corporations under the Corporation Code as it might wish, use public funds, disclaim public accountability and escape the liabilities and responsibilities provided by law. By including the concerned officers of government-owned or controlled corporations organized and incorporated under the Corporation Code within the jurisdiction of the Sandiganbayan, the legislature evidently seeks to avoid just that. WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the assailed resolution dated February 15, 2001 of the respondent court is hereby REVERSED and SET ASIDE. SO ORDERED.

OMB vs CSC

EN BANC

[G.R. No. 159940. February 16, 2005]

OFFICE OF THE OMBUDSMAN, petitioner, COMMISSION, respondent. DECISION

CARPIO-MORALES, J.:

vs. CIVIL

SERVICE

Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service Commission (CSC) dated August 28, 2003. The antecedents of the case are as follows: By letter[1] dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Qualification Standards for said position are:

EDUCATION: Bachelor of Laws EXPERIENCE: 5 years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/ criminal cases, legal research or other related work. TRAINING: 24 hours of relevant training ELIGIBILITY: RA 1080 (Bar)
The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996,[2] that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things. On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 62 [3] reading:

JOINT RESOLUTION NO. 62 WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by the Constitution;

OMB vs CSC

WHEREAS, the Constitution has several provisions that guarantee and protect such independence, among which are Sections 4 and 5 of Article IX, A thereof, which respectively grant them Fiscal Autonomy and authorize them to appoint their own officials and employees in accordance with law; WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987 enumerates exclusively and restrictively the specific positions under the Career Executive Service,all the holders of which are appointed by the President and are required to have CES eligibility; WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme Court nullified the classification by the CSC of the position of Corporate Vice President as belonging to the third level of the Career Executive Services; WHEREAS, the Court declared in the above cited case that said position is not among those enumerated by law as falling under the third level, nor one of those identified by the CES Board as equivalent rank to those listed by law, nor was the incumbent appointed by the President; WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme Court ruled that Article IX-A, Sec. 1 of the Constitution expressly describes all Constitutional Commissions as Independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. WHEREAS, only the Chairmen and Commissioners of the Constitutional Commissions, the Commission on Human Rights, Justices and Judges, as well as the Ombudsman and his Deputies, are appointed by the President; WHEREAS, the Constitutional Commissions, the Supreme Court, the Commission on Human Rights, and the Office of the Ombudsman are empowered to appoint officials and employees to positions belonging to first level up to third level of their respective agencies, and that they are not presidential appointees; WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the Administrative Code of 1987, provides in part that [t]he degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular positions[,] and par. 2 thereof provides that [t]he establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission; NOW, THEREFORE, the CFAG jointly resolves:
1. That all third level positions under each member agency are career positions; 2. That, where appropriate and proper, taking into consideration the organizational set-up of the agency concerned, the overall screening and selection process for these positions shall be a collegial undertaking, provided that the appointment paper shall be signed only by the Head of the member agency;

OMB vs CSC 3. That all career third level positions identified and classified by each of the member agency are not embraced within the Career Executive Service (CES) and as such shall not require Career Service Executive Eligibility (CSEE) or Career Executive Service (CES) Eligibility for purposes of permanent appointment; 4. That should CFAG member agencies develop their respective eligibility requirements for the third level positions, the test of fitness shall be jointly undertaken by the CFAG member agencies in coordination with the CSC; 5. That in case the test of fitness shall be in written form, the CSC shall prepare the questionnaires and conduct the examinations designed to ascertain the general aptitude of the examinees while the member agency shall likewise prepare the questionnaires and conduct in conjunction with the CSC, the examinations to determine the technical capabilities and expertise of the examinees suited to its functions; 6. That the resulting eligibility acquired after passing the aforementioned examination shall appropriate for permanent appointment only to third level positions in the CFAG member agencies; 7. That the member agencies shall regularly coordinate with the CSC for the conferment of the desired eligibility in accordance with this Resolution; However this is without prejudice to those incumbents who wish to take the Career Service Executive Examination given by the Civil Service Commission or the Management Aptitude Test Battery given by the Career Executive Service Board. (Underscoring in the original omitted; emphasis, italics and underscoring supplied)

On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), as affirmed by the Supreme Court, the Ombudsman wrote:

xxx In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility. (Emphasis and italics supplied)
[4]

The relevant portions of the cited CA decision read:

Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, provides the following levels of position in the career service, viz:

OMB vs CSC

SEC. 7. Classes of Positions in the Career Service. (a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (1) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (2) The second level shall include professional, technical, and scientific positions which involve professional; technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (3) The third level shall cover positions in the Career Executive Service. (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in a lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. (c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should however, have previously passed the examination for that level. The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit: (a) Membership. A person who meets such managerial experience and other requirements and passes such examinations as may be prescribed by the Board shall be included in the register of career service eligibles and, upon appointment to an appropriate class in the Career Executive Service, become an active member in the Service. In exceptional cases, the Board may give unassembled examinations for eligibility. The area of recruitment shall be government-wide, with provisions to allow qualified or outstanding men from outside the government to enter the service. Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES), which has been [d]rafted into Executive Order No. 292, that the letter and intent of the law is to circumscribe the Career Executive Service to CES positions in the Executive Branch of government. Verily, consistent with the principle of the ejusdem generis in legal hermeneutics, the phrase other officers of equivalent rank could encompass only such persons occupying positions in the Executive Department. In the contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz: Security of tenure in the career executive service is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to frst and

OMB vs CSC

second level employees in the civil service but to the rank to which they are appointed by the President. x x x Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to the Commissions stance that the positions of Director III, including that of the COA, belong to the third level. Hence, appointees thereto should possess the x x x Career Executive Service (CES) Eligibility in accordance with the Qualification Standard of the said position. Ineluctably, the judiciary, the Constitutional Commissions, the Office of the Ombudsman, and the Commission on Human Rights are not covered by the CES governed by the CESB. The power of these constitutional offices to appoint their own officers and employees is mainly intended to safeguard their independence, which is the same power of appointment of all officials and employees of the judiciary granted to the Supreme Court. As commented by a noted constitutionalist: The authority of the Supreme Court to appoint its own officials and employees is another measure intended to safeguard the independence of the judiciary. However, the Courts appointing authority must be exercised in accordance with the Civil Service Law. Irrefragrably, inherent in the power to appoint is the power to administratively supervise the officials and employees in the constitutional offices in the same manner that the express power to appoint carries with it the implied power to remove the personnel appointed in said offices. x x x xxx Parenthetically, the power to administratively supervise is designed to strengthen the independence of the constitutional offices. A respected authority on political law underscored the multifarious factors that are integral to the independence of the constitutional offices, scilicet: There are several factors that preserve the independence of the three Commissions: xxx (3) Their appointment must be in a permanent capacity. (4) The Commissions enjoy their own fiscal autonomy. The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. to be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the same manner that the Supreme Court administers the judiciarys civil service. x x x (Italics and emphasis in the original; underscoring partly in the original and partly supplied; citations omitted)
[5]

OMB vs CSC

It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003.[6] Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he has not met the eligibility requirements. The pertinent portion of the questioned Resolution reads:

Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the Omnibus Rules on Appointments and Other Personnel Action, which state: SEC. 4. Nature of Appointment. The nature of appointment shall be as follows: xxx i. Change of status: 1. temporary to permanent the appointment issued to a temporary employee when he acquires the appropriate eligibility or becomes fully qualified for the position to which he is appointed. xxx SEC. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effected as a footnote on the temporary appointment issued, copy furnished the Commission. It is explicitly provided therein that the change of status from temporary to permanent can be effected only once the appointee becomes fully qualified to the position to which he is appointed. xxx The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or the other constitutional agencies mentioned therein are exempt or are not covered by the Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. Such policy is in line with the Commissions mandate to professionalize the civil service. The requirements spelled out in the Qualification Standards (QS) Manual are designed to determine the fitness of the appointee in a

OMB vs CSC

certain position. These requirements are indispensable in order to satisfy the Constitutional mandate that appointment in the civil service shall be made according to merit and fitness. While it is true that constitutional agencies such as the Office of the Ombudsman has the authority to appoint its officials in accordance with law, such law does not necessarily imply that their appointment will not be subject to Civil Service Law and Rules; otherwise, these independent bodies will arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commissions in the matter of appointments, it would have been so provided. But that is not the case. the Philippine Constitution provides: The Constitutional Commissions shall appoint their officials and employees in accordance with law (Article IX-A, Section 4). Specifically, Section 6, Article XI of the Constitution states that The officials, shall be appointed by the Ombudsman according to the Civil Service Law. And since all matters pertaining to appointments are within the realm of expertise to the CSC, all laws, rules and regulations it issues on appointments must be complied with. The Constitution speaks of only one civil service, to encompass the first, second, and third levels. It is subject to the same set of laws, rules and regulations in the manner of observing and ensuring that the merit and fitness principle, unless otherwise exempted therefrom by the Constitution or law, is the guiding factor in issuing appointments. Hence, until and unless there is a law or rule exempting one category of public officials from the test in determining merit and fitness, all levels in the government are deemed subject to it. Simply put, the third level eligibility requirement for third level officials in all agencies is mandatory. Further, let it be clarified that the ruling enunciated in Inok case was with regard to the authority of the Career Executive Service Board to prescribe and to administer the Career Executive Service Eligibility and it did not specifically nor particularly take away the functions of the Civil Service Commission. This is evident from the aforequoted decision in the Inok case, to wit: The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. To be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the manner that the Supreme Court administers the judiciarys civil service. Pursuant to the QS Manual, a Graft Investigation Officer III position is a career service position requiring a Career Service Eligibility or Career Service Executive Eligibility. Considering that De Jesus has not met the eligibility requirement, the change of status of his appointment from temporary to permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary.

OMB vs CSC

x x x (Underscoring partly in the original and partly supplied; emphasis supplied)

Hence, the present petition anchored on the following ground:

THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919 DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM.
Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, is specific ally tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied.[7] Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. [8] Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. During the pendency of the case before this Court, the CSC, by Resolution [9] No. 040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft Investigation and Prosecution Officer I, II and III. As proposed, the following Qualification Standards for Graft Investigation and Prosecution Officer III were approved:

Education : Bachelor of Laws Experience : Five (5) years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/criminal cases, legal research or other related works Training : 24 hours of relevant training Eligibility : RA 1080 (BAR)
The petition is impressed with merit. That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member.[10]

OMB vs CSC

Inok cannot be invoked as precedent in arriving at the question raised in this petition. This Court dismissed the petition of the CSC in the Inok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits. Book V, Title I, Subtitle A of the Administrative Code of 1987 provides:

SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: 1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; x x x (Emphasis and underscoring supplied)
From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. A person occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit:

SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW.
To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else.[11]

OMB vs CSC

It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority.[12] It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too. In a Supplemental Memorandum[13] received by this Court on January 5, 2005, the CSC alleged that, inter alia:

. . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is the same position which is the subject of the herein case. Suffice it to state that the eligibility requirement under the new QS is no longer third level eligibility but RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to the authority of the CSC to administer the Civil Service Executive Examination for third level positions and to prescribe third level eligibility to third level positions in the Office of the Ombudsman be resolved.
As the Court takes note of the information of the CSC in its Supplemental Memorandum, it holds that third level eligibility is not required for third level officials of petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis a vis the Administrative Code of 1987 as discussed above. WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002. SO ORDERED.

Castro vs. Deloria

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 163586 January 27, 2009

SHARON CASTRO, Petitioner, vs. HON. MERLIN DELORIA, as Presiding Judge, Regional Trial Court, Branch 65, Guimaras; the COA-Region VI, represented by its Director; and HON. COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Certiorari under Rule 65 of the Rules of Court filed by Sharon Castro (petitioner) to assail the July 22, 2003 Decision1 of the Court of Appeals (CA) which dismissed CA-G.R. SP No. 69350; and the March 26, 2004 CA Resolution2 which denied the motion for reconsideration. The facts are of record. On May 31, 2000, petitioner was charged by the Ombudsman before the Regional Trial Court (RTC), Branch 65, Guimaras, with Malversation of Public Funds, under an Information which reads, as follows: That on or about the 17th day of August 1998, and for sometime prior thereto, in the Municipality of Buenavista, Province of Guimaras, Philippines and within the jurisdiction of the this Honorable Court, abovenamed accused, a public officer, being the Revenue Officer I of the Bureau of Internal Revenue, Buenavista, Guimaras and as such, was in the custody and possession of public funds in the amount of P556,681.53, Philippine Currency, representing the value of her collections and other accountabilities, for which she is accountable by reason of the duties of her office, in such capacity and committing the offense in relation to office, taking advantage of her public position, with deliberate intent, and with intent to gain, did then and there willfully, unlawfully and feloniously appropriate, take, misappropriate, embezzle and convert to her own personal use and benefit said amount of P556,681.53, and despite notice and demands made upon her account for said public funds, she has failed to do so, to the damage and prejudice of the government. CONTRARY TO LAW.3 Petitioner pleaded NOT GUILTY when arraigned on February 16, 2001. On August 31, 2001, petitioner filed a Motion to Quash on the grounds of lack of jurisdiction and lack of authority of the Ombudsman to conduct the preliminary investigation and file the Information. Petitioner argued that the Information failed to allege her salary grade -- a material fact upon which depends the jurisdiction of the RTC. Citing Uy v. Sandiganbayan,4 petitioner further argued that as she was a public employee with salary grade 27, the case filed against her was cognizable by the RTC and may be investigated and prosecuted only by the public prosecutor, and not by the Ombudsman whose prosecutorial power was limited to cases cognizable by theSandiganbayan.5 The RTC denied the Motion to Quash in an Order6 dated September 7, 2001. It held that the jurisdiction of the RTC over the case did not depend on the salary grade of petitioner, but on the penalty imposable upon the latter for the offense charged.7 Moreover, it sustained the prosecutorial authority of the Ombudsman in the case, pointing out that in Uy, upon motion for clarification filed by the Ombudsman, the Court set aside its August 9, 1999 Decision and issued a March 20, 2001 Resolution expressly recognizing the prosecutorial and investigatory authority of the Ombudsman in cases cognizable by the RTC.

Castro vs. Deloria The RTC further held that the Motion to Quash was contrary to Sec. 1, Rule 117, for it was filed after petitioner pleaded not guilty under the Information.8
Petitioner filed a Motion for Reconsideration,9 which the RTC denied in its December 18, 2001 Order.10 Petitioner filed a petition for certiorari11 with the CA, but the latter dismissed the petition in the Decision under review. Petitioners motion for reconsideration12 was also denied. Hence, the present petition, confining the issues to the following: 1. Whether or not the Ombudsman, as of May 31, 2000, when the Information for Malvesation of Public Funds was instituted against the Petitioner, had the authority to file the same in light of this Supreme Courts ruling in the First "Uy vs. Sandiganbayan" case, which declared that the prosecutorial powers of the Ombudsman is limited to cases cognizable by the Sandiganbayan. 2. Whether or not the clarificatory Resolution issued by the Supreme Court dated February 22, 2001 in the Uy vs. Sandiganbayan case can be made applicable to the Petitioner-Accused, without violating the constitutional provision on ex-post facto laws and denial of the accused to due process.13 Petitioner contends that from the time of the promulgation on August 9, 1999 of the Decision of the Court in Uy up to the time of issuance on March 20, 2001 of the Resolution of the Court in the same case, the prevailing jurisprudence was that the Ombudsman had no prosecutorial powers over cases cognizable by the RTC. As the investigation and prosecution against petitioner was conducted by the Ombudsman beginning April 26, 2000, then the August 9, 1999 Decision in Uy was applicable, notwithstanding that the said decision was set aside in the March 20, 2001 Resolution of the Court in said case. Hence, the Information that was filed against petitioner was void for at that time the Ombudsman had no investigatory and prosecutorial powers over the case. The petition lacks merit. The petition calls to mind Office of the Ombudsman v. Enoc,14 wherein accused Ruben Enoc, et al. invoked the August 9, 1999 Decision of the Court in Uy15 in a motion to dismiss the 11 counts of malversation that were filed against them by the Ombudsman before the RTC. The RTC granted the motion but upon petition filed by the Ombudsman, the Court reversed the RTC and held: In turn, petitioner filed a Manifestation invoking the very same resolution promulgated on March 20, 2001 in Uy v. Sandiganbayan reconsidering the ruling that the prosecutory power of the Ombudsman extended only to cases cognizable by the Sandiganbayan. Indeed, this Court has reconsidered the said ruling and held that the Ombudsman has powers to prosecute not only graft cases within the jurisdiction of the Sandiganbayan but also those cognizable by the regular courts. It held: The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient. The law does not make a distinction between cases cognizable by the Sandiganbayan and those cognizable by regular courts. It has been held that the clause "any illegal act or omission of any public official" is broad enough to embrace any crime committed by a public officer or employee. The reference made by RA 6770 to cases cognizable by the Sandiganbayan, particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor the power to conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the investigatory and prosecutory power of the Ombudsman to such cases.

Castro vs. Deloria Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. We, therefore, hold that the Ombudsman has authority to investigate and prosecute Criminal Case Nos. 374(97) to 385(97) against respondents in the RTC, Branch 19 of Digos, Davao Del Sur even as this authority is not exclusive and is shared by him with the regular prosecutors. WHEREFORE, the order, dated October 7, 2000, of the Regional Trial Court, branch 19 of Digos, Davao del Sur is SET ASIDE and Criminal Case Nos. 374(97) to 385(97) are hereby REINSTATED and the Regional Trial Court is ORDERED to try and decide the same. (Emphasis supplied) Similarly relevant is the case of Office of Ombudsman v. Hon. Breva,16 in which, citing the August 9, 1999 Decision in Uy, the RTC dismissed a criminal complaint that was filed before it by the Ombudsman. The Court reversed the RTC, for, "given the Courts Uy ruling under its March 20, 2001 Resolution, the trial courts assailed Orders x x x are, in hindsight, without legal support and must, therefore, be set aside." It is settled, therefore, that the March 20, 2001 Resolution in Uy, that the Ombudsman has prosecutorial powers in cases cognizable by the RTC, extends even to criminal information filed or pending at the time when its August 9, 1999 Decision was the operative ruling on the issue. Petitioner would argue, however, that the March 20, 2001 Resolution in Uy cannot have retroactive effect, for otherwise it would amount to "an ex-post facto law, which is constitutionally proscribed."17 Petitioner is grasping at straws. A judicial interpretation of a statute, such as the Ombudsman Act, constitutes part of that law as of the date of its original passage. Such interpretation does not create a new law but construes a pre-existing one; it merely casts light upon the contemporaneous legislative intent of that law.18 Hence, the March 20, 2001 Resolution of the Court in Uy interpreting the Ombudsman Act is deemed part of the law as of the date of its effectivity on December 7, 1989. Where a judicial interpretation declares a law unconstitutional or abandons a doctrinal interpretation of such law, the Court, recognizing that acts may have been performed under the impression of the constitutionality of the law or the validity of its interpretation, has consistently held that such operative fact cannot be undone by the mere subsequent declaration of the nullity of the law or its interpretation; thus, the declaration can only have a prospective application.19 But where no law is invalidated nor doctrine abandoned, a judicial interpretation of the law should be deemed incorporated at the moment of its legislation.20

Castro vs. Deloria In the present case, the March 20, 2001 Resolution in Uy made no declaration of unconstitutionality of any law nor did it vacate a doctrine long held by the Court and relied upon by the public. Rather, it set aside an erroneous pubescent interpretation of the Ombudsman Act as expressed in the August 9, 1999 Decision in the same case. Its effect has therefore been held by the Court to reach back to validate investigatory and prosecutorial processes conducted by the Ombudsman, such as the filing of the Information against petitioner.
With the foregoing disquisition, the second issue is rendered moot and academic. WHEREFORE, the petition is DISMISSED for lack of merit. No costs. SO ORDERED.

DOJ vs. Liwag

EN BANC

[G.R. No. 149311. February 11, 2005]

THE DEPARTMENT OF JUSTICE, through SECRETARY HERNANDO PEREZ, THE NATIONAL BUREAU OF INVESTIGATION through DIRECTOR REYNALDO WYCOCO, STATE PROSECUTORS LEO B. DACERA III, MISAEL M. LADAGA AND MARY JOSEPHINE P. LAZARO, petitioners, vs. HON. HERMOGENES R. LIWAG, in his capacity as Presiding Judge Branch 55, Regional Trial Court, Manila, PANFILO M. LACSON, MICHAEL RAY B. AQUINO, respondents. DECISION
AZCUNA, J.:

This is a petition for certiorari and prohibition filed by the Department of Justice (DOJ), and the National Bureau of Investigation (NBI) under it, seeking to challenge the Order dated June 22, 2001 and the Writ of Preliminary Injunction dated June 25, 2001 issued by the late Judge Hermogenes R. Liwag of Branch 55 of the Regional Trial Court of Manila in Civil Case No. 01-100934. The facts are as follows: Alleging that she was a former undercover agent of the Presidential Anti-Organized Crime Task Force (PAOCTF) and the Philippine National Police (PNP) Narcotics Group, Mary Ong filed a complaintaffidavit on January 8, 2001 before the Ombudsman against PNP General Panfilo M. Lacson, PNP Colonel Michael Ray B. Aquino, other high-ranking officials of the PNP, and several private individuals. Her complaint-affidavit gave rise to separate cases involving different offenses imputed to respondents Lacson and Aquino. The cases were docketed as OMB Case Nos. 4-01-00-76, 4-01-00-77, 4-01-00-80, 4-01-00-81, 4-01-00-82, and 4-01-00-84. The Ombudsman found the complaint-affidavit of Mary Ong sufficient in form and substance and thus required the respondents therein to file their counter-affidavits on the charges. On February 28, 2001, said respondents submitted their counter-affidavits and prayed that the charges against them be dismissed. Subsequently, on March 9, 2001, Mary Ong and other witnesses executed sworn statements before the NBI, alleging the same facts and circumstances revealed by Mary Ong in her complaint-affidavit before the Ombudsman.[1] NBI Director Reynaldo Wycoco, in a letter dated May 4, 2001 addressed to then Secretary of Justice Hernando Perez, recommended the investigation of Lacson, Aquino, other PNP officials, and private individuals for the following alleged crimes:

a.) b.) c.)

kidnapping for ransom of Zeng Jia Xuan, Hong Zhen Quiao, Zeng Kang Pang, James Wong and Wong Kam Chong; murder of Wong Kam Chong; and kidnapping for ransom and murder of Chong Hiu Ming.
[2]

DOJ vs. Liwag

In the said letter, Director Wycoco likewise manifested that this recommendation was made after taking the sworn statements of Mary Ong and other witnesses such as Chong Kam Fai, Zeng Kang Pang, and Quenna Yuet Yuet. The sworn statements of these witnesses were attached to the letter.[3] On May 7, 2001, a panel of prosecutors from the DOJ sent a subpoena to Lacson, Aquino and the other persons named in the witnesses sworn statements. Lacson and Aquino received the subpoena on May 8, 2001. The subpoena directed them to submit their counter-affidavits and controverting evidence at the scheduled preliminary investigation on the complaint filed by the NBI on May 18, 2001 at the DOJ Multi-Purpose Hall. However, Lacson and Aquino, through their counsel, manifested in a letter dated May 18, 2001, that the DOJ panel of prosecutors should dismiss the complaint filed therewith by Mary Ong since there are complaints pending before the Ombudsman alleging a similar set of facts against the same respondents. Furthermore, they claimed that according to the Courts ruling in Uy v. Sandiganbayan,[4] the Ombudsman has primary jurisdiction over criminal cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, he may take over, at any stage, from any investigatory agency of Government, the investigation of such cases involving public officials, including police and military officials such as private respondents.[5] The DOJ construed the aforesaid letter as a motion to dismiss and, on May 28, 2001, denied the dismissal of the cases before it through an Order that stated the following as basis of the denial:

It appearing that the subject letter is essentially a motion to dismiss which is not allowed under the Revised Rules of Criminal Procedure[;] It appearing further that respondents rank and/or civil service classification has no bearing in the determination of jurisdiction as the crimes charged herein do not involve violation of the Anti-Graft and Corrupt Practices Act, Unlawfully Acquired Property [or] Bribery, nor are they related to respondents discharge of their official duties; It appearing finally that paragraph 2 of the Joint Circular of the Office of the Ombudsman and the Department of Justice No. 95-001 dated October 5, 1995, provides that offenses committed 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;
[6]

On the very same day that the DOJ issued the aforesaid Order, the Solicitor General received a copy of a petition for prohibition filed by Lacson and Aquino before the Regional Trial Court (RTC) of Manila. In the said petition for prohibition, Lacson and Aquino maintained that the DOJ has no jurisdiction to conduct a preliminary investigation on the complaints submitted by Mary Ong and the other witnesses. They argued that by conducting a preliminary investigation, the DOJ was violating the Ombudsmans mandate of having the primary and exclusive jurisdiction to investigate criminal cases cognizable by the Sandiganbayan. Again, they relied on Uy v. Sandiganbayan to bolster their claim. On June 22, 2001, Judge Liwag issued the Order herein assailed prohibiting the Department of Justice from conducting the preliminary investigation against Lacson and Aquino. A Writ of Preliminary Injunction was likewise issued by the trial court. The dispositive portion of the Order reads as follows:

WHEREFORE, premises considered, the Petition for Prohibition is hereby GRANTED, and accordingly a Writ of Preliminary Injunction is hereby ISSUED, enjoining the respondents and their subordinates, agents[,] and other persons acting in their behalf, individually and collectively, from conducting a preliminary investigation in IS No. 2001-402, insofar as petitioners here are concerned, and directing the petitioners to file their counter-affidavits in said case until such time that the Office

DOJ vs. Liwag

of the Ombudsman shall have disclaimed jurisdiction over the offenses subject matter of the investigations before it, or until such Office shall have categorized the said offenses as being committed by the petitioners not in relation to their respective offices. Let the corresponding Writ of Preliminary Injunction, therefore, issue without bond, as there is no showing whatsoever in the pleadings of the parties that the respondents will suffer any injury by reason of the issuance of the writ prayed for, in accordance with Section 4(b), Rule 58 of the Rules of Civil Procedure. SO ORDERED.
[7]

Hence, this petition was filed before this Court by the DOJ, through then Secretary Hernando Perez, the NBI, through Director Reynaldo Wycoco, and the panel of prosecutors designated by the DOJ to conduct the preliminary investigation of I.S. No. 2001-402. In their petition, they raise the following issues:
I

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE CRYSTAL CLEAR AUTHORITY OF PETITIONERS DOJ AND THE PANEL OF STATE PROSECUTORS TO CONDUCT PRELIMINARY INVESTIGATION PURSUANT TO ADMINISTRATIVE ORDER NO. 08, SERIES OF 1990 OF THE OFFICE OF THE OMBUDSMAN AND SECTION 4 OF RULE 112 OF THE RULES OF COURT.
II

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THE OFFICE OF THE OMBUDSMAN HAS TAKEN OVER THE NBI COMPLAINT FILED WITH THE DOJ; AND IN IGNORING THE FACT THAT PRIVATE RESPONDENTS FAILED TO AVAIL OF AN ADEQUATE ADMINISTRATIVE REMEDY BEFORE THE FILING OF A PETITION FOR PROHIBITION.
III

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN CONSIDERING THE NBI COMPLAINT FILED WITH THE DOJ AND THE COMPLAINT-AFFIDAVIT FILED BY MARY ONG BEFORE THE OFFICE OF THE OMBUDSMAN AS INVOLVING ABSOLUTELY THE SAME OFFENSES, RESPONDENTS AND ALLEGED VICTIMS.
IV

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN GRANTING RELIEF TO RESPONDENT MICHAEL RAY B. AQUINO DESPITE THE GLARING FACT THAT HE IS CHARGED WITH SEPARATE AND DISTINCT OFFENSES BEFORE THE OFFICE OF THE OMBUDSMAN AND THE DOJ.
V

DOJ vs. Liwag

PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN PREJUDGING THE MAIN CASE FOR PROHIBITION BY GRANTING THE SAME DESPITE THE FACT THAT HEARINGS IN THE CASE WERE ONLY HELD FOR THE PURPOSE OF DETERMINING THE MERIT OF THE PRAYER FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION.
[8]

A perusal of the issues raised reveals that the present petition puts forth one central question to be resolved: whether or not the DOJ has jurisdiction to conduct a preliminary investigation despite the pendency before the Ombudsman of a complaint involving the same accused, facts, and circumstances. The addition of other names in the second proceedings does not alter the nature thereof as being principally directed against the respondents herein in connection with substantially the same set of facts alleged. First, however, a threshold question has to be resolved. Petitioners came to this Court without filing a motion before the trial court to reconsider the assailed Order. They maintain that it was imperative for them to do so for the sake of the speedy administration of justice and that this is all the more compelling, in this case, considering that this involves the highranking officers of the PNP and the crimes being charged have already attracted nationwide attention. Indeed, this Court finds that time is of the essence in this case. At stake here may not only be the safety of witnesses who risked life and limb to give their statements to the authorities, but also the rights of the respondents, who may need to clear their names and reputations of the accusations against them. Procedural laws are adopted not as ends in themselves but as means conducive to the realization of justice. The rules of procedure are not to be applied when such application would clearly defeat the very rationale for their conception and existence. [9] Now, to the merits. The authority of the DOJ to conduct a preliminary investigation is based on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which states:

Section 1. Declaration of policy. It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; . . . Section 3. Powers and Functions. To accomplish its mandate, the Department shall have the following powers and functions: ... (2) Investigate the commission of crimes, prosecute offenders and administer the probation and correction system; ...
Furthermore, Section 1 of the Presidential Decree 1275, effective April 11, 1978, provides:

DOJ vs. Liwag

Section 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscals Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws.
Respondents Lacson and Aquino claim that the Ombudsman has primary jurisdiction over the cases filed against them, to the exclusion of any other investigatory agency of Government pursuant to law and existing jurisprudence. They rely on the doctrine in Uy v. Sandiganbayan aforementioned, and contend that the Ombudsman, in the exercise of the said primary jurisdiction, may take over, at any stage, from any investigatory agency of Government, the investigation of cases involving public officials, including police and military officials. They likewise claim that it should be deemed that the Ombudsman has already taken over the investigation of these cases, considering that there are already pending complaints filed therewith involving the same accused, facts and circumstances. Section 15, Republic Act No. 6640, known as the Ombudsman Act of 1989, provides:

Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties: (1) 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. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; .
[10]

The question is whether or not the Ombudsman has in effect taken over the investigation of the case or cases in question to the exclusion of other investigatory agencies, including the DOJ. In granting the petition for prohibition, RTC Judge Liwag gave the following rationale:

Since the Ombudsman has taken hold of the situation of the parties in the exercise of its primary jurisdiction over the matter, it is the feeling of this Court that the respondents cannot insist on conducting a preliminary investigation on the same matter under the pretext of a shared and concurrent authority. In the final analysis, the resolution on the matter by the Ombudsman is final. In the preliminary investigation conducted by the Ombudsman itself, the other investigative agencies of the Government have no power and right to add an input into the Ombudsmans investigation. Only in matters where the other investigative agencies are expressly allowed by the Ombudsman to make preliminary investigation may such agencies conduct the investigation, subject to the final decision of the Ombudsman. That is the situation. It is not otherwise. To allow the respondents to meddle with the investigation of similar cases being investigated by the Ombudsman would put them to a higher plane than the source of their powers with respect to such cases. This is, of course, anathema to orderly judicial procedures. This is contrary to ordinary common sense. It would certainly be presumpt[u]ous, if not ridiculous, for the Department of Justice to be making recommendation as to its preliminary investigation to the Ombudsman in matters being handled by such Office itself. Such

DOJ vs. Liwag

recommendation would be pre-emptive of the actions of the said Office. Such a situation must thus be disallowed. The public respondents capitalized on the fact that the Ombudsman may take over, at any stage, from any investigative agency of the Government, the investigation of cases involving public officials, including police and military officials such as the petitioners. It is the feeling of this Court that the respondents cannot find comfort in that provision of the law. That situation presupposes the conduct by other Government agencies of preliminary investigations involving public officials in cases not theretofore being taken cognizance of by the Ombudsman. If the Ombudsman, as in the case, has already taken hold of the situation of the parties, it cannot take over, at any stage of the proceedings, the investigation being conducted by another agency. It has the case before it. Rudimentary common sense and becoming respect for power and authority would thus require the respondents to desist from interfering with the case already handled by the Ombudsman. Indeed, as conceded by the respondents, they are deputized prosecutors by the Ombudsman. If that is so, and that is the truth, the exercise by the principal of the powers negates absolutely the exercise by the agents of a particular power and authority. The hierarchy of powers must be remembered. The principle of agency must be recalled.
[11]

Section 13, Article XI of the Constitution specifically vests in the Office of the Ombudsman the plenary power to investigate any malfeasance, misfeasance or non-feasance of public officers or employees.[12] To discharge its duty effectively, the Constitution endowed the Office of the Ombudsman with special features which puts it a notch above other grievance-handling, investigate bodies. First and foremost, it extended independence to the Ombudsman and insulated it from the intrusions of partisan politics. Thus, the Constitution provided for stringent qualification requirements for the selection of the Ombudsman and his deputies, i.e., they should be natural-born citizens, of recognized probity and independence and must not have been candidates for any elective office in the immediately preceding election. [13] The Ombudsman and his deputies were given the rank and salary equal to that of the Chairman and Members, respectively, of the Constitutional Commissions, with a prohibition for any decrease in their salary during their term of office. [14] They were given a fixed term of seven years, without reappointment. [15] Upon their cessation from office, they are prohibited from running for any elective office in the immediately succeeding election.[16] Finally, unlike other investigative bodies, the Constitution granted the Office of the Ombudsman fiscal autonomy.[17] Clearly, all these measures are intended to enhance the independence of the Office of the Ombudsman. The Office of the Ombudsman was likewise envisioned by the Constitution to serve as the principal and primary complaints and action center for the aggrieved layman baffled by the bureaucratic maze of procedures. For this purpose, it was granted more than the usual powers given to prosecutors. It was vested with the power to investigate complaints against a public office or officer on its own initiative, even without a formal complaint lodged before it. [18] It can inquire into acts of government agencies and public servants based on reports in the media and those which come to his attention through sources other than a complaint. The method of filing a complaint with the Ombudsman is direct, informal, speedy and inexpensive. All that may be required from a complainant is sufficient information detailing the illegal or improper acts complained of. The ordinary citizen, who has become increasingly dependent on public agencies, is put to minimal expense and difficulty in getting his complaint acted on by the Office of the Ombudsman. Vis--vis other prosecutors, the exercise by the Ombudsman of its power to investigate public officials is givenpreference over other bodies.

DOJ vs. Liwag

As aforementioned, Congress itself acknowledged the significant role played by the Office of Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said law gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage, from any investigatory agency, the investigation of such cases. This power to take over a case at any time is not given to other investigative bodies. All this means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power. Clearly, therefore, while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code, this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the Ombudsman to investigate complaints specifically directed against public officers and employees. The Office of the Ombudsman is a constitutional creation. In contrast, the DOJ is an extension of the executive department, bereft of the constitutional independence granted to the Ombudsman. Petitioners cannot seek sanctuary in the doctrine of concurrent jurisdiction. While the doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same subject matter,[19] the settled rule is that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.[20] Thus, assuming there is concurrent jurisdiction between the Ombudsman and the DOJ in the conduct of preliminary investigation, this concurrence is not to be taken as an unrestrained freedom to file the same case before both bodies or be viewed as a contest between these bodies as to which will first complete the investigation. In the present case, it is the Ombudsman before whom the complaint was initially filed. Hence, it has the authority to proceed with the preliminary investigation to the exclusion of the DOJ. None of the cases previously decided by this Court involved a factual situation similar to that of the present case. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG ),[21] the Court upheld the special authority of the PCGG to conduct the preliminary investigation of ill-gotten wealth cases pursuant to Executive Order No. 1, issued by then President Aquino, creating the PCGG. While the Court emphasized in Cojuangco that the power of the Ombudsman to conduct a preliminary investigation over said cases is not exclusive but a shared authority, the complaints for the alleged misuse of coconut levy funds were filed directly with the PCGG. No complaint was filed with the Office of the Ombudsman. Moreover, a close scrutiny of said case will disclose that the Court recognized the primary, albeit shared, jurisdiction of the Ombudsman to investigate all ill-gotten wealth cases.[22] In fact, it ordered the PCGG to desist from proceeding with the preliminary investigation as it doubted the impartiality of the PCGG to conduct the investigation after it had previously caused the issuance of sequestration orders against petitioners asset s. In Sanchez v. Demetriou,[23] the Presidential Anti-Crime Commission filed a complaint with the DOJ against petitioner Mayor Sanchez for the rape-slay of Sarmenta and the killing of Gomez. After the DOJ panel prosecutors conducted the preliminary investigation, a warrant of arrest was issued and the corresponding Informations were filed in court by the DOJ prosecutors. Petitioner claimed that it is only the Ombudsman who has the power to conduct investigation of cases involving public officers like him. The Court reiterated its previous ruling that the authority to investigate and prosecute illegal acts of public officers is not an exclusive authority of the Ombudsman but a shared authority. However, it will be noted that the complaint for preliminary investigation in that case was filed solely with the DOJ. In Aguinaldo v. Domagas,[24] a letter-complaint charging petitioners with sedition was filed with the Office of the Provincial Prosecutor in Cagayan. After investigation by the DOJ panel of prosecutors, the corresponding Information was filed in court. The pertinent issue raised by petitioners was whether the prosecutors can file the said Information without previous authority from the Ombudsman. The Court

DOJ vs. Liwag

ruled in the affirmative and reiterated its ruling regarding the shared authority of the DOJ to investigate the case. Again, it should be noted that the complaint in that case was addressed solely to the provincial prosecutor. The same factual scenario obtains in the cases of Natividad v. Felix[25] and Honasan v. Panel of Investigating Prosecutors of the DOJ[26] where the letter-complaint against petitioners public officers were brought alone to the DOJ prosecutors for investigation. In sum, in none of the aforecited cases was the complaint filed ahead with the Office of the Ombudsman for preliminary investigation. Hence, there was no simultaneous exercise of power between two coordinate bodies and no risk of conflicting findings or orders . In stark contrast with the present case, Mary Ong filed a complaint against respondents initially with the Office of the Ombudsman for preliminary investigation which was immediately acted on by said Office. For reasons not readily apparent on the records, she thereafter refiled substantially the same complaint with the NBI and the DOJ. Not only this. The subsequent assumption of jurisdiction by the DOJ in the conduct of preliminary investigation over the cases filed against the respondents would not promote an orderly administration of justice. Although a preliminary investigation is not a trial, it is not a casual affair either. A preliminary investigation is an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof and should be held for trial. [27] When one is hailed before an investigative body on specific charges, the very act of filing said complaint for preliminary investigation immediately exposes the respondent and his family to anxiety, humiliation and expense. To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who would have to appear and defend his position before every agency or body where the same complaint was filed. This would leave hapless litigants at a loss as to where to appear and plead their cause or defense. There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt of the respondents. Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of Government, in aduplication of proceedings already started with the Ombudsman. From all the foregoing, it is clear that petitioners have not shown any grave abuse of discretion tantamount to lack or excess of jurisdiction committed by the respondent Judge. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED.

Estrada vs. Ranada

Republic of the Philippines SUPREME COURT Manila EN BANC G. R. No. 159314 June 26, 2006

EDGARDO V. ESTARIJA, Petitioner, vs. EDWARD F. RANADA and the Honorable OMBUDSMAN Aniano A. Desierto (now succeeded by Hon. Simeon Marcelo), and his Deputy OMBUDSMAN for Mindanao, Hon. Antonio E. Valenzuela, Respondents. DECISION QUISUMBING, J.: This petition for review on certiorari assails the February 12, 2003 Decision1 of the Court of Appeals in CA-G.R. SP No. 62557 which affirmed the October 2, 2000 Decision2 of the Office of the Ombudsman-Mindanao in OMB-MIN-ADM-98183. The facts are as follows: On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc. (DPAI) and Davao Tugboat and Allied Services, Inc., (DTASI) filed an administrative complaint for Gross Misconduct before the Office of the Ombudsman-Mindanao, against petitioner Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), Port of Davao, Sasa, Davao City.3 The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for all ships that dock in the Davao Port, had been demanding monies ranging from P200 to P2000 for the approval and issuance of berthing permits, and P5000 as monthly contribution from the DPAI. The complaint alleged that prior to August 6, 1998, in order to stop the mulcting and extortion activities of Estarija, the association reported Estarijas activities to the National Bureau of Investigation (NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked money used by the NBI to entrap Estarija. Consequently, the Ombudsman ordered petitioners preventive suspension4 and directed him to answer the complaint. The Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-98, against Estarija for violation of Republic Act No. 3019, The Anti-Graft and Corrupt Practices Act, before the Regional Trial Court of Davao City, Branch No. 8.5 In his counter-affidavit6 and supplemental counter-affidavit,7 petitioner vehemently denied demanding sums of money for the approval of berthing permits. He claimed that Adrian Cagata, an employee of the DPAI, called to inform him that the DPAI had payables to the PPA, and although he went to the associations office, he was hesitant to get the P5,000 from Cagata because the association had no pending transaction with the PPA. Estarija claimed that Cagata made him believe that the money was a partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the monthly gross revenue of their association. Nonetheless, he received the money but assured Cagata that he would send an official receipt the following day. He claimed that the entrapment and the subsequent filing of the complaint were part of a conspiracy to exact personal vengeance against him on account of Ranadas business losses occasioned by the cancellation of the latters sub-agency agreement with Asia Pacific Chartering Phil., Inc., which was eventually awarded to a shipping agency managed by Estarijas son. On August 31, 2000, the Ombudsman rendered a decision8 in the administrative case, finding Estarija guilty of dishonesty and grave misconduct. The dispositive portion reads:

Estrada vs. Ranada WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V. ESTARIJA is hereby found guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED from the service with forfeiture of all leave credits and retirement benefits, pursuant to Section 23(a) and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of the Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is disqualified from re-employment in the national and local governments, as well as in any government instrumentality or agency, including government owned or controlled corporations. This decision is immediately executory after it attains finality. Let a copy of this decision be entered in the personal records of respondent EDGARDO V. ESTARIJA.
PPA Manager Manuel C. Albarracin is hereby directed to implement this Office Decision after it attains finality. SO DECREED.9 Estarija seasonably filed a motion for reconsideration.10 Estarija claimed that dismissal was unconstitutional since the Ombudsman did not have direct and immediate power to remove government officials, whether elective or appointive, who are not removable by impeachment. He maintains that under the 1987 Constitution, the Ombudsmans administrative authority is merely recommendatory, and that Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989", is unconstitutional because it gives the Office of the Ombudsman additional powers that are not provided for in the Constitution. The Ombudsman denied the motion for reconsideration in an Order11 dated October 31, 2000. Thus, Estarija filed a Petition for Review with urgent prayer for the issuance of a temporary restraining order and writ of preliminary prohibitory injunction before the Court of Appeals. The Court of Appeals, on February 12, 2003, dismissed the petition and affirmed the Ombudsmans decision. The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was procedurally and substantially flawed. First, the constitutionality issue was belatedly raised in the motion for reconsideration of the decision of the Ombudsman. Second, the petitioner was unable to prove the constitutional breach and failed to overcome the presumption of constitutionality in favor of the questioned statute. The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion money constituted dishonesty and grave misconduct. According to the Court of Appeals, petitioner failed to refute the convincing evidence offered by the complainant. Petitioner presented affidavits executed by the high-ranking officials of various shipping agencies which were found by the Court of Appeals to be couched in general and loose terms, and according to the appellate court, could not be given more evidentiary weight than the sworn testimonies of complainant and other witnesses that were subjected to cross-examination. Petitioner filed a motion for reconsideration but the Court of Appeals denied the same for lack of merit. Hence, the instant petition assigning the following errors: (A) That certain basic factual findings of the Court of Appeals as hereunder specified, are not borne by any substantial evidence, or are contrary to the evidence on record, or that the Court of Appeals has drawn a conclusion or inference which is manifestly mistaken or is based on a misappreciation of the facts as to call for a corrective review by this Honorable Supreme Court; (B) That Republic Act No. 6770, otherwise known as the "Ombudsmans Act of 1989", isunconstitutional, or that the Honorable OMBUDSMAN does not have any constitutional direct and immediate power, authority or jurisdiction to remove, suspend, demote, fine or censure, herein Petitioner and all other government officials, elective or appointive, not removable by impeachment, consistent with Sec. 13, par. No. (3), Art XI, of the 1987 Philippine Constitution. (C) That corollary to, or consistent with, the aforecited Second Reason, said REPUBLIC ACT No. 6770, as amended, is constitutionally impaired and invalid insofar as it is inconsistent with, or violative of, the aforecited constitutional provisions (Sec 13, No. 3, Art XI).

Estrada vs. Ranada (D) That the issue of "jurisdiction" or constitutionality or validity of a law, statute, rule or regulation can be raised at any stage of the case, even by way of a motion for reconsideration after a decision has been rendered by the court or judicial arbiter concerned.
(E) That the DECISION of the Court of Appeals is contrary to jurisprudential law, specifically to the ruling of this Honorable SUPREME COURT in the case of "Renato A. Tapiador, Petitioner versusOffice of the Ombudsman and Atty. Ronaldo P. Ledesma, Respondents, G.R No. 129124" decided on March 15, 2002. (F) That assuming arguendo that the Honorable OMBUDSMAN does have such direct constitutional power to remove, suspend, etc. government officials not removable by impeachment, the DECISION rendered in said case OMB-MIN-ADM-98-[183], finding Petitioner "guilty of Dishonesty and Grave Misconduct" and directing his "dismissal from the service, with forfeiture of all leave credits and retirement benefits xxx", is still contrary to law and the evidence on record, or, at the very least, the charge of "Dishonesty" is not included in RANADAs administrative complaint and absolutely no evidence was presented to prove "Dishonesty" and the complaint which was limited to "[Grave] Misconduct" only; (G) That further assuming arguendo that Petitioner is subject to direct administrative disciplinary authority by the Honorable OMBUDSMAN whether under the Constitution or RA 6770, and assuming that he is "guilty" of "Dishonesty and Grave Misconduct", the Court of Appeals violated Sec. 25 of R.A. 6770 for not considering and applying, several mitigating circumstances in favor of Petitioner and that the penalty (of dismissal with loss of benefits) imposed by OMBUDSMAN is violative of Sec. 25, of R.A. 6770 and is too harsh, inhumane, violative of his human dignity, human rights and his other constitutional right not to be deprived of his property and/or property rights without due process, is manifestly unproportionate to the offense for which Petitioner is being penalized, and, should, therefore, be substantially modified or reduced to make it fair, reasonable, just, humane and proportionate to the offense committed. (Emphasis supplied).12 Essentially, the issues for our resolution are: First, Is there substantial evidence to hold petitioner liable for dishonesty and grave misconduct? Second, Is the power of the Ombudsman to directly remove, suspend, demote, fine or censure erring officials unconstitutional? On the first issue, petitioner claims that the factual findings of the Court of Appeals are not supported by substantial evidence, and that the Court of Appeals misappreciated the facts of the case. Petitioner contends that he cannot be liable for grave misconduct as he did not commit extortion. He insists that he was merely prodded by Adrian Cagata to receive the money. He claims that as a bonded official it was not wrong for him to receive the money and he had authority to assist the agency in the collection of money due to the agency, e.g. payment for berthing permits. Moreover, he argues that the signing of berthing permits is only ministerial on his part and he does not have influence on their approval, which is the function of the berthing committee. Consequently, he avers, it makes no sense why he would extort money in consideration of the issuance of berthing permits. We note that indeed petitioner has no hand in the approval of berthing permits. But, it is undisputed that he does decide on the berthing space to be occupied by the vessels. The berthing committee likewise consults him on technical matters. We note, too, that he claims he was only instructed to receive the money from Cagata, yet he admits that there was no pending transaction between the PPA and the DPAI. In his Comment, the Ombudsman, through the Solicitor General, counters that petitioner raised questions of facts which are not reviewable by this Court. He argued that contrary to the petitioners claim, the judgment of guilt for dishonesty and grave misconduct was based on the evidence presented. Petitioner was caught red-handed in an entrapment operation by the NBI. According to the Ombudsman, the entrapment of the petitioner met the test for a valid entrapment i.e. the conduct of the law enforcement agent was not likely to induce a normally law-abiding person, other than one who is ready and willing to commit the offense. The presumption in entrapment is that a law abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully. Entrapment is contingent on the accuseds predisposition to commit the offense charged, his state of mind, and his

Estrada vs. Ranada inclination before his exposure to government agents. Thus, entrapment is not made ineffectual by the conduct of the entrapping officers. When Estarija went to the office of Adrian Cagata to pick up the money, his doing so was indicative of his willingness to commit the crime.
In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.13Further, precedents tell us that the factual findings of the Office of the Ombudsman when supported by substantial evidence are conclusive,14 and such findings made by an administrative body which has acquired expertise are accorded not only respect but even finality.15 As shown on the records, Estarija called the office of the DPAI and demanded the payment of the monthly contribution from Captain Zamora. Captain Zamora conveyed the demand to Ranada who in turn reported the matter to the NBI. Thereafter, an entrapment operation was staged. Adrian Cagata called Estarija to confirm the payment, and that the money was already available at their office. Accordingly, Estarija went to the DPAI office and collected the P5,000 marked money. Upon departure of Estarija from the office, the NBI operatives frisked him and recovered the P5,000 marked money. We are unconvinced by Estarijas explanation of his conduct. He does not deny that he went to the DPAI office to collect the money and that he actually received the money. Since there was no pending transaction between the PPA and the DPAI, he had no reason to go to the latters office to collect any money. Even if he was authorized to assist in the collection of money due the agency, he should have issued an official receipt for the transaction, but he did not do so. All told, we are convinced that there is substantial evidence to hold petitioner liable for grave misconduct. Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer. And when the elements of corruption, clear intent to violate the law or flagrant disregard of established rule are manifest, the public officer shall be liable for grave misconduct.16 We are convinced that the decision of the Ombudsman finding petitioner administratively liable for grave misconduct is based on substantial evidence. When there is substantial evidence in support of the Ombudsmans decision, that decision will not be overturned.17 The same findings sustain the conclusion that Estarija is guilty of dishonesty. The term dishonesty implies disposition to lie, cheat, deceive, or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness, disposition to defraud, deceive or betray.18 Patently, petitioner had been dishonest about accepting money from DPAI. Now, the issue pending before us is: Does the Ombudsman have the constitutional power to directly remove from government service an erring public official? At the outset, the Court of Appeals held that the constitutional question on the Ombudsmans power cannot be entertained because it was not pleaded at the earliest opportunity. The Court of Appeals said that petitioner had every opportunity to raise the same in his pleadings and during the course of the trial. Instead, it was only after the adverse decision of the Ombudsman that he was prompted to assail the power of the Ombudsman in his motion for reconsideration. The Court of Appeals held that the constitutional issue was belatedly raised in the proceedings before the Ombudsman, thus, it cannot be considered on appeal. When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power of judicial review only if the following requisites are present: (1) an actual and appropriate case and controversy; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question raised is the very lis mota of the case.19 For our purpose, only the third requisite is in question. Unequivocally, the law requires that the question of constitutionality of a statute must be raised at the earliest opportunity. In Matibag v. Benipayo,20 we held that the earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if it was not raised in the pleadings before a competent court, it cannot be considered at the trial, and, if not considered in the trial, it cannot be considered on appeal.

Estrada vs. Ranada In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim, Alfredo L. Benipayo as Chairman of the Commission on Elections (COMELEC). Ma. J. Angelina G. Matibag was the Director IV of the Education and Information Department (EID) but Benipayo reassigned her to the Law Department. Matibag sought reconsideration of her relief as Director of the EID and her reassignment to the Law Department. Benipayo denied her request for reconsideration. Consequently, Matibag appealed the denial of her request to the COMELEC en banc. In addition, Matibag filed a complaint against Benipayo before the Law Department for violation of the Civil Service Rules and election laws. During the pendency of her complaint before the Law Department, Matibag filed a petition before this Court assailing the constitutionality of the ad interim appointment of Benipayo and the other COMELEC Commissioners. We held that the constitutional issue was raised on time because it was the earliest opportunity for pleading the constitutional issue before a competent body.
In the case of Umali v. Guingona, Jr.,21 the question of the constitutionality of the creation of the Presidential Commission on Anti-Graft and Corruption (PCAGC) was raised in the motion for reconsideration after the Regional Trial Court of Makati rendered a decision. When appealed, the Court did not entertain the constitutional issue because it was not raised in the pleadings in the trial court. In that case, the Court did not exercise judicial review on the constitutional question because it was belatedly raised and not properly pleaded, thus, it cannot be considered by the Court on appeal. In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his motion for the reconsideration of the Ombudsmans decision. Verily, the Ombudsman has no jurisdiction to entertain questions on the constitutionality of a law. Thus, when petitioner raised the issue of constitutionality of Rep. Act No. 6770 before the Court of Appeals, which is the competent court, the constitutional question was raised at the earliest opportune time. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a constitutional issue may be passed upon.22 In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has only the powers enumerated under Section 13,23 Article XI of the Constitution; and that such powers do not include the power to directly remove, suspend, demote, fine, or censure a government official. Its power is merely to recommend the action to the officer concerned. Moreover, petitioner, citing Tapiador v. Office of the Ombudsman,24 insists that although the Constitution provides that the Ombudsman can promulgate its own rules of procedure and exercise other powers or perform such functions or duties as may be provided by law, Sections 15,25 21,26 2227 and 2528 of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of the Constitution because the power of the Ombudsman is merely to recommend appropriate actions to the officer concerned. For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend to spell out, restrictively, each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide simply a framework within which to build the institution. In addition, the Solicitor General avers that what petitioner invoked was merely an obiter dictum in the case of Tapiador v. Office of the Ombudsman. We find petitioners contentions without merit. Among the powers of the Ombudsman enumerated in Section 13, Article XI of the Constitution are: Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: 1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. 2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. 3. Direct the Officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.

Estrada vs. Ranada 4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.
5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. 6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence. 7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency. 8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Rep. Act No. 6770 provides for the functional and structural organization of the Office of the Ombudsman. In passing Rep. Act No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers and employees to make him a more active and effective agent of the people in ensuring accountability in public office.29 Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions.30 In Ledesma v. Court of Appeals,31 we held that Rep. Act No. 6770 is consistent with the intent of the framers of the 1987 Constitution. They gave Congress the discretion to give the Ombudsman powers that are not merely persuasive in character. Thus, in addition to the power of the Ombudsman to prosecute and conduct investigations, the lawmakers intended to provide the Ombudsman with the power to punish for contempt and preventively suspend any officer under his authority pending an investigation when the case so warrants. He was likewise given disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies except members of Congress and the Judiciary. We also held in Ledesma that the statement in Tapiador v. Office of the Ombudsman that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and cannot be cited as a doctrinal declaration of this Court.32 Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during the interpellation by Commissioner Rodrigo in the Constitutional Commission of 1986 on the debates relative to the power of the Ombudsman: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that: The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan? MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise such powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken away from the Tanodbayan, may it not?

Estrada vs. Ranada MR. COLAYCO: Yes.

MR. MONSOD: Yes. xxxx MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are "such functions or duties as may be provided by law." x x x MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them. MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature? MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan (2 record, 270-271). (emphasis supplied) xxxx MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the [H]onorable Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (emphasis supplied).33 Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and employees, except members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of Republic Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely

Estrada vs. Ranada recommendatory. His office was given teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring public official other than a member of Congress and the Judiciary.
WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court of Appeals in CAG.R. SP No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED. No costs. SO ORDERED.

Medina vs. CoA

EN BANC OFFICE OF THE OMBUDSMAN and DENNIS M. VILLA-IGNACIO, in his capacity as Special Prosecutor, Office of the Ombudsman,
Petitioners,

G.R. No. 164250 Present: DAVIDE, JR., C.J., PUNO, PANGANIBAN, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ.

- versus -

ATTY. GIL A. VALERA and COURT OF APPEALS Promulgated: (Special First Division), Respondents. September 30, 2005 x------------------------------------ --------------x DECISION CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Office of the Ombudsman and Dennis M. Villa-Ignacio, in his capacity as the Special Prosecutor, Office of the Ombudsman, seeking the reversal of

Medina vs. CoA

__________________ * No part.

Medina vs. CoA

the Decision[1] dated June 25, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 83091. The assailed decision set aside the Order dated March 17, 2004 issued by petitioner Special Prosecutor Villa-Ignacio in OMB-C-A-03-0379-J placing respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Revenue Collection Monitoring Group, Bureau of Customs, under preventive suspension for a period of six months without pay. Factual and Procedural Antecedents Respondent Valera was appointed Deputy Commissioner of the Bureau of Customs by President Gloria Macapagal-Arroyo on July 13, 2001. He took his oath of office on August 3, 2001 and assumed his post on August 7, 2001. He is in charge of the Revenue Collection Monitoring Group. On August 20, 2003, the Office of the Ombudsman received the Sworn Complaint dated July 28, 2003 filed by then Director Eduardo S. Matillano of the Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG). In the said sworn complaint, Director Matillano charged respondent Valera with criminal offenses involving violation of various provisions of Republic Act (R.A.) No. 3019,[2] the Tariff and Customs Code of the Philippines (TCCP), Executive Order No. 38,[3] Executive Order No. 298[4] and R.A. No. 6713[5] as well as administrative offenses of Grave Misconduct and Serious Irregularity in the Performance of Duty. Likewise subject of the same sworn complaint was respondent Valeras brother-in-law Ariel Manongdo for violation of Section 4 of R.A. No. 3019. The sworn complaint alleged that:
On January 30, 2002, while in the performance of his official functions, Atty. Gil A. Valera had compromised the case against the Steel Asia Manufacturing Corporation in Civil Case No. 01102504 before Branch 39, RTC, Manila without proper authority from the Commissioner of the Bureau of Customs in violation of Section 2316 TCCP (Authority of Commission to make Compromise) and without the approval of the President, in violation of Executive Order No. 156 and Executive Order No. 38. Such illegal acts of Atty. Gil A. Valera, indeed, caused undue injury to the government by having deprived the government of its right to collect the legal interest, surcharges, litigation expensesand damages and gave the Steel Asia unwarranted benefits in the total uncollected amount of FOURTEEN MILLION SEVEN HUNDRED SIXTY-TWO

Medina vs. CoA

THOUSAND FOUR HUNDRED SIXTY-SEVEN PESOS AND SEVENTY CENTAVOS (P14,762,467.70), which is violative of Sections 3(e) and (g) respectively of RA 3019. Further investigation disclosed that Atty. Gil A. Valera while being a Bureau of Customs official directly and indirectly had financial or pecuniary interest in the CACTUS CARGOES SYSTEMS a brokerage whose line of business or transaction, in connection with which, he intervenes or takes part in his official capacity by way of causing the employment of his brother-inlaw, Ariel Manongdo, thus, violating Section 3(h) of RA 3019 and RA 6713 and Section 4, RA 3019 as against Ariel Manongdo. Finally, investigation also disclosed that on April 21, 2002 Atty. Gil A. Valera traveled to Hongkong with his family without proper authority from the Office of the President in violation of Executive Order No. 298 (foreign travel of government personnel) dated May 19, 1995, thus, he committed an administrative offense of Grave Misconduct.[6]

Medina vs. CoA

The sworn complaint prayed that:

1) Appropriate preliminary investigation be conducted with the end-in-view of filing the necessary information before the Sandiganbayan; 2) Pending investigation, Atty. Gil A. Valera be indefinitely suspended from public office in order to prevent him from further committing acts of irregularity in public office;

3) This Group be furnished a copy of the Resolution of this (sic) cases.[7]

At about the same time as the filing of the complaint against respondent Valera, Director Matillano also filed charges against other officials of the Department of Public Works and Highways (DPWH) and Bureau of Customs. The Philippine Daily Inquirer featured a news article on them with the title More govt execs flunk lifestyle check.[8] Prior to Director Matillanos sworn complaint, criminal and administrative charges were also filed with the Office of the Ombudsman by Atty. Adolfo Casareo against respondent Valera. The complaint of Atty. Casareo contained similar allegations as those in the complaint of Director Matillano in that respondent Valera, without being duly authorized by the Commissioner of Customs, entered into a compromise agreement with Steel Asia Manufacturing Corp. in Civil Case No. 01-102504 to the prejudice of the government. The cases against respondent Valera before the Ombudsman were docketed as follows:

Medina vs. CoA

OMB-C-C-02-0568-I (For: Violation of Sec. 3(e), R.A. 3019, as amended, and Section 3604 of the Tariff and Customs Code) entitled Alfredo Casareo v. Gil A. Valera and Antonio M. Lorenzana OMB-C-C-03-0547-J (For: Violation of Sec. 3(e), (g) and (h) of R.A. 3019, as amended) entitled PNP-CIDG v. Gil A. Valera and Ariel N. Manongdo OMB-C-A-0379-J (For: Grave Misconduct and Serious Irregularity in the Performance of Duty) entitled PNP-CIDG v. Gil A. Valera

On

November

12,

2003,

Ombudsman

Simeon

V.

Marcelo

issued

Memorandum[9] inhibiting himself from the foregoing criminal cases as well as the related administrative case and directing petitioner Special Prosecutor Villa-Ignacio to act in his (the Ombudsmans) stead and place. The said memorandum reads:
MEMORANDUM TO : HON. DENNIS M. VILLA-IGNACIO Special Prosecutor Office of the Special Prosecutor OMB-C-C-02-0568-I entitled Alfredo Casareo vs. Gil Valera, et al., CPL No. C-03-1829 entitled PNP-CIDG vs. Atty. Gil Valera and Ariel Manongdo and OMB-C-A-0379J entitled PNP-CIDG vs. Atty. Gil Valera

SUBJECT

DATE : November 12, 2003 ____________________________________________________________ The undersigned is inhibiting himself in the above-captioned cases. Please act in his stead and place.

(Sgd.) SIMEON V. MARCELO Tanodbayan (Ombudsman)

On March 17, 2004, pursuant to the above memorandum, petitioner Special Prosecutor Villa-Ignacio, in the administrative case OMB-C-A-0379-J, issued the Order placing respondent Valera under preventive suspension for six months without pay. In the said order, petitioner Special Prosecutor Villa-Ignacio found that respondent Valera entered into the compromise

Medina vs. CoA

agreement with Steel Asia Manufacturing Corp. in Civil Case No. 01-102504 without being duly authorized to do so by the Commissioner of Customs and without the approval of the Secretary of Finance in violation of Section 2316[10] of the TCCP. As earlier mentioned, Civil Case No. 01-102504 was a collection suit filed by the Republic of the Philippines represented by the Bureau of Customs against Steel Asia Manufacturing Corp. for payment of duties and taxes amounting to P37,195,859.00. The said amount was allegedly paid by Steel Asia Manufacturing Corp. with spurious tax credit certificates. In addition to the principal amount, the government likewise demanded payment of penalty charges (25% thereof), legal interest from date of demand, litigation expenses and exemplary damages. Petitioner Special Prosecutor Villa-Ignacio made the finding that by entering into the said compromise agreement whereby Steel Asia Manufacturing Corp. shall pay the overdue taxes and duties in thirty (30) monthly installments of P1,239,862 from January 2002 to June 2004, respondent Valera may have made concessions that may be deemed highly prejudicial to the government, i.e., waiver of the legal interest from the amount demanded, penalty charges imposed by law, litigation expenses and exemplary damages. Further, by the terms of the compromise agreement, respondent Valera had virtually exonerated Steel Asia Manufacturing Corp. of its fraudulent acts of using spurious tax credit certificates. Petitioner Special Prosecutor Villa-Ignacio concluded the Order dated March 17, 2004 by stating that [c]onsidering the strong evidence of guilt of respondent Deputy Commissioner Valera and the fact that the charges against him consist of Grave Misconduct and/or Dishonesty which may warrant his removal from the service, it is hereby declared that the requirements under Section 24 of R.A. No. 6770, in relation to Sec. 9, Rule III of Administrative Order No. 7, on the Rules of Procedure of the Office of the Ombudsman, as amended, are present, and placing respondent Deputy Commissioner Valera under preventive suspension pending administrative investigation on the matter for a period of six (6) months without pay is clearly justified.[11] The decretal portion of the March 17, 2004 Order reads:

Medina vs. CoA WHEREFORE, pursuant to Sec. 24 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, in relation to Sec. 9, Rule III of Administrative Order No. 7, respondent ATTY. GIL A. VALERA, Deputy Commissioner, Office of the Collection and Monitoring Group, Bureau of Customs, is hereby placed under preventive suspension for SIX (6) MONTHS WITHOUT PAY. Pursuant to Sec. 27(1) of R.A. No. 6770, this Order of Preventive Suspension is deemed immediately effective and executory. The Honorable Commissioner Antonio M. Bernard, Bureau of Customs, is hereby directed to implement the Order immediately upon receipt hereof and to promptly inform this Office of compliance herewith. Respondent Atty. Gil A. Valera, Deputy Commissioner, Office of the Collection and Monitoring Group, Bureau of Customs, is hereby ordered to file his counter-affidavit and other controverting evidence to the complaint, copy of which together with the annexes, is hereto attached, within ten (10) days from receipt hereof in three (3) legible copies addressed to the Central Records Division, Office of the Ombudsman, Ombudsman Building, Agham Road, Government Center, North Triangle, Diliman, Quezon City, furnishing the complainant with a copy of said counter-affidavit. Further, respondent is also ordered to submit proof of service of his counter-affidavit to the complaint, who may file its reply thereto within a period of ten (10) days from receipt of the same. Failure to comply as herein directed within the period prescribed by the rules shall be deemed as a waiver of the right to submit the partys counter-affidavit or reply, nonetheless, despite said non-filing, the investigation shall proceed pursuant to existing rules. This Order is being issued by the undersigned in view of the inhibition of the Honorable Tanodbayan Simeon Marcelo from his case as contained in a Memorandum dated 12 November 2003. SO ORDERED.[12]

Respondent Valera sought reconsideration of the said Order claiming denial of due process. He averred that he had already submitted his counter-affidavit refuting the charges leveled against him by the PNP-CIDG way back on November 6, 2003. He pointed out that Director Matillanos sworn complaint was filed on August 20, 2003 and it was only two months later or on October 22, 2003 that the Ombudsman found enough basis to proceed with the administrative investigation of the case by requiring respondent Valera to file his counter-affidavit. He did so on November 6, 2003. During the said period of two months, the Preliminary Investigation and Administrative Adjudication Bureau-A (PIAB-A) of the Office of the Ombudsman did not find enough bases to preventively suspend him. According to respondent Valera, he was at a loss as to why it was only then (March 17, 2004) that he was being placed under preventive suspension.

Medina vs. CoA

Acting on respondent Valeras motion for reconsideration, petitioner Special Prosecutor Villa-Ignacio issued the Order dated April 5, 2004 explaining that the delay in the issuance of the preventive suspension order was due to the inhibition of the Ombudsman from the case and for which reason, he (petitioner Special Prosecutor Villa-Ignacio), by virtue of the Memorandum dated November 12, 2003, had to act in his place and stead. Petitioner Special Prosecutor VillaIgnacio averred that contrary to respondent Valeras assertion, his counter-affidavit would not justify the reversal of the March 17, 2004 Order since he failed to show that he had the requisite authority from the Commissioner of Customs to enter into the said compromise agreement with respect to the Steel Asia Manufacturing Corp. case. It was not shown under what authority and on what basis respondent Valera entered into the said compromise agreement. In light of the foregoing ratiocination, petitioner Special Prosecutor Villa-Ignacio denied respondent Valeras motion for reconsideration. The decretal portion of his Order dated April 5, 2004 reads:
WHEREFORE, the undersigned finds no cogent reason to reconsider the suspension order previously issued dated 17 March 2004 but considers the Counter-Affidavit received by the Office of the Ombudsman 06 November 2003 as sufficient compliance to the portion of the assailed Order directing him to file his counter-affidavit. Consequently, the Order insofar as it requires him to file counter-affidavit contained in the 17 March 200[4] Order is SET ASIDE.[13]

Even before his motion for reconsideration was acted upon, however, respondent Valera already filed with the Court of Appeals a special civil

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action for certiorari and prohibition as he sought to nullify the March 17, 2004 Order of preventive suspension issued by petitioner Special Prosecutor Villa-Ignacio and to enjoin Commissioner of Customs Antonio M. Bernardo from implementing the said Order. On April 16, 2004, the appellate court heard the parties on oral arguments on the prayer for injunction. On even date, it issued a temporary restraining order against the implementation of the preventive suspension order. On June 25, 2004, the appellate court rendered the assailed Decision setting aside the March 17, 2004 Order of preventive suspension and directing petitioner Special Prosecutor Villa-Ignacio to desist from taking any further action in OMB-C-A-03-0379-J. In so ruling, the CA held mainly that petitioner Special Prosecutor Villa-Ignacio is not authorized by law to sign and issue preventive suspension orders. It cited Section 24 of R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, which vests on the Ombudsman and his Deputy the power to preventively suspend any government officer or employee under the Ombudsmans authority pending investigation subject to certain conditions. In relation thereto, Section 5, Article XI of the Constitution was also cited as it states that the Office of the Ombudsman is composed of the Ombudsman to be known as the Tanodbayan, one overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A separate Deputy for the military establishment may likewise be appointed. Relying on these two provisions of law, the CA declared that petitioner Special Prosecutor Villa-Ignacio has no authority to issue a preventive suspension order since he is neither the Ombudsman nor one of the Deputy Ombudsmen. The CA was not persuaded by petitioner Special Prosecutor Villa-Ignacios contention that his authority to issue the March 17, 2004 Order of preventive suspension could be found in Section 11(4)(c) of R.A. No. 6770 which provides that the Office of the Special Prosecutor shall, in addition to those powers expressly enumerated in the said provision, perform such other duties

Medina vs. CoA

assigned to it by the Ombudsman. The CA held that the grant of such power to the Office of the Special Prosecutor is subject to the condition that it shall be under the supervision and control and upon the authority of the Ombudsman. However, according to the CA, by virtue of the Memorandum dated November 12, 2003 of Ombudsman Marcelo where he stated that he was inhibiting himself and directing petitioner Special Prosecutor Villa-Ignacio to act in his place and stead, the latter (petitioner Special Prosecutor) officially stepped into the position of the Ombudsman insofar as the subject case is concerned. In effect, petitioner Special Prosecutor Villa-Ignacio would act as the Ombudsman. The CA opined that this is not the kind of duties contemplated under Section 11(4)(c) of R.A. No. 6770. Ombudsman Marcelos Memorandum dated November 12, 2003 was declared null and void by the appellate court for the following reasons:
1. The issuance of that kind of a memorandum effectively stretched (or over-stretched) the limited powers of the special prosecutor under R.A. No. 6770 and the Constitution; 2. The issuance of that kind of a memorandum has effectively placed the special prosecutor over and above all of the five (5) deputies of the Ombudsman in terms of hierarchy with respect to administrative adjudication; 3. To put it lightly, the Ombudsman, in issuing that kind of a memorandum, has, wittingly or unwittingly, permitted the Office of the Special Prosecutor to perform the administrative adjudicative powers of the Ombudsman not only to issue preventive suspension but to perform, without qualification, any and all other administrative adjudicative powers, duties functions and responsibilities pertaining to the former as provided under R.A. No. 6770 and the Constitution.[14]

In addition, the CA refuted the finding of petitioner Special Prosecutor Villa-Ignacio that the evidence of guilt against respondent Valera is strong to warrant his preventive suspension. The CA proffered the following circumstances as negating the said finding of petitioner Special Prosecutor Villa-Ignacio: (1) Unlike the other four government officials who were simultaneously charged with him, respondent Valera was not immediately placed under preventive suspension; hence, indicating that there was no strong evidence against him; (2) Petitioner Special Prosecutor Villa-Ignacios comment filed with the appellate court did not make any reference to respondent

Medina vs. CoA

Valeras supposed foreign travel violation which was alleged in the sworn compla int of Director Matillano; and (3) The admission of petitioner Special Prosecutor Villa-Ignacios counsel during the oral arguments on the preliminary injunction that the PIAB-A recommended against placing respondent Valera under preventive suspension. Finally, the CA strongly denounced petitioner Special Prosecutor Villa-Ignacio for issuing the preventive suspension order without even considering respondent Valeras counter -affidavit and, worse, not knowing that he had already filed it as early as November 5, 2003. The CA opined that had petitioner Special Prosecutor Villa-Ignacio duly considered the said counteraffidavit, he would have reached a different conclusion, i.e., there is no strong evidence against respondent Valera. Further, that the latter, in entering into the compromise agreement with Steel Asia Manufacturing Corp., is authorized to do so under Section 2401[15] of the TCCP and Section 2316 thereof, cited by petitioner Special Prosecutor Villa-Ignacio, is inapplicable. The CA concluded that petitioner Special Prosecutor Villa-Ignacio acted with grave abuse of discretion in issuing the March 17, 2004 placing respondent Valera under preventive suspension for six months without pay in connection with the administrative case OMB-C-A-03-0379-J. The decretal portion of the decision of the appellate court reads:
WHEREFORE, the petition is hereby GRANTED, and the assailed order of March 17, 2004, issued by respondent Dennis Villa-Ignacio in OMB-C-A-03-0379-J is SET ASIDE. Respondent Special Prosecutor is DIRECTED to desist from taking any further action in OMB-C-A-03-0379-J. SO ORDERED.[16]

Hence, the recourse to this Court by petitioners Special Prosecutor Villa-Ignacio and the Office of the Ombudsman. The Petitioners Case They submit the following as grounds for the allowance of their petition:

Medina vs. CoA

IN ITS DECISION DATED 25 JUNE 2004, THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FINDING THAT THE PETITIONER SPECIAL PROSECUTOR COMMITTED GRAVE ABUSE OF DISCRETION, AND IN SETTING ASIDE THE MARCH 17, 2004 ORDER OF PREVENTIVE SUSPENSION ISSUED BY THE PETITIONER SPECIAL PROSECUTOR, CONSIDERING THAT: I [PETITIONER] SPECIAL PROSECUTOR ACTED WITH FULL AUTHORITY CONSIDERING THAT THE OMBUDSMAN EXPRESSLY ASSIGNED TO [PETITIONER] SPECIAL PROSECUTOR THE SPECIFIC FUNCTION OF ACTING IN HIS (OMBUDSMANS) PLACE AND STEAD IN OMB-C-A-030379-J, AND THIS DELEGATION OF AUTHORITY SUFFERS FROM NO VICE OR DEFECT AND, ON THE CONTRARY, HAS THE FULL MANDATE OF THE LAW. II NO GRAVE ABUSE OF DISCRETION HAS BEEN COMMITTED BY THE PETITIONERS IN FINDING, AT THAT STAGE, THE EVIDENCE OF GUILT TO BE STRONG ON THE PART OF PRIVATE RESPONDENT, FOR GRAVE MISCONDUCT AND/OR DISHONESTY. III PRIVATE RESPONDENTS PETITION FILED BEFORE THE COURT A QUO SHOULD HAVE BEEN DISMISSED FOR VIOLATION OF THE RULE ON FORUM SHOPPING.[17]

The petitioners vigorously maintain that no grave abuse of discretion attended the issuance by petitioner Special Prosecutor Villa-Ignacio of the March 17, 2004 Order placing respondent Valera under preventive

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suspension because the Ombudsman, in directing petitioner Special Prosecutor Villa-Ignacio to act in his place and stead insofar as OMB-C-A-03-0379-J was concerned, fully clothed the latter with delegated authority to act thereon. Since under Section 24 of R.A. No. 6770, the Ombudsman may preventively suspend respondent Valera in the subject administrative case, it follows that with the delegation of his authority to petitioner Special Prosecutor Villa-Ignacio, he had full authority to preventively suspend respondent Valera. Petitioner Special Prosecutor Villa-Ignacio, upon finding that all the elements for preventive suspension in Section 24 of R.A. No. 6770 are present, accordingly placed respondent Valera under preventive suspension for six months without pay in connection with the subject administrative case. The petitioners defend the validity of the Ombudsmans delegation of his authority to petitioner Special Prosecutor Villa-Ignacio with respect to the administrative case OMB-C-A-030379-J contending that: a) the authority to preventively suspend is not insusceptible to delegation to an alter ego of the Ombudsman; b) the petitioner Special Prosecutor possessed the necessary qualifications and competence to exercise the delegated functions; c) no law or rule was violated with the said delegation.[18] Nothing in Section 24 of R.A. No. 6770 allegedly prohibits the delegation by the Ombudsman of his authority to preventively suspend to his alter ego. The petitioners point out that under R.A. No. 6770, the Special

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Prosecutor, like the Deputy Ombudsmen, heads a major office in the Office of the Ombudsman;[19] he is appointed in the same manner as the Deputy Ombudsmen;[20] he shares the same qualifications[21] and enjoys the same rank and privilege as the latter.[22] As such, the Special Prosecutor, like any of the other Deputy Ombudsmen, has the competence and capability to preventively suspend any officer or employee under the authority of the Ombudsman. The petitioners invoke, in particular, Section 11(4)(c) of R.A. No. 6770:
Sec. 11. Structural Organization. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers: (c) To perform such other duties assigned to it by the Ombudsman.

By this provision, the Ombudsman may allegedly validly delegate to the Special Prosecutor such other functions that he cannot, otherwise, perform by himself and that he (the Ombudsman) is not obliged to always make such delegation to the Overall Deputy Ombudsman. In the exercise of quasi-judicial functions, there is no law which mandates that the Ombudsman can only inhibit himself in favor of the Deputy Ombudsmen. The petitioners assert that the evidence of respondent Valeras guilt for serious administrative infractions is strong. According to them, the facts that have so far been established show that respondent Valera entered into the compromise agreement with Steel Manufacturing Asia Corp. to unduly shield and promote its interests and to the prejudice of the government. It is allegedly suspicious that he (respondent Valera) simply allowed the said company to redeem the spurious tax credit certificates with a 30-month staggered payment when sufficient properties of the said company had already been attached to satisfy not only the P37 million principal amount of taxes owed by the said company but the penalty charges and damages as well. He further unjustifiably exonerated the said companys officers of any criminal wrongdoing when they are conclusively liable for the procurement of these spurious tax credit certificates. Further,

Medina vs. CoA

respondent Valera was never authorized by the Customs Commissioner to enter into such compromise agreement nor was it approved by the Secretary of Finance as required by Section 2316 of the TCCP. Neither was it approved by the President of the Philippines as further required by E.O. No. 38. Respondent Valera thus committed an act of misrepresentation when he signed the compromise agreement under the clause By authority of the Commissioner. The petitioners posit that conclusively at the given stage respondent Valera appeared to have committed Grave Misconduct and Dishonesty to warrant his preventive suspension. They also aver that the evidence strongly show that respondent Valera obtained employment for his brotherin-law, Ariel Manongdo, with Cactus Cargo Systems, Inc., a customs brokerage firm whose business principally involves dealing on a regular basis with the Bureau of Customs, in contravention of R.A. No. 6713 and R.A. No. 3019. To refute the appellate courts statement that there was inordinate delay in the issuance of the March 17, 2004 Order of preventive suspension, the petitioners explain that the same was due to, among others, the inhibition of the Ombudsman from the case, the delay in the transmittal of the case records and the amount of time that it took petitioner Special Prosecutor Villa-Ignacio to study the recommendation of the PIAB-A and the divergent recommendation of the Assistant Ombudsman for Preliminary Investigation, Adjudication and Monitoring Office (PAMO). Moreover, even if the PIAB-A recommended against placing respondent Valera under preventive suspension, petitioner Special Prosecutor Villa-Ignacio was not bound to adopt the same. With respect to respondent Valeras counter-affidavit, the petitioners insist that the same failed to rebut the strong evidence against him; hence, justifying his preventive suspension. Finally, the petitioners fault the appellate court for not dismissing outright respondent Valeras petition for certiorari. They charge him with violation of the rule on non-forum shopping as he filed his petition for certiorari with the CA even when his motion for reconsideration had yet to be acted upon by petitioner Special Prosecutor Villa-Ignacio.

Medina vs. CoA

The Respondents Counter-Arguments Respondent Valera mainly argues that petitioner Special Prosecutor Villa-Ignacio has no authority to issue the March 17, 2004 Order placing him under preventive suspension. While Section 11(4)(c) of R.A. No. 6770 grants the Office of the Special Prosecutor the power to perform such other duties assigned to it by the Ombudsman, the performance of such other duties should still be under the supervision and control and upon the authori ty of the Ombudsman. Respondent Valera echoes the ratiocination of the CA that the Memorandum dated November 12, 2003 issued by Ombudsman Marcelo directing petitioner Special Prosecutor VillaIgnacio to act in his place and stead in OMB-C-A-03-0379-J produced the effect of making him (petitioner Special Prosecutor) step into the position of the Ombudsman. This is not the kind of assignment of duties contemplated by Section 11(4)(c) of R.A. No. 6770 because, in such a case, the Ombudsmans power of supervision and control over the Special Prosecutor is undermined. Respondent Valera submits that the Ombudsmans memorandum designating petitioner Special Prosecutor Villa-Ignacio to act in his place and stead has destroyed the hierarchy of command within the Office of the Ombudsman because it put the Special Prosecutor over and above the Office of the Overall Deputy Ombudsman. Such designation infringes on Section 11(2) of R.A. No. 6770 which provides that the Overall Deputy Ombudsman shall overse e and administer the operations of the different offices under the Office of the Ombudsman. The Overall Deputy Ombudsman is next in line to the Ombudsman as shown by the fact that he assumes as Acting Ombudsman in case of vacancy in the Office of the Ombudsman due to death, resignation, removal or permanent disability of the incumbent Ombudsman. Respondent Valera stresses that the power to preventively suspend any officer or employee under the authority of the Ombudsman pending investigation is exclusively vested on the Ombudsman or his Deputy pursuant to Section 24 of R.A. No. 6770. Since the Special Prosecutor is not named therein as vested with the said power, then petitioner Special Prosecutor VillaIgnacio has no authority to issue a preventive suspension.

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In relation thereto, the Special Prosecutors powers is allegedly limited to the conduct of preliminary investigation and prosecution of criminal cases within the jurisdiction of the Sandiganbayan. Respondent Valera cites the enumeration of the Special Prosecutors powers in Section 11(4) of R.A. No. 6770:
Sec. 11. Structural Organization. (4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the Ombudsman, have the following powers: (a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) To enter into plea bargaining agreement; and (c) To perform such other duties assigned to it by the Ombudsman.

Applying the rule of ejusdem generis, respondent Valera theorizes that since the first two powers relate to criminal complaints and criminal cases, then the last power to perform such other duties assigned to it by the Ombudsman can only refer to other duties related to criminal complaints and criminal cases and not to administrative complaints, investigation, adjudication and administrative preventive suspension. While he concedes that the Ombudsman may inhibit himself in certain cases, respondent Valera is of the view that when the Ombudsman does inhibit himself in an administrative investigation pending before the Office of the Ombudsman, he may not designate the Special Prosecutor to act in his place and stead. Respondent Valera also harps on petitioner Special Prosecutor Villa-Ignacios alleged failure to consider his (respondent Valeras) counter-affidavit before issuing the preventive suspension order. This omission coupled with the delay in issuing the same allegedly renders the March 17, 2004 Order null and void. On the evidence against him, respondent Valera claims that the same is not strong. He cites the delay in placing him under preventive suspension as he alleges that the first complaint involving the Steel Manufacturing Asia Corp. case was filed against him by Atty. Casareo as

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early as August 26, 2002. However, it was only on March 17, 2004 that he was placed under preventive suspension by petitioner Special Prosecutor Villa-Ignacio. The strength of the evidence against him is also belied by the fact that the PIAB-A recommended against placing him under preventive suspension. On the procedural point, respondent Valera states that he filed the petition for certiorari with the CA without awaiting the resolution of his motion for reconsideration because, at the time, petitioner Special Prosecutor Villa-Ignacio still had not resolved the same despite the lapse of the period provided by the Ombudsmans rules of procedure. Issue The basic issue for the Courts resolution is whether petitioner Special Prosecutor Villa Ignacio has the authority to place respondent Valera under preventive suspension in connection with the administrative case OMB-C-A-03-0379-J pending before the Office of the Ombudsman. The Courts Ruling The Court holds that the Special Prosecutor has no such authority. Preliminarily, it is noted that petitioner Special Prosecutor Villa-Ignacio anchors his authority to conduct the administrative investigation in OMB-C-A-03-0379-J on the Memorandum dated November 12, 2003 issued by Ombudsman Marcelo inhibiting himself therefrom and directing petitioner Special Prosecutor Villa-Ignacio to act in his place and stead. Significantly, Ombudsman Marcelo did not state in the said memorandum the reason for his inhibition. On this point, the rule on voluntary inhibition of judges finds application to the Ombudsman in the performance of his functions particularly in administrative proceedings like OMB-C-A-03-0379-J. Like judges, the decision on whether or not to inhibit is admittedly left to the Ombudsmans sound discretion and conscience.[23] However, again similar to judges, Ombudsman Marcelo has no unfettered discretion to inhibit himself. The inhibition must be for

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just and valid causes.[24] No such cause was proffered by Ombudsman Marcelo for his inhibition in OMB-C-A-03-0379-J. The Court shall now proceed to resolve the basic issue of the case. The Ombudsman, pursuant to his power of supervision and control over the Special Prosecutor, may authorize the latter to conduct administrative investigation

The Office of the Ombudsman is vested by the Constitution with the following powers, functions and duties:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient; (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any governmentowned and controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent and correct any abuse or impropriety in the performance of duties; (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action; (5) Request any government agency for assistance an information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent and records and documents; (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence; (7) Determine the causes of inefficiency, red tape, mismanagement, fraud and corruption in the Government and make recommendations for their elimination and the observance of high standards of ethics and efficiency; and (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law.[25]

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R.A. No. 6770 was enacted to provide for the functional and structural organization of the Office of the Ombudsman. It substantially reiterates the constitutional provisions relating to the Office of the Ombudsman. In addition, R.A. No. 6770 granted to the Office of the Ombudsman prosecutorial functions[26] and made the Office of the Special Prosecutor an organic component of the Office of the Ombudsman.[27] As such, R.A. No. 6770 vests on the Office of the Special Prosecutor, under the supervision and control and upon the authority of the Ombudsman, the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the Sandiganbayan; (b) (c) To enter into plea bargaining agreement; and To perform such other duties assigned to it by the Ombudsman.[28]

Based on the pertinent provisions of the Constitution and R.A. No. 6770, the powers of the Ombudsman have generally been categorized into the following: investigatory power; prosecutory power; public assistance functions; authority to inquire and obtain information; and function to adopt, institute and implement preventive measures.[29] The Ombudsmans investigatory and prosecutory power has been characterized as plenary and unqualified:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary and unqualified. It pertains to any act or omission of any public officer or employee when such act or omission appears to be illegal, unjust, improper or inefficient[30]

On the other hand, the authority of the Office of the Special Prosecutor has been characterized as limited:
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with the limited authority of the Special Prosecutor under Section 11 of R.A. 6770. The Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may act only under the supervision and control and upon the authority of the Ombudsman. Its power to conduct preliminary investigation and prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the lawmakers did not intend to confine the investigatory and prosecutory power of the Ombudsman to these types of cases. The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel in his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist

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in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special Prosecutor to prosecute cases outside the Sandiganbayans jurisdiction in accordance with Section 11(4c) of R.A. 6770.[31]

The Court has consistently held that the Office of the Special Prosecutor is merely a component of the Office of the Ombudsman and may only act under the supervision and control and upon authority of the Ombudsman.[32] Section 38(1), Chapter 7, Book IV of the Administrative Code of 1987 defines supervision and control thus:
(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word control shall encompass supervision and control as defined in this paragraph.

The power of supervision and control has been likewise explained as follows:
In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[33]

Pursuant to its power of supervision and control, the Office of the Ombudsman is empowered under Section 15(10) of R.A. No. 6770 to:
(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;

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Complementary thereto, Section 11(4)(c) thereof requires the latter to:

(c) [p]erform such other duties assigned to it by the Ombudsman.

Hence, under the foregoing provisions, the Ombudsman may delegate his investigatory function, including the power to conduct administrative investigation, to the Special Prosecutor. Section 24 of R.A. No 6770, however, grants the power to preventively suspend only to the Ombudsman and the Deputy Ombudsmen

Section 24 of R.A. No. 6770 reads:

Sec. 24. Preventive Suspension. The Ombudsman and his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

It is observed that R.A. No. 6770 has invariably mentioned the Special Prosecutor alongside the Ombudsman and/or the Deputy Ombudsmen with of respect to the manner of appointment,[34] qualifications,[35] term office,[36]

Medina vs. CoA

grounds for removal from office,[37] prohibitions and disqualifications[38] and disclosure of relationship requirement.[39] However, with respect to the grant of the power to preventively suspend, Section 24 of R.A. No 6770 makes no mention of the Special Prosecutor. The obvious import of this exclusion is to withhold from the Special Prosecutor the power to preventively suspend. It is a basic precept of statutory construction that the express mention of one person, thing, act or consequence excludes all others as expressed in the familiar maxim expressio unius est exclusio alterius.[40] The petitioners contention that since the Special Prosecutor is of the same rank as that of a Deputy Ombudsman, then the former can rightfully perform all the functions of the latter, including the power to preventively suspend, is not persuasive. Under civil service laws, rank classification determines the salary and status of government officials and employees.[41] Although there is substantial equality in the level of their respective functions, those occupying the same rank do not necessarily have the same powers nor perform the same functions.

Medina vs. CoA

The Ombudsman and the Deputy Ombudsmen, as they are expressly named in Section 24 of R.A. No. 6770, have been granted the power to preventively suspend as the same inheres in their mandate under the Constitution:
Sec. 12. 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 [42] result thereof.

While R.A. No. 6770 accords the Special Prosecutor the same rank as that of the Deputy Ombudsmen, Section 24 thereof expressly grants only to the Ombudsman and the Deputy Ombudsmen the power to place under preventive suspension government officials and employees under their authority pending an administrative investigation.[43] However, if the Ombudsman delegates his authority to conduct administrative investigation to the Special Prosecutor and the latter finds that the preventive suspension of the public official or employee subject thereof is warranted, the Special Prosecutor may recommend to the Ombudsman to place the said public officer or employee under preventive suspension. Pertinently, the investigation of OMB-C-A-03-0379-J was initially conducted by the PIABA, a panel composed of two Special Prosecution Officers III [44] and Graft Investigation and Prosecution Officers II.[45] The said investigating panel submitted to the Ombudsman the Memorandum dated November 5, 2003 which contained its initial findings stating in part thus:
After a careful evaluation of the complaint, it appears that the evidence of guilt in the case under review, in the context of Sec. 24, R.A. 6770, are not strong enough to warrant the imposition of preventive suspension of respondent Atty. Gil A. Valera. The evidence on record fall short of the quantum of evidence necessary to establish the necessary weight to preventively suspend him. However, the Investigating Panel finds enough basis to proceed with the administrative investigation of this case.[46]

It appears in the signatory page of the said memorandum that the findings and recommendation therein were reviewed by the Director[47] of the PIAB-A. Further, the memorandum was, likewise, reviewed by the Assistant Ombudsman, [48] Preliminary Investigation,

Medina vs. CoA

Adjudication and Monitoring Office (PAMO) with the notation recommending disapproval. This demonstrates that in the conduct of administrative investigation, the PIAB-A exercises merely recommendatory powers particularly with respect to whether to place the public official or employee subject thereof under preventive suspension. Ombudsman Marcelo designated the Special Prosecutor to conduct the administrative investigation. In the course thereof, petitioner Special Prosecutor Villa-Ignacio found that the preventive suspension of respondent Valera was warranted under Section 24 of R.A. No. 6770. However, since under the said provision only the Ombudsman or his Deputy may exercise the power of preventive suspension, petitioner Special Prosecutor Villa-

Medina vs. CoA

Ignacio could only recommend to the Ombudsman or, in this case because of the latters inhibition, to the designated Deputy Ombudsman to place respondent Valera under preventive suspension. Stated differently, with respect to the conduct of administrative investigation, the Special Prosecutors authority, insofar as preventive suspension is concerned, is akin to that of the PIABA, i.e., recommendatory in nature. It bears stressing that the power to place a public officer or employee under preventive suspension pending an investigation is lodged only with the Ombudsman or the Deputy Ombudsmen. Consequently, petitioner Special Prosecutor Villa-Ignacio had no authority to issue the March 17, 2004 Order placing respondent Valera under preventive suspension for six months without pay in connection with the administrative case OMB-C-A-03-0379-J. The appellate court thus correctly nullified and set aside the said assailed order. Considering the finding that petitioner Special Prosecutor Villa-Ignacio had no authority to issue the March 17, 2004 preventive suspension order, the resolution of the issue of whether or not the evidence of respondent Valeras guilt is strong to warrant his preventive suspension need not be passed upon at this point. Anent respondent Valeras alleged non-compliance with the rule on non-forum shopping when he filed the petition for certiorari with the appellate court, suffice it to state that the appellate court correctly overlooked this procedural lapse. The merits of respondent Valeras case are special circumstances or compelling reasons which justified the appellate courts relaxing the rule requiring certification on non-forum shopping.[49] It is well to mention, at this point, that after the appellate court rendered its decision nullifying the March 17, 2004 Order of petitioner Special Prosecutor Villa-Ignacio and directing him to desist from taking any further action in OMB-C-A-03-0379-J, the said case was next assigned to the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices (MOLEO), headed by Mr. Orlando C. Casimiro.[50] The hearings in OMB-C-A-03-0379-J were, thus, continued by the Deputy Ombudsman for MOLEO. On August 30, 2004, a Decision was rendered in the said administrative case finding petitioner Valera guilty of grave misconduct and decreeing his dismissal from the service. On appeal, the Court of Appeals affirmed the

Medina vs. CoA

decision of the Deputy Ombudsman for MOLEO. Petitioner Valera subsequently filed a petition for review with this Court assailing the said decision of the appellate court. The said petition, docketed as G.R. No. 167278, is now pending with the Court. WHEREFORE, the petition is DENIED. The Decision dated June 25, 2004 of the Court of Appeals in CA-G.R. SP No. 83091, insofar as it set aside the March 17, 2004 Order issued by petitioner Special Prosecutor Villa-Ignacio in OMB-C-A-03-0379-J, is AFFIRMED. SO ORDERED.

Medina vs. CoA

EN BANC [G.R. No. 176478, February 04, 2008] LORNA A. MEDINA, Petitioner, vs. COMMISSION ON AUDIT (COA), represented by the Audit Team of EUFROCINIA MAWAK, SUSAN PALLERNA, and MA. DOLORES TEPORA, Respondents. DECISION
TINGA, J,: While highlighting the interplay between the powers of two constitutional offices, one mandated as the government monitor of public fund expenditures and the other as the sentinel against graft and corruption in government, this case resolves some questions about the extent of their powers. This is a petition for review on certiorari[1] under Rule 45 of the 1997 Rules of Civil Procedure seeking the reversal of the Decision[2] and Resolution[3] of the Court of Appeals in CA-G.R. SP No. 89539. The Court of Appeals decision affirmed the two joint orders issued by the Office of the Deputy Ombudsman for Luzon finding herein petitioner Lorna A. Medina guilty of grave misconduct and dishonesty. The Resolution of the same court denied petitioners motion for reconsideration of the said decision. The instant petition originated from the audit conducted by respondent Commission on Audit (COA) on the cash and accounts handled by petitioner in her official capacity as Municipal Treasurer of General Mariano Alvarez, Cavite. In the Joint Affidavit[4]executed by herein respondents Eufrocinia M. Mawak, head of the audit team, and Susana L. Pallerna, Ma. Dolores C. Tepora and a certain Nelson T. Alvarez, who were all state auditors of the Provincial Auditors Office of Cavite, they all stated that they had examined petitioners financial records covering 19 August 1999 to 26 September 2000 and discovered a total cash shortage in the aggregate amount of P4,080,631.36. They thus directed petitioner to immediately restitute the shortage within 72 hours from receipt of the demand letter but petitioner allegedly failed to comply. The state auditors submitted a report to the Provincial Auditors Office and recommended the relief of petitioner from her post as municipal treasurer and the filing of criminal charges against her. COA, represented by the aforementioned state auditors, filed an administrative case docketed as OMB-L-A-04-0361-F before the Office of the Deputy Ombudsman for Luzon, charging petitioner with grave misconduct and dishonesty. As directed, petitioner filed a Counter-Affidavit[5] and a Position Paper[6] mainly raising the following defenses: (1) the audit team was not independent and competent; (2) the computation of her accountabilities was overstated and erroneous; (3) the audit team failed to verify documents such as bank reconciliation statements, general ledgers and cashbooks presented during the cash count; (4) the documents in support of the audit report were not signed, hence, were self-serving; (5) the cash shortage in the amount of P379,646.51 under the SEF and Trust Fund as well as the disallowed amount of P585,803.37 had no basis as the same pertained to a previous audit and, thus, should have been excluded from the computation of the total shortage; (6) the cash items amounting to P883,952.91 in the form of reimbursement expense receipts should not have been disallowed because they were actually received by individual payees; (7) petitioners cash on hand accountability was overstated because a collection was not immediately recorded; and (8) the audit team erroneously credited petitioners accounts to another cashier. In a Decision[7] dated 8 November 2004, Deputy Ombudsman Victor C. Fernandez approved the recommendation of the Graft Investigation and Prosecution Officer to dismiss petitioner from service based on the existence of substantial evidence of a discrepancy in petitioners account totaling P4,080,631.36. The said decision noted petitioners supposed failure to file a counter-affidavit and position paper despite due notice. On 29 November 2004, petitioner filed an urgent motion[8] stating that she complied with the directive to file a counter-affidavit and position paper and praying that the defenses therein be considered in reversing the 8 November 2004 decision. The motion was treated as a motion for reconsideration of the said decision. On 31 January 2005, Deputy Ombudsman Fernandez issued the first assailed Joint Order[9] denying petitioners urgent motion. Although the order acknowledged the erroneous statement in the 8 November 2004 Decision stating that petitioner failed to submit a counter-affidavit, nevertheless, it affirmed the Resolution and Decision both dated 8 November 2004. Deputy Ombudsman Fernandez ruled that petitioners Counter-Affidavit and Position Paper did not present exculpatory arguments that would negate the allegation of discrepancy on petitioners accounts. He also held that petitioners concerns relating to the conduct of the audit should have been raised at the time of the audit or immediately thereafter, and that petitioners

Medina vs. CoA

failure to produce the amount of cash shortage despite demand created a presumption that she appropriated public funds under her custody for her own personal use.[10] Petitioner sought reconsideration[11] on grounds of newly discovered and material evidence and grave errors of fact and/or law prejudicial to her own interest. The purported newly discovered evidence consisted of petitioners request for reconsideration of the audit report filed and still pending before the office of the audit team head, herein respondent Mawak, and letters sent by petitioners counsel to the provincial auditor of Cavite questioning the audit and requesting a re-audit of petitioners accounts. In the second assailed Joint Order dated 22 March 2005,[12] Deputy Ombudsman Fernandez denied petitioners motion for reconsideration. He reiterated that petitioners allegations as regards the incompetence of the audit team and the errors in the audit report were matters which may be properly ventilated during trial. He explained that petitioner failed to produce the missing funds despite notice thereof creating a presumption that the same were appropriated for personal use and for the purpose of preliminary investigation, such findings warranted the filing of criminal charges against petitioner. The deputy ombudsman held that petitioners belated request for re-audit could not be considered newly discovered evidence and denied the request for a formal investigation on the ground that petitioner was afforded due process when she filed her counter-affidavit and position paper.[13] Petitioner elevated the matter to the Court of Appeals via a Petition for Review[14]questioning the denial of her request for a formal investigation, the penalty of dismissal, and the sufficiency of the evidence against her. The Court of Appeals dismissed the petition in the assailed Decision dated 23 October 2006.[15] It held that petitioner was not entitled to a formal investigation and it affirmed the deputy ombudsmans factual finding that petitioner was guilty of grave misconduct and dishonesty. The appellate court also denied petitioners motion for reconsideration in a Resolution dated 30 January 2007. Hence, the instant petition[16] seeking the reversal of the Court of Appeals decision on the following grounds: (1) the Court of Appeals failed to order a formal reinvestigation, to reopen and review the records of the administrative case, to consider newly discovered evidence attached to petitioners motion for reconsideration of the deputy ombudsmans Decision and to consider material allegations in the motion for reconsideration of the assailed decision; (2) petitioner was able to overcome the presumption that she appropriated the missing funds for personal use; (3) the filing of the administrative case was baseless; and (4) the penalty of dismissal was unwarranted. The instant petition reiterates the issues brought up before the Court of Appeals, namely: whether petitioner was deprived of her right to due process, whether the penalty of dismissal is proper and whether petitioners guilt for grave misconduct and dishonesty is supported by substantial evidence. Invoking her right to due process, petitioner, on one hand, insists that she is entitled to a formal investigation, citing the Administrative Code of 1987, Book V, Title I, Subtitle A, Section 48 (2)[17] and (3).[18] On the other hand, in support of its argument that the propriety of conducting a formal investigation rests on the sound discretion of the hearing officer, respondent COA, through the Office of the Solicitor General (OSG), relies on Administrative Order No. 07, as amended by Administrative Order No. 17, Rule III, Section 5,[19] governing the procedure in administrative cases filed before the Office of the Ombudsman. The validity of Administrative Order No. 07, Rule III, Section 5 is not in dispute. However, petitioner argues that said provision is inferior to the provision in the Administrative Code which entitles the respondent to a formal investigation if he so desires. Petitioners theory is erroneous. Administrative Order No. 07, as amended by Administrative Order No. 17, particularly governs the procedure in administrative proceedings before the Office of the Ombudsman. The Rules of Procedure of the Office of the Ombudsman was issued pursuant to the authority vested in the Office of the Ombudsman under Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989. When an administrative agency promulgates rules and regulations, it makes a new law with the force and effect of a valid law. Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute.[20] On the other hand, the provisions in the Administrative Code cited by petitioner in support of her theory that she is entitled to a formal investigation apply only to administrative cases filed before the Civil Service Commission (CSC). In particular, Section 48(2) and Section 48(3) are subsumed under Subtitle A of Title I, which pertains to the CSC and to the procedure of

Medina vs. CoA

administrative cases filed before the CSC. The administrative complaint against petitioner was filed before the Office of the Ombudsman, suggesting that a different set of procedural rules govern. And rightly so, the Deputy Ombudsman applied the provisions of Rules of Procedure of the Office of the Ombudsman in ruling that the prerogative to elect a formal investigation pertains to the hearing officer and not to petitioner. On various occasions,[21] the Court has ruled on the primacy of special laws and of their implementing regulations over the Administrative Code of 1987 in settling controversies specifically subject of these special laws. For instance, in Hon. Joson v. Exec. Sec. Torres,[22] the Court held that the Local Government Code of 1991, the Rules and Regulations Implementing the Local Government Code of 1991, and Administrative Order No. 23 (A.O. No. 23)[23] govern administrative disciplinary proceedings against elective local officials, whereas the Rules of Court and the Administrative Code of 1987 apply in a suppletory character to all matters not provided in A.O. No. 23.[24] The aforesaid ruling is based on the principle of statutory construction that where there are two statutes applicable to a particular case, that which is specially intended for the said case must prevail.[25] More significantly, in Lapid v. Court of Appeals,[26] the Court expressly upheld the applicability of The Ombudsman Act of 1989 and the implementing rules and regulations thereof to the exclusion of the Local Government Code and the Administrative Code of 1989 on the issue of the execution of the Ombudsmans decision pending appeal. The Court noted that petitioner therein was charged before the Office of the Ombudsman and accordingly, The Ombudsman Act of 1989 should apply exclusively. The Court explained, thus: There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local Government Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as there is nothing in the Ombudsman Act which provides for such suppletory application. xxx xxx xxx And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in pari materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in statutory construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case must prevail over the other. In the instant case, the acts attributed to petitioner could have been the subject of administrative disciplinary proceedings before the Office of the President under the Local Government Code or before the Office of the Ombudsman under the Ombudsman Act. Considering however, that petitioner was charged under the Ombudsman Act, it is this law alone which should govern his case.[27] Thus, as between the Administrative Code of 1987 and Administrative Order No. 07, as amended, issued by the Office of the Ombudsman, the latter governs in this case which involves an administrative complaint filed with the Office of the Ombudsman and which raises the question of whether petitioner is entitled to a formal investigation as a matter of right. Even assuming the Administrative Code is applicable, still there is a formidable hindrance to petitioners prayer for a formal investigation. The records show that petitioner sought a reinvestigation only as an afterthought, that is, after the deputy ombudsman had already rendered a decision on the administrative complaint. The reinvestigation should have been requested at the first opportunity but definitely before the rendition of a decision. As correctly pointed out by the OSG, the denial of petitioners request for a formal investigation is not tantamount to a denial of her right to due process. Petitioner was required to file a counter-affidavit and position paper and later on, was given a chance to file two motions for reconsideration of the decision of the deputy ombudsman. The essence of due process in administrative proceedings is the opportunity to explain ones side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met.[28] Petitioners assertion that the Court of Appeals refused to reopen and review the case and ignored material issues and arguments in her motion for reconsideration of the 23 October 2006 Decision in violation of her right to due process, is quite hollow. The appellate court disposed of petitioners contention that she was able to controvert the accusations against her in this wise: Regarding the second, third and fourth assigned errors, We judiciously believe that the issues raised therein are essentially factual in nature. The rule is that the findings of fact in administrative decisions must be respected as long as they are supported by substantial evidence, even if not overwhelming or preponderant. It is not for the reviewing court to weight the conflicting evidence, determine the credibility of the witnesses or otherwise substitute its own judgment for that of the administrative agency on the sufficiency of evidence. It has been consistently held that substantial evidence is all that is needed to support an administrative finding of fact which means such relevant evidence as a reasonable mind might accept to support a conclusion.[29]

Medina vs. CoA

Nothing prevents the Court of Appeals from adopting the factual findings and conclusion of the deputy ombudsman on the ground that the findings and conclusions were based on substantial evidence. Well-settled is the rule that the findings of fact of administrative bodies, if based on substantial evidence, are controlling on the reviewing authority. It is settled that it is not for the appellate court to substitute its own judgment for that of the administrative agency on the sufficiency of the evidence and the credibility of the witnesses. Administrative decisions on matters within their jurisdiction are entitled to respect and can only be set aside on proof of grave abuse of discretion, fraud or error of law.[30] Guided by this principle, the appellate court correctly affirmed the finding of guilt for grave misconduct and dishonesty. Unfazed, petitioner now asks this Court to once again review the factual findings and conclusions of the Deputy Ombudsman which had already been affirmed by the Court of Appeals. Whether the finding of petitioners guilt for grave misconduct and dishonesty is supported by substantial evidence, suffice it to say these are factual issues calling for a review of the records of the case. Clear and unmistakable is the rule that the Supreme Court is not a trier of facts. Just as well entrenched is the doctrine that pure issues of fact may not be the proper subject of appeal by certiorari under Rule 45 of the Revised Rules of Court as this mode of appeal is generally confined to questions of law. Only questions of law, not questions of fact, may be raised before the Supreme Court in a petition for review under Rule 45. This Court cannot be tasked to go over the proofs presented by the petitioners in the lower courts and analyze, assess and weigh them to ascertain if the court a quo and the appellate court were correct in their appreciation of the evidence.[31] Anyhow, the Court adopts the following findings of the Court of Appeals which are borne out by the records of the case: x x x It is a fact that an examination was conducted on the cash and accounts of respondent and that a shortage was found. While the latter argues that the auditors did not observe the proper procedure in conducting an examination and as a consequence of which, she was not able to justify the alleged shortage, we take note that the latter was given the opportunity to make such explanation when the auditors sent her a demand letter.[32] On the penalty of dismissal which petitioner claims is too harsh, petitioner argues that the mitigating circumstances of this being her first offense and of the unreasonable length of time in filing the administrative case should be considered in her favor. Jurisprudence is replete with cases declaring that a grave offense cannot be mitigated by the fact that the accused is a first time offender or by the length of service of the accused. In Civil Service Commission v. Cortez,[33] the Court held as follows: The gravity of the offense committed is also the reason why we cannot consider the first offense circumstance invoked by respondent. In several cases, we imposed the heavier penalty of dismissal or a fine of more than P20,000.00, considering the gravity of the offense committed, even if the offense charged was respondents first offense. Thus, in the present case, even though the offense respondent was found guilty of was her first offense, the gravity thereof outweighs the fact that it was her first offense.[34] Also, in Concerned Employees v. Nuestro,[35] a court employee charged with and found guilty of dishonesty for falsification was meted the penalty of dismissal notwithstanding the length of her service in view of the gravity of the offense charged. To end, it must be stressed that dishonesty and grave misconduct have always been and should remain anathema in the civil service. They inevitably reflect on the fitness of a civil servant to continue in office. When an officer or employee is disciplined, the object sought is not the punishment of such officer or employee but the improvement of the public service and the preservation of the publics faith and confidence in the government.[36] WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision and Resolution of the Court of Appeals in CAG.R. SP No. 89539 are hereby AFFIRMED. Costs against petitioner. SO ORDERED.

Reyes vs. Rural bank of San Miguel Bulacan

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 125296 July 20, 2006

ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN, petitioners, vs. OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO F. TORRALBA* and CELESTINO BANDALA**, respondents. DECISION CORONA, J.: This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 30191(the Anti-Graft and Corrupt Practices Act). In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services in which they were shareholders. Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019. In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss. On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5 On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019, Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the Government." The dispositive portion of the Deputy Ombudsman's order read: WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof.6 xxx xxx xxx

Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence, he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling thatQuimpo was applicable to petitioners' case.

Reyes vs. Rural bank of San Miguel Bulacan In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13, 1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against them although they were officers of a private corporation and not "public officers."8
In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original charters and these do not include PAL, a private entity created under the general corporation law; (2)Quimpo does not apply to the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law. We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation of RA 3019. JURISDICTION OF THE OMBUDSMAN OVER GOCCS IS CONFINED ONLY TO THOSE WITH ORIGINAL CHARTERS The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2) provides: Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties: xxx xxx xxx

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (italics supplied) xxx xxx xxx

Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the Ombudsman. In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or prosecute petitioners. Quimpo Not Applicable to the Case at Bar Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC) acquired its shares. In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here.

Reyes vs. Rural bank of San Miguel Bulacan In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS. No governmental functions at all were involved.
Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII, Section 6: SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which shall receive and investigate complaints relative to public office, including those in government-owned or controlled corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied) The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer only to those with original charters.12 Petitioners, as then Officers of PAL, were not Public Officers Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied definitions and concepts are found in different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the term "public officers": A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer. The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position as an office. xxx xxx xxx

Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important characteristic" in determining whether a position is a public office or not. The most important characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.16 (italics supplied) From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign executive, legislative or judicial functions.17 The explication of the term is also consistent with the Court's pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to carry out governmental functions. In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue that technically no longer exists.

Reyes vs. Rural bank of San Miguel Bulacan WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET ASIDE and ANNULLED.
SO ORDERED.

Reyes vs. Rural bank of San Miguel Bulacan

THIRD DIVISION [G.R. No. 162059, January 22, 2008] HANNAH EUNICE D. SERANA, G.R. No. 162059 Petitioner, VS. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents. DECISION
REYES, R.T., J.: CAN the Sandiganbayan try a government scholaran iskolar ng bayan a** accused, along with her brother, of swindling government fundsccused of being the swindler ng bayan? MAAARI bang litisin ng Sandiganbayan ang isang iskolar ng bayan, at ang kanyang kapatid, na kapwa pinararatangan ng estafa ng pera ng bayan? The jurisdictional question is posed in this petition for Certiorari with Prayer for the Issuance of Temporary Restraining Order or Preliminary Injunction certiorari assailing the Resolutions[1] of the Sandiganbayan, Fifth Division, denying petitioners motion to quash the information and herdenying petitioners motion for reconsideration. The Antecedents Petitioner Hannah Eunice D. Serana was a senior student of the University of thePhilippines-Cebu (UP). A student of a state university is known as a government scholar. She was appointed by then President Joseph Estrada on December 21, 1999 as a student regent of UP, to serve a one-year term starting January 1, 2000 and ending on December 31, 2000. In the early part of 2000, petitioner discussed with President Estrada the renovation of Vinzons Hall Annex in UP Diliman.[2] On September 4, 2000, petitioner, with her siblings and relatives, registered with the Securities and Exchange Commission the Office of the Student Regent Foundation, Inc. (OSRFI).[3] One of the projects of the OSRFI was the renovation of the Vinzons Hall Annex.[4]President Estrada gave Fifteen Million Pesos (P15,000,000.00) to the OSRFI as financial assistance for the proposed renovation. The source of the funds, according to the information, wais disputed the Office of the President. The renovation of Vinzons Hall Annex failed to materialize.[5] The succeeding student regent, Kristine Clare Bugayong, and Christine Jill De Guzman, Secretary General of the KASAMA sa U.P., a system-wide alliance of student councils within the state university, consequently filed a complaint for Malversation of Public Funds and Property with the Office of the Ombudsman.[6] On July 3, 2003, the Ombudsman, after due investigation, found probable cause to indict petitioner and her brother Jade Ian D. Serana forof estafa, docketed as Criminal Case No. 27819 of the Sandiganbayan.[7] The Information against her reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses HANNAH EUNICE D. SERANA and JADE IAN D. SERANA of the crime of Estafa, defined and penalized under Paragraph 2(a), Article 315 of the Revised Penal Code, as amended committed as follows: That on October, 24, 2000, or sometime prior or subsequent thereto, in Quezon City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, HANNAH EUNICE D. SERANA,a high-ranking public officer, being then the Student Regent of the University of the Philippines, Diliman, Quezon City, while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain,conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government by falsely and fraudulently representing to former President Joseph Ejercito Estrada that the renovation of the Vinzons Hall of the University of the Philippines will be renovated and renamed as President Joseph Ejercito Estrada Student Hall, and for which purpose accused HANNAH EUNICE D. SERANA requested the amount of FIFTEEN MILLION PESOS (P15,000,000.00), Philippine Currency, fromthe Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of FIFTEEN MILLION PESOS (P15,000,000.00), which check was subsequently encashed by accused Jade Ian D. Serana on October 25, 2000 and misappropriated for their personal use and benefit, and despite repeated demands made upon the accused for them to return aforesaid amount, the said accused failed and refused to do so to the damage and prejudice of the

Reyes vs. Rural bank of San Miguel Bulacan

government in the aforesaid amount. CONTRARY TO LAW. (Underscoring supplied) Petitioner moved to quash the information. She claimed that the Sandiganbayan does not have any jurisdiction over the offense charged or over her person, in her capacity as UP student regent. Petitioner claimed that Republic Act (R.A.) No. 3019, as amended by R.A. No. 8249, enumerates the crimes or offenses over which the Sandiganbayan has jurisdiction.[8]It has no jurisdiction over the crime of estafa.[9] It only has jurisdiction over crimes covered by Title VII, Chapter II, Section 2 (Crimes Committed by Public Officers), Title VII, Book II of the Revised Penal Code (RPC). Estafa falling under Title X, Chapter VI (Crimes Against Property), Book II of the RPC is not within the Sandiganbayans jurisdiction. ShePetitioner also arguedreasoned that it was President Estrada, and not the government, that was duped. Even assuming that she received the P15,000,000.00, that amount came from Estrada, and not from the coffers of the government.[10] Petitioner likewise posited that the Sandiganbayan had no jurisdiction over her person. AShe claimed that as a student regent, she was not a public officer since she merely represented her peers, in contrast to the other regents whothat held their positions in an ex officio capacity. She addsed that she was a simple student and did not receive any salary as a student regent. Petitioner She further contended also claimed that she had no power or authority to receive monies or funds. She claimed such power was vested with the Board of Regents (BOR) as a whole. Hence, Since it was not alleged in the information that it was among her functions or duties to receive funds, or that the crime was committed in connection with her official functions, the same is beyond the jurisdiction of the Sandiganbayan citing the case of Soller v. Sandiganbayan.[11] The Ombudsman opposed the motion.[12] It disputed petitioners interpretation of the law. Section 4(b) of Presidential Decree (P.D.) No. 1606 clearly contains thecatch -all phrase in relation to office, thus, the Sandiganbayan has jurisdiction over the charges against petitioner. In the same breath, the prosecution countered that the source of the money is a matter of defense. It should be threshed out during a full-blown trial.[13] According to the Ombudsman, petitioner, despite her protestations, iwas a public officer. As a member of the BOR, she hads the general powers of administration and exerciseds the corporate powers of UP. Based on Mechems definition of a public office, petitioners stance that she was not compensated, hence, thus not a public officer, is erroneous. Compensation is not an essential part of public office. Parenthetically, compensation has been interpreted to include allowances. By this definition, petitioner was compensated.[14] Sandiganbayan Disposition In a Resolution dated November 14, 2003, the Sandiganbayan denied petitioners motion for lack of merit.[15] It ratiocinated: The focal point in controversy is the jurisdiction of the Sandiganbayan over this case. It is extremely erroneous to hold that only criminal offenses covered by Chapter II, Section 2, Title VII, Book II of the Revised Penal Code are within the jurisdiction of this Court. As correctly pointed out by the prosecution, Section 4(b) of R.A. 8249 provides that the Sandiganbayan also has jurisdiction over other offenses committed by public officials and employees in relation to their office. From this provision, there is no single doubt that this Court has jurisdiction over the offense of estafa committed by a public official in relation to his office. Accused-movants claim that being merely a member in representation of the student body, she was never a public officer since she never received any compensation nor does she fall under Salary Grade 27, is of no moment, in view of the express provision of Section 4 of Republic Act No. 8249 which provides: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: (A) x x x (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including:

Reyes vs. Rural bank of San Miguel Bulacan

xxxx (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. (Italics supplied) It is very clear from the aforequoted provision that the Sandiganbayan has original exclusive jurisdiction over all offenses involving the officials enumerated in subsection (g), irrespective of their salary grades, because the primordial consideration in the inclusion of these officials is the nature of their responsibilities and functions. Is accused-movant included in the contemplated provision of law? A meticulous review of the existing Charter of the University of the Philippines reveals that the Board of Regents, to which accused-movant belongs, exclusively exercises the general powers of administration and corporate powers in the university, such as: 1) To receive and appropriate to the ends specified by law such sums as may be provided by law for the support of the university; 2) To prescribe rules for its own government and to enact for the government of the university such general ordinances and regulations, not contrary to law, as are consistent with the purposes of the university; and 3) To appoint, on recommendation of the President of the University, professors, instructors, lecturers and other employees of the University; to fix their compensation, hours of service, and such other duties and conditions as it may deem proper; to grant to them in its discretion leave of absence under such regulations as it may promulgate, any other provisions of law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had. It is well-established in corporation law that the corporation can act only through its board of directors, or board of trustees in the case of non-stock corporations. The board of directors or trustees, therefore, is the governing body of the corporation. It is unmistakably evident that the Board of Regents of the University of the Philippines is performing functions similar to those of the Board of Trustees of a non-stock corporation. This draws to fore the conclusion that being a member of such board, accused-movant undoubtedly falls within the category of public officials upon whom this Court is vested with original exclusive jurisdiction, regardless of the fact that she does not occupy a position classified as Salary Grade 27 or higher under the Compensation and Position Classification Act of 1989. Finally, this court finds that accused-movants contention that the same of P15 Million was received from former President Estrada and not from the coffers of the government, is a matter a defense that should be properly ventilated during the trial on the merits of this case.[16] On November 19, 2003, petitioner filed a motion for reconsideration.[17] The motion was denied with finality in a Resolution dated February 4, 2004.[18] Issue Petitioner is now before this Court, contending that THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN NOT QUASHING THE INFORMATION AND DISMISING THE CASE NOTWITHSTANDING THAT IS HAS NO JURISDICTION OVER THE OFFENSE CHARGED IN THE INFORMATION.[19] In her discussion, she reiterates her four-fold argument below, namely: (a) the Sandiganbayan has no jurisdiction over estafa; (b) petitioner is not a public officer with Salary Grade 27 and she paid her tuition fees; (c) the offense charged was not committed in relation to her office; (d) the funds in question personally came from President Estrada, not from the government. Our Ruling The petition cannot be granted. Preliminarily, the denial of a motion to quash is not correctible by certiorari. We would ordinarily dismiss this petition for certiorari outright on procedural grounds. Well-established is the rule that when a motion to quash in a criminal case is denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without prejudice to reiterating the special defenses invoked in their motion to quash.[20]Remedial measures as regards interlocutory orders, such as a motion to quash, are frowned upon and often dismissed.[21] The evident reason for this rule is to avoid multiplicity of appeals in a single action.[22]

Reyes vs. Rural bank of San Miguel Bulacan

In Newsweek, Inc. v. Intermediate Appellate Court,[23] the Court clearly illustrated explained and illustrated the rule and the exceptions, thus: As a general rule, an order denying a motion to dismiss is merely interlocutory and cannot be subject of appeal until final judgment or order is rendered. (Sec. 2 of Rule 41). The ordinary procedure to be followed in such a case is to file an answer, go to trial and if the decision is adverse, reiterate the issue on appeal from the final judgment. The same rule applies to an order denying a motion to quash, except that instead of filing an answer a plea is entered and no appeal lies from a judgment of acquittal. This general rule is subject to certain exceptions. If the court, in denying the motion to dismiss or motion to quash, acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorarior prohibition lies. The reason is that it would be unfair to require the defendant or accused to undergo the ordeal and expense of a trial if the court has no jurisdiction over the subject matter or offense, or is not the court of proper venue, or if the denial of the motion to dismiss or motion to quash is made with grave abuse of discretion or a whimsical and capricious exercise of judgment. In such cases, the ordinary remedy of appeal cannot be plain and adequate. The following are a few examples of the exceptions to the general rule. In De Jesus v. Garcia (19 SCRA 554), upon the denial of a motion to dismiss based on lack of jurisdiction over the subject matter, this Court granted the petition for certiorari and prohibition against the City Court of Manila and directed the respondent court to dismiss the case. In Lopez v. City Judge (18 SCRA 616), upon the denial of a motion to quash based on lack of jurisdiction over the offense, this Court granted the petition for prohibition and enjoined the respondent court from further proceeding in the case. In Enriquez v. Macadaeg (84 Phil. 674), upon the denial of a motion to dismiss based on improper venue, this Court granted the petition for prohibition and enjoined the respondent judge from taking cognizance of the case except to dismiss the same. In Manalo v. Mariano (69 SCRA 80), upon the denial of a motion to dismiss based on bar by prior judgment, this Court granted the petition for certiorari and directed the respondent judge to dismiss the case. In Yuviengco v. Dacuycuy (105 SCRA 668), upon the denial of a motion to dismiss based on the Statute of Frauds, this Court granted the petition for certiorari and dismissed the amended complaint. In Tacas v. Cariaso (72 SCRA 527), this Court granted the petition for certiorari after the motion to quash based on double jeopardy was denied by respondent judge and ordered him to desist from further action in the criminal case except to dismiss the same. In People v. Ramos (83 SCRA 11), the order denying the motion to quash based on prescription was set aside on certiorari and the criminal case was dismissed by this Court.[24] We do not find the Sandiganbayan to have committed a grave abuse of discretion. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as amended, not by R.A. No. 3019, as amended. We first address petitioners contention that the jurisdiction of the Sandiganbayan is determined by Section 4 of R.A. No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended). We note that petitioner refers to Section 4 of the said law yet quotes Section 4 of P.D. No. 1606, as amended, in her motion to quash before the Sandiganbayan.[25] She repeats the reference in the instant petition for certiorari[26]and in her memorandum of authorities.[27] We cannot bring ourselves to write this off as a mere clerical or typographical error. It bears stressing that petitioner repeated this claim twice despite corrections made by the Sandiganbayan.[28] Her claim has no basis in law. It is P.D. No.1606, as amended, rather than R.A. No. 3019, as amended, that determines the jurisdiction of the Sandiganbayan. A brief legislative history of the statute creating the Sandiganbayan is in order. The Sandiganbayan was created by P.D. No. 1486, promulgated by then President Ferdinand E. Marcos on June 11, 1978. It was promulgated to attain the highest norms of official conduct required of public officers and employees, based on the concept that public officers and employees shall serve with the highest degree of responsibility, integrity, loyalty and efficiency and shall remain at all times accountable to the people.[29]

Reyes vs. Rural bank of San Miguel Bulacan

P.D. No. 1486 was, in turn, amended by P.D. No. 1606 which was promulgated on December 10, 1978. P.D. No. 1606 expanded the jurisdiction of the Sandiganbayan.[30] P.D. No. 1606 was later amended by P.D. No. 1861 on March 23, 1983, further altering the Sandiganbayan jurisdiction. R.A. No. 7975 approved on March 30, 1995 made succeeding amendments to P.D. No. 1606, which was again amended on February 5, 1997 by R.A. No. 8249. Section 4 of R.A. No. 8249 further modified the jurisdiction of the Sandiganbayan. As it now stands, the Sandiganbayan has jurisdiction over the following: Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: A. Violations of Republic Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade 27 and higher, of the Compensation and Position Classification Act of 989 (Republic Act No. 6758), specifically including: "_____ (a) Provincial governors, vice-governors, members of thesangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other city department heads; "_____(b) City mayor, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; "_____(c ) Officials of the diplomatic service occupying the position of consul and higher; " _____(d) Philippine army and air force colonels, naval captains, and all officers of higher rank; "_____(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintended or higher; " _____(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; " _____(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. " _____(2) Members of Congress and officials thereof classified as Grade Grade '27' and up under the Compensation and Position Classification Act of 1989; " _____(3) Members of the judiciary without prejudice to the provisions of the Constitution; " _____(4) Chairmen and members of Constitutional Commission, without prejudice to the provisions of the Constitution; and " _____(5) All other national and local officials classified as Grade Grade '27' and higher under the Compensation and Position Classification Act of 1989. B. Other offenses of felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. " _____In cases where none of the accused are occupying positions corresponding to Salary Grade Grade '27' or higher, as prescribed in the said Republic Act No. 6758, or military and PNP officer mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional court, metropolitan trial court, municipal trial court,

C.

Reyes vs. Rural bank of San Miguel Bulacan

and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. " _____The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or order of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. " _____The Sandiganbayan shall have exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. " _____The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may thereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. " _____In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. " _____Any provisions of law or Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability shall, at all times, be simultaneously instituted with, and jointly determined in, the same proceeding by the Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily carry with it the filing of the civil action, and no right to reserve the filing such civil action separately from the criminal action shall be recognized: Provided, however, That where the civil action had heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred to the Sandiganbayan or the appropriate court, as the case may be, for consolidation and joint determination with the criminal action, otherwise the separate civil action shall be deemed abandoned." Upon the other hand, R.A. No. 3019 is a penal statute approved on August 17, 1960. The said law represses certain acts of public officers and private persons alike which constitute graft or corrupt practices or which may lead thereto.[31] Pursuant to Section 10 of R.A. No. 3019, all prosecutions for violation of the said law should be filed with the Sandiganbayan.[32] R.A. No. 3019 does not contain an enumeration of the cases over which the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by petitioner, deals not with the jurisdiction of the Sandiganbayan but with prohibition on private individuals. We quote: Section 4. Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word close personal relation shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. In fine, the two statutes differ in that P.D. No. 1606, as amended, defines the jurisdiction of the Sandiganbayan while R.A. No. 3019, as amended, defines graft and corrupt practices and provides for their penalties. Sandiganbayan has jurisdiction over the offense of estafa. Relying on Section 4 of P.D. No. 1606, petitioner contends that estafa is not among those crimes cognizable byover which the

Reyes vs. Rural bank of San Miguel Bulacan

Sandiganbayan has jurisdiction. We note that in hoisting this argument, petitioner isolated the first paragraph of Section 4 of P.D. No. 1606, without regard to the succeeding paragraphs of the said provision. The rule is well-established in this jurisdiction that statutes should receive a sensible construction so as to avoid an unjust or an absurd conclusion.[33] Interpretatio talis in ambiguis semper fienda est, ut evitetur inconveniens et absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and absurdity is to be adopted. Kung saan mayroong kalabuan, ang pagpapaliwanag ay hindi dapat maging mahirap at katawa-tawa. Every section, provision or clause of the statute must be expounded by reference to each other in order to arrive at the effect contemplated by the legislature.[34] The intention of the legislator must be ascertained from the whole text of the law and every part of the act is to be taken into view.[35] In other words, petitioners interpretation lies in direct opposition to the rule that a statute must be interpreted as a whole under the principle that the best interpreter of a statute is the statute itself.[36] Optima statuti interpretatrix est ipsum statutum. Ang isang batas ay marapat na bigyan ng kahulugan sa kanyang kabuuan sa ilalim ng prinsipyo na ang pinakamainam na interpretasyon ay ang mismong batas. Section 4(B) of P.D. No. 1606 reads: B. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of this section in relation to their office. Evidently, the Sandiganbayan has jurisdiction over other felonies committed by public officials in relation to their office. We see no plausible or sensible reason to excludeestafa as one of the offenses included in Section 4(bB) of P.D. No. 1606. Plainly,estafa is one of those other felonies. The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office. In Perlas, Jr. v. People,[37] the Court had occasion to explain that the Sandiganbayan has jurisdiction over an indictment for estafa versus a director of the National Parks Development Committee, a government instrumentality. The Court held then: The National Parks Development Committee was created originally as an Executive Committee on January 14, 1963, for the development of the Quezon Memorial, Luneta and other national parks (Executive Order No. 30). It was later designated as the National Parks Development Committee (NPDC) on February 7, 1974 (E.O. No. 69). On January 9, 1966, Mrs. Imelda R. Marcos and Teodoro F. Valencia were designated Chairman and Vice-Chairman respectively (E.O. No. 3). Despite an attempt to transfer it to the Bureau of Forest Development, Department of Natural Resources, on December 1, 1975 (Letter of Implementation No. 39, issued pursuant to PD No. 830, dated November 27, 1975), the NPDC has remained under the Office of the President (E.O. No. 709, dated July 27, 1981). Since 1977 to 1981, the annual appropriations decrees listed NPDC as a regular government agency under the Office of the President and allotments for its maintenance and operating expenses were issued direct to NPDC (Exh. 10-A, Perlas, Item Nos. 2, 3). The Sandiganbayans jurisdiction over estafa was reiterated with greater firmness in Bondoc v. Sandiganbayan.[38] Pertinent parts of the Courts ruling in Bondoc read: Furthermore, it is not legally possible to transfer Bondocs cases to the Regional Trial Court, for the simple reason that the latter would not have jurisdiction over the offenses. As already above intimated, the inability of the Sandiganbayan to hold a joint trial of Bondocs cases and those of the government employees separately charged for the same crimes, has not altered the nature of the offenses charged, asestafa thru falsification punishable by penalties higher than prision correccional or imprisonment of six years, or a fine of P6,000.00, committed by government employees in conspiracy with private persons, including Bondoc. These crimes are within the exclusive, original jurisdiction of the Sandiganbayan. They simply cannot be taken cognizance of by the regular courts, apart from the fact that even if the cases could be so transferred, a joint trial would nonetheless not be possible. Petitioner UP student regent is a public officer. Petitioner also contends that she is not a public officer. She does not receive any salary or remuneration as a UP student regent. This is not the first or likely the last time that We will be called upon toare required to define a public officer. In Khan, Jr. v. Office of the Ombudsman, We ruled that it is difficult to pin down the definition of a public officer.[39] The 1987 Constitution does not define who are public officers. Rather, the varied definitions and concepts are found in different statutes and jurisprudence. In Aparri v. Court of Appeals,[40] the Court held that:

Reyes vs. Rural bank of San Miguel Bulacan

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). In Laurel v. Desierto,[41] the Court adopted the definition of Mechem of a public office: A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public officer.[42] Petitioner claims that she is not a public officer with Salary Grade 27; she is, in fact, a regular tuition fee-paying student. This is likewise bereft of merit. It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People,[43] We held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.[44] Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. We find no reason to disturb the findings of the Sandiganbayan that Petitioner falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation.[45] By express mandate of law, We find that petitioner is, indeed, a public officer as contemplated by P.D. No. 1606 the statute defining the jurisdiction of the Sandiganbayan. Moreover, it is well established that compensation is not an essential element of public office.[46] At most, it is merely incidental to the public office.[47] We uphold that the conclusions of the Sandiganbayan that Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.[48] The administration of the UP is a sovereign function in line with Article XIV of the Constitution. UP performs a legitimate governmental function by providing advanced instruction in literature, philosophy, the sciences, and arts, and giving professional and technical training.[49] Moreover, UP is maintained by the Government and it declares no dividends and is not a corporation created for profit.[50] Petitioner is therefore a public officer by express mandate of P.D. No. 1606 and jurisprudence. The offense charged was committed in relation to public office, according to the Information. Petitioner likewise argues that even assuming that she is a public officer, the Sandiganbayan would still not have jurisdiction over the offense because it was not committed in relation to her office. According to petitioner, she had no power or authority to act without the approval of the BOR. She adds there was no Board Resolution issued by the BOR authorizing her to contract with then President Estrada; and that her acts were not ratified by the governing body of the state university. Resultantly, her act was done in a private capacity and not in relation to public office. It is axiomatic that jurisdiction is determined by the averments in the information.[51]More than that, jurisdiction is not affected by the pleas or the theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to quash.[52]Otherwise, jurisdiction would become dependent almost entirely upon the whims of defendant or respondent.[53] In the case at bench, the information alleged, in no uncertain terms that petitioner, being then a student regent of U.P., while in the performance of her official functions, committing the offense in relation to her office and taking advantage of her position, with intent to gain, conspiring with her brother, JADE IAN D. SERANA, a private individual, did then and there wilfully, unlawfully and feloniously defraud the government x x x. (Underscoring supplied)

Reyes vs. Rural bank of San Miguel Bulacan

Clearly, there was no grave abuse of discretion on the part of the Sandiganbayan when it did not quash the information based on this ground. Source of funds is a defense that should be raised during trial on the merits. It is contended anew that the amount came from President Estradas private funds and not from the government coffers. Petitioner insists the charge has no leg to stand on. We cannot agree. The information alleges that the funds came from the Office of the President and not its then occupant, President Joseph Ejercito Estrada. Under the information, it is averred that petitioner requested the amount of Fifteen Million Pesos (P15,000,000.00), Philippine Currency, from the Office of the President, and the latter relying and believing on said false pretenses and misrepresentation gave and delivered to said accused Land Bank Check No. 91353 dated October 24, 2000 in the amount of Fifteen Million Pesos (P15,000,000.00). Again, the Court sustains the Sandiganbayan observation that the source of the P15,000,000 is a matter of defense that should be ventilated during the trial on the merits of the instant case.[54] A lawyer owes candor, fairness and honesty to the Court. As a parting note, petitioners counsel, Renato G. dela Cruz, misrepresented his reference to Section 4 of P.D. No. 1606 as a quotation from Section 4 of R.A. No. 3019. A review of his motion to quash, the instant petition for certiorari and his memorandum, unveils the misquotation. We urge petitioners counsel to observe Canon 10 of the Code of Professional Responsibility, specifically Rule 10.02 of the Rules stating that a lawyer shall not misquote or misrepresent. The Court stressed the importance of this rule in Pangan v. Ramos,[55] where Atty Dionisio D. Ramos used the name Pedro D.D. Ramos in connection with a criminal case. The Court ruled that Atty. Ramos resorted to deception by using a name different from that with which he was authorized. We severely reprimanded Atty. Ramos and warned that a repetition may warrant suspension or disbarment.[56] We admonish petitioners counsel to be more careful and accurate in his citation. A lawyers conduct before the court should be characterized by candor and fairness.[57] The administration of justice would gravely suffer if lawyers do not act with complete candor and honesty before the courts.[58] WHEREFORE, the petition is DENIED for lack of merit DUE COURSE andDISMISSED. SO ORDERED.

Reyes vs. Rural bank of San Miguel Bulacan

SPECIAL SECOND DIVISION

[G.R. No. 154499. February 27, 2004]

ALBERTO V. REYES, WILFREDO B. DOMO-ONG and HERMINIO C. PRINCIPIO, petitioners, vs. RURAL BANK OF SAN MIGUEL (BULACAN), INC., represented by HILARIO P. SORIANO, President and Principal Stockholder, respondent. RESOLUTION
Tinga, J.:

This deals with the Motion for Reconsideration of petitioners Alberto V. Reyes and Wilfredo B. Domo-ong, both Bangko Sentral ng Pilipinas (BSP) officials,[1] and theMotion for Partial Reconsideration of respondent Rural Bank of San Miguel (Bulacan), Inc. In the Decision[2] of March 14, 2003, this Court found Deputy Governor Reyes and Director Domoong liable for violation of the standards of professionalism prescribed by the Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) in that they used the distressed financial condition of respondent Rural Bank of San Miguel (Bulacan), Inc. (RBSMI) as the subject of a case study in one of the BSP seminars and did the brokering of the sale of RBSMI. The Court modified the Decision of the Court of Appeals in CA-GR SP No. 60184[3] by reducing the penalty imposed by the appellate court from a fine equivalent to six months salary to a fine of two months salary for Reyes and one month salary for Domo-ong. In the Decision, the Court exonerated petitioner Herminio C. Principio[4] of the administrative charges. The exoneration is the subject of RBSMIs Motion For Partial Reconsideration. The Motion for Reconsideration of Reyes and Domo-ong is anchored on the following grounds: (1) it was not under their auspices that the seminar which used training materials containing two case studies on RBSMIs financial distress was conducted but under that of another department and other officials of BSP; and, (2) they did not do any act which constituted brokering of the sale of RBSMI or deviated from the standards of professionalism. A brief revisit of the operative milieu is warranted to gain the needed perspective. In a letter dated May 19, 1999, addressed to then BSP Governor Singson, RBSMI charged the petitioners with violation of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). The Monetary Board (MB) of the BSP created an Ad Hoc Committee to investigate the matter. The ensuing investigation disclosed that sometime in September 1996, RBSMI, which had a history of major violations/exceptions dating back to 1995, underwent periodic examination by the BSP. The examination team headed by Principio noted 20 serious exceptions/violations and deficiencies of RBSMI.[5] Through Resolution No. 96, the MB required RBSMI to submit within 15 days a written explanation with respect to the findings of the examiner. It also directed the Department of Rural Banks (DRB), to

Reyes vs. Rural bank of San Miguel Bulacan

verify, monitor and report to the Deputy Governor, Supervision and Examination Sector (SES) on the findings/exceptions noted, until the same shall have been corrected. As directed by the MB, another examination team conducted a special examination on RBSMI. RBSMI President Hilario Soriano claimed that he was pressured into issuing a memorandum to the bank employees authorizing the team to review the banks accounting and internal control system. Soriano also alleged that sometime in March 1997, Reyes started urging him to consider selling the bank. He specified that on May 28, 1997, Reyes introduced him through telephone to Mr. Exequiel Villacorta, President and Chief Executive Officer of the TA Bank. They agreed to meet on the following day. In his Affidavit,[6] Villacorta confirmed that he and Soriano indeed met but the meeting never got past the exploratory stage since he (Villacorta) immediately expressed disinterest because Soriano wanted to sell all his equity shares while he was merely contemplating a possible buy-in. Soriano further alleged that when the talks with Villacorta failed, Reyes asked him whether he wanted to meet another buyer, to which he answered in the affirmative. Thereafter, Reyes introduced him by telephone to Benjamin P. Castillo of the Export and Industry Bank (EIB), whom he met on June 26, 1997. No negotiation took place because Soriano desired a total sale while EIB merely desired a joint venture arrangement or a buy-in to allow EIB to gain control of RBSMI. Meanwhile, on June 13, 1997, the MB approved Resolution No. 724[7] ordering RBSMI to correct the major exceptions noted within 30 days from receipt of the advice, and to remit to the BSP the amount of P2,538,483.00 as fines and penalties for incurring deficiencies in reserves against deposit liabilities. On July 21, 1997, Soriano submitted RBSMIs answers to the BSP exceptions/findings mentioned. He stated that the actions taken or to be taken by the bank (RBSMI) were deliberated and ratified by the Board of Directors in its regular meeting held on July 9, 1997. Among the board approved actions was the banks request addressed to Domo -ong for BSP to debit the demand deposit of the bank in the amount of P2,538,483.00 representing the payment of fines and penalties. More than a year after, however, the RBSMI asked for a reconsideration of MB Resolution No. 724 insofar as the imposition of fine amounting to P2,538,483.00. On January 21, 1999, the MB adopted Resolution No. 71,[8] authorizing the conditional reversal of sixty percent (60%) of the penalty pending resolution of the dispute on the findings on reserve deficiency. Subsequently, on April 7, 1999, the MB approved the interim reversal of the entire amount of the penalty pending the outcome of the study on the legal and factual basis for the imposition of the penalty. The above incidents, particularly the alleged brokering by Reyes and the petitioners unsupported recommendation to impose a penalty of P2,538,483.00 for legal reserve deficiency, prompted the respondent to file the letter-complaint charging the petitioners with unprofessionalism. The Motion for Reconsideration bid of Reyes and Domo-ong is meritorious. In pinning liability on Reyes and Domo-ong for the seminar which used the rural bank as a case study, the court made this ratiocination, viz:

(W)hile there was indeed no evidence showing that either petitioner Reyes or petitioner Domo-ong distributed or used the materials, the very fact that the seminar was conducted under their auspices is enough to make them liable to a certain extent. Petitioner Reyes, as Head of the BSP Supervision and Examination Sector, and petitioner Domo-ong, as Director of the BSP Department of Rural Banks, should have exercised their power of control and supervision so that the incident could have been prevented or at the very least remedied. (Emphasis supplied)

Reyes vs. Rural bank of San Miguel Bulacan

Plainly, conclusion on petitioners culpability is grounded, not on an established fact but on a mere inference that the seminar was conducted under their auspices. Indeed, the pronouncement on the petitioners role is evidently conjectural and evaluation of the extent of their responsibility admittedly uncertain. It is conceded that there was no evidence that the seminar was conducted under petitioners patronage. And it was assumed, as indeed there was absolutely paucity of proof, that they exercised supervision and control over the persons responsible in organizing the seminar. On the contrary, as shown in the Motion For Reconsideration, it was the Bangko Sentral ng Pilipinas Institute (BSPI), an office separate and independent from the SES which is directly under the control and supervision of another Deputy Governor, that for the Resource Management Sector (RMS)[9] which is charged with conducting seminars and lectures for the BSP, including the seminar involved in this case. In its Comment,[10] RBSMI argues that since information on the state of its finances found its way as a training material of RMS, the event could have transpired only because the SES permitted it. Even if the subordinates of petitioners were the source of information, RBSMI further claims in ostensible reference to the principle of command responsibility, petitioners could be held liable for negligence. It is noteworthy again that petitioners alleged role in the disclosure of information is not anchored on any concrete piece of evidence. That explains the RBSMIs effort to cast liability vicariously on the petitioners by a superficial resort to the principle of command responsibility which this Court did not reject. But neither the principle itself which is an accepted notion in military or police structural dynamics or its counterpart of respondent superior in the law on quasi-delicts[11] would be relevant in this case, involving as it does the actual performance in office of the petitioners and given the fact that petitioners are high ranking officers of the countrys central monetary authority. Indeed, as such officers, petitioners cannot be expected to monitor the activities of their subalterns. In Arias v. Sandiganbayan,[12] this Court held that all heads of offices have to rely to a reasonable extent on the good faith of their subordinates. The case specifically involved the liability of the head of office in the preparation of bids, purchase of supplies and contract negotiations done by his subordinates. In the same fashion, petitioners in this case owing to their high ranks cannot be expected to acquaint themselves with such minutiae as the flow of files and documents which leave their desks. Myriad details such as those are, by office practice, left to subalterns and minor employees. Delegation of function is part of sound management. From another perspective, the negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of the latters own negligence. Indeed, the negligence of the subordinate is not tantamount to negligence of the superior official so the Court ruled in a case[13] where the mandated responsibilities of the superior do not include actual monitoring of projects. In another case,[14] this Court rejected the principle of command responsibility although the case involved a provincial constabulary commander, aptly noting that there was neither allegation nor proof that he had been in any way guilty of fault or negligence in connection with the unlawful raid and arrest effected by his subordinates. The immunity of public officers from liability for the non-feasances, negligence or omissions of duty of their official subordinates and even for the latters misfeasances or positive wrongs rests, according to Mechem, upon obvious considerations of public policy, the necessities of the public service and the perplexities and embarrassments of a contrary doctrine.[15] These official subordinates, he notes further, are themselves public officers though of an inferior grade, and therefore directly liable in the cases in which any public officer is liable, for their own misdeeds or defaults.[16] Significantly, Mechems disquisition provides the mooring of the Administrative Code of 1987 which provides that a head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.[17]

Reyes vs. Rural bank of San Miguel Bulacan

Now, the label of unprofessionalism bestowed by the Court on the petitioners at the instance of RBSMI. In the assailed Decision, the Court categorized Reyes telephone introduction of officials of other banks to RBSMIs President in connection with the latters expressed desire to sell the bank as brokering which in turn constitutes, according to the Court, violation of the standards of professionalism. The standards are set forth in Section 4 (A) (b) of Republic Act 6713, as follows:

Sec. 4. Norms of Conduct of Public Officials and Employees. (A) Every public official and employee shall observe the following as standards of personal conduct in the discharge and execution of official duties: ... (b) Professionalism. Public officials and employees shall perform and discharge their duties with the highest degree of excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty. They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.
The Court equates brokering with unprofessionalism. According to Websters Third New International Dictionary, professionalism means the conduct, aims, or qualities that characterize or mark a profession. Any standard thesaurus defines a professional as a person who engages in an activity with great competence. Indeed, to call a person a professional is to describe him as competent, efficient, experienced, proficient or polished. The crucial question, therefore, is whether Reyes conducted himself in an unprofessional manner in doing the acts imputed to him. The Court rules in the negative. In the first place, the acts of Reyes do not constitute brokering. Case law[18] defines a broker as one who is engaged, for others, on a commission, negotiating contracts relative to property with the custody of which he has no concern; the negotiator between other parties, never acting in his own name but in the name of those who employed him. . . . a broker is one whose occupation is to bring the parties together, in matters of trade, commerce or navigation. According to Bouviers Law Dictionary, brokerage refers to the trade or occupation of a broker; the commissions paid to a broker for his services, while brokers are those who are engaged for others on the negotiation of contracts relative to property, with the custody of which they have no concern.[19] Thus, the word brokering clearly indicates the performance of certain acts for monetary consideration or compensation. To give it another definition such as that imputed by RBSMI to the acts of Reyes is to distort the accepted jurisprudential meaning of the term. From the evidence, all that Reyes did was to introduce RBSMIs President to the President of TA Bank and EIB. Nothing more. There was not even a hint that he was motivated by monetary consideration or swayed by any personal interest in doing what he did. On his part, Soriano who is RBSMIs President himself admitted that the talks with Villacorta and Castillo never got past the exploratory stage because the two wanted a buy-in while he was for a total sell-out. This is an indelible indication that Reyes was not personally involved in the transaction. If he were, he would at least have an inkling of the plans of Villacorta and Castillo; otherwise, he would not have wasted his time introducing them to Soriano.

Reyes vs. Rural bank of San Miguel Bulacan

Indeed, RBSMI miserably failed to establish that Reyes had breached the standard of professional conduct required of a public servant. It appears to the Court that in keeping with the standards of professionalism and heeding the mandate of his position, he made the telephone introductions for no other purpose but to pave the way for a possible consolidation or merger of RBSMI with interested banks. As this Court found in its Decision, it is indeed the policy of the BSP to promote mergers and consolidations by providing incentives to banks that would undergo such corporate combinations. [20] To effectively implement the policy, it was necessary that the banks be advised and assisted by a person knowledgeable about the transactions like Reyes. The benefits which may ultimately arise out of any preliminary facilitation step such as what Reyes undertook will not accrue to the facilitator but to the parties to the transaction themselves and, of course, the institution whose policy initiative is being carried out. All told, there is neither legal nor factual support for holding Reyes and Domo-ong liable. As to the motion for partial reconsideration filed by RBSMI, it is argued that Principio should be administratively penalized for his undue haste in submitting his report to the MB, in making an unsupported recommendation for imposition of penalties for legal reserve deficiencies, and for taking charge of the examinations of RBSMI three consecutive times. RBSMIs arguments are not new, they having been previously presented to and squarely ruled upon by the Court. In closing, it cannot be overemphasized that the BSP is an independent body corporate bestowed under its charter[21] with fiscal and administrative autonomy. As such, its officials should be granted a certain degree of flexibility in the performance of their duties and provided insulation from interference and vexatious suits, especially when moves of the kind are resorted to as counterfoil to the exercise of their regulatory mandate. Elsewise, the institutional independence and autonomy of the BSP as the central mandatory authority would be rendered illusory. IN VIEW OF THE FOREGOING, the Court RESOLVES to GRANT the Motion for Reconsideration of the petitioners Deputy Governor Alberto V. Reyes and Director Wilfredo B. Domoong. The Decision dated March 14, 2003 is SET ASIDE and another entered, DISMISSING the administrative complaint and EXONERATING all the petitioners. The Motion for Partial Reconsideration of the respondent Rural Bank of San Miguel (Bulacan), Inc. is DENIED. SO ORDERED. Quisumbing, (Acting Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur. Puno, (Chairman), J., on leave.

Argana vs. Republic

SECOND DIVISION

[G.R. No. 147227. November 19, 2004]

MARIA REMEDIOS ARGANA, DONATA ALMENDRALA VDA. DE ARGANA, LUIS ARGANA, JR., PEREGRINO ARGANA, ESTATE OF GELACIO ARGANA, EUFROCINIO NOFUENTE, AMPARO ARGANA NOFUENTE, JUANITO ROGELIO, MILAGROS ARGANA ROGELIO, MARIA FELICIDAD ARGANA, MARIA DOROTEA ARGANA, REFEDOR SOUTH GOLD PROPERTY MANAGEMENT & DEVELOPMENT CORPORATION, petitioners, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION
TINGA, J.:

Before the Court is a Petition for Certiorari assailing the Resolution dated April 11, 2000 and the Order dated February 22, 2001 of the Sandiganbayan, Third Division, in Civil Case No. 0026.[1] On July 29, 1987, respondent Republic of the Philippines filed with the Sandiganbayan a Petition for Forfeiture of alleged ill-gotten assets and properties of the late Maximino A. Argana, who served as Mayor of the Municipality of Muntinlupa[2] from 1964 to 1967 and from 1972 until his death in 1985. On October 28, 1998, the Sandiganbayan remanded the case to the Presidential Commission on Good Government (PCGG) for the conduct of an inquiry. In 1990, the case was reactivated in the Sandiganbayan. Petitioners Maria Remedios Argana, Donata Almendrala Vda. De Argana, Luis Argana, Jr., Peregrino Argana, Estate of Gelacio Argana, Eufrocinio Nofuente, Amparo Argana Nofuente, Juanito Rogelio, Milagros Argana Rogelio, Maria Felicidad Argana, Maria Dorotea Argana, and Refedor South Gold Property Management & Development Corporation filed a series of motions, including a Motion to Dismiss on the ground of the lack of authority of the PCGG to institute the case on behalf of respondent. This issue eventually reached this Court and was decided in favor of respondent on September 29, 1994.[3] Petitioners, in their Answer, denied that the properties sought to be forfeited by respondent were unlawfully acquired by the deceased Mayor and/or by petitioners. Still, to avoid a protracted litigation, petitioners exerted efforts to settle the case amicably with respondent through the PCGG. After a series of motions were again filed by petitioners, the Sandiganbayan finally set the case for pre-trial on November 26, 1997, but the pre-trial was reset several times in view of the manifestation of the parties that they were in the process of negotiating a compromise. On August 7, 1997, petitioners offer of compromise was accepted by the PCGG in its Resolution No. 97-180-A.[4] Thereafter, the PCGG conducted an evaluation of the properties offered for settlement by petitioners. In a Memorandum dated August 18, 1997, Mauro J. Estrada, Director of the PCGG Research and Development Program, recommended the inclusion of another tract of land [5] belonging to petitioners among the properties which would be subject of the compromise.

Argana vs. Republic

On September 18, 1997, respondent, represented by PCGG Commissioners Reynaldo S. Guiao and Herminio A. Mendoza entered into a Compromise Agreementwith petitioners, represented by petitioner Maria Felicidad Argana. Petitioners conveyed, ceded and released in favor of respondent a total of 361.9203 hectares of agricultural land in Pangil and Famy, Laguna, or 75.12% of the properties subject of litigation, in consideration of the dismissal or withdrawal of all pending civil, criminal and administrative cases filed, litigated or investigated by respondent against them. The remainder was distributed as follows:

To be retained by the late Mayor Arganas heirs Owned by the Mayors Brothers and Sisters Foreclosed by Los Baos Rural Bank Owned by Other Persons

9.88%

47.78787 hectares 26.6318 hectares 5.9856 hectares 39.64865 hectares

5.53%

1.24% 8.23%

____________________________ 24.88% 120.05392 hectares

[6]

In a letter dated October 7, 1997,[7] the PCGG informed the Office of the Solicitor General (OSG) of the signing of the Compromise Agreement and requested the OSG to file the appropriate motion for approval thereof with the Sandiganbayan. Subsequently, the OSG requested for clarification from the PCGG if the compromise agreement included all the sequestered assets of petitioners subject of litigation. In response to the request, PCGG informed the OSG in a letter dated February 4, 1998[8] that the properties mentioned in the Compromise Agreement comprise all the sequestered assets subject of litigation, and reiterated that it entered into a compromise agreement with petitioners because it believed that the evidence might not be sufficient to warrant continuing the prosecution of Civil Case No. 0026 and that it is to the best interest of the government to accept the offer of petitioners.[9] On May 27, 1998, then President of the Republic of the Philippines Fidel V. Ramos approved the Compromise Agreement between petitioners and respondent.[10] On June 4, 1998,[11] the OSG filed with the Sandiganbayan a Motion to Approve Compromise Agreement. Petitioners expressed their conformity to the motion on June 15, 1998. After conducting hearings on the motion, the Sandiganbayan promulgated its Decision on July 31, 1998 approving the Compromise Agreement and rendering judgment in accordance with the terms thereof.[12] However, on October 5, 1998, respondent, through the OSG and the PCGG, filed with the Sandiganbayan a Motion to Rescind Compromise Agreement and to Set Aside Judgment by Compromise (Motion to Rescind). Respondent prayed for the rescission of the Compromise Agreement or reformation thereof after a renegotiation with petitioners. Respondent contended that the

Argana vs. Republic

partition of the properties in the Compromise Agreement was grossly disadvantageous to the government and that there was fraud and insidious misrepresentation by petitioners in the distribution and partition of properties, to the damage and prejudice of the government. According to respondent, there was fraud and insidious misrepresentation because petitioners proposed to divide the properties with 75% accruing to the government and the remaining 25% going to petitioners and their other creditorsbased on the total land area of the properties instead of on their value. As a result, the government obtained only Three Million Six Hundred Twenty Thousand Pesos (P3,620,000.00) worth of land, while petitioners received almost Four Billion Pesos (P4,000,000,000.00) worth. Petitioners filed an Answer to the Motion to Rescind and contended that the July 31, 1998 Decision of the Sandiganbayan could no longer be annulled because it had already become final and executory; that respondents counsel had no authority to file the motion; and that the motion was defective because it did not include a Certification against Forum-Shopping. They also argued that there was no agreement to divide the properties by a 75% to 25% ratio in favor of the government. What they proposed to cede to the government by way of compromise were their properties in Pangil covered by Transfer Certificate of Title (TCT) Nos. T-4044 and T-4009 and those in Famy, Laguna covered by TCT Nos. T-3813 to T-3817 and T-4104, 4106 and 4108, not a specific percentage of the properties subject of litigation.[13] In its Resolution dated September 22, 1999, the Sandiganbayan treated the Motion to Rescind as a petition for relief from judgment under Rule 38 of the 1997 Rules on Civil Procedure and set the motion for hearing. On April 11, 2000, the Sandiganbayan issued a Resolution granting respondents motion to rescind and setting aside the Decision dated July 31, 1998. The Sandiganbayan held that the Motion to Rescind was filed on time on October 5, 1998, the working day immediately following October 4, 1998, which was a Sunday and the 60th day after respondent received the July 31, 1998 Decision on August 5, 1998. It also ruled that the presumption that the OSG had authority to file the Motion to Rescindwas not overcome by petitioners. Under Republic Act No. 1379,[14] the filing and prosecution of cases for forfeiture of unlawfully acquired property is a function of the OSG.Petitioners failed to show proof that pleadings or motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Republic. The Sandiganbayan likewise held that respondent was not required to file a certification against forum-shopping because the motion to rescind was not an initiatory pleading.[15] With respect to the issue of fraud, it held that there was extrinsic fraud in the execution of the Compromise Agreement. The Sandiganbayan stated:

The values were deliberately omitted to make it appear that the Compromise Agreement adheres to the 75%-25% ratio broadly adopted by the PCGG in compromising cases of ill-gotten wealth. It was this 75%-25% mode of compromise, with the greater share of 75% going to the government that misled the Court to believe, as We did believe, that the Compromise Agreement was fair, reasonable and advantageous to the Government. What was projected to be a 75%-25% ratio was in reality a 00.15%-99.85% ratio, with 99.85% going to the Arganas. This is unconscionable and immoral. And since it results in a transaction grossly disadvantageous and immoral to the government, it is against the law as being violative of Section 3(g) of Republic Act 3019.

Argana vs. Republic

In the instant case, fraud of an extrinsic character exists because the representatives of plaintiff Republic in the PCGG connived with defendants in hiding the assessed or market values of the properties involved, so as to make it appear that the Compromise Agreement adhered to the 75%-25% ratio adopted by the PCGG in entering into compromise of cases involving the recovery of ill-gotten wealth. Through their infidelity, those in the PCGG who handled or were closely involved with the case during the last days of the previous administration fraudulently gave the Compromise Agreement a semblance of fairness and official acceptability. They sold plaintiff Republic down the river by entering into an agreement grossly disadvantageous to the government. For while plaintiff Republic got 00.15% (00.15074) of the estimated value of all the properties involved in this case, defendants almost ran away with 99.85% (99.84526) of their value. This is patently unfair. It is no compromise but a virtual sell-out. It could not have been pulled off without the connivance or collusion of those responsible for the case in the PCGG. Instead of protecting the interest of the government, they connived at its defeatalmost.
[16]

Petitioners filed a Motion for Reconsideration dated May 9, 2000 and a Supplement to said motion dated May 30, 2000. Petitioners also filed an Urgent Motion for Voluntary Inhibition dated May 18, 2000 praying that the members of the Third Division of the Sandiganbayan voluntarily inhibit themselves from hearing and resolving the petitioners pending motions. On February 22, 2001, the Sandiganbayan issued two Orders, one denying petitioners motion for reconsideration,[17] and the other, denying the motion for voluntary inhibition.[18] Hence, petitioners filed the present petition on April 27, 2001. Respondent filed its Comment on October 22, 2001. On November 12, 2001, the Court issued a Resolution giving due course to the petition and requiring the parties to submit their respective memoranda.[19] Respondent filed its Memorandum on January 29, 2002. Petitioners filed theirs on February 26, 2002. In their respective memoranda, the parties reiterated the arguments in their earlier pleadings. Specifically, petitioners raise the following arguments:
(A) (B) The Sandiganbayan (Third Division) denied Petitioners their right to substantive and procedural due process when it refused to voluntarily inhibit itself from further hearing the instant case. The PCGG lawyers had no authority to ask for the rescission of the subject Compromise Agreement without the consent of the PCGG En Banc and the President of the Republic of the Philippines. The Motion to Rescind, which was treated by the Sandiganbayan (Third Division) as a Petition for Relief under Rule 38 of the Rules of Court, is fatally defective because

(C)

1. It was not filed by a party to the case, i.e., it was filed by counsel without the clients authority. 2. It was filed out of time. 3. It was filed sans any supporting Affidavit of Merit. 4. It lacked the required Certification on Non-Forum Shopping.

Argana vs. Republic (D) There is no factual or legal basis for the finding of fraud by the Sandiganbayan (Third Division). (E) Upon approval of the Compromise Agreement, the Sandiganbayan (Third Division) lost jurisdiction over the case, including the authority to rescind said Compromise Agreement and to set aside the judgment based thereon. The Sandiganbayan (Third Division) lacked authority to alter a contract by construction or to make a new contract for the parties. Since the Compromise Agreement had already been implemented, rescission cannot be availed of.[20]

(F) (G)

Petitioners contend that the members of the Third Division of the Sandiganbayan should have inhibited themselves from resolving petitioners motion for reconsideration because from the tenor of the April 11, 2000 Order of the court granting respondents motion to rescind, it was evident that the Sandiganbayan had already prejudged the properties subject of litigation as having been unlawfully acquired.[21] Petitioners likewise assert that the property value of a property offered for the amicable settlement of a case is not always material in determining the validity of a compromise agreement. They point out that what impelled the PCGG to enter into a compromise agreement with them was PCGGs perception that its evidence against petitioners was weak and might not be sufficient to justify maintaining the case against them.[22] In addition, petitioners insist that the Motion to Rescind which was treated by the Sandiganbayan as a petition for relief from judgment under Rule 38 is fatally defective for (i) lack of authority of respondents lawyers to file the same; (ii) having been filed out of time; (iii) non -submission of an Affidavit of Merit; and (iv) non-submission of a Certification against Forum-Shopping.[23] It is argued by petitioners that the Sandiganbayan should have denied respondents Motion to Rescind outright for having been filed without authority from the PCGG En Banc and the President of the Republic, both of whom earlier approved and authorized the execution of the Compromise Agreement. According to petitioners, after final judgment has been rendered in a case, an attorney has no implied authority from his client to seek material or substantial alterations or modifications in such judgment.[24] Petitioners claim that the Motion to Rescind was filed only on October 5, 1998, or beyond sixty (60) days from the time the Sandiganbayan promulgated its July 31, 1998 Decision approving the Compromise Agreement.[25] In support of their petition, petitioners cite Section 3 of Rule 38 which requires that the petition for relief be filed within sixty (60) days after the party seeking the relief learns of the judgment or final order to be set aside, and not more than six (6) months after such judgment or final order was entered. They also invoke the case of Samonte v. Samonte[26] where the Court held that a judgment upon compromise is deemed to have come to the knowledge of the parties on the very day it is entered.[27] It is further argued by petitioners that the Sandiganbayans finding that the settlement between petitioners and respondent was attended by fraud has no factual or legal basis. Petitioners point out that the property values cited by respondent in its Motion to Rescind were based solely on the estimates of the PCGG lawyers and no evidence of the valuation of the properties were presented before the Sandiganbayan to establish fraud. They also contend that the Sandiganbayan had no legal basis for taking judicial notice of the fact that agricultural land in rural areas such as Famy and Pangil, Laguna is much cheaper and is usually sold by the hectare, while land in Metro Manila and in nearby municipalities such as Muntinlupa is more valuable and sold per square meter. Petitioners insist that knowledge of the valuation of property is not a conditionsine qua non for the validity of a compromise agreement.[28]

Argana vs. Republic

Petitioners also assert that the Sandiganbayan did not have jurisdiction to annul the Compromise Agreement because its July 31, 1998 Decision had already become final and executory. Moreover, as a contract validly entered into by the parties, the Compromise Agreement had binding effect and authority on the parties thereto even if it were not judicially approved. [29] Petitioners likewise contend that the Sandiganbayan cannot alter the Compromise Agreement which is a valid and binding contract between themselves and respondent and impose the additional requirement that the moneys, properties or assets involved in the compromise must be fully disclosed and described not only as to the number or area (in case of real properties) but also as to their exact location, classification, appraised and fair market value, liens and encumbrances, whether titled or not, etc., so as to leave no room for doubt that all the parties, the Court and the public know exactly what each party is giving or taking away, and under what specific terms and conditions. [30] According to them, the imposition of this requirement would be beyond the scope of the Sandiganbayans authority. [31] Lastly, petitioners argue that the Compromise Agreement can no longer be rescinded because it had already been implemented. In support of this argument, petitioners claim that on September 22, 1997, or four days after the signing of the agreement, they delivered to the PCGG the original TCTs of the properties ceded to respondent under the agreement.[32] Respondent, through the OSG, contends that the Sandiganbayans April 11, 2000 Resolution which granted the motion to rescind the Compromise Agreement and set aside its July 31, 1998 Decision cannot be the proper subject of a Petition for Certiorari. According to respondent, petitioners were not without any other remedy from the adverse ruling of the Sandiganbayan, and they should have gone to trial and reiterated their special defenses.[33] Respondent also maintains that the Sandiganbayan did not err in denying petitioners motion for voluntary inhibition of its members because petitioners allegations of partiality and bias were not supported by clear and convincing evidence.[34] It is also argued by respondent that there is no rule or law requiring that pleadings or motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Republic.[35] Anent the alleged procedural infirmities in the filing of the Motion to Rescind, respondent asserts that it complied with the reglementary period for the filing of a petition for relief from judgment under Rule 38 and that it is not an initiatory pleading which is required to be accompanied by a Certification against Forum-Shopping.[36] Respondent disagrees with the contention of petitioners that the Sandiganbayan already lost jurisdiction over the case when it rendered its Decision on theCompromise Agreement on July 31, 1998 considering that the decision is immediately executory since there is no appeal from such judgment. According to respondent, the Rules of Court does recognize the jurisdiction of the court which rendered a decision over a petition for relief from the same decision, and does not distinguish whether the judgment is based on the evidence presented or on a compromise agreement. Moreover, as an exception to the general rule that the court which rendered judgment on the compromise cannot modify such compromise, the court may order modifications thereon when the parties consent to such modification or when there is a hearing to determine the presence or absence of vitiated consent. [37] Respondent adds that the Sandiganbayan did not make a new contract for the parties but simply declared their Compromise Agreement null and void with the net effect of continuing the case from where it left off.[38] Respondent insists that a compromise agreement which is unconscionable, shocking to the mind and contrary to law and public policy, such as that entered into by it with petitioners, is null and void. A void compromise agreement vests no rights and creates no obligations. Considering that the

Argana vs. Republic

compromise agreement sought to be declared void in this case is one which is prejudicial to the government, it is the Courts duty to strike it down as null and void. [39] It is argued by respondent that while it did not present additional evidence after it filed the Motion to Rescind, it submitted the motion on the basis of all the verified pleadings and papers on record. Respondent likewise claims that the Sandiganbayan did not err in taking judicial notice of the fact that agricultural lands in the provinces, such as the lands titled in petitioners names in Famy and Pangil, Laguna, are much cheaper than lands in urban areas such as those in Muntinlupa City. Respondent insists that such fact is a matter of public knowledge and may be taken judicial notice of under Section 1, Rule 129 of the Revised Rules of Court.[40] Respondent also points out that petitioners expressly admitted in their Answer to the Motion to Rescind that the value of the properties which they ceded to respondent under the Compromise Agreement is less than the value of the properties retained by them.[41] Respondent claims that there was fraud of an extrinsic character because its representatives in the PCGG connived with petitioners in concealing the assessed or market values of the properties subject of the Compromise Agreement to make it appear that the latter adhered to the 75%-25% ratio adopted by the PCGG in entering into compromise of cases involving the recovery of ill-gotten wealth. It is pointed out by respondent that the OSG was in fact initially reluctant to file the motion for approval of the compromise agreement with the Sandiganbayan because the Compromise Agreement only mentioned the areas of the properties but conspicuously failed to mention the property values thereof. Respondent explained:

On October 7, 1997, the PCGG forwarded to the OSG a copy of the Compromise Agreement between the Republic and the Arganas in SB Civil Case No. 0026, with a request that the OSG file a motion with the Sandiganbayan for the approval of the said Compromise Agreement. On November 7, 1997, in reply to the letter of PCGG, the OSG with then Solicitor General Silvestre H. Bello III as signatory, wrote the PCGG requesting it to submit to the OSG clarification on the provision in the compromise agreement that the properties mentioned therein comprise all the sequestered assets subject of the litigation considering that in the petition filed by the Republic, it is alleged that the late mayor Argana acquired no less than 251 OCTs/TCTs in Muntinlupa and the neighboring towns plus some other illgotten properties. The OSG likewise opined that the Compromise Agreement must first be submitted to the President for his approval before submitting it to the Sandiganbayan. On February 10, 1998, the OSG received a reply from the PCGG, through Commissioner Herminio Mendoza, reiterating that the PCGG has decided to enter into the compromise agreement because it believes that the evidence may not be sufficient to warrant continuing prosecution of Civil Case No. 0026 against the Arganas. With respect to OSGs request for clarification, the PCGG furnished the OSG a copy of the report conducted by the PCGG Research and Development Department whereby it is stated that there are 324 OCTs/TCTs evaluated representing real properties of the late Mayor Argana with a total land area of 481.77422 hectares out of which the Republic will get 361.9203 hectares or 75.12% of the total land area under the Compromise Agreement. No mention, however, was made as to the value of the properties to be ceded to the Republic and the properties to be retained by the Arganas. On March 2, 1998, the OSG, through then Solicitor General Romeo C. dela Cruz, again wrote the PCGG reiterating its previous position that before submitting the compromise agreement to the

Argana vs. Republic

Sandiganbayan for approval, it must first be submitted to the President of the Philippines for his approval as required in par. 6 of the Compromise Agreement. The OSG also reiterated its request for clarification regarding the properties covered by the compromise agreement as the Report submitted to it made mention of 361.9203 hectares or 75.12% out of the total land area of 481.71422 hectares to be ceded to the Republic, and 24.88% to be retained by the Arganas, no mention whatsoever was made of the kind of land, location and value of the respective areas. On June 2, 1998, the OSG received a letter dated May 29,1998 from then Commissioner Herminio A. Mendoza forwarding it copy of the approval by then President Fidel Ramos of the Compromise Agreement. With respect to its query, it was stated therein that the PCGG is unable to determine the value of the land to be ceded to the Republic and those to be retained by the Arganas because of the big number of the parcels of the land located mainly in Muntinlupa, Metro Manila and Laguna and/or the lack of available records showing their respective values for tax purposes. The PCGG reiterated their request that the OSG file with the Sandiganbayan in SB Civil Case No. 0026 a motion for the approval of the compromise agreement. Obviously, through such a scheme, those in the PCGG then who handled or were involved with the case fraudulently gave the Compromise Agreement a semblance of fairness and official acceptability, but in truth, it was grossly disadvantageous to the government. The motion to approve compromise agreement was filed by the OSG out of courtesy as the PCGG was able to get the approval of then Pres. Fidel V. Ramos but not because it (OSG) totally approved the same after an independent evaluation of the report. (Emphasis in the original.)
[42]

Finally, respondent argues that the Compromise Agreement had not yet been implemented. Although petitioners delivered the TCTs covering the lots ceded to respondent under the terms of the compromise on September 22, 1997, such delivery could not have the effect of implementation of the Compromise Agreement because the contract was submitted to the Sandiganbayan for approval only on June 15, 1998. The Compromise Agreement expressly required that in order for it to be effective, it must be approved by the President of the Republic and of the Sandiganbayan. [43] The issues for the Courts resolution are as follows: 1) Whether a petition for certiorari is the proper remedy; 2) Whether the OSG and the PCGG lawyers have authority to file the Motion to Rescind on behalf of respondent; 3) Whether the Motion to Rescind, which was treated by the Sandiganbayan as a petition for relief, complied with the requirements of Rule 38 of the 1997 Rules of Civil Procedure; 4) Whether the Sandiganbayan acted with grave abuse of discretion in granting the Motion to Rescind and in setting aside its Decision dated July 31, 1998; and 5) Whether the members of the Sandiganbayans Third Division should have inhibited themselves from resolving petitioners Motion for Reconsideration. The Court shall first tackle the first, second, third and fifth issues since these involve procedural matters. The Court does not agree with respondents contention that a petition for certiorari is not the proper remedy to assail the February 22, 2001 Order of the Sandiganbayan which affirmed its earlier directive to set the case against petitioners for pre-trial following the annulment of its judgment by compromise

Argana vs. Republic

agreement. A special civil action for certiorari may be instituted when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law.[44] The Court has previously held that an order setting the case for further proceedings, issued after the original judgment rendered pursuant to a compromise agreement is set aside, is an interlocutory order and is therefore not appealable. [45] Since no appeal is available against such an order, the proper remedy to assail it is a special civil action for certiorari. The remedy taken by petitioners is therefore proper. Petitioners contention that the Motion to Rescind filed by the lawyers of the PCGG and of the OSG should have been treated by the Sandiganbayan as a mere scrap of paper because the motion was filed without the authority of the PCGG En Banc and of the President of the Republic has no legal basis. There is no requirement under the law that pleadings and motions filed by lawyers of the government or the PCGG must first be approved by the PCGG En Banc and by the President of the Philippines. More importantly, R.A. No. 1379 expressly authorizes the OSG to prosecute cases of forfeiture of property unlawfully acquired by any public officer or employee.[46] It must be remembered that it was the OSG which filed Civil Case No. 0026 for the forfeiture of petitioners allegedly i ll-gotten wealth, and that the Compromise Agreement between petitioners and respondent was an amicable settlement of that case. By filing an action for rescission of the Compromise Agreement based on extrinsic fraud, the OSG was merely performing its legal duty to recover the wealth purportedly amassed unlawfully by the late Mayor Argana during his terms as Mayor of Muntinlupa. The Motion to Rescind was filed precisely because the PCGG, as respondents authorized representative in the compromise, discovere d that the execution of the Compromise Agreement was attended by fraud and sought the help of the OSG which in turn is the duly authorized government agency to represent respondent in forfeiture cases under R.A. No. 1379. Hence, the Sandiganbayan correctly upheld the authority of the OSG, assisted by the PCGG, in filing the Motion to Rescind. The Court also finds that there was no grave abuse of discretion on the part of the Sandiganbayan in granting the Motion to Rescind, which it treated as a petition for relief from judgment under Rule 38 of the 1997 Rules on Civil Procedure. Section 3 thereof prescribes the periods within which the petition for relief must be filed:

Time for filing petition; contents and verification. A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken, and must be accompanied with affidavits showing the fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioners good and substantial cause of action or defense, as the case ma y be.
The Court has previously held that as applied to a judgment based on compromise, both the sixty (60)-day and six (6)-month reglementary periods within which to file a petition for relief should be reckoned from the date when the decision approving the compromise agreement was rendered because such judgment is considered immediately executory and entered on the date that it was approved by the court.[47] Applying the foregoing rule to the present case, the sixty (60)-day period should be counted from July 31, 1998, the date of the Sandiganbayan Decision granting theMotion to Approve Compromise Agreement. The sixtieth day from July 31, 1998 is September 29, 1998. The Motion to Rescind was filed by the OSG only on October 5, 1998, clearly several days after the sixtieth day from the rendition of the July 31, 1998 Decision.

Argana vs. Republic

This notwithstanding, the Court finds that no grave abuse can be ascribed to the Sandiganbayan in admitting the Motion to Rescind as a petition for relief was timely filed. Although as a general rule, the party filing a petition for relief must strictly comply with the sixty (60)day and six (6)-month reglementary periods under Section 3, Rule 38,[48] it is not without exceptions. The Court relaxed the rule in several cases[49] and held that the filing of a petition for relief beyond the sixty 60-day period is not fatal so long as it is filed within the six (6)-month period from entry of judgment.[50] The Court notes that the filing of the Motion to Rescind on October 5, 1998 was indeed seven days beyond the sixty 60-day period but still well within the six (6)-month period from entry of judgment. Moreover, the case involves an alleged fraud committed against the Republic, and thus justifies the liberal interpretation of procedural laws by the Sandiganbayan. Petitioners claim that respondent failed to attach an affidavit of merit to its Motion to Rescind is belied by the record of the case. Petitioners in fact attached, as Annex N of their Petition for Certiorari, a copy of the respondents Motion to Rescind. The Affidavit of Merit signed by Dennis M. Taningco, the counsel of the PCGG in Civil Case No. 0026, was attached to the Motion to Rescind. In any case, the Court in Mago v. Court of Appeals[51] held that the absence of an affidavit of merit does not always result in the denial of the petition for relief, so long as the facts required to be set out in the affidavit appear in the verified petition. The oath which forms part of the petition elevates it to the same category as an affidavit.[52] Neither was it necessary for respondent to attach a Certification against Forum-Shopping to the Motion to Rescind. As correctly held by the Sandiganbayan, the Motion to Rescind, which in effect was a petition for relief, is not an initiatory pleading which requires the inclusion of a Certification against Forum-Shopping. Section 2, Rule 38 requires that a petition for relief must be filed with the court which rendered the judgment or order sought to be set aside, and in the same case wherein the judgment or order was rendered. If the court finds that the allegations in the petition for relief are true, it shall set aside the judgment and try the principal case upon the merits as if a timely motion for new trial had been granted.[53] Clearly, then, a petition for relief is not an initiatory pleading in a new case which would require the filing by the petitioner therein of a Certification of Non- Forum Shopping. The Court also finds no abuse of discretion by the Sandiganbayan in denying petitioners Urgent Motion for Voluntary Inhibition. As explained in Gutang v. Court of Appeals,[54] the import of the rule on voluntary inhibition is that the decision of a judge on whether or not to inhibit is left to his or her sound discretion and conscience, based on his or her rational and logical assessment of the case where the motion for inhibition is filed. It implies that in addition to pecuniary interest, relationship, or previous participation in the matter under litigationwhich are grounds for mandatory inhibition under the first paragraph of Section 1, Rule 137 of the Revised Rules of Court there might be other causes that could diminish the objectivity of the judge, thus warranting his or her inhibition. Petitioners claim of bias and partiality on the part of the Sandiganbayan justices who issued the April 11, 2000 Resolution, evaluated in light of the resolution itself, is evidently more imagined than real. To say, as is petitioners wont, that a judge who throws out a partys motion in the language employed by the Sandiganbayan in the questioned Resolution is necessarily prejudiced, is to be indiscriminate and precipitate. Petitioners assertion that the April 11, 2000 Resolution was harshly worded and evinced prejudgment of the case in respondents favor is easily disproved by a reading of the Resolution in its entirety. As will be discussed hereafter, the Sandiganbayans pronouncement that the Compromise Agreement was grossly disadvantageous and prejudicial to the government is supported by the facts on record. In charging the Sandiganbayan with forejudgment when it said that all it takes to prove the case is evidence that the properties are manifestly out of proportion to the late Mayor Maximino A. Arganas salary and to his other lawful income and other legitimately acquired income, [55] petitioners have taken the statement out of context. The Sandiganbayan made the statement in relation to its bewilderment as

Argana vs. Republic

to why the PCGG expressed difficulty in prosecuting the case against the late Mayor Argana in spite of the presumption regarding unexplained wealth in Section 8 of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act). The Sandiganbayan therefore had legal and factual grounds to deny petitioners motion for inhibition. Anent the propriety of the Sandiganbayans nullification of the Compromise Agreement on the ground of extrinsic fraud, the Court holds that no error nor grave abuse of discretion can be ascribed to the Sandiganbayan for ruling that the execution of the Compromise Agreement was tainted with fraud on the part of petitioners and in connivance with some PCGG officials. A circumspect review of the record of the case reveals that fraud, indeed, was perpetuated upon respondent in the execution of theCompromise Agreement, the assessed or market values of the properties offered for settlement having been concealed from the reviewing authorities such as the PCGG En Banc and even the President of the Republic. The discussion of the Sandiganbayan on the nature and extent of the fraud perpetuated upon respondent in the execution of the Compromise Agreement is clear and convincing:

Noticeable from the documents submitted to the court after the decision approving the Compromise Agreement was promulgated is the fact that only the percentage of sharing based on area was mentioned and brought to the attention of the PCGG en banc and the Solicitor General. The value of the properties was never, and not even once, mentioned. Thus, in the Memorandum of Director Mauro J. Estrada of the PCGG Research and Development Department to the PCGG Chairman, dated August 18, 1997, the following exposition appears: 12. On July 10, 1996, the Arganas submitted a proposal for Compromise Agreement (copy attached, per Annex J) that would cede by donation about 231 hectares of agricultural lands to the government, Xerox copies of nine (9) TCTs attached therewith, enumerated as follows: TCT No. T-3813 T-8314 T-8315 T-8316 T-8317 T-4104 T-4106 T-4108 T-4044 Area in Square Meters 47,908 47,461 30,000 40,000 30,000 20,000 38,550 31,618 1,137,361 883,355 2,306,253 Sq. Meters 230,6253 Hectares Another big tract of land located at Matikiw, Pangil, Laguna, consisting of 131,2950 hectares covered by TCT No. T-4009, per Annex K may be considered for inclusion in the proposed compromise settlement. The reason for this is that this land is being eyed by the DAR for distribution under the CARP. As a whole, the government may be able to acquire about 361.9203 hectares of land Location Famy, Laguna -do-do-do-do-do-do-doSan Isidro & Banilan, Pangil, Laguna

Argana vs. Republic

equivalent to 75.12% of the 481.7742 hectares of land of sequestered real estate property belonging to the Arganas and other owners. However, of the 481.7742 hectares covered by a sequestration order, the late Mayor Argana owns about 409.50817 hectares and possibly the heirs are willing to cede 361.9203 hectares which is equivalent to 88.38%, retaining 47.5887 hectares or 11.62% of what they owned. E. EVALUATION 1) As presented in Annex L, page 13, the total area of real estate property sequestered aggregated to 481.7742 hectares accounted as follows:
100.00% 481.77422

Total Area Sequestered Accounted as Follows: a) owned by Mayor Maximino Argana

75.12% b) Owned by his Brothers & Sisters 9.88% c) Foreclosed by Los Baos Rural Bank 1.24% d) Owned by Other Persons 8.23% TOTAL 100.00%

409.50817 has.

26.6318 has.

5.9856 has.

39.64865 has. 481.77422 has.

2)

Out of the total area of 481.77422 hectares covered by a sequestration order, about 409.50817 hectares are owned by the late Mayor Argana. The other lots are owned by his brothers and sisters (26.6318 hectares), foreclosed by Los Baos Rural Bank (5.9856 hectares), and registered and/or acquired by other persons (39.64865 hectares). In the event that the other big area consisting of 131.2950 hectares of land is included in the compromise settlement in favor of the government, a total of 361-50817 (sic) hectares of land would comprise about 88.38 % of the 409.50817 hectares registered in the name of the late Mayor Argana. However, as a whole the 361.9203 hectares to be ceded to the government is equivalent to 75.12% of the 481.77422 hectares sequestered by PCGG as presented above. Since the late mayor owns 409.50817 hectares to the government, the percentage share of the government would be 88.38 % and the remaining 11.62 % may be retained by the heirs of the late Mayor Argana, equivalent to 47.58787 hectares.

3)

Argana vs. Republic

F.

SUMMARY

The family of the late Mayor Maximino A. Argana offered to cede to the government a total of 230.62553 hectares of land covered by nine (9) TCTs. Another property, however, consisting of 131.2950 hectares may be considered for inclusion which would increase to 361.9203 hectares of land that may be ceded to the government. In the event that the 361.9203 hectares are finally considered and acceptable by both part ies, the PCGG and the Arganas, the 481.77422 hectares of sequestered property would be accounted as follows:
Total Area Sequestered Accounted as follows: a) To be ceded the Government b) To be retained by the late Mayor Arganas Heirs 9.88% c) Owned by his Brothers & Sisters 5.53% d) Foreclosed by Los Baos Rural Bank 1.24% e) Owned by Other Persons Total 8.23% 100.00% 5.9856 has. 39.64865 has. 481.77422 has. 26.6318 has. 47.78787 has. 75.12% 361.9203 has. 100.00% 481.77422 has.

However, since the late Mayor Argana owns 409.50817 hectares sequestered and may possibly cede 361.9203 hectares, the percentage share of the government would be 88.38% of the 409.50817 hectares actually registered in his name and his children. G. RECOMMENDATION

The PCGG wanted to recover as much as it could and as fast as possible, while the Arganas wanted to buy peace without admitting guilt. In order to avoid further lengthy litigation and to put an end to an almost ten-year unresolved sequestration issue, and to expedite recovery so that the remaining assets may be used to contribute to the national recovery, the 230.6253 hectares of land covered by nine (9) TCTs (Nos. T-3813, T-3814, T-3815, T-3816, T-3817, T-4104, T-4106, T-4108 and T-4044) offered by the Arganas be favorably considered, on condition that another real estate property covered by TCT No. T-4009, located at Matikiw, Pangil, Laguna, consisting of 131.2950 hectares, be included

Argana vs. Republic

and to be ceded to the government. All other lots sequestered should be freed from the sequestration order. As a whole, the government stands to acquire about 361.9203 hectares out of the 409.50817 hectares registered in the name of Sps. Maximino A. Argana, REFEDOR, and their children, equivalent to 88.38%. The remaining 11.62% or 47.58787 hectares will be retained by the latter. For the consideration of the Commission. Signed MAURO J. ESTRADA (Record, v. 6, pp. 776-78) (Underlining supplied) .... The value of the properties must have been raised or even discussed during the several years that the properties were held under sequestration. Yet, not even the PCGG bothered to produce any tax declaration, assessment or appraisal to show the assessed or fair market value of the properties. . . . . Again in another Memorandum of Director Mauro J. Estrada to PCGG Counsel Edgardo L. Kilayko, dated February 2, 1988, the properties were listed according to the name of the owner, certificate of title, area in square meters, location and percentages in relation to the whole. Obvious from the listing is the absence of a column to indicate the value of the properties or their classification. . . . The percentage based solely on area, was clearly emphasized, as shown by the following portions of said Memorandum: Out of the 409.50817 hectares registered in the name of Spouses Maximo A. Argana and Donata A. Argana as presented above, 361.9203 hectares covering eleven (11) TCTs are to be ceded to the government under the compromise agreement signed by Argana and the Commission in the latter part of 1997. The 361.9203 hectares to be ceded to the government is equivalent to 75.12 % of the total area of 481.77422 hectares, as presented below: x x x (Record, v. 6, p. 1739) (underlining supplied) As a whole, there are 324 TCTs/OCTs covering a total area of 481.77422 hectares, out of which the heirs of the late Mayor agreed to cede 361.9203 hectares equivalent to 75.12 % of the total area. Sometime. In August 1997, the Commission agreed to accept the offer by concluding a compromise agreement with the heirs of the late Mayor. (Record, v. 6, p. 1739) (underlining supplied) .... . . . The values were deliberately omitted to make it appear that the Compromise Agreement adheres to the 75%-25% ratio broadly adopted by the PCGG in compromising cases of ill-gotten wealth. It was this 75%-25% mode of compromise, with the greater share of 75% going to the government that

Argana vs. Republic

misled the Court to believe, as We did believe, that the Compromise Agreement was fair, reasonable and advantageous to the Government. . . . . . . What was projected to be a 75%-25% ratio was in reality a 00.15%-99.85% ratio, with 99.85% going to the Arganas. This is unconscionable and immoral. And since it results in a transaction grossly disadvantageous and immoral to the government, it is against the law as being violative of Section 3(g) of Republic Act 3019. ... In the instant case, fraud of an extrinsic character exists because the representatives of plaintiff Republic in the PCGG connived with defendants in hiding the assessed or market values of the properties involved, so as to make it appear that the Compromise Agreement adhered to the 75%-25% ratio adopted by the PCGG in entering into compromise of cases involving the recovery of ill-gotten wealth. Through their infidelity, those in the PCGG who handled or were closely involved with the case during the last days of the previous administration fraudulently gave the Compromise Agreement a semblance of fairness and official acceptability. They sold plaintiff Republic down the river by entering into an agreement grossly disadvantageous to the government. For while plaintiff Republic got 00.15% (00.15074) of the estimated value of all the properties involved in this case, defendants almost ran away with 99.85% (99.84526) of their value. This is patently unfair. It is no compromise but a virtual sell-out. It could not have been pulled off without the connivance or collusion of those responsible for the case in the PCGG. Instead of protecting the interest of the government, they connived at its defeatalmost. (Emphasis in the original.)
[56]

It is evident from the foregoing that the ruling of the Sandiganbayan is grounded on facts and on the law. The Court sees no reason to depart from the conclusions drawn by the Sandiganbayan on the basis of its findings, especially considering that the three justices comprising the Sandiganbayans Third Division conducted a thorough examination of the documents submitted by the parties to this case, heard the testimonies of the parties witnesses and observed their deportment during the hearing on theMotion to Rescind. Moreover, it is an established rule that the State cannot be estopped by the mistakes of its agents.[57] Respondent cannot be bound by a manifestly unjust compromise agreement reviewed on its behalf and entered into by its representatives from the PCGG who apparently were not looking after respondents best interests. WHEREFORE, the petition is DISMISSED for lack of merit. The Resolution dated April 11, 2000 of the Sandiganbayan granting the Motion to Rescind Compromise Agreement and to Set Aside Judgment by Compromise and setting the case for pre-trial, as well as the Order dated February 22, 2001 denying petitioners motion for reconsideration, are hereby AFFIRMED. Costs against petitioners. SO ORDERED.

Collantes vs. CA
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169604 March 6, 2007

NELSON P. COLLANTES, Petitioner, vs. HON. COURT OF APPEALS, CIVIL SERVICE COMMISSION and DEPARTMENT OF NATIONAL DEFENSE,Respondents. DECISION CHICO-NAZARIO, J.: A decision that has acquired finality becomes immutable and unalterable. A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact and law; and whether it be made by the court that rendered it or by the highest court in the land.1 What would happen, however, if two separate decisions, irreconcilably conflicting with each other, both attained finality? Quite clearly, to hold that both decisions are immutable and unalterable would cause not only confusion and uncertainty, but utter bewilderment upon the persons tasked to execute these judgments. This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision2dated 10 March 2005 and the Resolution3 dated 31 August 2005 of the Court of Appeals in CA-G.R. SP No. 78092. The undisputed facts of this case are summarized by the Court of Appeals: Petitioner Nelson Collantes (hereafter, Collantes) was conferred Career Executive Service Eligibility on 29 February 1996. Then President Fidel V. Ramos accorded him the rank of Career Executive Service Officer (CESO) II on 10 February 1997. More than a year later, he was appointed as Undersecretary for Peace and Order of the Department of Interior and Local Government (DILG). With the change of administration, Collantes allegedly received word from persons close to then President Ejercito Estrada to give up his position so that the President could unreservedly appoint his key officials. As such, Collantes relinquished his post at the DILG. Thereafter, on 1 July 1998, President Estrada appointed Collantes to the controversial post Undersecretary for Civilian Relations of the Department of National Defense (DND). As it happened, his stint in the DND was short lived. Collantes was supposedly ordered by then Secretary Orlando Mercado to renounce his post in favor of another presidential appointee, General Orlando Soriano. In deference to the Presidents prerogative, he resigned from office believing that he will soon be given a new assignment. Unfortunately, Collantes was not given any other post in the government, as in fact, he received a letter from President Estrada terminating his services effective 8 February 1999. Consequently, on 24 March 1999, Collantes requested the assistance of the Career Executive Service Board relative to the termination of his services as Undersecretary for Civilian Relations of the DND invoking his right to security of tenure as a CESO. The termination of Collantes services, notwithstanding, President Estrada accorded Collantes the highest rank in the CES ranking structure, CESO Rank I, on 17 July 1999. But then, despite this promotion in rank, Collantes did not receive new appointment, and worse, the President appointed Mr. Edgardo Batenga to the much coveted position of Undersecretary for Civilian Relations of the DND.

Collantes vs. CA Taking definite action on the matter, Collantes instituted a Petition for Quo Warranto and Mandamus before Us on 29 January 2001, docketed as C.A. G.R. SP NO. 62874. Collantes maintained that he was constructively dismissed from work, without any cause and due process of law, and thus, his position in the DND was never vacated at all. Accordingly, he prayed that the appointment of Mr. Edgardo Batenga be nullified, and that he be reinstated to his former position with full back salaries. Notably, Collantes also sought for appointment to a position of equivalent rank commensurate to his CESO Rank I if reinstatement to his former position is no longer legally feasible.
Meanwhile, on 13 August 2001, the CSC favorably acted on Collantes letter-request issuing Resolution No. 011364, and thereby holding that Collantes relief as Undersecretary of DND amounted to illegal dismissal as he was not given another post concomitant to his eligibility. Then, on 30 August 2001, We rendered Our Decision in C.A. G.R. SP No. 62874 dismissing the Petition for Quo Warranto and Mandamus filed by Collantes. Significantly, We pronounced: "By such actuations of the petitioner, the Court finds that he has (sic) effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position. xxxx "In this case, petitioner has undoubtedly shown his intention to relinquish his public office, and has in fact surrendered such post to the Chief Executive, who, on the other hand, has shown his acceptance of the same by appointing a new person to the position relinquished by the petitioner. xxxx Quo warranto, it must be pointed out, is unavailing in the instatnt case, as the public office in question has not been usurped, intruded into or unlawfully held by the present occupant. Nor does the incumbent undersecretary appear to have done or suffered an act which forfeits his assumption. (Section 1, Rule 66, 1997 Rules of Civil Procedure). Furthermore, it appears that the action for quo warranto, assuming it is available, has already lapsed by prescription, pursuant to Section 11 of the pertinent Rule ... xxxx WHEREFORE, premises considered, the instant petition for Quo Warranto and Mandamus is hereby DISMISSED." The controversy reached the Supreme Court as G.R. No. 149883. Nevertheless, the case was considered closed and terminated when Collantes manifested his desire not to pursue his appeal and withdraw his Petition for Review on Certiorari. Thereafter, Collantes moved for the execution of CSC Resolution No. 011364, which was accordingly granted through CSC Resolution No. 020084 dated 15 January 2002 "directing the DND to give Collantes a position where his eligibility is appropriate and to pay his backwages and other benefits from the time of his termination up to his actual reinstatement." In a Letter dated 7 February 2002, the Legal Affairs Division of the DND, through Atty. Leticia A. Gloria, urged the CSC to revisit its Resolutions which were entirely in conflict with Our 30 August 2001 Decision in C.A. G.R. SP NO. 62874, which has attained finality pursuant to the Supreme Courts Resolution in G.R. No. 149883. Consequently, in complete turnabout from its previous stance, the CSC issued Resolution No. 021482 dated 12 November 2002 declaring that had it been properly informed that a Petition for Quo Warranto and Mandamus was then pending before Us, it would have refrained from ruling on Collantes quandary, thus: "WHEREFORE, the Motion for Reconsideration of Assistant Secretary for Legal Affairs Leticia A. Gloria of the department of National Defense (DND) is hereby GRANTED and CSC Resolutions Nos. 01-1364 dated August 13, 2001 and 02-0084 dated January 15, 2002 are reversed. Accordingly, pursuant to the decision of the Court of Appeals, Nelson P. Collantes is deemed effectively resigned from his position as Undersecretary of the DND."

Collantes vs. CA Forthwith, Collantes moved for a reconsideration of this Resolution, but was denied by the CSC in the second assailed Resolution No. 030542 dated 5 May 2003.4
On 18 July 2003, herein petitioner Collantes then filed a Petition for Certiorari with the Court of Appeals praying for the reversal of the Civil Service Commission (CSC) Resolutions No. 021482 and No. 030542. Before the Court of Appeals can decide this case, however, petitioner was appointed as General Manager of the Philippine Retirement Authority on 5 August 2004. The Court of Appeals dismissed the Petition for Certiorari in the assailed 10 March 2005 Decision: WHEREFORE, the Petition for Certiorari is hereby DISMISSED. No grave abuse of discretion may be imputed against the Civil Service Commission for rendering Resolution Nos. 021482 and 030542, dated 12 November 2002 and 5 May 2003, respectively. No pronouncement as to costs.5 The Motion for Reconsideration filed by petitioner was denied in the assailed 31 August 2005 Resolution.6 Petitioner filed the present Petition for Review, seeking the reversal of the foregoing Decision and Resolution of the Court of Appeals. In view of his 5 August 2004 appointment, however, petitioners prayer is now limited to seeking the payment of backwages and other benefits that may have been due him from the time of his alleged dismissal on 8 February 1999 to his appointment on 5 August 2004. Petitioner submits the following issues for our consideration: A. WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT HELD THAT THE DECISION IN CA-G.R. NO. 62874 IN THE COURT OF APPEALS IS A BAR TO IMPLEMENT THE FINAL AND EXECUTORY JUDGMENT OF THE CIVIL SERVICE COMMISSION DATED AUGUST 14, 2001. B. WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT DID NOT FIND THAT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT REVERSED ITS VERY OWN DECISION WHICH HAS LONG BECOME FINAL AND EXECUTORY AND IN FLAGRANT VIOLATION OF PETITIONERS RIGHT TO DUE PROCESS. C. WHETHER THE COURT OF APPEALS COMMITTED A GRAVE AND REVERSIBLE ERROR WHEN IT UPHELD THE RESOLUTION OF THE CIVIL SERVICE COMMISSION WHICH HELD THAT PETITIONER MAY BE REMOVED FROM HIS POSITION AS UNDERSECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE WITHOUT THE CONCOMITANT TRANSFER TO A POSITION EQUIVALENT IN RANK OR BE REMOVED THEN, BE FLOATED PERPETUALLY, WHICH IS TANTAMOUNT TO A CONSTRUCTIVE DISMISSAL, IN VIOLATION OF HIS RIGHT TO SECURITY OF TENURE AS A CAREER EXECUTIVE SERVICE ELIGIBLE.7 Both petitioner and herein respondents CSC and Department of National Defense (DND) invoke the doctrine of immutability of final judgments. Petitioner claims that the 13 August 2001 Resolution of the CSC, which held that petitioner "was illegally removed as Undersecretary of the Department of National Defense and therefore x x x should be given a position where his eligibility is appropriate or sufficient," has attained finality. Petitioner adds that, not only has there been no appeal or motion for reconsideration filed within the allowable periods, the CSC even granted the Motion for Execution filed by petitioner in its Order dated 15 January 2002. Petitioner thereby invokes our ruling that, before a writ of execution may issue, there must necessarily be a final judgment or order that disposes of the action or proceeding.8 Petitioner also faults the CSC for ruling on a mere letter filed by Atty. Leticia Gloria of the DND, which petitioner claims is fatally defective for failure to comply with the procedural due process clause of the Constitution, the Rules of Court, and the Uniform Rules in Administrative Cases in the Civil Service which require notice to adverse parties.9

Collantes vs. CA Respondents, on the other hand, invoke the same doctrine of immutability of final judgments, this time with respect to the 30 August 2001 Decision of the Court of Appeals dismissing the Petition for Quo Warranto and Mandamus filed by petitioner. This Court of Appeals Decision became final and executory when petitioner withdrew the Motion for Extension to File a Petition for Review on Certiorari he filed with this Court.10
Forum Shopping, Res Judicata, and Litis Pendentia Our rules on forum shopping are meant to prevent such eventualities as conflicting final decisions as in the case at bar. We have ruled that what is important in determining whether forum shopping exists or not is the vexation caused the courts and parties-litigants by a party who asks different courts and/or administrative agencies to rule on the same or related causes and/or grant the same or substantially the same reliefs, in the process creating the possibility of conflicting decisions being rendered by the different fora upon the same issues.11 More particularly, the elements of forum shopping are: (a) identity of parties or at least such parties as represent the same interests in both actions; (b) identity of the rights asserted and the reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.12 Forum shopping can be committed in three ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).13 If the forum shopping is not considered willful and deliberate, the subsequent cases shall be dismissed without prejudice on one of the two grounds mentioned above. However, if the forum shopping is willful and deliberate, both (or all, if there are more than two) actions shall be dismissed with prejudice.14 Petitioner disputes respondents claim, and the CSCs ruling,15 that he had lodged two separate actions. Petitioner explains that he never filed a case before the CSC. He merely sought the assistance of the Career Executive Service Board (CESB) in a letter-request dated 24 March 1999. Said letter-request, petitioner claims, did not ask for any ruling. Petitioner claims that, considering that two years had already lapsed without any response from the CESB, he filed on 23 January 2001 his Petition for Quo Warranto and Mandamus with the Court of Appeals. Petitioner was surprised when he learned through the 8 February 2001 letter of the CESB that, on 29 November 2000, it referred petitioners request to the CSC for appropriate action.16 Petitioner was not required to submit any pleading in support of his request. Apparently, the CSC treated the letter-request as a complaint or petition over which it could exercise its adjudicative powers, as it issued its 13 August 2001 Resolution declaring petitioner to have been illegally removed as Undersecretary of the DND, and should therefore be given a position appropriate or sufficient for his eligibility.17 As stated above, the Court of Appeals Decision dismissing the Petition for Quo Warranto and Mandamus was rendered 17 days later, on 30 August 2001. Petitioner filed with this Court a motion for an extension of time within which to file a Petition for Review on Certiorari, but he later submitted a Manifestation for the withdrawal of this motion as he decided not to pursue his appeal.18 Instead, petitioner filed with the CSC on 25 October 2001 a Motion for the Issuance of a Writ of Execution,19 which the CSC granted on 15 January 2002.20 In repeatedly asserting that he did not file two separate actions, petitioner is arguing, without stating it categorically, that he cannot be held liable for forum shopping. However, what one cannot do directly cannot be done indirectly. Petitioner had been aware, through the 8 February 2001 letter of the CESB, that his request for assistance was referred to the CSC on 29 November 2000 for appropriate action. From that point on, he knew that two government agencies the CSC and the Court of Appeals were simultaneously in the process of reaching their respective decisions on whether petitioner was entitled to reinstatement or to a position appropriate to his eligibility. Therefore, it cannot be denied that petitioner knew, from the moment of receipt of the 8 February 2001 letter of the CESB, that he had effectively instituted two separate cases, and whatever original intention he had for his letter-request is, by then, forgotten. Petitioner subsequently proceeded to act like a true forum shopper he abandoned the forum where he could not get a favorable judgment, and moved to execute the Resolution of the forum where he succeeded.

Collantes vs. CA Petitioners above actuation is, in fact, a violation of his certification against forum shopping with the Court of Appeals, a ground for dismissal of actions distinct from forum shopping itself. As petitioner knew from the receipt of the CESB letter that another claim was pending in a quasi-judicial agency concerning these issues, he was bound by his certification with the Court of Appeals to report such fact within five days from his knowledge thereof. This circumstance of being surprised by the discovery of another pending claim with another court or quasi-judicial agency is the very situation contemplated by letter (c) in the first paragraph of Section 5, Rule 7 of the Rules of Court:
Section 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. (Emphases supplied.) Petitioner, however, further asserts that the issues brought in the Petition for Certiorari filed with the Court of Appeals on 18 July 2003 and the Petition for Quo Warranto and Mandamus filed on 29 January 2001 are distinct, and that the Decision of the Court of Appeals in the latter cannot constitute res judicata with respect to the former.21 Petitioner claims that the issues, remedies and reliefs in the two cases are different, citing as basis the textbook definitions of quo warranto, certiorari and mandamus. Petitioner further claims that: There is a clear distinction between the right of petitioner to the position of Undersecretary for Civilian Relations and his right to be re-appointed to another position of equivalent rank, in view of his CESO I status. The former issue may have been resolved by the Court of Appeals when it ruled that petitioner Collantes had "effectively resigned from his position as Undersecretary of the DND, and the public respondents are under no compulsion to reinstate him to his old position." The latter issue, or the right of petitioner Collantes to be given a new assignment fitting to his CESO I rank, arises from his right to security of tenure as a Career Executive Service Eligible, and not from his appointment to the DND.22 This allegedly clear distinction springs from petitioners claim that he resigned from his position, but not from his rank as a Career Executive Service Officer (CESO). Petitioner claims that, as a CESO, there is a "great difference between (1) resigning from ones position and (2) resigning or relinquishing ones rank, as position is different from ones rank. POSITION refers to the particular or specific office from which one may be appointed. RANK, on the other hand, refers not to a particular position but to the class to which one belongs in the hierarchy of authority in an organization or bureaucracy."23 Petitioner cites Cuevas v. Bacal24: [S]ecurity of tenure to members of the CES does not extend to the particular positions to which they may be appointed -- a concept which is applicable only to the first and second-level employees in the civil service --- but to the rank to which they are appointed by the President. xxxx Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of public service, is thus the distinguishing feature of the Career Executive Service. x x x. and General v. Roco25: In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.

Collantes vs. CA While there is indeed a distinction between position and rank, such that a CESO may be transferred or reassigned from one position to another without losing his rank, there can be no distinction between resigning from a position and resigning from a rank. The rank of a CESO is deactivated upon separation from the government service, which includes the resignation of a CESO from his position. The CESB has clarified this concept of being in the inactive status in its Resolution No. 554, series of 2002:
Rule II xxxx 7. CESO in Inactive Status - is a CESO who no longer occupies a position in the CES as a result of any of the modes of separation from the government service, provided that such separation is not due to dismissal from the service for cause. xxxx Rule IV Section 1. Modes of Deactivating a CES Rank. There are three (3) modes by which the CES Rank of a CESO may be deactivated from the CES: 1. Acceptance of a position by virtue of an appointment outside the coverage of the CES; 2. Dropping from the rolls of government officials and employees; and 3. Other modes of separation from the CES, provided that separation from the CES resulting from dismissal from the service for cause and after due process shall result in the loss of CES rank and shall not be considered as a mode of deactivation. xxxx Sec. 2. Effect of Deactivation of CES Rank. A CESO whose CES rank has been deactivated by the Board loses all the rights and privileges accorded to him/her by law on account of his/her CES rank. Likewise, it would be absurd for us to rule that a civil servant who resigns from his position can compel the President to appoint him to another position. Such a ruling would effectively derogate the discretion of the appointing authority,26 as it will give the CESO the option to choose which position he or she wants, by the simple expediency of resigning from the position he or she does not want. In sum, there is an identity of issues in the two cases which resulted in the two conflicting final and executory decisions. But while, as stated above, the second petition can be dismissed on the ground of either res judicata or non-compliance with the undertakings in petitioners certification against forum shopping, these grounds can only be invoked when the case is still pending. As petitioner points out, the Resolution of the CSC had already become final and executory. The 30 August 2001 Decision of the Court of Appeals, however, has also attained finality. Hence, we go back to the main issue in this petition: which of the two final and executory decisions should be given effect, the 30 August 2001 Court of Appeals Decision dismissing the petitioners Petition for Quo Warranto, or the 13 August 2001 CSC Resolution declaring petitioner Collantes to be illegally removed as Undersecretary of the DND? Two Conflicting Final and Executory Decisions Jurisprudence in the United States offers different solutions to this problem: Where there have been two former actions in which the claim or demand, fact or matter sought to be religated has been decided contrarily, the rule that, where there is an estoppel against an estoppel, it "setteth the matter at large" has been

Collantes vs. CA applied by some authorities, and in such case both parties may assert their claims anew. Other authorities have held that, of two conflicting judgments on the same rights of the same parties, the one which is later in time will prevail, although it has also been held that the judgment prior in time will prevail. It has been held that a decision of a court of last resort is binding on the parties, although afterward, in another cause, a different principle was declared.27
There are thus three solutions which we can adopt in resolving the case at bar: the first is for the parties to assert their claims anew, the second is to determine which judgment came first, and the third is to determine which of the judgments had been rendered by a court of last resort. As there are conflicting jurisprudence on the second solution, it is appropriate for this Court to adopt either the first or the third solution. The first solution involves disregarding the finality of the two previous judgments and allowing the parties to argue on the basis of the merits of the case anew. The third solution merely involves the determination of which judgment has been rendered by this Court, the court of last resort in this jurisdiction. Adopting the third solution will result in the denial of this Petition for Certiorari. Whereas the finality of the 13 August 2001 CSC Resolution came about by the failure to file a motion for reconsideration or an appeal within the proper reglementary periods, the finality of the 30 August 2001 Court of Appeals Decision was by virtue of the 12 November 2001 Resolution28 of this Court which declared the case closed and terminated upon the manifestation of petitioner that he decided not to pursue his appeal and was thus withdrawing the motion for extension of time to file a petition for review on certiorari. The better solution, however, is to let the parties argue the merits of the case anew, and decide the case on the basis thereof. We can do this either by remanding the case to a lower court, or by resolving the issues in this disposition. The latter recourse is more appropriate, for three reasons: (1) all the facts, arguments, and pleadings in support of the parties contentions are now before us, with the parties advancing the very same contentions as those in this Petition; (2) a remand to the Court of Appeals would entail asking the latter to resolve the very same issues it had passed upon twice; and (3) a remand to the Court of Appeals would only entail another unnecessary delay in the termination of the case when the case is now ripe for adjudication before us. The merits of the case are the focus of petitioners third assignment of error in the present petition. Petitioner claim s that the Court of Appeals committed a grave and reversible error when it upheld the resolution of the CSC which allegedly effectively held "that petitioner may be removed from his position as Undersecretary of the Department of National Defense without the concomitant transfer to a position equivalent in rank or be removed then, be floated perpetually, which is tantamount to a constructive dismissal, in violation of his right to security of tenure as a career executive service eligible."29 Petitioners arguments presuppose that he had been removed from his position as Undersecretary of the DND. He, however, did not present any evidence to that effect, whether in this Petition or in his earlier Petition for Quo Warranto and Mandamus with the Court of Appeals. If he is implying that he was removed from office by virtue of his account that he was approached by persons close to President Joseph Estrada who asked him to relinquish his post, which he did, then this Petition must fail, for, by his own deliberate deed, he resigned from his position. There are no special legal effects when a resignation is one of a courtesy resignation. The mere fact that the President, by himself or through another, requested for someones resignation does not give the President the obligation to appoint such person to another position. A courtesy resignation is just as effectual as any other resignation. There can be no implied promises of another position just because the resignation was made out of courtesy. Any express promise of another position, on the other hand, would be void, because there can be no derogation of the discretion of the appointing power,30 and because its object is outside the commerce of man.31As held by the Court of Appeals in its 30 August 2001 Decision: In the first place, petitioner has not established by any quantum of certainty the veracity of his claim that he was promised an equivalent position in the government. Assuming, however, that such promise was true, petitioner, as a ranking member of the bureaucracy, ought to have known that such promise offers no assurance in law that the same would be complied with. The time-honored rule is that public office is a public trust, and as such, the same is governed by law, and cannot be made the subject of personal promises or negotiations by private persons.32

Collantes vs. CA WHEREFORE, the present Petition for Review on Certiorari is DENIED. No costs.
SO ORDERED.