Admin Law Set 4

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G.R. No. L-29274 November 27, 1975 SEC. QUIRICO P. EVANGELISTA, in his capacity as Secretary of the Presidential Agency on Reforms and Government Operations, and the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS (PARGO), petitioner, vs. HON. HILARION U. JARENCIO, as Presiding Judge, Court of First Instance of Manila, Branch XXIII, and FERNANDO MANALASTAS, Assistant City Public Service Officer of Manila, and ALL OTHER CITY OFFICIALS AND EMPLOYEES 1 SIMILARLY SITUATED, respondents. MARTIN, J.: This is an original action for certiorari and prohibition with preliminary injunction, under Rule 65 of the Rules of Court, seeking to annul and set aside the order of respondent Judge, the Honorable Hilarion J. Jarencio, Presiding Judge of the Court of First Instance of Manila, dated July 1, 1968, in Civil Case No. 73305, entitled "Fernando Manalastas vs. Sec. Ramon D. Bagatsing, etc.", which reads as follows: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt proceedings against the petitioner [private respondent] under Section 580 of the Revised Administrative Code. (Stress supplied). Pursuant to his special powers and duties under Section 64 of the Revised 1 Administrative Code, the President of the Philippines created the Presidential Agency on Reforms and Government Operations (PARGO) under Executive Order 2 No. 4 of January 7, 1966. Purposedly, he charged the Agency with the following 3 functions and responsibilities: b. To investigate all activities involving or affecting immoral practices, graft and corruptions, smuggling (physical or technical), lawlessness, subversion, and all other activities which are prejudicial to the government and the public interests, and to submit proper recommendations to the President of the Philippines. c. To investigate cases of graft and corruption and violations of Republic Acts Nos. 1379 and 3019, and gather necessary evidence to establish prima facie, acts of graft and acquisition of unlawfully amassed wealth ... . h. To receive and evaluate, and to conduct fact-finding investigations of sworn complaints against the acts, conduct or behavior of any public official or employee and to file and prosecute the proper charges with the appropriate agency. For a realistic performance of these functions, the President vested in the Agency all the powers of an investigating committee under Sections 71 and 580 of the Revised Administrative Code, including the power to summon witnesses by subpoena or subpoena duces tecum, administer oaths, take testimony or evidence 4 relevant to the investigation. Whereupon, on June 7, 1968, petitioner Quirico Evangelista, as Undersecretary of the Agency, issued to respondent Fernando Manalastas, then Acting City Public Service Officer of Manila, a subpoena ad testificandumcommanding him "to be and appear as witness at the Office of the PRESIDENTIAL AGENCY ON REFORMS AND GOVERNMENT OPERATIONS ... then and there to declare and testify in a certain investigation pending therein." Instead of obeying the subpoena, respondent Fernando Manalastas filed on June 25, 1968 with the Court of First Instance of Manila an Amended Petition for prohibition, certiorari and/or injunction with preliminary injunction and/or restraining order docketed as Civil Case No. 73305 and assailed its legality. On July 1, 1968, respondent Judge issued the aforementioned Order: IT IS ORDERED that, upon the filing of a bond in the amount of P5,000.00, let the writ of preliminary injunction prayed for by the petitioner [private respondent] be issued restraining the respondents [petitioners], their agents, representatives, attorneys and/or other persons acting in their behalf from further issuing subpoenas in connection with the fact-finding investigations to the petitioner [private respondent] and from instituting contempt proceedings against the petitioner [private respondent] under Section 530 of the Revised Administrative Code. (Stress supplied). Because of this, petitioners 5 elevated the matter direct to Us without a motion for reconsideration first filed on the fundamental submission that the Order is a patent 6 nullity.
Power to issue subpoena
Malone-Cervantes, M., Respicio, L., Tuballa, L.
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As unfurled, the dominant issue in this case is whether the Agency, acting thru its officials, enjoys the authority to issue subpoenas in its conduct of fact-finding investigations. It has been essayed that the life blood of the administrative process is the flow of fact, 7 the gathering, the organization and the analysis of evidence. Investigations are useful for all administrative functions, not only for rule making, adjudication, and licensing, but also for prosecuting, for supervising and directing, for determining general policy, for recommending, legislation, and for purposes no more specific than 8 illuminating obscure areas to find out what if anything should be done. An administrative agency may be authorized to make investigations, not only in proceedings of a legislative or judicial nature, but also in proceedings whose sole purpose is to obtain information upon which future action of a legislative or judicial nature may be taken 9 and may require the attendance of witnesses in proceedings of a purely investigatory nature. It may conduct general inquiries into evils calling for correction, and to report findings to appropriate bodies and make recommendations 10 for actions. We recognize that in the case before Us, petitioner Agency draws its subpoena power from Executive Order No. 4, para. 5 which, in an effectuating mood, empowered it to "summon witness, administer oaths, and take testimony relevant to the 11 investigation" with the authority "to require the production of documents under a subpoenaduces tecum or otherwise, subject in all respects to the same restrictions 12 and qualifications as apply in judicial proceedings of a similar character." Such subpoena power operates in extenso to all the functions of the Agency as laid out in the aforequoted sub-paragraphs (b),(e), and (h). It is not bordered by nor is it merely exercisable, as respondents would have it, in quasi-judicial or adjudicatory function under sub-paragraph (b). The functions enumerated in all these sub-paragraphs (b), (e), and (h) interlink or intertwine with one another with the principal aim of meeting the very purpose of the creation of the Agency, which is to forestall and erode nefarious activities and anomalies in the civil service. To hold that the subpoena power of the Agency is confined to mere quasi-judicial or adjudicatory functions would therefore imperil or inactiviate the Agency in its investigatory functions under sub-paragraphs (e) and (h). More than that, the enabling authority itself (Executive Order No. 4, para. 5) fixes no distinction when and in what function should the subpoena power be exercised. Similarly, We see no reason to depart from the established rule that forbids differentiation when the law itself makes none. Nor could We impress upon this subpoena power the alleged strictures of a subpoena 13 issued under the Rules of Court to abridge its application. The seeming proviso in Section 580 of the Revised Administrative Code that the right to summon witnesses and the authority to require the production of documents under a subpoena duces tecum or otherwise shall be "subject in all respects to the same restrictions and qualifications as apply in judicial proceedings of a similar character" cannot be validly seized upon to require, in respondents' formulation, that, as in a subpoena under the Rules, a specific case must be pending before a court for hearing or trial and that the hearing or trial must be in connection with the exercise of the court's 14 judicial or adjudicatory functions before a non-judicial subpoena can be issued by an administrative agency like petitioner Agency. It must be emphasized, however, that an administrative subpoena differs in essence from a judicial subpoena. Clearly, what the Rules speaks of is a judicial subpoena, one procurable from and issuable by a competent court, and not an administrative subpoena. To an extent, therefore, the "restrictions and qualifications" referred to in Section 580 of the Revised Administrative Code could mean the restraints against infringement of constitutional rights or when the subpoena is unreasonable or oppressive and 15 when the relevancy of the books, documents or things does not appear. Rightly, administrative agencies may enforce subpoenas issued in the course of investigations, whether or not adjudication is involved, and whether or not probable 16 17 cause is shown and even before the issuance of a complaint. It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough 18 that the investigation be for a lawfully authorized purpose. The purpose of the subpoena is to discover evidence, not to prove a pending charge, but upon which 19 to make one if the discovered evidence so justifies. Its obligation cannot rest on a trial of the value of testimony sought; it is enough that the proposed investigation be for a lawfully authorized purpose, and that the proposed witness be claimed to 20 have information that might shed some helpful light. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues on litigations it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. The administrative agency has the power of inquisition which is not dependent upon a case or controversy in order to get evidence, but can investigate merely on suspicion that the law is being violated or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too may take steps to inform itself as to whether there is 21 probable violation of the law. In sum, it may be stated that a subpoena meets the requirements for enforcement if the inquiry is (1) within the authority of the agency; (2) the demand is not too indefinite; and (3) the information is reasonably 22 relevant. There is no doubt that the fact-finding investigations being conducted by the Agency upon sworn statements implicating certain public officials of the City 23 Government of Manila in anomalous transactions fall within the Agency's sphere
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of authority and that the information sought to be elicited from respondent Fernando 24 Manalastas, of which he is claimed to be in possession, is reasonably relevant to the investigations. We are mindful that the privilege against self-incrimination extends in administrative 25 investigations, generally, in scope similar to adversary proceedings. In Cabal v. 26 Kapunan, Jr., the Court ruled that since the administrative charge of unexplained wealth against the respondent therein may result in the forfeiture of the property under the Anti-Graft and Corrupt Practices Act, a proceeding criminal or penal in nature, the complainant cannot call the respondent to the witness stand without encroaching upon his constitutional privilege against self-incrimination. Later, 27 in Pascual, Jr. v. Board of Medical Examiners, the same approach was followed in the administrative proceedings against a medical practitioner that could possibly result in the loss of his privilege to practice the medical profession. Nevertheless, in the present case, We find that respondent Fernando Manalastas is not facing any 28 administrative charge. He is merely cited as a witness in connection with the factfinding investigation of anomalies and irregularities in the City Government of Manila with the object of submitting the assembled facts to the President of the Philippines or 29 to file the corresponding charges. Since the only purpose of investigation is to discover facts as a basis of future action, any unnecessary extension of the privilege 30 would thus be unwise. Anyway, by all means, respondent Fernando Manalastas may contest any attempt in the investigation that tends to disregard his privilege against self-incrimination. A question of constitutional dimension is raised by respondents on the inherent power 31 of the President of the Philippines to issue subpoena. More tersely stated, respondents would now challenge, in a collateral way, the validity of the basic authority, Executive Order No. 4, as amended in part by Executive Order No. 88. Unfortunately, for reasons of public policy, the constitutionality of executive orders, 32 which are commonly said to have the force and effect of statutes cannot be 33 collaterally impeached. Much more when the issue was not duly pleaded in the 34 court below as to be acceptable for adjudication now. The settled rule is that the Court will not anticipate a question of constitutional law in advance of the necessity of 35 deciding it. Nothing then appears conclusive than that the disputed subpoena issued by petitioner Quirico Evangelista to respondent Fernando Manalastas is well within the legal competence of the Agency to issue. WHEREFORE, the aforequoted order of respondent Judge, dated July 1, 1968, is hereby set aside and declared of no force and effect. Without pronouncement as to costs. SO ORDERED.
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G.R. No. 116801 April 6, 1995 GLORIA G. LASTIMOSA, First Assistant Provincial Prosecutor of Cebu, petitioner, vs. HONORABLE OMBUDSMAN CONRADO VASQUEZ, HONORABLE ARTURO C. MOJICA, DEPUTY OMBUDSMAN FOR THE VISAYAS, and HONORABLE FRANKLIN DRILON, SECRETARY OF JUSTICE, and UNDERSECRETARY OF 2 JUSTICE RAMON J. LIWAG, respondents. Vasquez, disapproved the recommendation and instead directed that Mayor 2 Ilustrisimo be charged with attempted rape in the Regional Trial Court. Accordingly, in a letter dated May 17, 1994, the Deputy Ombudsman for Visayas, respondent Arturo C. Mojica, referred the case to Cebu Provincial Prosecutor Oliveros E. Kintanar for the "filing of appropriate information with the Regional Trial 3 Court of Danao City, . . ." The case was eventually assigned to herein petitioner, First Assistant Provincial Prosecutor Gloria G. Lastimosa. It appears that petitioner conducted a preliminary investigation on the basis of 4 which she found that only acts of lasciviousness had been committed. With the approval of Provincial Prosecutor Kintanar, she filed on July 4, 1994 an information for acts of lasciviousness against Mayor Ilustrisimo with the Municipal Circuit Trial 5 Court of Santa Fe. In two letters written to the Provincial Prosecutor on July 11, 1994 and July 22, 1994, Deputy Ombudsman Mojica inquired as to any action taken on the previous referral of the case, more specifically the directive of the Ombudsman to charge 6 Mayor Ilustrisimo with attempted rape. As no case for attempted rape had been filed by the Prosecutor's Office, Deputy Ombudsman Mojica ordered on July 27, 1994 Provincial Prosecutor Kintanar and petitioner Lastimosa to show cause why they should not be punished for contempt for "refusing and failing to obey the lawful directives" of the Office of the 7 Ombudsman. For this purpose a hearing was set on August 1, 1994. Petitioner and the Provincial Prosecutor were given until August 3, 1994 within which to submit their 8 9 answer. An answer was timely filed by them and hearings were thereupon conducted. It appears that earlier, on July 22, 1994, two cases had been filed against the two prosecutors with the Office of the Ombudsman for Visayas by Julian Menchavez, a resident of Santa Fe, Cebu. One was an administrative complaint for violation of 10 Republic Act No. 6713 and P.D. No. 807 (the Civil Service Law) and another one was a criminal complaint for violation of 3(e) of Republic Act No. 3019 and Art. 11 208 of the Revised Penal Code. The complaints were based on the alleged refusal of petitioner and Kintanar to obey the orders of the Ombudsman to charge Mayor Ilustrisimo with attempted rape. In the administrative case (OMB-VIS-(ADM)-94-0189) respondent Deputy Ombudsman for Visayas Mojica issued an order on August 15, 1994, placing
MENDOZA, J.: This case requires us to determine the extent to which the Ombudsman may call upon government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Petitioner Gloria G. Lastimosa is First Assistant Provincial Prosecutor of Cebu. Because she and the Provincial Prosecutor refused, or at any rate failed, to file a criminal charge as ordered by the Ombudsman, an administrative complaint for grave misconduct, insubordination, gross neglect of duty and maliciously refraining from prosecuting crime was filed against her and the Provincial Prosecutor and a charge for indirect contempt was brought against them, both in the Office of the Ombudsman. In the meantime the two were placed under preventive suspension. This is a petition for certiorari and prohibition filed by petitioner to set aside the orders of the Ombudsman with respect to the two proceedings. The background of this case is as follows: On February 18, 1993 Jessica Villacarlos Dayon, public health nurse of Santa Fe, Cebu, filed a criminal complaint for frustrated rape and an administrative complaint for immoral acts, abuse of authority and grave misconduct against the Municipal Mayor 1 of Santa Fe, Rogelio Ilustrisimo. The cases were filed with the Office of the Ombudsman-Visayas where they were docketed as OMB-VIS-(CRIM)-93-0140 and OMB-VIS-(ADM)-93-0036, respectively. The complaint was assigned to a graft investigation officer who, after an investigation, found no prima facieevidence and accordingly recommended the dismissal of the complaint. After reviewing the matter, however, the Ombudsman, Hon. Conrado
Power to punish contempt
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petitioner Gloria G. Lastimosa and Provincial Prosecutor Oliveros E. Kintanar under 12 preventive suspension for a period of six (6) months, pursuant to Rule III, 9 of the Rules of Procedure of the Office of the Ombudsman (Administrative Order No. 7), in relation to 24 of R.A. No. 6770. The order was approved by Ombudsman Conrado M. Vasquez on August 16, 1994 and on August 18, 1994 Acting Secretary of Justice Ramon J. Liwag designated Eduardo Concepcion of Region VII as Acting Provincial Prosecutor of Cebu. On the other hand, the Graft Investigation Officer II, Edgardo G. Canton, issued 13 orders in the two cases, directing petitioner and Provincial Prosecutor Kintanar to submit their counter affidavits and controverting evidence. On September 6, 1994, petitioner Gloria G. Lastimosa filed the present petition for certiorari and prohibition to set aside the following orders of the Office of the Ombudsman and Department of Justice: (a) Letter dated May 17, 1994 of Deputy Ombudsman for Visayas Arturo C. Mojica and related orders, referring to the Office of the Cebu Provincial Prosecutor the records of OMB-VIS-CRIM-93-0140, entitled Jessica V. Dayon vs. Mayor Rogelio Ilustrisimo, "for filing of the appropriate action (for Attempted Rape) with the Regional Trial Court of Danao City. (b) Order dated July 27, 1994 of Deputy Ombudsman Mojica and related orders directing petitioner and Cebu Provincial Prosecutor Oliveros E. Kintanar to explain in writing within three (3) days from receipt why they should not be punished for indirect Contempt of the Office of the Ombudsman "for refusing and failing . . . to file the appropriate Information for Attempted Rape against Mayor Rogelio Ilustrisimo. (c) The 1st Indorsement dated August 9, 1994 of Acting Justice Secretary Ramon J. Liwag, ordering the Office of the Provincial Prosecutor to comply with the directive of the Office of the Ombudsman that a charge for attempted rape be filed against respondent Mayor Ilustrisimo in recognition of the authority of said Office. (d) Order dated August 15, 1994 of Deputy Ombudsman Mojica, duly approved by Ombudsman Conrado Vasquez, and related orders in OMB-VIS-(ADM)-94-0189, entitled Julian Menchavez vs. Oliveros Kintanar and Gloria Lastimosa, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension for a period of six (6) months, without pay. (e) The 1st Indorsement dated August 18, 1994 of Acting Justice Secretary Liwag directing Assistant Regional State Prosecutor Eduardo O. Concepcion (Region VII) to implement the letter dated August 15, 1994 of Ombudsman Vasquez, together with the Order dated August 15, 1994, placing petitioner and Provincial Prosecutor Kintanar under preventive suspension. (f) Department Order No. 259 issued by Acting Secretary Liwag on August 18, 1994, designating Assistant Regional State Prosecutor Concepcion Acting Provincial Prosecutor of Cebu. Petitioner raises a number of issues which will be discussed not necessarily in the order they are stated in the petition. I. The pivotal question in this case is whether the Office of the Ombudsman has the power to call on the Provincial Prosecutor to assist it in the prosecution of the case for attempted rape against Mayor Ilustrisimo. Lastimosa claims that the Office of the Ombudsman and the prosecutor's office have concurrent authority to investigate public officers or employees and that when the former first took cognizance of the case against Mayor Ilustrisimo, it did so to the exclusion of the latter. It then became the duty of the Ombudsman's office, according to petitioner, to finish the preliminary investigation by filing the information in court instead of asking the Office of the Provincial Prosecutor to do so. Petitioner contends that the preparation and filing of the information were part and parcel of the preliminary investigation assumed by the Office of the Ombudsman and the filing of information in court could not be delegated by it to the Office of the Provincial Prosecutor. Petitioner defends her actuations in conducting a preliminary investigation as having been made necessary by the insistence of the Ombudsman to delegate the filing of the case to her office. In any event, petitioner contends, the Office of the Ombudsman has no jurisdiction over the case against the mayor because the crime involved (rape) was not committed in relation to a public office. For this reason it is argued that the Office of the Ombudsman has no authority to place her and Provincial Prosecutor Kintanar under preventive suspension for refusing to follow his orders and to cite them for indirect contempt for such refusal. Petitioner's contention has no merit. The office of the Ombudsman has the power to "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 14 omission appears to be illegal, unjust, improper or inefficient." This power has been held to include the investigation and prosecution of any crime committed by a public official regardless of whether the acts or omissions complained of are related 15 to, or connected with, or arise from, the performance of his official duty It is enough that the act or omission was committed by a public official. Hence, the
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crime of rape, when committed by a public official like a municipal mayor, is within the power of the Ombudsman to investigate and prosecute. In the existence of his power, the Ombudsman is authorized to call on prosecutors for assistance. 31 of the Ombudsman Act of 1989 (R.A. No. 6770) provides: Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office and/or designate of deputize 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 as herein provided shall be under his supervision and control . (Emphasis added) It was on the basis of this provision that Ombudsman Conrado Vasquez and Deputy Ombudsman Arturo C. Mojica ordered the Provincial Prosecutor of Cebu to file an information for attempted rape against Mayor Rogelio Ilustrismo. It does not matter that the Office of the Provincial Prosecutor had already conducted the preliminary investigation and all that remained to be done was for the Office of the Provincial Prosecutor to file the corresponding case in court. Even if the preliminary investigation had been given over to the Provincial Prosecutor to conduct, his determination of the nature of the offense to be charged would still be subject to the approval of the Office of the Ombudsman. This is because under 31 of the Ombudsman's Act, when a prosecutor is deputized, he comes under the "supervision and control" of the Ombudsman which means that he is subject to the power of the Ombudsman to direct, review, approve, reverse or modify his (prosecutor's) 16 decision. Petitioner cannot legally act on her own and refuse to prepare and file the information as directed by the Ombudsman. II. The records show that despite repeated orders of the Ombudsman, petitioner refused to file an information for attempted rape against Mayor Ilustrisimo, insisting that after investigating the complaint in the case she found that he had committed only acts of lasciviousness. 15(g) of the Ombudsman Act gives the Office of the Ombudsman the power to "punish for contempt, in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein." There is no merit in the argument that petitioner and Provincial Prosecutor Kintanar cannot be held liable for contempt because their refusal arose out of an administrative, rather than judicial, proceeding before the Office of the Ombudsman. As petitioner herself says in another context, the preliminary investigation of a case, of which the filing of an information is a part, is quasi judicial in character. Whether petitioner's refusal to follow the Ombudsman's orders constitutes a defiance, disobedience or resistance of a lawful process, order or command of the Ombudsman thus making her liable for indirect contempt under Rule 71, 3 of the Rules of Court is for respondents to determine after appropriate hearing. At this point it is important only to note the existence of the contempt power of the Ombudsman as a means of enforcing his lawful orders. III. Neither is there any doubt as to the power of the Ombudsman to discipline petitioner should it be found that she is guilty of grave misconduct, insubordination and/or neglect of duty, nor of the Ombudsman's power to place her in the meantime under preventive suspension. The pertinent provisions of the Ombudsman Act of 1989 state: 21. Officials Subject To Disciplinary Authority; Exceptions . The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and the Judiciary. 22. Preventive Suspension. The Ombudsman or his Deputy may 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 respondent's 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. A. Petitioner contends that her suspension is invalid because the order was issued without giving her and Provincial Prosecutor Kintanar the opportunity to refute the charges against them and because, at any rate, the evidence against them is not strong as required by 24. The contention is without merit. Prior notice and hearing is a not required, such suspension not being a penalty but only a preliminary step in 17 an administrative investigation. As held in Nera v. Garcia: In connection with the suspension of petitioner before he could file his answer to the administrative complaint, suffice it to say that the suspension was not a
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punishment or penalty for the acts of dishonesty and misconduct in office, but only as a preventive measure. Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty. There is, therefore, nothing improper in suspending an officer pending his investigation and before the opportunity to prove his innocence . (Emphasis added). It is true that, under 24 of the Ombudsman's Act, to justify the preventive suspension of a public official, the evidence against him should be strong, and any of the following circumstances is present: (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 respondent's continued stay in office may prejudice the case filed against him. As held in Buenaseda v. Flavier, however, whether the evidence of guilt is strong is left to the determination of the Ombudsman by taking into account the evidence before him. A preliminary hearing as in bail petitions in cases involving capital offenses is not required. In rejecting a similar argument as that made by petitioner in this case, this Court said in that case: The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Section 24 of R.A. No. 6770, which expressly left such determination of guilt to the "judgment" of 19 the Ombudsman on the basis of the administrative complaint. . . . In this case, respondent Deputy Ombudsman Mojica justified the preventive suspension of petitioner and Provincial Prosecutor Kintanar on the following grounds: A careful assessment of the facts and circumstances of the herein cases and the records pertaining thereto against respondents [Provincial Prosecutor Kintanar and herein petitioner] clearly leads to the conclusion that the evidence on record of guilt is strong and the charges involved offenses of grave misconduct, gross neglect of duty and dishonesty which will warrant respondents [Provincial Prosecutor Kintanar and herein petitioner] removal from the service. Moreover, considering the unabashed attitude of respondents in openly announcing various false pretexts and alibis to justify their stubborn disregard for the lawful directives of the Ombudsman as their official position in their pleadings filed in OMB-VIS-0-94-0478 and in print and broadcast media, the probability is strong that public service more particularly in the
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prosecution of cases referred by the Office of the Ombudsman to the Cebu Provincial Prosecutor's office will be disrupted and prejudiced and the records of said cases even be tampered with if respondents [Provincial Prosecutor Kintanar and herein petitioner] are allowed to stay in the Cebu Provincial Prosecutor's Office during the pendency of these proceedings. Indeed respondent Deputy Ombudsman Mojica had personal knowledge of the facts justifying the preventive suspension of petitioner and the Provincial Prosecutor since the acts alleged in the administrative complaint against them were done in the course of their official transaction with the Office of the Ombudsman. The administrative complaint against petitioner and Provincial Prosecutor Kintanar was filed in connection with their designation as deputies of the ombudsman in the prosecution of a criminal case against Mayor Rogelio Ilustrisimo. Respondent Deputy Ombudsman did not have to go far to verify the matters alleged in determine whether the evidence of guilt of petitioner and Provincial Prosecutor was strong for the purpose of placing them under preventive suspension. Given the attitude displayed by petitioner and the Provincial Prosecutor toward the criminal case against Mayor Rogelio Ilustrisimo, their preventive suspension is justified to the end that the proper prosecution of that case may not be 20 hampered. In addition, because the charges against the two prosecutors involve grave misconduct, insubordination and neglect of duty and these charges, if proven, can lead to a dismissal from public office, the Ombudsman was justified in ordering their preventive suspension. B. Petitioner questions her preventive suspension for six (6) months without pay and contends that it should only be for ninety (90) days on the basis of cases decided by this Court. Petitioner is in error. She is referring to cases where the law is either silent or expressly limits the period of suspension to ninety (90) days. With respect to the first situation, we ruled in the case of Gonzaga v. 21 Sandiganbayan that To the extent that there may be cases of indefinite suspension imposed either under Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all concerned that this Court set forth the rules on the period of preventive suspension under the aforementioned laws, as follows: 1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to a maximum period of ninety (90) days, from issuances thereof, and this applies to all public officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act.
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2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers or employees whose positions are embraced in the Civil Service, as provided under Sections 3 and 4 of said Pres. Decree 807, and shall be limited to a maximum period of ninety (90) days from issuance, except where there is delay in the disposition of the case, which is due to the fault, negligence or petition of the respondent, in which case the period of delay shall both be counted in computing the period of suspension herein stated; provided that if the person suspended is a presidential appointee, the continuance of his suspension shall be for a reasonable time as the circumstances of the case may warrant. On the other hand, petitioner and the Provincial Prosecutor were placed under preventive suspension pursuant to 24 of the Ombudsman Act which expressly provides that "the preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay." Their preventive suspension for six (6) months without pay is thus according to law. C. Nor is there merit in petitioner's claim that the contempt charge should first be resolved before any action in the administrative complaint case can be taken because the contempt case involves a prejudicial question. There is simply no basis for this contention. The two cases arose out of the same act or omission and may proceed hand in hand, or one can be heard before the other. Whatever order is followed will not really matter.
SO ORDERED.
WHEREFORE, the petition is DISMISSED for lack of merit and the Motion to Lift Order of Preventive Suspension is DENIED.
Administrative Law
G.R. No. L-63915 December 29, 1986 LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the 3 President, MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents. RESOLUTION CRUZ, J.: Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows: WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect. The petitioners are now before us again, this time to move for 1 reconsideration/clarification of that decision. Specifically, they ask the following questions: 1. What is meant by "law of public nature" or "general applicability"? 2. Must a distinction be made between laws of general applicability and laws which are not? 3. What is meant by "publication"? 4. Where is the publication to be made? 5. When is the publication to be made? Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general applicability and those which are not; that publication means complete publication; and that the publication must be made 2 forthwith in the Official Gazette. In the Comment required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject decision was concurred in only by 4 three justices and consequently not binding. This elicited a Reply refuting these arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the internal administration of a government agency or for particular persons did not have to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was not binding because it was not supported by eight members of 5 this Court. The subject of contention is Article 2 of the Civil Code providing as follows:
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After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in 6 the original decision, is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided. "
Implementing Rules of Interpretative Policies
ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
Administrative Law
It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the legislature could validly provide that a law e effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with but simply because they did not know of its existence, Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate. We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government. The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as anultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people only, and t to the public as a whole. We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. administrative rules and regulations must a also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce. However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code. We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" 7 by the Marcos administration. The evident purpose was to withhold rather than disclose information on this vital law. Coming now to the original decision, it is true that only four justices were 8 categorically for publication in the Official Gazette and that six others felt that publication could be made elsewhere as long as the people were sufficiently 9 10 informed. One reserved his vote and another merely acknowledged the need 11 for due publication without indicating where it should be made. It is therefore necessary for the present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote. There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and limited readership.
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Administrative Law
Undoubtedly, newspapers of general circulation could better perform the function of communicating, the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published. At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and approved by the political departments of the government in accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature. We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need to examine at this time. Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say the least, and deserves no further comment. The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them. Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed. Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is drawn. WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code. SO ORDERED.
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G.R. No. 164314 September 26, 2008 Fees (2001 Circular) does not provide varying filing fees for amended AOI 11 depending on the purpose of the amendment to be introduced. Neither did the previous Schedule of Fees (1994 Circular) allow SEC to collect and receive the 12 same fees for amendment of AOI as an original filing. Under the latter Circular, the examining and filing fee for amended AOI of both 13 stock and non-stock corporations is only P200.00. The SEC En Banc, through Commissioner Jesus E.G. Martinez, denied PICOPs 14 request. He justified the Commissions decision in the following tenor: This Commission maintains the position that there is no legal basis to exempt PICOP Resources, Inc. from paying the filing fee as assessed by the CRMD. The assessed fee is based on the pertinent provisions of R.A. 3531. Although SEC memorandum Circular No. 2, Series of 1994 and the Schedule of Revised Fees approved on 23 July 2001 do not provide for a filing fee for extensions of term, these do not limit the Securities and Exchange Commission from imposing the 15 prevailing fees. However, the SEC En Banc reduced the filing fee to P6 Million by stating: x x x there appears to be no basis for said fee to be computed at the revised rate of 1/5 of 1% of the authorized capital stock since the formula which was contemplated in SEC Circular Series 1986 is 1/10 of 1% of the authorized capital stock. To adapt (sic) the former would be tantamount to a violation of the requirement to properly 16 apprise the public of substantive change. PICOP sought a reconsideration of the En Banc ruling. It argued that RA No. 3531 has been repealed by the Corporation Code of 1980 and Presidential Decree 18 19 902-A. Section 139 of the Corporation Code authorizes the SEC to collect and receive fees as authorized by law or by rules and regulation promulgated by the SEC. Along this line, PICOP posited that SEC Memorandum Circular No. 1, Series of 1986 (1986 Circular) rules on the specific subject matter of "Filing Fees for Amended Articles of Incorporation Extending the Term of Corporate Existence." The prescribed filing fee is 1/10 of 1% of the authorized capital stock, with the qualification that it should not be less than P200.00 or more than P100,000.00. PICOP pointed out that no equivalent provision appears in any of the subsequent SEC circulars such as the 1994 and 2001 circulars. Hence, the 1986 Circular 20 should prevail.
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SECURITIES AND EXCHANGE COMMISSION, Petitioner vs. 4 PICOP RESOURCES, INC., Respondent. DECISION REYES, R.T., J.: A party generally advocates the rules for his benefit, but invokes exceptions when he violates it. Karaniwang isinusulong ng isang panig ang tuntunin para sa kanyang kapakanan, ngunit humihingi ng pagtatangi kapag siya ang lumalabag nito. The aphorism finds relevance in this petition for review on certiorari of two Resolutions1-a of the Court of Appeals (CA). The first Resolution denied the motion for extension to file a petition for review, the second denied the motion for reconsideration. The Facts On March 26, 2002, respondent PICOP Resources, Inc. (PICOP) filed with petitioner Securities and Exchange Commission (SEC) an application for amendment of its Articles of Incorporation (AOI) extending its corporate existence for another fifty (50) years. PICOP paid the filing fee of P210.00 based on SEC Memorandum Circular No. 2 2, Series of 1994 (1994 Circular). The SEC, however, informed PICOP of the appropriate filing fee of P12 Million, or 1/5 3 of 1% of its authorized capital stock of P6 Billion. PICOP sought clarification of the applicable filing fee and the reduction of the amount of P12 Million prescribed by the 4 SEC. What followed were several exchanges of correspondence on the applicable 5 filing fee for amended AOI extending the corporate term of PICOP. Through Director Benito A. Cataran of the Company Registration and Monitoring 6 Department, the SEC held that the P12 Million assessment is based on Republic Act 7 (RA) No. 3531. This Act provides that in case an amendment of the AOI consists of extending the term of corporate existence, the SEC shall be entitled to collect and 8 receive the same fees collectible under existing law for the filing of AOI. PICOP elevated the matter to the SEC En Banc. It asked for the reduction of the filing fee from P12 Million to P210.00. The present SEC Revised Schedule of
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The SEC En Banc denied once more PICOPs request to reconsider the earlier ruling 21 and reverted to the P12 Million assessment. It maintained that the provision on the maximum imposable fee under the 1986 Circular has been amended by the 1994 22 Circular which removed the maximum imposable fee. Furthermore, the SEC En Banc explained that contentions that its 2001 Circular was not published are erroneous. There was, in fact, due publication in The Manila Standard on July 31, 2001. Accordingly, the 2001 Circular became effective on August 15, 2001. Thus, the 23 public was properly apprised of the changes in fees. On August 12, 2002, PICOP paid under protest the amount of P11,999,790.00. This was in addition to its original payment of P210.00 to cover the SEC-prescribed filing 24 25 fee. Then PICOP again moved for reconsideration. This was denied by SEC 26 Chairperson Lilia R. Bautista. Dissatisfied, PICOP appealed the matter to the Office of the President (OP). It raised the following issues: (1) whether or not the OP has jurisdiction to entertain the appeal; and (2) in the event that the OP has jurisdiction, how much is the filing fee for the amendment of PICOPs AOI to extend the term of its corporate existence? OP Disposition On September 22, 2003, the OP decided in favor of PICOP, disposing as follows: WHEREFORE, premises considered, the instant appeal is GRANTED and the questioned SEC Order dated August 15, 2002 SET ASIDE. Accordingly, it is hereby DECLARED that the applicable filing fee for the extension of the term of corporate existence of the appellant is P100,000, pursuant to SEC Memorandum Circular No. 1, s. of 1986. Consequently, the SEC is ordered to REFUND whatever amount that the appellant was required to pay in excess. SO ORDERED.
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The OP added that EO No. 192 does not carry an express repeal of EO No. 34 35 60. Section 2 of EO No. 60 specifically provides that "matters not expressly appealable to the Court of Appeals under present circulars of the Supreme Court of the Philippines are hereby declared appealable to the Office of the President." Hence, the OP retains its appellate jurisdiction in the instant case. Having established its jurisdiction over the case, the OP disposed of the main issue, thus: The SEC relies on that specific provision in RA 3531 which provides that where the amendment consists in extending the term of the corporate existence, the SEC shall be entitled to collect and receive for the filing of the amended articles of incorporation "the same fees collectible under existing law for the filing of articles of incorporation." The fundamental flaw in this position is that SEC is unable to point to an existing law that justifies the imposition of the fee rate of 1/5 of 1% of the authorized capital stock. On the other hand, appellant has identified the 1986 Circular, whose specific subject matter is "Filing Fees for Amended Articles of Incorporation Extending the Term of Corporate Existence." Under this, it is explicit that the applicable fee for stock corporations is "1/10 of 1% of the authorized capital stock, but not less than 36 Php200 nor more than Php100,000."
The OP maintained that even with the issuance of Executive Order (EO) No. 192, it retained its appellate jurisdiction over the SEC. EO No. 192 merely provided for the transfer of the administrative supervision of the SEC back to the Department of 30 Finance from the OP. Under Section 38, Chapter 7, Book IV of the Administrative Code of 1987, administrative supervision does not extend to "the power to review, reverse, revise, or modify the decisions of regulatory agencies in the exercise of their regulatory or 31 quasi-judicial functions." Such is rightfully within the ambit of the presidential power 32 of supervision and control, which includes the authority to review, approve, reverse, 33 or modify acts and decisions of subordinate officials or units.
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Two Motions for Reconsideration By a first motion, the SEC sought a reconsideration. This was denied by the OP through a Resolution dated December 19, 2003. It did not find any new matter 39 sufficiently persuasive to modify its earlier ruling. Although aware of the prohibition against a second motion for reconsideration, petitioner filed such a motion, compelled by an alleged newly-found evidence. It prayed for the OPs acceptance of SEC Circular No. 2, Series of 1990 (1990 Circular) which removed the filing fee ceilings provided for in the 1986
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The OP pointed out that unlike the 1994 and 2001 Circulars relied on by the SEC, the 1986 Circular specifically addresses the matter of filing fees on extension of corporate existence. Further, going by the tenet of statutory construction that a special rule cannot be repealed, amended, or altered by a subsequent general 37 rule, the OP concluded that the 1986 Circular cannot be repealed, amended, or 38 altered by the 1994 or 2001 Circulars. The fees provided by the said earlier Circular remain the applicable filing fees.
Administrative Law
Circular. Thus, the prescribed filing fee in cases of filing amended AOI for extending the corporate term is 1/10 of 1% of the authorized capital stock. The SEC also enumerated the subsequent EOs and Circulars which called for the increase in SEC fees and charges. The latest of these was the 2001 Circular, which now prescribes the formula of 1/5 of 1% of the authorized capital stock. The SEC likewise appealed for the OPs consideration of the supervening event which caused the 1990 Circular to be misplaced. The Commission reorganized and streamlined its operations and functions after the effectivity of RA No. 8799 (Securities Regulation Code). As consequence, one-half of its personnel were 42 separated. The offices of Corporate and Legal Department and Examination and Appraisers Department were abolished. These offices were in charge of implementing 43 and enforcing circulars regarding examination and filing fees for amendment of AOI. It was this transfer of offices and personnel following the reorganization that resulted in the loss and displacement of the 1990 Circular. It was only upon diligent search 44 that the said Circular was found. On March 19, 2004, the OP denied the SECs second motion for reconsideration for 45 being a prohibitory pleading. It cited Section 7 of Administrative Order (AO) No. 46 18, which provides that only one motion for reconsideration by any one party shall 47 be allowed and entertained, save in exceptionally meritorious cases. The OP ruled that the SECs explanation makes out a case of negligence without any 48 showing it was excusable. The OP found it self-serving and unbelievable that the Commission was unable to "unearth" the 1990 Circular for more than three (3) years. Yet, it was able to produce it in a matter of fifteen (15) days in time for its second motion for reconsideration. Of greater curiosity to the OP was the submission to the U.P. Law Center of certified true copies of the 1990 Circular only on the same day of the filing of the second motion for reconsideration. This betrayed the SECs own acknowledgment that such requirement was not earlier complied with. It is clear then that 1990 Circular was not effective at the time PICOP applied for the extension of its corporate term. Unyielding, the SEC brought the matter to the CA. CA Ruling The SEC initially filed a motion for extension to file a petition for review under Rule 43. It requested for an additional fifteen (15) days from April 3, 2004 to file its 49 pleading.
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On May 3, 2004, the CA through its first Resolution denied the motion for having 50 been filed beyond the reglementary period. The CA said: Under Section 4, Rule 43 of the Revised Rules of Court, only one (1) motion for reconsideration is allowed. Thus, being a prohibited pleading, the filing of the second motion for reconsideration before the agency a quo did not toll the running of the period within which to file a petition for review, which expired fifteen (15) days after petitioner received a copy of the December 19, 2003 Resolution of the 51 Office of the President. (Emphasis supplied) The SEC erroneously reckoned the period to file its petition for review from March 19, 2004 or the date of the OPs denial of its second motion for reconsideration. The filing period actually expired on January 3, 2004 or seventeen (17) days before the Commission even filed its prohibited pleading with the OP. The SEC sought reconsideration of the CAs first Resolution. This was 53 subsequently denied via a June 30, 2004 Resolution. The CA ratiocinated: We have carefully studied subject Motion for Reconsideration in the light of the grounds assigned in support thereof vis--vis those interposed by the respondent in its Opposition, and We are not prepared to reverse or set aside Our resolution of 54 dismissal. Further, the CA held: Besides, even on the substantive aspect, We find no prima facie error committed by the Office of the President in reaching its conclusion. Indeed, the petition is patently without merit and the questions raised therein are too unsubstantial to 55 require consideration (Sec.8, Rule 43, Rules of Court). Issues Petitioner has resorted to the present recourse and ascribes to the CA the following errors: I The HONORABLE Court of Appeals erred IN ISSUING THE RESOLUTION DATED MAY 3, 2004 DENYING PETITIONERS MOTION FOR EXTENSION DATED MAY 31, 2004 AND, CONSEQUENTLY, DISMISSING THE PETITION IN CA-G.R. SP NO. 83179.
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II The HONORABLE Court of Appeals erred IN ISSUING THE RESOLUTION DATED JUNE 30, 2004 DENYING PETITIONERS MOTION FOR RECONSIDERATION (OF THE MAY 3, 2004 RESOLUTION). III The HONORABLE Court of Appeals erred IN FINDING NO PRIMA FACIE ERROR COMMITTED BY THE OFFICE OF THE PRESIDENT IN SETTING ASIDE PETITIONER SECS ORDER DATED AUGUST 15, 2002 (DENYING RESPONDENTS REQUEST FOR RECONSIDERATION OF THE SEC ORDER ASSESSING IT p12,000,000.00 AS FILING FEE FOR THE AMENDMENT OF ITS ARTICLES OF INCORPORATION EXTENDING ITS CORPORATE LIFE). 56 (Underscoring supplied) Our Ruling The appellate court committed no reversible error, much less grave abuse of discretion, in issuing the questioned resolutions. Section 4 of Rule 43 of the Revised 57 Rules of Court clearly states that an appeal shall be taken within fifteen (15) days 58 from the denial of petitioners motion for reconsideration. The same section also provides that only one motion for reconsideration shall be allowed. It is unmistakably clear that the appeal period must be reckoned from the date of the denial of the first and only motion for reconsideration allowed by the rules. Petitioners fatal mistake was to assume otherwise. In appeals to the OP, Section 7 of AO No. 18 similarly proscribes filing more than one motion for reconsideration. It states: Decisions/resolutions/orders of the Office of the President shall, except as otherwise provided for by special laws, become final after the lapse of fifteen (15) days from receipt of a copy thereof by the parties, unless a motion for reconsideration thereof is filed within such period. Only one motion for reconsideration by any one party shall be allowed and 59 entertained, save in exceptionally meritorious cases. (Emphasis supplied) A second motion for reconsideration is a prohibited pleading. It is forbidden except for 60 extraordinarily persuasive reasons and only upon obtaining express leave. The facts and material dates are undisputed. The SEC filed a motion for reconsideration before the OP on October 13, 2003. It was denied in a Resolution dated December 19, 2003. The Commission received a copy of the Resolution on January 8, 2004. A second motion for reconsideration was filed by the SEC on January 23, 2004. This was also denied by the OP through a Resolution dated March 19, 2004. The SEC elevated the matter to the CA. On April 1, 2004, it initially filed a motion for extension to file a petition for review under Rule 43. The Commission requested an extension of fifteen (15) days from April 3, 2004 until April 18, 2004. This reckoning period is the fatal blow to the SEC appeal. To reiterate, the SEC erroneously assumed that the appeal period is fifteen (15) days from the denial of its second motion for reconsideration or March 19, 2004. It believed that it has until April 3, 2004 within which to file a petition for review with the CA. It was mistaken. The same issue was the focal point in Obando v. Court of Appeals. In Obando, this Court maintained the prohibitory nature of a second motion for reconsideration and its gnawing implications in the appeal process. Said the Court: x x x [T]he Rules of Court are explicit that a second motion for reconsideration shall not be allowed. In this case, petitioners filed not only a second motion for reconsideration, but a third motion for reconsideration as well. Since the period to appeal began to run from the denial of the first motion for reconsideration, the notice of appeal which petitioners filed six months after the denial of their first motion for reconsideration was correctly denied for having been filed late. 62 (Emphasis supplied) Since the second motion for reconsideration was not allowed, this Court ruled that it did not toll the running of the period to appeal. More so, would a third motion for reconsideration. In Dinglasan v. Court of Appeals, this Court explained the reason why it is unwise to reckon the period of finality of judgment from the denial of the second motion for reconsideration. To rule that finality of judgment shall be reckoned from the receipt of the resolution or order denying the second motion for reconsideration would result to an absurd situation whereby courts will be obliged to issue orders or resolutions denying what is a prohibited motion in the first place, in order that the period for the finality of judgments shall run, thereby, prolonging the disposition of cases. Moreover, such a ruling would allow a party to forestall the running of the period of finality of judgments by virtue of filing a prohibited pleading; such a situation is not only 64 illogical but also unjust to the winning party.
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The same principle is likewise applicable by analogy in the determination of the correct period to appeal. Reckoning the period from the denial of the second motion for reconsideration will result in the same absurd situation where the courts will be obliged to issue orders or resolutions denying a prohibited pleading in the first place. The overt consequence of the introduction of a prohibited pleading was pointed out succinctly by this Court in Land Bank of the Philippines v. Ascot Holdings and 65 Equities, Inc.: It is obvious that a prohibited pleading cannot toll the running of the period to appeal since such pleading cannot be given any legal effect precisely because of its being 66 prohibited. Clearly, a second motion for reconsideration does not suspend the running of the period to appeal and neither does it have any legal effect. It bears stressing, however, that the proscription of filing a second motion for reconsideration admits of exceptions. AO No. 18, Section 7 may allow more than one motion for reconsideration in "exceptionally meritorious cases." The determination of which cases fall under such an exception is within the discretion of the OP. Sadly, there is nothing in the present case that would warrant an exception. The CA has no other option but to apply the clear provision of the law when it comes to appeal. True, procedural rules may be relaxed in the interest of substantial justice. However, it is not to be disdained as mere technicalities that may be ignored at will to 67 68 suit the convenience of a party. In Spouses Galang v. Court of Appeals, this Court explained: x x x Like all rules, they are required to be followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a litigant of negative consequences commensurate with the degree of his thoughtlessness in not 69 complying with the procedure prescribed. Procedural rules are not to be belittled or dismissed simply because their non70 observance may have resulted in prejudicing a partys substantive rights. The bare invocation of "substantial justice" is not a magic wand that will compel the court to 71 suspend the rules of procedure. Rather, the appellate court needs to assess if the appeal is absolutely meritorious on its face. Only after such finding, can it ease the 72 often stringent rules of procedure. The circumstances obtaining in this case clearly show that such relaxation of rules is unwarranted. As this Court has said more than enough: Procedural rules setting the period for perfecting an appeal or filing an appellate petition are generally inviolable. It is doctrinally entrenched that appeal is not a constitutional right but a mere statutory privilege. Hence, parties who seek to avail of the privilege must comply with the statutes or rules allowing it. The requirements for perfecting an appeal within the reglementary period specified in the law must, as a rule, be strictly followed. Such requirements are considered indispensable interdictions against needless delays, and are necessary for the orderly discharge of the judicial business. For sure, the perfection of an appeal in the manner and within the period set by law is not only mandatory, but jurisdictional as well. Failure 73 to perfect an appeal renders the judgment appealed from final and executory. But brushing aside the technicalities, were the OP and CA correct in declaring that the applicable filing fee is P100,000.00, instead of P12 million last assessed by the SEC En Banc? We resolve the question in the affirmative. The 1986 Circular is the proper basis of the computation since it specifically provided for filing fees in cases of extension of corporate term. A proviso of the same nature is wanting in the other circulars relied on by the SEC at the time PICOP filed its request for extension. The rule is well-entrenched in this jurisdiction that the interpretation given to a rule or regulation by those charged with its execution is entitled to the greatest weight 74 by the courts construing such rule or regulation. While this Court has consistently yielded and accorded great respect to such doctrine, it will not hesitate to set aside an executive interpretation if there is an error of law, abuse of power, lack of jurisdiction or grave abuse of discretion clearly conflicting with the letter and spirit of 75 the law. In Eastern Telecommunications Philippines, Inc. v. International Communication 76 Corporation, the Court laid the guidelines in resolving disputes concerning the interpretation by an agency of its own rules and regulations, to wit: (1) Whether the delegation of power was valid; (2) Whether the regulation was within that 77 delegation; (3) Whether it was a reasonable regulation under a due process test. In the case under review, there is an evident violation of the due process requirement. It is admitted that the SEC failed to satisfy the requirements for promulgation when it filed the required copies of the said regulation at the UP Law 78 Center only fourteen (14) years after it was supposed to have taken effect. The SEC violated the due process clause insofar as it denied the public prior notice of the regulations that were supposed to govern them. The SEC can not wield the provisions of the 1990 Circular against PICOP and expect its outright compliance.
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The circular was not yet effective during the time PICOP filed its request to extend its corporate existence in 2002. In fact, it was only discovered in 2004, fifteen (15) days before the SEC filed its second motion for reconsideration. WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED.
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[G.R. No. 125982. January 22, 1999] GOVERNMENT SERVICE INSURANCE SYSTEM, petitioner, vs. COMMISSION 5 ON AUDIT and MARIANO C. GABORNE, respondents. DECISION PARDO, J.: The case before the Court is a special civil action of certiorari seeking to review the decision of the Commission on Audit that affirmed the ruling of Corporate Auditor Mariano C. Gaborne disallowing in audit the payment of death benefits in the amount of P43,107.19, to the heirs of the late Brig. General Arturo T. Asuncion, who died on November 16, 1987, in a helicopter crash, for the reason that a reserve officer like him of the Armed Forces of the Philippines was not at that time a compulsory member of the Government Service Insurance System. The facts may be succinctly related as follows: In November 1936, Congress enacted Commonwealth Act No. 186, creating the Government Service Insurance System (hereafter GSIS) to provide insurance coverage and retirement benefits to government officials and employees, replacing the existing pension systems established in prior laws. Section 4 of Com. Act No. 186 provided that: Sec. 4. Scope of application of System.- Regular membership in the system shall be compulsory upon xxx (d) All officers and enlisted men of the Regular Force, Philippine Army; The original act has undergone various amendments that increased its coverage and the insurance benefits granted to members of the System. On December 2, 1986, President Corazon C. Aquino, exercising legislative powers enacted Executive Order No. 79, Section 1 (c) of which provides: "Sec. 1 (c). A reserve officer who has satisfactorily rendered a total of ten (10) years continuous active commissioned military service shall not be reverted to inactive
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status, except upon his own request or for cause, up to the time he reaches the compulsory retirement of thirty (30) years of service or fifty six (56) years of age, whichever comes later but not later than sixty (60) years of age." On November 16, 1987, Brig. General Arturo T. Asuncion met his untimely death in a helicopter crash. On December 11, 1987, the board of trustees of the GSIS in resolution No. 566, approved the compulsory insurance coverage of reserve officers of the Armed Forces of the Philippines (hereafter AFP) falling under the provisions of Executive Order No. 79. In time, the heirs of the late General Asuncion filed a claim with the GSIS for payment of death benefits due to him as a member of the System. On January 12, 1987, GSIS Deputy General Counsel Meynardo A. Tiro gave an opinion that Reserve Officers with ten (10) years of continuous service h ave now the same status as regular members of the AFP under Executive Order No. 79 of President Aquino and are therefore, entitled to the same insurance coverage and [1] benefits as regular officers of the AFP. On September 4, 1990, Melanio D. Fabia, vice-president, Legal Services Group, GSIS, also gave an opinion that compulsory coverage of reserve officers AFP took effect on December 23, 1986, the day following E. O. 79's publication in the Official [2] Gazette. On the basis of the aforesaid legal opinion, on January 4, 1991, the GSIS Quezon City Branch (military) paid the claim of the heirs of Brig. General Asuncion. In the course of audit of the account, Auditor Mariano C. Gaborne, then corporate auditor's office officer in charge, GSIS, disallowed in audit the payment of the claim, pointing out that at the time of his death, General Asuncion was not a member of the GSIS despite E. O. 79. The Manager, GSIS, Quezon City Branch I (Military) elevated the case on appeal to the Commission on Audit en banc. On January 24, 1995, the Commission on Audit (en banc) denied the appeal and affirmed the decision of the local auditor.
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On August 5, 1996, the Legal Services Group of the GSIS received copy of the COA decision duly transmitted by letter dated July 26, 1996 of Assistant Commissioner Sofronio L. Flores of the Commission on Audit. Hence, this petition for certiorari. We grant the petition. The disallowance of the payment of death benefits to the heirs of the late Brig. General Arturo T. Asuncion was based on the ruling that he was not a member of the GSIS at the time of his death on November 15, 1987, in a helicopter crash. According to auditor Gaborne, Executive Order No. 79, dated December 2, 1986, was effective only on its implementation by resolution (No. 566) of the GSIS board of trustees adopted on December 11, 1987, which was after the death of Gen. Asuncion. We do not agree. The aforecited executive order provides for compulsory membership in the GSIS of qualified reserve officers of the AFP like General Asuncion. It was effective at the time of the death of General Asuncion. Hence, it becomes the duty of the auditor to approve and pass in audit the valid claim of his heirs for death benefits. The Commission on Audits disallowance amounts to a grave abuse of discretion. Commonwealth Act No. 186, enacted on November 14, 1936, as amended, provides that membership in the system shall be compulsory upon all regular officers and enlisted men of the Armed Forces of the Philippines. Executive Order No. 79, issued on December 2, 1986, has the force of law.
[3]
a member of the GSIS on the date he died on November 15, 1987, in line of duty in a helicopter crash. Consequently, his heirs are entitled to payment of death benefits. Next, according to auditor Gaborne, the optional insurance policy issued to the late General Asuncion had lapsed on April 30, 1984, due to non-payment of premiums. The optional insurance policy referred to, however, is distinct from the compulsory coverage membership in the GSIS. The optional insurance policy was issued on the basis of a voluntary application under existing regulations and lapsed in April, 1984, due to non-payment of premiums. On the other hand, qualified reserve officers were covered by compulsory membership in the GSIS under Executive Order No. 79 effective on January 07, 1987, regardless of whether or not the premiums were paid. Of course, the unpaid premiums, if any, may be deducted from the proceeds of the policy. WHEREFORE, the Court hereby GRANTS the petition for certiorari. We SET ASIDE the Commission on Audits decision dated January 24, 1995, and direct the latter to allow in audit the payment of death benefits to the heirs of the late Brig. General Arturo T. Asuncion. No costs. SO ORDERED.
By the terms of this enactment, qualified reserve officers, meaning, those who have satisfactorily rendered a total of ten (10) years of continuous active duty commissioned service in the AFP shall not be reverted to inactive status except upon their own request, or for cause. Thus, they have the same status as regular commissioned officers of the AFP, who are unquestionably compulsory members of the System. The question that arises is when is the executive order effective? The President issued the executive order on December 2, 1986. It was published in the Official Gazette on December 22, 1986. Thus, E. O. No. 79 is effective fifteen (15) days following its publication in the Official [4] Gazette, or on January 07, 1987. At that time, the late General Asuncion was a reserve officer who had rendered a total of ten (10) years of continuous active duty service commission in the AFP. Hence, he was compulsorily covered as
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[G.R. No. 132593. June 25, 1999] PHILIPPINE INTERNATIONAL TRADING 6 vs. COMMISSION ON AUDIT, respondent. DECISION GONZAGA-REYES, J.: This is a petition for certiorari under Rule 64 of the 1997 Rules of Civil Procedure to annul Decision No. 2447 dated July 27, 1992 of the Commission on Audit (COA) denying Philippine International Trading Corporations (PITC) appeal from the disallowances made by the resident COA auditor on PITCs car plan benefits; and Decision No. 98-048 dated January 27, 1998 of the COA denying PITCs motion for reconsideration. The following facts are undisputed: The PITC is a government-owned and controlled corporation created under [1] Presidential Decree (PD) No. 252 on July 21, 1973 , primarily for the purpose of promoting and developing Philippine trade in pursuance of national economic development. On October 19, 1988, the PITC Board of Directors approved a Car [2] Plan Program for qualified PITC officers. Under such car plan program, an eligible officer is entitled to purchase a vehicle, fifty percent (50%) of the value of which shall be shouldered by PITC while the remaining fifty percent (50%) will be shouldered by the officer through salary deduction over a period of five (5) years. Maximum value of the vehicle to be purchased ranges from Two Hundred Thousand Pesos (P200,000.00) to Three Hundred and Fifty Thousand Pesos (P350,000.00), depending on the position of the officer in the corporation. In addition, PITC will reimburse the officer concerned fifty percent (50%) of the annual car registration, insurance premiums and costs of registration of the chattel mortgage over the car for a period of five (5) years from the date the vehicle was purchased. The terms and [3] conditions of the car plan are embodied in a `Car Loan Agreement. Per PITCs car plan guidelines, the purpose of the plan is to provide financial assistance to qualified employees in purchasing their own transportation facilities in the performance of their [4] work, for representation, and personal use. The plan is envisioned to facilitate greater mobility during official trips especially within Me tro Manila or the employees principal place of assignment, without having to rely on PITC vehicles, taxis or cars [5] for hire. CORPORATION, petitioner, On July 1, 1989, Republic Act No. 6758 (RA 6758), entitled An Act Prescribing a Revised Compensation and Position Classification System in the Government and For Other Purposes, took effect. Section 12 of said law provides for the consolidation of allowances and additional compensation into standardized salary rates save for certain additional compensation such as representation and transportation allowances which were exempted from consolidation into the standardized rate. Said section likewise provides that other additional compensation being received by incumbents as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. Section 12, RA 6758, reads SEC. 12. Consolidation of All Allowances and Compensation. All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized.
Paragraph 5.6 of DBM-CCC No. 10 provides: 5.6 Payment of other allowances/fringe benefits and all other forms of compensation granted on top of basic salary, whether in cash or in kind, not [6] mentioned in Sub-paragraphs 5.4 and 5.5 above shall be discontinued effective November 1, 1989. Payment made for such allowance/fringe benefits after said date shall be considered as illegal disbursement of public funds. On post audit, the payment/reimbursement of the above-mentioned expenses (50% of the yearly car registration and insurance premiums and 50% of the costs of registration of the chattel mortgage over the car) made after November 1, 1989 was disallowed by the resident COA auditor. The disallowance was made on the ground that the subject car plan benefits were not one of the fringe benefits or form
20
To implement RA 6758, the Department of Budget and Management (DBM) issued Corporate Compensation Circular No. 10 (DBM-CCC No. 10). Paragraph 5.6 of DBM-CCC No. 10 discontinued effective November 1, 1989, all allowances and fringe benefits granted on top of basic salary, not otherwise enumerated under paragraphs 5.4 and 5.5 thereof.
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of compensation allowed to be continued after said date under the aforequoted [7] paragraph 5.6 of DBM-CCC No. 10 , in relation to paragraphs 5.4 and 5.5 thereof. PITC, on its behalf, and that of the affected PITC officials, appealed the decision of the resident COA auditor to the COA. On July 27, 1992, COA denied PITCs appeal and affirmed the disallowance of the said car plan expenses in the assailed Decision No. 2447 dated July 27, 1992. Relevant portions of the decision read thus: Upon circumspect evaluation thereof, this Commission finds the instant appeal to be devoid of merit. It should be noted that the reimbursement/payment of expenses in question is based on the Car Plan benefit granted under Board Resolution No. 10-8803 adopted by the PITC Board of Directors on October 19, 1988. The Car Plan is undeniably a fringe benefit as appearing in PITCs Compensation Policy under the heading 3. Other Fringe Benefits, particularly Item No. 3.13 thereof. Inasmuch as PITC is a government-owned and/or controlled corporation, the grant of the Car Plan (being a fringe benefit) should be governed by the provisions of Corporate Compensation Circular No. 10, implementing RA 6758. Under sub-paragraph 5.6 of said Circular, it explicitly provides: xxx xxx x x x. 3. Finally, that the provisions of PD 985 do not apply to PITC inasmuch as under its Revised Charter, PD 1071, as amended by E.O. 756 and E.O. 1067, PITC is not only expressly exempted from OCPC rules and regulations but its Board of Directors was expressly authorized to adopt compensation policies and other related benefits to its officers/employees without need for further approval thereof [10] by any government office, agency or authority. The petition is meritorious. First of all, we must mention that this Court has confirmed in Philippine Ports [11] Authority vs. Commission on Audit the legislative intent to protect incumbents who are receiving salaries and/or allowances over and above those authorized by RA 6758 to continue to receive the same even after RA 6758 took effect. In reserving the benefit to incumbents, the legislature has manifested its intent to gradually phase out this privilege without upsetting the policy of non-diminution of pay and consistent with the rule that laws should only be applied prospectively in [12] the spirit of fairness and justice. Addressing the issue as to whether the petitioners-officials may still receive their representation and transportation allowance (RATA) at the higher rates provided by Letter of Implementation (LOI) No. 97 in light of Section 12, RA 6758, this Court said: Now, under the second sentence of Section 12, first paragraph, the RATA enjoyed by these PPA officials shall continue to be authorized only if they are being received by incumbents only as of July 1, 1989. RA 6758 has therefore, to this extent, amended LOI No. 97. By limiting the benefit of the RATA granted by LOI No. 97 to incumbents, Congress has manifested its intent to gradually phase out this privilege without upsetting its policy of non-diminution of pay. The legislature has similarly adhered to this policy of non -diminution of pay when it provided for the transition allowance under Section 17 of RA 6758 which reads: SEC. 17. Salaries of Incumbents. Incumbents of position presently receiving salaries and additional compensation/fringe benefits including those absorbed from local government units and other emoluments, the aggregate of which exceeds the standardized salary rate as herein prescribed, shall continue to receive such excess compensation, which shall be referred to as transition allowance. The transition allowance shall be reduced by the amount of salary adjustment that the incumbent shall receive in the future. While Section 12 refers to allowances that are not integrated into the standardized salaries whereas Section 17 refers to salaries and additional compensation or fringe benefits, both sections are intended to protect incumbents who
PITCs motion for reconsideration was denied by the COA in its Resolution dated [9] January 27, 1998. Hence, the instant petition on the following grounds: 1. That the legislature did not intend to revoke existing benefits being received by incumbent government employees as of July 1, 1989 (including subject car plan benefits) when RA 6758 was passed; 2. That the Car Loan Agreements signed between PITC and its officers pursuant to PITCs Car Plan Program, including the Car Loan Agreements, duly executed prior to the effectivity of RA 6758, constitute the law between the parties and as such, protected by Section 10, Article III of the 1987 Philippine Constitution which prohibits the impairment of contracts; and
21
Since the Car Plan benefit is not one of those fringe benefits or other forms of compensation mentioned in Sub-paragraphs 5.4 and 5.5 of CCC No. 10, consequently the reimbursement of the 50% share of PITC in the yearly registration and insurance premium of the cars purchased under said Car Plan benefit should not [8] be allowed. xxx.
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are receiving said salaries and/or allowances at the time RA 6758 took [13] effect. (Emphasis supplied.) Based on the foregoing pronouncement, petitioner correctly pointed out that there was no intention on the part of the legislature to revoke existing benefits being enjoyed by incumbents of government positions at the time of the passage of RA 6758 by virtue of Sections 12 and 17 thereof. There is no dispute that the PITC officials who availed of the subject car plan benefits were incumbents of their positions as of July 1, 1989. Thus, it was legal and proper for them to continue enjoying said benefits within the five year period from date of purchase of the vehicle allowed by their Car Loan Agreements with PITC. Further, we see the rationale for the corporations fifty percent (50%) participation and contribution to the subject expenses. As to the insurance premium, PITC, at least, up to the extent of 50% of the value of the vehicle, has an insurable interest in said vehicle in case of loss or damage thereto. As to the costs of registration of the vehicle in the employees name and of the chattel mortgage in favor of PITC, this is to secure PITC of the repayment of the `Car Loan Agreement and the fulfillment of the other obligations contained therein by the employee. Still further, the vehicle being utilized by the officer is actually being used for corporate purposes because the officer concerned is no longer entitled to utilize company-owned vehicles for official business once he/she has availed of a car plan. Neither is said officer allowed to reimburse the costs of other land transportation used within his principal place of assignment (i.e. Metro Manila) as the [14] vehicle is presumed to be his official vehicle. In the event that the employee resigns, retires or is separated from the company without cause prior to the completion of the 60-month car plan, the employee shall be given the privilege to buy the car provided he pays the remaining installments of the loan and the amount equivalent to that portion of the companys contribution corresponding to the unexpired period of the car plan. On the other hand, if the employee has been separated from the company for cause, the company has the other option aside from the foregoing to repossess the car from the employee, in which case, the company shall pay back to the employee all amortizations already made by the employee to the [15] company, interest free. Secondly, COA relied on DBM-CCC No. 10 as basis for the disallowance of the subject car plan benefits. DBM-CCC No. 10 which was issued by the DBM pursuant [17] to Section 23 of RA 6758 mandating the said agency to issue the necessary guidelines to implement RA 6758 has been declared by this Court in De Jesus, et al. [18] vs. Commission on Audit, et al. as of no force and effect due to the absence of
[16]
publication thereof in the Official Gazette or in a newspaper of general circulation. Salient portions of said decision read: On the need for publication of subject DBM-CCC No. 10, we rule in the [19] affirmative. Following the doctrine enunciated in Taada , publication in the Official Gazette or in a newspaper of general circulation in the Philippines is required since DBM-CCC No. 10 is in the nature of an administrative circular the purpose of which is to enforce or implement an existing law. Stated differently, to be effective and enforceable, DBM-CCC No. 10 must go through the requisite publication in the Official Gazette or in a newspaper of general circulation in the Philippines. In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completely disallows payment of allowances and other additional compensation to government officials and employees, starting November 1, 1989, is not a mere interpretative or internal regulation. It is something more than that. And why not, when it tends to deprive government workers of their allowances and additional compensation sorely needed to keep body and soul together. At the very least, before the said circular under attack may be permitted to substantially reduce their income, the government officials and employees concerned should be apprised and alerted by the publication of said circular in the Official Gazette or in a newspaper of general circulation in the Philippines to the end that they be given amplest opportunity to voice out whatever opposition they may have, and to ventilate their stance on the matter. This approach is more in [20] keeping with democratic precepts and rudiments of fairness and transparency. In the case at bar, the disallowance of the subject car plan benefits would hamper the officials in the performance of their functions to promote and develop trade which requires mobility in the performance of official business. Indeed, the car plan benefits are supportive of the implementation of the objectives and mission of the agency relative to the nature of its operation and responsive to the exigencies of the service. It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and submitted for publication in the Official Gazette per letter to the National Printing Office dated March 9, 1999. Would the subsequent publication thereof cure the defect and retroact to the time that the above-mentioned items were disallowed in audit? The answer is in the negative, precisely, for the reason that publication is required as a condition precedent to the effectivity of a law to inform the public of the contents of the law or rules and regulations before their rights and interests are
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affected by the same. From the time the COA disallowed the expenses in audit up to the filing of herein petition the subject circular remained in legal limbo due to its non[21] publication. As was stated in Taada vs. Tuvera , prior publication of laws before they become effective cannot be dispensed with, for the reason that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it." In view of the nullity of DBM-CCC No. 10 relied upon by the COA as basis for the disallowance of the subject car plan benefits, we deem it unnecessary to discuss the second issue raised in the instant petition. We deem it necessary though to resolve the third issue as to whether PITC is exempt [22] from RA 985 as subsequently amended by RA 6758. According to petitioner, PITCs Revised Charter, PD 1071 dated January 25, 1977, as amended by EO 756 dated December 29, 1981, and further amended by EO 1067 dated November 25, 1985, expressly exempted PITC from the Office of the Compensation and Position Classification (OCPC) rules and regulations. Petitioner cites Section 28 of [23] [24] [25] P.D.1071 ; Section 6 of EO 756 ; and Section 3 of EO 1067. According to the COA in its Decision No. 98-048 dated January 27, 1998, the exemption granted to the PITC has been repealed and revoked by the repealing provisions of RA 6758, particularly Section 16 thereof which provides: necessarily to achieve the purposes for which the law was enacted, that is, the standardization of salaries of all employees in government owned and/or controlled corporations to achieve equal pay for substantially equal work. Henceforth, PITC should now be considered as covered by laws prescribing a compensation and position classification system in the government including RA 6758. This is without prejudice, however, as discussed above, to the non-diminution of pay of incumbents as of July 1, 1989 as provided in Sections 12 and 17 of said law. WHEREFORE, the Petition is hereby GRANTED, the assailed Decisions of the Commission on Audit are SET ASIDE. SO ORDERED.
To this, petitioner argues that RA 6758 which is a law of general application cannot repeal provisions of the Revised Charter of PITC and its amendatory laws expressly exempting PITC from OCPC coverage being special laws. Our rules on statutory construction provide that a special law cannot be repealed, amended or altered by a [26] subsequent general law by mere implication ; that a statute, general in character as to its terms and application, is not to be construed as repealing a special or specific [27] enactment, unless the legislative purpose to do so is manifested ; that if repeal of [28] particular or specific law or laws is intended, the proper step is to so express it. In the case at bar, the repeal by Section 16 of RA 6758 of all corporate charters that exempt agencies from the coverage of the System was clear and expressed
23
Section 16. Repeal of Special Salary Laws and Regulations. - All laws, decrees, executive orders, corporate charters, and other issuances or parts thereof, that exempt agencies from the coverage of the System, or that authorize and fix position classifications, salaries, pay rates or allowances of specified positions, or groups of officials, and employees or of agencies, which are inconsistent with the System, including the proviso under Section 2 and Section 16 of PD No. 985 are hereby repealed.
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[G.R. No. 103144. April 4, 2001] PHILSA INTERNATIONAL PLACEMENT and SERVICES CORPORATION, petitioner, vs. THE HON. SECRETARY OF LABOR AND EMPLOYMENT, VIVENCIO DE MESA, RODRIGO MIKIN and CEDRIC 7 LEYSON, respondents. DECISION 2. Payment of salary differentials; GONZAGA-REYES, J.: 3. Illegal deduction/withholding of salaries; This is a petition for certiorari from the Order dated November 25, 1991 issued by public respondent Secretary of Labor and Employment. The November 25, 1991 Order affirmed en toto the August 29, 1988 Order of the Philippine Overseas Employment Administration (hereinafter the POEA) which found petitioner liable for three (3) counts of illegal exaction, two (2) counts of contract substitution and one count of withholding or unlawful deduction from salaries of workers in POEA Case No. (L) 85-05-0370. Petitioner Philsa International Placement and Services Corporation (hereinafter referred to as Philsa) is a domestic corporation engaged in the recruitment of workers for overseas employment. Sometime in January 1985, private respondents, who were recruited by petitioner for employment in Saudi Arabia, were required to pay placement fees in the amount of P5,000.00 for private respondent Rodrigo L. Mikin and P6,500.00 each for private respondents Vivencio A. de Mesa and Cedric P. [1] Leyson . After the execution of their respective work contracts, private respondents left for Saudi Arabia on January 29, 1985. They then began work for Al-Hejailan Consultants A/E, the foreign principal of petitioner. While in Saudi Arabia, private respondents were allegedly made to sign a second contract on February 4, 1985 which changed some of the provisions of their original [2] contract resulting in the reduction of some of their benefits and privileges . On April 1, 1985, their foreign employer allegedly forced them to sign a third contract which increased their work hours from 48 hours to 60 hours a week without any corresponding increase in their basic monthly salary. When they refused to sign this third contract, the services of private respondents were terminated by Al-Hejailan and [3] they were repatriated to the Philippines . 4. Illegal exactions/refund of placement fees; and 5. Contract substitution.
[4]
Upon their arrival in the Philippines, private respondents demanded from petitioner Philsa the return of their placement fees and for the payment of their salaries for the unexpired portion of their contract. When petitioner refused, they filed a case before the POEA against petitioner Philsa and its foreign principal, Al-Hejailan., with the following causes of action: 1. Illegal dismissal;
The case was docketed as POEA Case No. (L) 85-05-0370. Under the rules of the POEA dated May 21, 1985, complaints involving employeremployee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment, including money claims, are adjudicated by the Workers Assistance and Adjudication Office (hereinafter the WAAO) thru [5] the POEA Hearing Officers . On the other hand, complaints involving recruitment violations warranting suspension or cancellation of the license of recruiting agencies are cognizable by the POEA thru its Licensing and Recruitment Office [6] (hereinafter the LRO). In cases where a complaint partakes of the nature of both an employer-employee relationship case and a recruitment regulation case, the POEA Hearing Officer shall act as representative of both the WAAO and the LRO and both cases shall be heard simultaneously. In such cases, the Hearing Officer [7] shall submit two separate recommendations for the two aspects of the case. In the case at bench, the first two causes of action were in the nature of money claims arising from the employer-employee relations and were properly cognizable by the WAAO. The last two causes of action were in the nature of recruitment violations and may be investigated by the LRO. The third cause of action, illegal deduction/withholding of salary, is both a money claim and a violation of recruitment regulations and is thus under the investigatory jurisdiction of both the WAAO and the LRO. Several hearings were conducted before the POEA Hearing Officer on the two aspects of private respondents complaint. During these hearings, private respondents supported their complaint with the presentation of both documentary and testimonial evidence. When it was its turn to present its evidence, petitioner
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failed to do so and consequently, private respondents filed a motion to decide the [8] case on the basis of the evidence on record. On the aspects of the case involving money claims arising from the employeremployee relations and illegal dismissal, the POEA rendered a decision dated August [9] 31, 1988 , the dispositive portion of which reads: CONFORMABLY TO THE FOREGOING, judgment is hereby rendered ordering respondent PHILSA INTERNATIONAL PLACEMENT AND SERVICE CORPORATION to pay complainants, jointly and severally with its principal AlHejailan, the following amounts, to wit: 1. TWO THOUSAND TWO HUNDRED TWENTY FIVE SAUDI RIYALS (SR2,225.00) to each complainant, representing the refund of their unpaid separation pay; 2. ONE THOUSAND SAUDI RIYALS (SR1,000.00) for V.A. de Mesa alone, representing the salary deduction from his March salary; 3. TWO THOUSAND SAUDI RIYALS (SR2,000.00) each for R.I. Mikin and C.A.P. Leyson only, representing their differential pay for the months of February and March, 1985; and 4. Five percent (5%) of the total awards as and by way of attorneys fees. All payments of the abovestated awards shall be made in Philippine Currency equivalent to the prevailing exchange rate according to the Central Bank at the time of payment. All other claims of complainants as well as the counterclaims of respondent are dismissed for lack of merit. SO ORDERED.
[10]
these were not raised in the complaint filed by private respondents. The NLRC likewise stated that there was nothing in the text of the decision which would justify the award. Private respondents filed a Motion for Reconsideration but the same was denied by the NLRC in a Resolution dated October 25, 1989. Private respondents then elevated the July 26, 1989 decision of the NLRC to the Supreme Court in a petition for review for certiorari where it was docketed as G.R. No. 89089. However, in a Resolution dated October 25, 1989, the petition was dismissed outright for insufficiency in form and substan ce, having failed to comply with the Rules of Court and Circular No. 1-88 requiring submission of a certified [13] true copy of the questioned resolution dated August 23, 1989. Almost simultaneous with the promulgation of the August 31, 1988 decision of the POEA on private respondents money claims, the POEA issued a separate Order [14] dated August 29, 1988 resolving the recruitment violations aspect of private respondents complaint. In this Order, the POEA found petitioner guilty of illegal exaction, contract substitution, and unlawful deduction. The dispositive portion of this August 29, 1988 POEA Order reads: WHEREFORE, premises considered, this Office finds herein respondent PHILSA International Placement and Services Corporation liable for three (3) counts of illegal exaction, two (2) counts of contract substitution and one count of withholding or unlawful deduction from salaries of workers. Accordingly, respondent is hereby ordered to refund the placement fees in the amount of P2,500.00 to Rodrigo L. Mikin, P4,000.00, each, to Vivencio A. de Mesa and Cedric A.P. Leyson plus restitution of the salaries withheld in the amount of SR1,000.00 to Vivencio A. de Mesa. Moreover, respondents license is hereby suspended for eight (8) months to take effect immediately and to remain as such until full refund and restitution of the above-stated amounts have been effected or in lieu thereof, it is fined the amount of SIXTY THOUSAND (P60,000.00) PESOS plus restitution, SO ORDERED. In line with this August 29, 1988 Order, petitioner deposited the check equivalent to the claims of private respondents and paid the corresponding fine under protest. From the said Order, petitioner filed a Motion for Reconsideration which was subsequently denied in an Order dated October 10, 1989.
Under the Rules and Regulations of the POEA, the decision of the POEAAdjudication Office on matters involving money claims arising from the employeremployee relationship of overseas Filipino workers may be appealed to the National [11] Labor Relations Commission (hereinafter the NLRC) . Thus, as both felt aggrieved by the said POEA Decision, petitioner and private respondents filed separate appeals from the August 31, 1988 POEA Decision to the NLRC. In a decision dated July 26, 1989 , the NLRC modified the appealed decision of the POEA Adjudication Office by deleting the award of salary deductions and differentials. These awards to private respondents were deleted by the NLRC considering that
[12]
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Under the POEA Rules and Regulations, the decision of the POEA thru the LRO suspending or canceling a license or authority to act as a recruitment agency may be [15] appealed to the Ministry (now Department) of Labor and Employment. Accordingly, after the denial of its motion for reconsideration, petitioner appealed the August 21, 1988 Order to the Secretary of Labor and Employment. However, in an Order dated [16] September 13, 1991 , public respondent Secretary of Labor and Employment affirmed en toto the assailed Order. Petitioner filed a Motion for Reconsideration but this was likewise denied in an Order dated November 25, 1991. Hence, the instant Petition for Certiorari where petitioner raises the following grounds for the reversal of the questioned Orders: I. THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN HOLDING PETITIONER GUILTY OF ILLEGAL EXACTIONS. THE FINDING IS NOT SUPPORTED BY EVIDENCE. AND IN ANY EVENT, THE LAW ON WHICH THE CONVICTION IS BASED IS VOID. II. THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN PENALIZING PETITIONER WITH CONTRACT SUBSTITUTION. IN THE PREMISES, THE CONTRACT SUBSTITUTION IS VALID AS IT IMPROVED THE TERMS AND CONDITIONS OF PRIVATE RESPONDENTS EMPLOYMENT. III. THE PUBLIC RESPONDENT HAS ACTED WITHOUT OR IN EXCESS OF JURISDICTION, OR WITH GRAVE ABUSE OF DISCRETION IN HOLDING PETITIONER LIABLE FOR ILLEGAL DEDUCTIONS/WITHHOLDING OF SALARIES. FOR THE SUPREME COURT ITSELF HAS ALREADY ABSOLVED PETITIONER FROM THIS CHARGE. With respect to the first ground, petitioner would want us to overturn the findings of the POEA, subsequently affirmed by the Secretary of the Department of Labor and Employment, that it is guilty of illegal exaction committed by collecting placement fees in excess of the amounts allowed by law. This issue, however, is a question of fact [17] which cannot be raised in a petition for certiorari under Rule 65. As we have previously held: It should be noted, in the first place, t hat the instant petition is a special civil action for certiorari under Rule 65 of the Revised Rules of Court. An extraordinary remedy, its use is available only and restrictively in truly exceptional cases wherein the action of an inferior court, board or officer performing judicial or quasi-judicial acts is challenged for being wholly void on grounds of jurisdiction. The sole office of the writ of certiorari is the correction of errors of jurisdiction including the commission of grave abuse of discretion amounting to lack or excess of jurisdiction. It does not include correction of public respondent NLRC's evaluation of the evidence and factual findings based thereon, which are generally accorded not only great respect [18] but even finality. The question of whether or not petitioner charged private respondents placement fees in excess of that allowed by law is clearly a question of fact which is for public respondent POEA, as a trier of facts, to determine. As stated above, the settled rule is that the factual findings of quasi-judicial agencies like the POEA, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect, but at times even finality if such findings are [19] supported by substantial evidence. On this point, we have carefully examined the records of the case and it is clear that the ruling of public respondent POEA that petitioner is guilty of illegal exaction is supported by substantial evidence. Aside from the testimonial evidence offered by private respondents, they also presented documentary evidence consisting of receipts issued by a duly authorized representative of petitioner which show the payment of amounts in excess of those allowed by the POEA. In contrast, petitioner did not present any evidence whatsoever to rebut the claims of private respondents despite the many opportunities for them to do so.
There is merit in the argument. In Taada vs. Tuvera

[20]
, the Court held, as follows:
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and the public, need not be
26
Petitioner insists, however, that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees which may be collected from applicants, is void for lack of publication.
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published. Neither is publication required of the so-called letter of instructions issued by the administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. Applying this doctrine, we have previously declared as having no force and effect the following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee [21] regarding the accreditation of hospitals, medical clinics and laboratories ; b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by [22] distressed copper mining companies to the national government ; c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong [23] Kong ; d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the [24] Peoples Republic of China ; and e) Corporate Compensation Circular No. 10 issued by the Department of Budget and Management discontinuing the payment of [25] other allowances and fringe benefits to government officials and employees . In all these cited cases, the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative [26] Register as required by the Administrative Code of 1987 . POEA Memorandum Circular No. 2, Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register. POEA Memorandum Order No. 2, Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Under the said Order, the maximum amount which may be collected from prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code which provides, as follows: Article 32. Fees to be paid by workers. Any person applying with a private feecharging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the approved receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees. (italics supplied) It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce [27] and implement an existing law pursuant to a valid delegation . Considering that POEA Administrative Circular No. 2, Series of 1983 has not as yet been published or filed with the National Administrative Register, the same is ineffective and may not be enforced. The Office of the Solicitor General argues however that the imposition of administrative sanctions on petitioner was based not on the questioned [28] administrative circular but on Article 32 and Article 34 (a) of the Labor Code. The argument is not meritorious. The said articles of the Labor Code were never cited, much less discussed, in the body of the questioned Orders of the POEA and Secretary of Labor and Employment. In fact, the said Orders were consistent in mentioning that petitioners violation of Administrative Circular No. 2, Series of 1983 was the basis for the imposition of administrative sanctions against petitioner. Furthermore, even assuming that petitioner was held liable under the said provisions of the Labor Code, Articles 32 and 34 (a) of the Labor Code presupposes the promulgation of a valid schedule of fees by the Department of Labor and Employment. Considering that, as previously discussed, Administrative Circular No. 2, Series of 1983 embodying such a schedule of fees never took effect, there is thus no basis for the imposition of the administrative sanctions against petitioner. Moreover, under Book VI, Chapter II, Section 3 of the Administrative Code of 1987, (r)ules in force on the date of the effectivity of this Code which are not filed within three (3) months from that date shall not thereafter be the basis of any sanction against any party or persons. Considering that POEA Administrative Circular No. 2 was never filed with the National Administrative Register, the same cannot be used as basis for the imposition of administrative sanctions against petitioner. The Office of the Solicitor General likewise argues that the questioned administrative circular is not among those requiring publication contemplated by Taada vs. Tuvera as it is addressed only to a specific group of persons and not to the general public. Again, there is no merit in this argument. The fact that the said circular is addressed only to a specified group, namely private employment agencies or authority holders, does not take it away from the ambit of our ruling in Taada vs. Tuvera. In the case of Phil. Association of Service [29] Exporters vs. Torres , the administrative circulars questioned therein were addressed to an even smaller group, namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of proper publication, the said circulars may not be enforced or implemented.
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Our pronouncement in Taada vs. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be followed by their subordinates in the performance of their duties. Administrative Circular No. 2, Series of 1983 has not been shown to fall under any of these exceptions. In this regard, the Solicitor Generals reliance on the case of Yaokasin vs. [30] Commissioner of Customs is misplaced. In the said case, the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons, the customs collectors, who were also the subordinates of the Commissioner of the Bureau of Customs. As such, the said Memorandum Orders clearly fall under one of the exceptions to the publication requirement, namely those dealing with instructions from an administrative superior to a subordinate regarding the performance of their duties, a circumstance which does not obtain in the case at bench. With respect to the second ground, petitioner would want us to review the findings of fact of the POEA regarding the two counts of alleged contract substitution. Again, this is a question of fact which may not be disturbed if the same is supported by substantial evidence. A reading of the August 29, 1988 Order of the POEA shows that, indeed, the ruling that petitioner is guilty of two (2) counts of prohibited contract substitution is supported by substantial evidence. Thus: 2. As admitted by respondent, there was definitely a contract of substitution in the first count. The first contract was duly approved by the Administration and, therefore, the parties are bound by the terms and condition thereof until its expiration. The mere intention of respondents to increase the number of hours of work, even if there was a corresponding increase in wage is clear violation of the contract as approved by the Administration, and notwithstanding the same, the amendment is evidently contrary to law, morals, good customs and public policy and hence, must be shunned (Art. 1306, Civil Code of the Philippines, Book III, Title I, Chapter 1, Article 83, Labor Code of the Philippines, as amended). Moreover, it would appear that the proposed salary increase corresponding to the increase in number of work bonus may just have been a ploy as complainant were (sic) thereafter not paid at the increased rate. As to contract substitution in the second part, a third contract was emphatically intended by respondent to be signed by complainants which, however, was not consummated due to the adamant refusal of complainants to sign thereon. Mere intention of the respondent to commit contract substitution for a second time should not be left unpunished. It is the duty of this Office to repress such acts by teaching [31] agencies a lesson to avoid repetition of the same violation. With respect to the third ground, petitioner argues that the public respondent committed grave abuse of discretion in holding petitioner liable for illegal deductions/withholding of salaries considering that the Supreme Court itself has already absolved petitioner from this charge. Petitioner premises its argument on the fact that the July 26, 1989 Decision of the NLRC absolving it from private respondent de Mesas claim for salary deduction has already attained finality by reason of the dismissal of private respondents petition for certiorari of the said NLRC decision by the Supreme Court. Petitioner is correct in stating that the July 26, 1989 Decision of the NLRC has attained finality by reason of the dismissal of the petition for certiorari assailing the same. However, the said NLRC Decision dealt only with the money claims of private respondents arising from employer-employee relations and illegal dismissal and as such, it is only for the payment of the said money claims that petitioner is absolved. The administrative sanctions, which are distinct and separate from the money claims of private respondents, may still be properly imposed by the POEA. In fact, in the August 31, 1988 Decision of the POEA dealing with the money claims of private respondents, the POEA Adjudication Office precisely declared that respondents liability for said money claims is without prejudice to and independent of its liabilities for the recruitment violations aspect of the case [32] which is the subject of a separate Order. The NLRC Decision absolving petitioner from paying private respondent de Mesas claim for salary deduction based its ruling on a finding that the said money claim [33] was not raised in the complaint . While there may be questions regarding such finding of the NLRC, the finality of the said NLRC Decision prevents us from modifying or reviewing the same. But the fact that the claim for salary deduction was not raised by private respondents in their complaint will not bar the POEA from holding petitioner liable for illegal deduction or withholding of salaries as a ground for the suspension or cancellation of petitioners license. Under the POEA Rules and Regulations, the POEA, on its own initiative, may conduct the necessary proceeding for the suspension or cancellation of the license [34] of any private placement agency on any of the grounds mentioned therein. As such, even without a written complaint from an aggrieved party, the POEA can initiate proceedings against an erring private placement agency and, if the result of its investigation so warrants, impose the corresponding administrative sanction thereof. Moreover, the POEA, in an investigation of an employer-employee relationship case, may still hold a respondent liable for administrative sanctions if,
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in the course of its investigation, violations of recruitment regulations are [35] uncovered. It is thus clear that even if recruitment violations were not included in a complaint for money claims initiated by a private complainant, the POEA, under its rules, may still take cognizance of the same and impose administrative sanctions if the evidence so warrants. As such, the fact that petitioner has been absolved by final judgment for the payment of the money claim to private respondent de Mesa does not mean that it is likewise absolved from the administrative sanctions which may be imposed as a result of the unlawful deduction or withholding of private respondents salary. The POEA thus committed no grave abuse of discretion in finding petitioner administratively liable of one count of unlawful deduction/withholding of salary. To summarize, petitioner should be absolved from the three (3) counts of illegal exaction as POEA Administrative Circular No. 2, Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. However, we affirm the ruling of the POEA and the Secretary of Labor and Employment that petitioner should be held administratively liable for two (2) counts of contract substitution and one (1) count of withholding or unlawful deduction of salary. Under the applicable schedule of penalties imposed by the POEA, the penalty for each count of contract substitution is suspension of license for two (2) months or a fine of P10,000.00 while the penalty for withholding or unlawful deduction of salaries is suspension of license for two (2) months or fine equal to the salary withheld but not [36] less than P10,000.00 plus restitution of the amount in both instances . Applying the said schedule on the instant case, the license of petitioner should be suspended for six (6) months or, in lieu thereof, it should be ordered to pay fine in the amount of P30,000.00. Petitioner should likewise pay the amount of SR1,000.00 to private respondent Vivencio A. de Mesa as restitution for the amount withheld from his salary. WHEREFORE, premises considered, the September 13, 1991 and November 25, 1991 Orders of public respondent Secretary of Labor and Employment are hereby MODIFIED. As modified, the license of private respondent Philsa International Placement and Services Corporation is hereby suspended for six (6) months or, in lieu thereof, it is hereby ordered to pay the amount of P30,000.00 as fine. Petitioner is likewise ordered to pay the amount of SR1,000.00 to private respondent Vivencio A. de Mesa. All other monetary awards are deleted. SO ORDERED.
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G.R. No. 159747 April 13, 2004 The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted verbatim, to wit: 1. That I am a member of the Communication Electronics and Information Systems Services, Armed Forces of the Philippines with the rank of Major; 2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during our Very Important Person (VIP) Protection Course sometime in last week of March 2003; 3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took the pamphlet but never had the time to read it; 4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in a meeting where the NRP would be discussed and that there would be a special guest; 5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4, 2003 in a house located somewhere in San Juan, Metro Manila; 6. That upon arrival we were given a document consisting of about 3-4 pages containing discussion of issues and concerns within the framework of NRP and we were likewise served with dinner; 7. That while we were still having dinner at about past 11 o'clock in the evening, Sen. Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as Capt. Turingan; 8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by Sen. Honasan; 9. That Sen. Honasan discussed the NRP, the graft and corruption in the government including the military institution, the judiciary, the executive branch and the like; 10. That the discussion concluded that we must use force, violence and armed struggle to achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms will be achieved through the democratic processes and not thru force and violence and/or armed struggle. Sen. Honasan countered that "we will never achieve reforms through the democratic processes because the people who are in power will not give up their positions as they have their vested interests
GREGORIO B. HONASAN II, petitioner, vs. THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG, JR.), CIDG-PNP- P/DIRECTOR EDUARDO 8 MATILLANO, and HON. OMBUDSMAN SIMEON V. MARCELO, respondents.
DECISION AUSTRIA-MARTINEZ, J.: On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part: 2. After a thorough investigation, I found that a crime of coup d'etat was indeed th committed by military personnel who occupied Oakwood on the 27 day of July 2003 and Senator Gregorio "Gringo"Honasan, II 3. 4. The said crime was committed as follows: 4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a meeting was held and presided by Senator Honasan. Attached as Annex "B" is the affidavit of Perfecto Ragil and made an integral part of this complaint. 4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf of the military rebels occupying Oakwood, made a public statement aired on nation television, stating their withdrawal of support to the chain of command of the AFP and the Government of President Gloria Macapagal Arroyo and they are willing to risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan, which they believe is the only program that would solve the ills of society. . . . (Emphasis supplied).
8
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to protect." After a few more exchanges of views, Sen. Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then asked whether all those present numbering 30 people, more or less, are really committed, Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions; 11. That in the course of the meeting, he presented the plan of action to achieve the goals of NRP, i.e., overthrow of the government under the present leadership thru armed revolution and after which, a junta will be constituted and that junta will run the new government. He further said that some of us will resign from the military service and occupy civilian positions in the new government. He also said that there is urgency that we implement this plan and that we would be notified of the next activities. 12. That after the discussion and his presentation, he explained the rites that we were to undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge and we all recited it with raised arms and clenched fists. He then took a knife and demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter "H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape. He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it. Everybody else followed; 13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a portion of it to let it bleed and I followed what Senator HONASAN did; 14. That I did not like to participate in the rites but I had the fear for my life with what Senator HONASAN said that "kaya nating pumatay ng kasamahan"; 15. That after the rites, the meeting was adjourned and we left the place; 16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would not notice it for fear of my life due to the threat made by Senator HONASAN during the meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their group had already deeply established their network inside the intelligence community; 17. That sometime in the first week of July 2003, Captain Alejano came to see me to return the rifle that he borrowed and told me that when the group arrives at the Malacaang Compound for "D-DAY", my task is to switch off the telephone PABX that Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply. On September 10, 2003, the DOJ Panel issued an Order, to wit: On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the said motion. The motion and comment/opposition are hereby duly noted and shall be passed upon in the resolution of this case. serves the Malacaang complex. I told him that I could not do it. No further conversation ensued and he left; 18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain th Alejano and some others who were present during the June 4 meeting that I attended, having a press conference about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands and the banner is the same letter "I" in the banner which was displayed and on which we pressed our wound to leave the imprint of the letter "I"; 19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN, Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat". (Emphasis supplied) The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary investigation. On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case considering that he belongs to the group of public officials with Salary Grade 31; and praying that the proceedings be suspended until final resolution of his motion.
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In the meantime, in view of the submission by complainant of additional affidavits/evidence and to afford respondents ample opportunity to controvert the same, respondents, thru counsel are hereby directed to file their respective counter1 affidavits and controverting evidence on or before September 23, 2003. Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the Rules of Court against the DOJ Panel and its members, CIDG-PNPP/Director Eduardo Matillano and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no jurisdiction to conduct the preliminary investigation. Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ Panel, and Director Matillano submitted their respective comments. The Court heard the parties in oral arguments on the following issues: 1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to conduct preliminary investigation over the charge of coup d'etat against petitioner; 2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act No. 6770 or Ombudsman Act of 1989; and 3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation. After the oral arguments, the parties submitted their respective memoranda. The arguments of petitioner are: 1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation over all public officials, including petitioner. 2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular No. 95-001 to conduct the preliminary investigation involving Honasan. 3. Even if deputized, the respondent DOJ Panel is still without authority since OMBDOJ Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication, hence null and void. 4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the Ombudsman which has the jurisdiction to conduct the preliminary investigation. 5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the preliminary investigation. 6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to resolve petitioner's Motion stating its legal and factual bases. The arguments of respondent DOJ Panel are: 1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation to P.D. No. 1275, as amended by P.D. No. 1513. 2. Petitioner is charged with a crime that is not directly nor intimately related to his public office as a Senator. The factual allegations in the complaint and the supporting affidavits are bereft of the requisite nexus between petitioner's office and the acts complained of. 3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from any provision of the joint circular which embodies the guidelines governing the authority of both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on offenses charged in relation to public office. 4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction which, for all intents and purposes, is actually a motion to dismiss that is a prohibited pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ Panel is not required to act or even recognize it since a preliminary investigation is required solely for the purpose of determining whether there is a 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. The DOJ panel did not outrightly reject the motion of petitioner but ruled to pass upon the same in the determination of the probable cause; thus, it has not violated any law or rule or any norm of discretion.
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The arguments of respondent Ombudsman are: 1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606, as amended by R.A. No. 7975 and R.A. No. 8249. 2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No. 95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct preliminary investigation of cases involving public officials has been recognized in Sanchez vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the Revised Rules of Criminal Procedure. 3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized by the Ombudsman en masse but must be given in reference to specific cases has no factual or legal basis. There is no rule or law which requires the Ombudsman to write out individualized authorities to deputize prosecutors on a per case basis. The power of the Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to request assistance from any government agency necessary to discharge its functions, as well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA 6770. 4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the Ombudsman need not be published since it neither contains a penal provision nor does it prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the conduct of persons or the public, in general. The Court finds the petition without merit. The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001 but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing the DOJ, which provides: Sec. 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; Sec. 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; (Emphasis supplied) and Section 1 of P.D. 1275, effective April 11, 1978, to wit: 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 Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. (Emphasis supplied) Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which confers upon the Office of the Ombudsman the power to 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. Petitioner rationalizes that the 1987 Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant to Article 7 of the Civil Code, which provides: Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. and Mabanag vs. Lopez Vito.
2
The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz:
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SEC. 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. does not exclude other government agencies tasked by law to investigate and prosecute cases involving public officials. If it were the intention of the framers of the 1987 Constitution, they would have expressly declared the exclusive conferment of the power to the Ombudsman. Instead, paragraph (8) of the same Section 13 of the Constitution provides: (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989." Section 15 thereof 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 the government, the investigation of such cases . . (Emphasis supplied) Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of 1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain Rules of Procedure of the Ombudsman, to wit: A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any public officer or employee including those in government-owned or controlled corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman case. Such a complaint may be the subject of criminal or administrative proceedings, or both. For purposes of investigation and prosecution, Ombudsman cases involving criminal offenses may be subdivided into two classes, to wit: (1) those cognizable by the Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The difference between the two, aside from the category of the courts wherein they are filed, is on the authority to investigate as distinguished from the authority to prosecute, such cases . The power to investigate or conduct a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regular capacities or as deputized Ombudsman prosecutors. The prosecution of cases cognizable by the Sandiganbayan shall be under the direct exclusive control and supervision of the Office of the Ombudsman. In cases cognizable by the regular Courts, the control and supervision by the Office of the Ombudsman is only in Ombudsman cases in the sense defined above. The law recognizes a concurrence of jurisdiction between the Office of the Ombudsman and other investigative agencies of the government in the prosecution of cases cognizable by regular courts. (Emphasis supplied) It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which specifically provides that the Ombudsman 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 investigating agency of the government, the investigation of such cases. That the power of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government such as the provincial, city and state prosecutors has long been settled in several decisions of the Court. In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court expressly declared:
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A reading of the foregoing provision of the Constitution does not show that the power of investigation including preliminary investigation vested on the Ombudsman is 3 exclusive. Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act, the Court held in said case: Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any stage from any investigatory agency of the government, the investigation of such cases. The authority of the Ombudsman to investigate offenses involving public officers or employees is not exclusive but is concurrent with other similarly authorized agencies of the government. Such investigatory agencies referred to include the PCGG and the provincial and city prosecutors and their assistants, the state prosecutors and the judges of the municipal trial courts and municipal circuit trial court. In other words the provision of the law has opened up the authority to conduct preliminary investigation of offenses cognizable by the Sandiganbayan to all investigatory agencies of the government duly authorized to conduct a preliminary investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with the only qualification that the Ombudsman may take over at any stage of such investigation in the exercise of his primary 4 jurisdiction. (Emphasis supplied) A little over a month later, the Court, in Deloso vs. Domingo, pronounced that the Ombudsman, under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any crime committed by a public official, elucidating thus: As protector of the people, the office of the Ombudsman has the power, function and duty to "act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and to "investigate x x x any act or omission of any public official x x x when such act or omission appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take appropriate action against a public official x x x and to recommend his prosecution" (Sec. 13[3]). The clause "any [illegal] act or omission of any public official" is broad enough to embrace any crime committed by a public official. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be
5
connected with or arise from, the performance of official duty. Since the law does not distinguish, neither should we. The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it of broad investigative authority, is to insulate said office from the long tentacles of officialdom that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution of erring public officials, and through the exertion of official pressure and influence, quash, delay, or dismiss investigations into malfeasances and misfeasances committed by public officers. It was deemed necessary, therefore, to create a special office to investigate all criminal complaints against public officers regardless of whether or not the acts or omissions complained of are related to or arise from the performance of the duties of their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the Ombudsman encompasses "all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office" (Sec. 16, R.A. 6770). ......... Indeed, the labors of the constitutional commission that created the Ombudsman as a special body to investigate erring public officials would be wasted if its jurisdiction were confined to the investigation of minor and less grave offenses arising from, or related to, the duties of public office, but would exclude those grave and terrible crimes that spring from abuses of official powers and prerogatives, for it is the investigation of the latter where the need for an independent, fearless, and 6 honest investigative body, like the Ombudsman, is greatest. At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco, Jr. case and theDeloso case. However, the contrariety is more apparent than real. In subsequent cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate. In 1993, the Court held in Sanchez vs. Demetriou, that while it may be true that the Ombudsman has jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority of the Ombudsman to investigate is merely a primary and not an exclusive authority, thus: The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to investigate and prosecute any illegal act or omission of any public official. However as we held only two years ago in the case of Aguinaldo vs.
7
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Domagas, this authority "is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged." Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal acts or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive authority but rather a shared or concurrent authority in respect of the offense charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority of the panel of prosecutors to file and prosecute the information or amended information. In fact, other investigatory agencies of the government such as the Department of Justice in connection with the charge of sedition, and the Presidential Commission on Good Government, in ill gotten wealth cases, may conduct the 9 investigation. (Emphasis supplied) In Natividad vs. Felix, a 1994 case, where the petitioner municipal mayor contended that it is the Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary investigation over his case for alleged Murder, the Court held: The Deloso case has already been re-examined in two cases, namely Aguinaldo vs. Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan since the Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former. In the process, we shall observe how the policy of the law, with reference to the subject matter, has been in a state of flux. These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -the first law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres. Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860; and (e) Pres. Decree No. 1861. The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:
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"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read as follows: 'SEC. 4. Jurisdiction. The Sandiganbayan shall exercise: '(a) Exclusive original jurisdiction in all cases involving: ... (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporation, whether simple or complexed with other crimes, where the penalty prescribed by law is higher thatprision correccional or imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine ofP6,000 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court." A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2) for an offense to fall under the Sandiganbayan's jurisdiction, namely: the offense committed by the public officer must be in relation to his office and the penalty prescribed be higher then prision correccional or imprisonment for six (6) 11 years, or a fine of P6,000.00. Applying the law to the case at bench, we find that although the second requirement has been met, the first requirement is wanting. A review of these Presidential Decrees, except Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or employees must be "in relation to their office" if it is to fall within the jurisdiction of the Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary jurisdiction on its power to investigate. It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as earlier mentioned, the Ombudsman's power to investigate is dependent on the cases cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the same person or thing or to the same class of persons or things, or object, or cover the same specific or particular subject matter.
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It is axiomatic in statutory construction that a statute must be interpreted, not only to be consistent with itself, but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system. The rule is expressed in the maxim, " interpretare et concordare legibus est optimus interpretandi," or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence. Thus, in the application and interpretation of Article XI, Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres. Decree No. 1861 must be taken into consideration. It must be assumed that when the 1987 Constitution was written, its framers had in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the 1987 Constitution and the Ombudsman Act of 1989 are deemed in accord with 12 existing statute, specifically, Pres. Decree No. 1861. (Emphasis supplied) R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861) likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c), to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by public officers or employees in relation to their office. In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases against public officers involving violations of penal laws but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary jurisdiction take over at any stage. Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the conduct of their investigations, to wit: OMB-DOJ JOINT CIRCULAR NO. 95-001 Series of 1995 TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE OF THE OMBUDSMAN ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE. SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS. x-------------------------------------------------------------------------------------------------------x In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on the extent to which the ombudsman may call upon the government prosecutors for assistance in the investigation and prosecution of criminal cases cognizable by his office and the conditions under which he may do so. Also discussed was Republic Act No. 7975 otherwise known as "an act to strengthen the functional and structural organization of the sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and its implications on the jurisdiction of the office of the Ombudsman on criminal offenses committed by public officers and employees. Concerns were expressed on unnecessary delays that could be caused by discussions on jurisdiction between the OFFICE OF THE OMBUDSMAN and the department of justice, and by procedural conflicts in the filing of complaints against public officers and employees, the conduct of preliminary investigations, the preparation of resolutions and informations, and the prosecution of cases by provincial and city prosecutors and their assistants as deputized prosecutors of the ombudsman. Recognizing the concerns, the office of the ombudsman and the department of justice, in a series of consultations, have agreed on the following guidelines to be observed in the investigation and prosecution of cases against public officers and employees:
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1. Preliminary investigation and prosecution of offenses committed by public officers and employees in relation to office whether cognizable by the sandiganbayan or the regular courts, and whether filed with the office of the ombudsman or with the office of the provincial/city prosecutor shall be under the control and supervision of the office of the ombudsman. 2. Unless the Ombudsman under its Constitutional mandate finds reason to believe otherwise, offenses not in relation to office and cognizable by the regular courts shall be investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule thereon with finality. 3. Preparation of criminal information shall be the responsibility of the investigating officer who conducted the preliminary investigation. Resolutions recommending prosecution together with the duly accomplished criminal informations shall be forwarded to the appropriate approving authority. 4. Considering that the office of the ombudsman has jurisdiction over public officers and employees and for effective monitoring of all investigations and prosecutions of cases involving public officers and employees, the office of the provincial/city prosecutor shall submit to the office of the ombudsman a monthly list of complaints filed with their respective offices against public officers and employees. Manila, Philippines, October 5, 1995. (signed) TEOFISTO T. GUINGONA, Secretary Department of Justice JR. (signed) ANIANO A. Ombudsman Office of the Ombudsman DESIERTO (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law. Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information, He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in
A close examination of the circular supports the view of the respondent Ombudsman that it is just an internal agreement between the Ombudsman and the DOJ. Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary Investigation, effective December 1, 2000, to wit: SEC. 2. Officers authorized to conduct preliminary investigationsThe following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants;
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preliminary investigations conducted by the officers of the Office of the Ombudsman. (Emphasis supplied) confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal complaints filed with them for offenses cognizable by the proper court within their respective territorial jurisdictions, including those offenses which come within the original jurisdiction of the Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an Information with the Sandiganbayan without being deputized by, and without prior written authority of the Ombudsman or his deputy. Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary investigation of the charge filed against him. We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on charges filed against public officers and employees. To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges against any public officers or employees may be exercised by an investigator or by any provincial or city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by the Ombudsman to conduct the preliminary investigation for complaints filed with it because the DOJ's authority to act as the principal law agency of the government and investigate the commission of crimes under the Revised Penal Code is derived from 13 the Revised Administrative Code which had been held in the Natividad case as not being contrary to the Constitution. Thus, there is not even a need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage of the investigation. Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the matter, to wit: Petitioner appears to be of the belief, although NOT founded on a proper reading and application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal arrangement between the DOJ and the Office of the Ombudsman, has to be published. As early as 1954, the Honorable Court has already laid down the rule in the case of People vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a penalty for its violation should be published before becoming effective, this, on the general principle and theory that before the public is bound by its contents, especially its penal provision, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and its penalties: said precedent, to date, has not yet been modified or reversed. OMBDOJ Joint Circular No. 95-001 DOES NOT contain any penal provision or prescribe a mandatory act or prohibit any, under pain or penalty. What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court ruled that: Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (at page 454. emphasis supplied) OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in general. Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint 14 Circular No. 95-001 has to be published. Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation because petitioner is a public officer with salary Grade 31 so that the case against him falls exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ has concurrent jurisdiction to
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investigate charges against public officers, the fact that petitioner holds a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate the charge of coup d'etat against him. The question whether or not the offense allegedly committed by petitioner is one of those enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the Sandiganbayan will not be resolved in the present petition so as not to preempt the result of the investigation being conducted by the DOJ Panel as to the questions whether or not probable cause exists to warrant the filing of the information against the petitioner; and to which court should the information be filed considering the presence of other respondents in the subject complaint. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. SO ORDERED.
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G.R. No. 147096 January 15, 2002 In view of the recent grant of two (2) separate Provisional Authorities in favor of ISLACOM and GMCR, Inc., which resulted in the closing out of all available frequencies for the service being applied for by herein applicant, and in order that this case may not remain pending for an indefinite period of time, AS PRAYED FOR, let this case be, as it is, hereby ordered ARCHIVED without prejudice to its reinstatement if and when the requisite frequency becomes available. SO ORDERED. x---------------------------------------------------------x G.R. No. 147210 January 15, 2002 On June 18, 1998, the NTC issued Memorandum Circular No. 5-6-98 re-allocating five (5) megahertz (MHz) of the radio frequency spectrum for the expansion of CMTS networks. The re-allocated 5 MHz were taken from the following bands: 5 1730-1732.5 / 1825-1827.5 MHz and 1732.5-1735 / 1827.5-1830 MHz. Likewise, on March 23, 1999, Memorandum Circular No. 3-3-99 was issued by the NTC re-allocating an additional five (5) MHz frequencies for CMTS service, namely: 1735-1737.5 / 1830-1832.5 MHz; 1737.5-1740 / 1832.5-1835 MHz; 1740-1742.5 / 6 1835-1837.5 MHz; and 1742.5-1745 / 1837.5-1840 MHz. On May 17, 1999, Bayantel filed an Ex-Parte Motion to Revive Case, citing the availability of new frequency bands for CMTS operators, as provided for under Memorandum Circular No. 3-3-99.
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REPUBLIC OF THE PHILIPPINES, represented by NATIONAL TELECOMMUNICATIONS COMMISSION,petitioner, vs. EXPRESS TELECOMMUNICATION CO., INC. and BAYAN TELECOMMUNICATIONS CO., INC., respondents.
BAYAN TELECOMMUNICATIONS (Bayantel), INC., petitioner, vs. 9 EXPRESS TELECOMMUNICATION CO., INC. (Extelcom), respondent.
YNARES-SANTIAGO, J.: On December 29, 1992, International Communications Corporation (now Bayan Telecommunications, Inc. or Bayantel) filed an application with the National Telecommunications Commission (NTC) for a Certificate of Public Convenience or Necessity (CPCN) to install, operate and maintain a digital Cellular Mobile Telephone System/Service (CMTS) with prayer for a Provisional Authority (PA). The application 1 was docketed as NTC Case No. 92-486. Shortly thereafter, or on January 22, 1993, the NTC issued Memorandum Circular No. 4-1-93 directing all interested applicants for nationwide or regional CMTS to file their respective applications before the Commission on or before February 15, 1993, and 2 deferring the acceptance of any application filed after said date until further orders. On May 6, 1993, and prior to the issuance of any notice of hearing by the NTC with respect to Bayantel's original application, Bayantel filed an urgent ex-parte motion to 3 admit an amended application. On May 17, 1993, the notice of hearing issued by the NTC with respect to this amended application was published in the Manila Chronicle. Copies of the application as well as the notice of hearing were mailed to all affected parties. Subsequently, hearings were conducted on the amended application. But before Bayantel could complete the presentation of its evidence, the NTC issued an Order dated December 19, 1993 stating:
Respondent Express Telecommunication Co., Inc. (Extelcom) filed in NTC Case No. 92-486 an Opposition (With Motion to Dismiss) praying for the dismissal of 9 Bayantel's application. Extelcom argued that Bayantel's motion sought the revival of an archived application filed almost eight (8) years ago. Thus, the documentary evidence and the allegations of respondent Bayantel in this application are all outdated and should no longer be used as basis of the necessity for the proposed CMTS service. Moreover, Extelcom alleged that there was no public need for the service applied for by Bayantel as the present five CMTS operators --- Extelcom, Globe Telecom, Inc., Smart Communication, Inc., Pilipino Telephone Corporation, and Isla Communication Corporation, Inc. --- more than adequately addressed the market demand, and all are in the process of enhancing and expanding their respective networks based on recent technological developments. 1wphi1.nt
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On February 1, 2000, the NTC granted BayanTel's motion to revive the latter's application and set the case for hearings on February 9, 10, 15, 17 and 22, 8 2000. The NTC noted that the application was ordered archived without prejudice to its reinstatement if and when the requisite frequency shall become available.
Administrative Law
Extelcom likewise contended that there were no available radio frequencies that could accommodate a new CMTS operator as the frequency bands allocated in NTC Memorandum Circular No. 3-3-99 were intended for and had in fact been applied for by the existing CMTS operators. The NTC, in its Memorandum Circular No. 4-1-93, declared it its policy to defer the acceptance of any application for CMTS. All the frequency bands allocated for CMTS use under the NTC's Memorandum Circular No. 5-11-88 and Memorandum Circular No. 2-12-92 had already been allocated to the existing CMTS operators. Finally, Extelcom pointed out that Bayantel is its substantial stockholder to the extent of about 46% of its outstanding capital stock, and Bayantel's application undermines the very operations of Extelcom. On March 13, 2000, Bayantel filed a Consolidated Reply/Comment, stating that the opposition was actually a motion seeking a reconsideration of the NTC Order reviving the instant application, and thus cannot dwell on the material allegations or the merits of the case. Furthermore, Extelcom cannot claim that frequencies were not available inasmuch as the allocation and assignment thereof rest solely on the discretion of the NTC. In the meantime, the NTC issued on March 9, 2000 Memorandum Circular No. 9-32000, re-allocating the following radio frequency bands for assignment to existing CMTS operators and to public telecommunication entities which shall be authorized to install, operate and maintain CMTS networks, namely: 1745-1750MHz / 18401845MHz; 1750-1775MHz / 1845-1850MHz; 1765-1770MHz / 1860-1865MHz; and 11 1770-1775MHz / 1865-1870MHz. On May 3, 2000, the NTC issued an Order granting in favor of Bayantel a provisional 12 authority to operate CMTS service. The Order stated in pertinent part: On the issue of legal capacity on the part of Bayantel, this Commission has already taken notice of the change in name of International Communications Corporation to Bayan Telecommunications, Inc. Thus, in the Decision entered in NTC Case No. 93284/94-200 dated 19 July 1999, it was recognized that Bayan Telecommunications, Inc., was formerly named International Communications Corp. Bayantel and ICC Telecoms, Inc. are one and the same entity, and it necessarily follows that what legal capacity ICC Telecoms has or has acquired is also the legal capacity that Bayantel possesses. On the allegation that the Commission has committed an error in allowing the revival of the instant application, it appears that the Order dated 14 December 1993 archiving the same was anchored on the non-availability of frequencies for CMTS. In the same Order, it was expressly stated that the archival hereof, shall be without prejudice to its reinstatement "if and when the requisite frequency becomes
10
available." Inherent in the said Order is the prerogative of the Commission in reviving the same, subject to prevailing conditions. The Order of 1 February 2001, cited the availability of frequencies for CMTS, and based thereon, the Commission, exercising its prerogative, revived and reinstated the instant application. The fact that the motion for revival hereof was made ex-parte by the applicant is of no moment, so long as the oppositors are given the opportunity to be later heard and present the merits of their respective oppositions in the proceedings. On the allegation that the instant application is already obsolete and overtaken by developments, the issue is whether applicant has the legal, financial and technical capacity to undertake the proposed project. The determination of such capacity lies solely within the discretion of the Commission, through its applicable rules and regulations. At any rate, the oppositors are not precluded from showing evidence disputing such capacity in the proceedings at hand. On the alleged non-availability of frequencies for the proposed service in view of the pending applications for the same, the Commission takes note that it has issued Memorandum Circular 9-32000, allocating additional frequencies for CMTS. The eligibility of existing operators who applied for additional frequencies shall be treated and resolved in their respective applications, and are not in issue in the case at hand. Accordingly, the Motions for Reconsideration filed by SMARTCOM and GLOBE TELECOMS/ISLACOM and the Motion to Dismiss filed by EXTELCOM are hereby 13 DENIED for lack of merit. The grant of the provisional authority was anchored on the following findings: COMMENTS: 1. Due to the operational mergers between Smart Communications, Inc. and Pilipino Telephone Corporation (Piltel) and between Globe Telecom, Inc. (Globe) and Isla Communications, Inc. (Islacom), free and effective competition in the CMTS market is threatened. The fifth operator, Extelcom, cannot provide good competition in as much as it provides service using the analog AMPS. The GSM system dominates the market. 2. There are at present two applicants for the assignment of the frequencies in the 1.7 Ghz and 1.8 Ghz allocated to CMTS, namely Globe and Extelcom. Based on the number of subscribers Extelcom has, there appears to be no congestion in its network - a condition that is necessary for an applicant to be assigned additional frequencies. Globe has yet to prove that there is congestion in its network considering its operational merger with Islacom.
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3. Based on the reports submitted to the Commission, 48% of the total number of cities and municipalities are still without telephone service despite the more than 3 million installed lines waiting to be subscribed. CONCLUSIONS: 1. To ensure effective competition in the CMTS market considering the operational merger of some of the CMTS operators, new CMTS operators must be allowed to provide the service. 2. The re-allocated frequencies for CMTS of 3 blocks of 5 Mhz x 2 is sufficient for the number of applicants should the applicants be qualified. 3. There is a need to provide service to some or all of the remaining cities and municipalities without telephone service. 4. The submitted documents are sufficient to determine compliance to the technical requirements. The applicant can be directed to submit details such as channeling plans, exact locations of cell sites, etc. as the project implementation progresses, actual area coverage ascertained and traffic data are made available. Applicant appears to be technically qualified to undertake the proposed project and offer the proposed service. IN VIEW OF THE FOREGOING and considering that there is prima facie evidence to show that Applicant is legally, technically and financially qualified and that the proposed service is technically feasible and economically viable, in the interest of public service, and in order to facilitate the development of telecommunications services in all areas of the country, as well as to ensure healthy competition among authorized CMTS providers, let a PROVISIONAL AUTHORITY (P.A.) be issued to Applicant BAYAN TELECOMMUNICATIONS, INC. authorizing it to construct, install, operate and maintain a Nationwide Cellular Mobile Telephone Systems (CMTS), subject to the following terms and conditions without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority, in accordance with Section 3, Rule 15, Part IV of the Commission's Rules of 14 Practice and Procedure. xxx. Extelcom filed with the Court of Appeals a petition for certiorari and 15 prohibition, docketed as CA-G.R. SP No. 58893, seeking the annulment of the Order reviving the application of Bayantel, the Order granting Bayantel a provisional authority to construct, install, operate and maintain a nationwide CMTS, and Memorandum Circular No. 9-3-2000 allocating frequency bands to new public telecommunication entities which are authorized to install, operate and maintain CMTS. On September 13, 2000, the Court of Appeals rendered the assailed 16 Decision, the dispositive portion of which reads: WHEREFORE, the writs of certiorari and prohibition prayed for are GRANTED. The Orders of public respondent dated February 1, 2000 and May 3, 2000 in NTC Case No. 92-486 are hereby ANNULLED and SET ASIDE and the Amended Application of respondent Bayantel is DISMISSED without prejudice to the filing of a new CMTS application. The writ of preliminary injunction issued under our Resolution dated August 15, 2000, restraining and enjoining the respondents from enforcing the Orders dated February 1, 2000 and May 3, 2000 in the said NTC case is hereby made permanent. The Motion for Reconsideration of respondent Bayantel dated August 28, 2000 is denied for lack of merit. SO ORDERED.
17
Bayantel filed a motion for reconsideration of the above decision. The NTC, represented by the Office of the Solicitor General (OSG), also filed its own motion 19 for reconsideration. On the other hand, Extelcom filed a Motion for Partial Reconsideration, praying that NTC Memorandum Circular No. 9-3-2000 be also 20 declared null and void. On February 9, 2001, the Court of Appeals issued the assailed Resolution denying 21 all of the motions for reconsideration of the parties for lack of merit. Hence, the NTC filed the instant petition for review on certiorari, docketed as G.R. No. 147096, raising the following issues for resolution of this Court: A. Whether or not the Order dated February 1, 2000 of the petitioner which revived the application of respondent Bayantel in NTC Case No. 92-486 violated respondent Extelcom's right to procedural due process of law; B. Whether or not the Order dated May 3, 2000 of the petitioner granting respondent Bayantel a provisional authority to operate a CMTS is in substantial compliance with NTC Rules of Practice and Procedure and Memorandum Circular 22 No. 9-14-90 dated September 4, 1990. Subsequently, Bayantel also filed its petition for review, docketed as G.R. No. 147210, assigning the following errors:
18
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Administrative Law
I. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE PRINCIPLE OF "EXHAUSTION OF ADMINISTRATIVE REMEDIES" WHEN IT FAILED TO DISMISS HEREIN RESPONDENT'S PETITION FOR CERTIORARI DESPITE ITS FAILURE TO FILE A MOTION FOR RECONSIDERATION. II. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE REVIVAL OF NTC CASE NO. 92-486 ANCHORED ON A EX-PARTE MOTION TO REVIVE CASE WAS TANTAMOUNT TO GRAVE ABUSE OF DISCRETION ON THE PART OF THE NTC. III. THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT DENIED THE MANDATE OF THE NTC AS THE AGENCY OF GOVERNMENT WITH THE SOLE DISCRETION REGARDING ALLOCATION OF FREQUENCY BAND TO TELECOMMUNICATIONS ENTITIES. IV. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS INTERPRETATION OF THE LEGAL PRINCIPLE THAT JURISDICTION ONCE ACQUIRED CANNOT BE LOST WHEN IT DECLARED THAT THE ARCHIVED APPLICATION SHOULD BE DEEMED AS A NEW APPLICATION IN VIEW OF THE SUBSTANTIAL CHANGE IN THE CIRCUMSTANCES ALLEGED IN ITS AMENDMENT APPLICATION. V. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF THE BAYANTEL APPLICATION WAS A VALID ACT ON THE PART OF THE NTC EVEN IN THE ABSENCE OF A SPECIFIC RULE ON ARCHIVING OF CASES SINCE RULES OF PROCEDURE ARE, AS A MATTER OF COURSE, LIBERALLY CONSTRUED IN PROCEEDINGS BEFORE ADMINISTRATIVE BODIES AND SHOULD GIVE WAY TO THE GREATER HIERARCHY OF PUBLIC WELFARE AND PUBLIC INTEREST. VI. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE ARCHIVING OF BAYANTEL'S APPLICATION WAS NOT VIOLATIVE OF THE SUMMARY NATURE OF THE PROCEEDINGS IN THE NTC UNDER SEC. 3, RULE 1 OF THE NTC REVISED RULES OF PROCEDURE. VII. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE ARCHIVING OF BAYANTEL'S APPLICATION WAS VIOLATIVE OF THE ALLEGED DECLARED POLICY OF THE GOVERNMENT ON THE TRANSPARENCY AND FAIRNESS OF ADMINISTRATIVE PROCESS IN THE NTC AS LAID DOWN IN SEC 4(1) OF R.A. NO. 7925. VIII. THE COURT OF APPEALS SERIOUSLY ERRED IN ITS FINDING THAT THE NTC VIOLATED THE PROVISIONS OF THE CONSTITUTION PERTAINING TO DUE PROCESS OF LAW. IX. THE COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THAT THE MAY 3, 2000 ORDER GRANTING BAYANTEL A PROVISIONAL AUTHORITY SHOULD BE SET ASIDE AND REVERSED. i. Contrary to the finding of the Court of Appeals, there was no violation of the NTC Rule that the legal, technical, financial and economic documentations in support of the prayer for provisional authority should first be submitted. ii. Contrary to the finding of the Court of Appeals, there was no violation of Sec. 3, Rule 15 of the NTC Rules of Practice and Procedure that a motion must first be filed before a provisional authority could be issued. iii. Contrary to the finding of the Court of Appeals that a plea for provisional authority necessitates a notice and hearing, the very rule cited by the petitioner (Section 5, Rule 4 of the NTC Rules of Practice and Procedure) provides otherwise. iv. Contrary to the finding of the Court of Appeals, urgent public need is not the only basis for the grant of a provisional authority to an applicant; v. Contrary to the finding of the Court of Appeals, there was no violation of the constitutional provision on the right of the public to information when the Common 23 Carrier Authorization Department (CCAD) prepared its evaluation report. Considering the identity of the matters involved, this Court resolved to consolidate 24 the two petitions. At the outset, it is well to discuss the nature and functions of the NTC, and analyze its powers and authority as well as the laws, rules and regulations that govern its existence and operations. The NTC was created pursuant to Executive Order No. 546, promulgated on July 23, 1979. It assumed the functions formerly assigned to the Board of Communications and the Telecommunications Control Bureau, which were both abolished under the said Executive Order. Previously, the NTC's functions were merely those of the defunct Public Service Commission (PSC), created under Commonwealth Act No. 146, as amended, otherwise known as the Public Service Act, considering that the Board of Communications was the successor-in-interest of
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the PSC. Under Executive Order No. 125-A, issued in April 1987, the NTC became an attached agency of the Department of Transportation and Communications. In the regulatory telecommunications industry, the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and maintenance of communications facilities and services, radio communications systems, telephone and telegraph systems. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. Specifically, Section 16 of the Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of Public Convenience for the operation of public services within the Philippines "whenever the Commission finds that the operation of the public service proposed and the authorization to do business will 25 promote the public interests in a proper and suitable manner." The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act, the pertinent portion of which states: All hearings and investigations before the Commission shall be governed by rules adopted by the Commission, and in the conduct thereof, the Commission shall not be bound by the technical rules of legal evidence. xxx. In granting Bayantel the provisional authority to operate a CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides: Sec. 3. Provisional Relief. --- Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. (underscoring ours) Respondent Extelcom, however, contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3, 1993. These Revised Rules deleted the phrase "on its own initiative;" accordingly, a provisional authority may be issued only upon filing of the proper motion before the Commission. In answer to this argument, the NTC, through the Secretary of the Commission, issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation, the NTC has been applying the 1978 Rules. The absence of publication, coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1978 Rules, clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987 which implies that the filing of the rules with the UP Law Center is the operative act that gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states: Filing. --- (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copes of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months from the date shall not thereafter be the basis of any sanction against any party or persons. (2) The records officer of the agency, or his equivalent functionary, shall carry out the requirements of this section under pain or disciplinary action. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President, Congress, all appellate courts, the National Library, other public offices or agencies as the Congress may select, and to other persons at a price sufficient to cover publication and mailing or distribution 26 costs. In a similar case, we held: This does not imply however, that the subject Administrative Order is a valid exercise of such quasi-legislative power. The original Administrative Order issued on August 30, 1989, under which the respondents filed their applications for importations, was not published in the Official Gazette or in a newspaper of general circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code, which reads: "Article 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette (or in a newspaper of general circulation in the Philippines), unless it is otherwise provided. x x x" The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with, and published by the UP Law Center in the National Administrative Register, does not cure the defect related to the effectivity of the Administrative Order.
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This Court, in Taada vs. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446) stated, thus: "We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or, at present, directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. xxx We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws." The Administrative Order under consideration is one of those issuances which should be published for its effectivity, since its purpose is to enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and 27 EO 133. Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states that: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the 28 Philippines, unless it is otherwise provided. The Rules of Practice and Procedure of the NTC, which implements Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely within the scope of these 29 laws, as explicitly mentioned in the case Taada v. Tuvera. Our pronouncement in Taada vs. Tuvera is clear and categorical. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The only exceptions are interpretative regulations, those merely internal in nature, or those so-called letters of instructions issued by administrative superiors concerning the rules and guidelines to be 30 followed by their subordinates in the performance of their duties. Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take effect only after their publication in 31 a newspaper of general circulation. In the absence of such publication, therefore, it is the 1978 Rules that governs. In any event, regardless of whether the 1978 Rules or the 1993 Revised Rules should apply, the records show that the amended application filed by Bayantel in fact included a motion for the issuance of a provisional authority. Hence, it cannot be said that the NTC granted the provisional authority motu proprio. The Court of Appeals, therefore, erred when it found that the NTC issued its Order of May 3, 2000 on its own initiative. This much is acknowledged in the Decision of the Court of Appeals: As prayer, ICC asked for the immediate grant of provisional authority to construct, install, maintain and operate the subject service and to charge the proposed rates and after due notice and hearing, approve the instant application and grant the 32 corresponding certificate of public convenience and necessity. The Court of Appeals also erred when it declared that the NTC's Order archiving Bayantel's application was null and void. The archiving of cases is a widely accepted measure designed to shelve cases in which no immediate action is expected but where no grounds exist for their outright dismissal, albeit without prejudice. It saves the petitioner or applicant from the added trouble and expense of re-filing a dismissed case. Under this scheme, an inactive case is kept alive but held in abeyance until the situation obtains wherein action thereon can be taken. In the case at bar, the said application was ordered archived because of lack of available frequencies at the time, and made subject to reinstatement upon availability of the requisite frequency. To be sure, there was nothing irregular in the revival of the application after the condition therefor was fulfilled. While, as held by the Court of Appeals, there are no clear provisions in the Rules of the NTC which expressly allow the archiving of any application, this recourse may be justified under Rule 1, Section 2 of the 1978 Rules, which states:
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Sec. 2. Scope.--- These rules govern pleadings, practice and procedure before the Board of Communications (now NTC) in all matters of hearing, investigation and proceedings within the jurisdiction of the Board. However, in the broader interest of justice and in order to best serve the public interest, the Board may, in any particular matter, except it from these rules and apply such suitable procedure to improve the service in the transaction of the public business. (underscoring ours) The Court of Appeals ruled that the NTC committed grave abuse of discretion when it revived Bayantel's application based on an ex-parte motion. In this regard, the pertinent provisions of the NTC Rules: Sec. 5. Ex-parte Motions. --- Except for motions for provisional authorization of proposed services and increase of rates, ex-parte motions shall be acted upon by the Board only upon showing of urgent necessity therefor and the right of the opposing 33 party is not substantially impaired. Thus, in cases which do not involve either an application for rate increase or an application for a provisional authority, the NTC may entertain ex-parte motions only where there is an urgent necessity to do so and no rights of the opposing parties are impaired.1wphi1.nt The Court of Appeals ruled that there was a violation of the fundamental right of Extelcom to due process when it was not afforded the opportunity to question the motion for the revival of the application. However, it must be noted that said Order referred to a simple revival of the archived application of Bayantel in NTC Case No. 92-426. At this stage, it cannot be said that Extelcom's right to procedural due process was prejudiced. It will still have the opportunity to be heard during the fullblown adversarial hearings that will follow. In fact, the records show that the NTC has scheduled several hearing dates for this purpose, at which all interested parties shall be allowed to register their opposition. We have ruled that there is no denial of due process where full-blown adversarial proceedings are conducted before an 34 administrative body. With Extelcom having fully participated in the proceedings, and indeed, given the opportunity to file its opposition to the application, there was clearly no denial of its right to due process. In Zaldivar vs. Sandiganbayan (166 SCRA 316 [1988]), we held that the right to be heard does not only refer to the right to present verbal arguments in court. A party may also be heard through his pleadings. where opportunity to be heard is accorded either through oral arguments or pleadings, there is no denial of procedural due process. As reiterated in National Semiconductor (HK) Distribution, Ltd. vs. NLRC (G.R. No. 123520, June 26, 1998), the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one's side. Hence, in Navarro III vs. Damaso (246 SCRA 260 [1995]), we held that a formal or trial-type hearing is not at all times and not in all instances 35 essential. Plainly, petitioner was not denied due process. Extelcom had already entered its appearance as a party and filed its opposition to the application. It was neither precluded nor barred from participating in the hearings thereon. Indeed, nothing, not even the Order reviving the application, bars or prevents Extelcom and the other oppositors from participating in the hearings and adducing evidence in support of their respective oppositions. The motion to revive could not have possibly caused prejudice to Extelcom since the motion only sought the revival of the application. It was merely a preliminary step towards the resumption of the hearings on the application of Bayantel. The latter will still have to prove its capability to undertake the proposed CMTS. Indeed, in its Order dated February 1, 2000, the NTC set several hearing dates precisely intended for the presentation of evidence on Bayantel's capability and qualification. Notice of these hearings were sent to all parties concerned, including Extelcom. As regards the changes in the personal circumstances of Bayantel, the same may be ventilated at the hearings during Bayantel's presentation of evidence. In fact, Extelcom was able to raise its arguments on this matter in the Opposition (With Motion to Dismiss) anent the re-opening and re-instatement of the application of Bayantel. Extelcom was thus heard on this particular point.
It should be borne in mind that among the declared national policies under Republic Act No. 7925, otherwise known as the Public Telecommunications Policy Act of the Philippines, is the healthy competition among telecommunications carriers, to wit: A healthy competitive environment shall be fostered, one in which telecommunications carriers are free to make business decisions and to interact with one another in providing telecommunications services, with the end in view of 36 encouraging their financial viability while maintaining affordable rates. The NTC is clothed with sufficient discretion to act on matters solely within its competence. Clearly, the need for a healthy competitive environment in
47
Likewise, the requirements of notice and publication of the application is no longer necessary inasmuch as the application is a mere revival of an application which has already been published earlier. At any rate, the records show that all of the five (5) CMTS operators in the country were duly notified and were allowed to raise their respective oppositions to Bayantel's application through the NTC's Order dated February 1, 2000.
Administrative Law
telecommunications is sufficient impetus for the NTC to consider all those applicants who are willing to offer competition, develop the market and provide the environment necessary for greater public service. This was the intention that came to light with the issuance of Memorandum Circular 9-3-2000, allocating new frequency bands for use of CMTS. This memorandum circular enumerated the conditions prevailing and the reasons which necessitated its issuance as follows: - the international accounting rates are rapidly declining, threatening the subsidy to the local exchange service as mandated in EO 109 and RA 7925; - the public telecommunications entities which were obligated to install, operate and maintain local exchange network have performed their obligations in varying degrees; - after more than three (3) years from the performance of the obligations only 52% of the total number of cities and municipalities are provided with local telephone service. - there are mergers and consolidations among the existing cellular mobile telephone service (CMTS) providers threatening the efficiency of competition; - there is a need to hasten the installation of local exchange lines in unserved areas; - there are existing CMTS operators which are experiencing congestion in the network resulting to low grade of service; - the consumers/customers shall be given the freedom to choose CMTS operators 37 from which they could get the service. Clearly spelled out is the need to provide enhanced competition and the requirement for more landlines and telecommunications facilities in unserved areas in the country. On both scores, therefore, there was sufficient showing that the NTC acted well within its jurisdiction and in pursuance of its avowed duties when it allowed the revival of Bayantel's application. We now come to the issue of exhaustion of administrative remedies. The rule is wellentrenched that a party must exhaust all administrative remedies before resorting to the courts. The premature invocation of the intervention of the court is fatal to one's cause of action. This rule would not only give the administrative agency an opportunity to decide the matter by itself correctly, but would also prevent the 38 unnecessary and premature resort to courts. In the case of Lopez v. City of 39 Manila, we held: As a general rule, where the law provides for the remedies against the action of an administrative board, body or officer, relief to courts can be sought only after exhausting all remedies provided. The reason rests upon the presumption that the administrative body, if given the chance to correct its mistake or error, may amend its decision on a given matter and decide it properly. Therefore, where a remedy is available within the administrative machinery, this should be resorted to before resort can be made to the courts, not only to give the administrative agency the opportunity to decide the matter by itself correctly, but also to prevent unnecessary and premature resort to courts. Clearly, Extelcom violated the rule on exhaustion of administrative remedies when it went directly to the Court of Appeals on a petition for certiorari and prohibition from the Order of the NTC dated May 3, 2000, without first filing a motion for reconsideration. It is well-settled that the filing of a motion for reconsideration is a prerequisite to the filing of a special civil action for certiorari. The general rule is that, in order to give the lower court the opportunity to correct itself, a motion for reconsideration is a prerequisite to certiorari. It also basic that petitioner must exhaust all other available remedies before resorting to certiorari. This rule, however, is subject to certain exceptions such as any of the following: (1) the issues raised are purely legal in nature, (2) public interest is involved, (3) extreme urgency is obvious or (4) special circumstances warrant immediate or 40 more direct action. This case does not fall under any of the recognized exceptions to this rule. Although the Order of the NTC dated May 3, 2000 granting provisional authority to Bayantel was immediately executory, it did not preclude the filing of a motion for reconsideration. Under the NTC Rules, a party adversely affected by a decision, order, ruling or resolution may within fifteen (15) days file a motion for reconsideration. That the Order of the NTC became immediately executory does not mean that the remedy of filing a motion for reconsideration is foreclosed to the 41 petitioner. Furthermore, Extelcom does not enjoy the grant of any vested interest on the right to render a public service. The Constitution is quite emphatic that the operation of a public utility shall not be exclusive. Thus: No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted to citizens of the Philippines or to corporations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years.
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Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteraion, or repeal by the Congress when the 42 common good so requires. xxx xxx xxx. In Radio Communications of the Phils., Inc. v. National Telecommunications 43 Commission, we held: It is well within the powers of the public respondent to authorize the installation by the private respondent network of radio communications systems in Catarman, Samar and San Jose, Mindoro. Under the circumstances, the mere fact that the petitioner possesses a franchise to put up and operate a radio communications system in certain areas is not an insuperable obstacle to the public respondent's issuing the proper certificate to an applicant desiring to extend the same services to those areas. The Constitution mandates that a franchise cannot be exclusive in nature nor can a franchise be granted except that it must be subject to amendment, alteration, or even repeal by the legislature when the common good so requires. (Art. XII, sec. 11 of the 1986 Constitution). There is an express provision in the petitioner's franchise which provides compliance with the above mandate (RA 2036, sec. 15). Even in the provisional authority granted to Extelcom, it is expressly stated that such authority is not exclusive. Thus, the Court of Appeals erred when it gave due course to Extelcom's petition and ruled that it constitutes an exception to the rule on exhaustion of administrative remedies. Also, the Court of Appeals erred in annulling the Order of the NTC dated May 3, 2000, granting Bayantel a provisional authority to install, operate and maintain CMTS. The general rule is that purely administrative and discretionary functions may not be 44 interfered with by the courts. Thus, in Lacuesta v. Herrera, it was held: xxx (T)he powers granted to the Secretary of Agriculture and Commerce (natural resources) by law regarding the disposition of public lands such as granting of licenses, permits, leases and contracts, or approving, rejecting, reinstating, or canceling applications, are all executive and administrative in nature. It is a well recognized principle that purely administrative and discretionary functions may not be interfered with by the courts. (Coloso vs. Board of Accountancy, G.R. No. L-5750, April 20, 1953) In general, courts have no supervising power over the proceedings and actions of the administrative departments of the government. This is generally true with respect to acts involving the exercise of judgement or discretion and findings of fact. (54 Am. Jur. 558-559) xxx. The established exception to the rule is where the issuing authority has gone beyond its statutory authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty or with grave abuse of discretion. obtains in the case at bar.
45
None of these
Moreover, in petitions for certiorari, evidentiary matters or matters of fact raised in the court below are not proper grounds nor may such be ruled upon in the 46 proceedings. As held in National Federation of Labor v. NLRC: At the outset, it should be noted that a petition for certiorari under Rule 65 of the Rules of Court will prosper only if there is a showing of grave abuse of discretion or an act without or in excess of jurisdiction on the part of the National Labor Relations Commission. It does not include an inquiry as to the correctness of the evaluation of evidence which was the basis of the labor official or officer in determining his conclusion. It is not for this Court to re-examine conflicting evidence, re-evaluate the credibility of witnesses nor substitute the findings of fact of an administrative tribunal which has gained expertise in its special field. Considering that the findings of fact of the labor arbiter and the NLRC are supported by evidence on record, the same must be accorded due respect and finality. This Court has consistently held that the courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and 47 knowledge of such agency. It has also been held that the exercise of administrative discretion is a policy decision and a matter that can best be discharged by the government agency concerned, and not by the 48 49 courts. In Villanueva v. Court of Appeals, it was held that findings of fact which are supported by evidence and the conclusion of experts should not be disturbed. This was reiterated in Metro Transit Organization, Inc. v. National Labor Relations 50 Commission, wherein it was ruled that factual findings of quasi-judicial bodies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality and are binding even upon the Supreme Court if they are supported by substantial evidence.1wphi1.nt Administrative agencies are given a wide latitude in the evaluation of evidence and in the exercise of its adjudicative functions. This latitude includes the authority to take judicial notice of facts within its special competence. In the case at bar, we find no reason to disturb the factual findings of the NTC which formed the basis for awarding the provisional authority to Bayantel. As found by the NTC, Bayantel has been granted several provisional and permanent 51 authorities before to operate various telecommunications services. Indeed, it was
49
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established that Bayantel was the first company to comply with its obligation to install local exchange lines pursuant to E.O. 109 and R.A. 7925. In recognition of the same, the provisional authority awarded in favor of Bayantel to operate Local Exchange Services in Quezon City, Malabon, Valenzuela and the entire Bicol region was made permanent and a CPCN for the said service was granted in its favor. Prima facie evidence was likewise found showing Bayantel's legal, financial and technical capacity to undertake the proposed cellular mobile telephone service. Likewise, the May 3, 2000 Order did not violate NTC Memorandum Circular No. 9-1490 dated September 4, 1990, contrary to the ruling of the Court of Appeals. The memorandum circular sets forth the procedure for the issuance of provisional authority thus: EFFECTIVE THIS DATE, and as part of the Commission's drive to streamline and fast track action on applications/petitions for CPCN other forms of authorizations, the Commission shall be evaluating applications/petitions for immediate issuance of provisional authorizations, pending hearing and final authorization of an application on its merit. For this purpose, it is hereby directed that all applicants/petitioners seeking for provisional authorizations, shall submit immediately to the Commission, either together with their application or in a Motion all their legal, technical, financial, economic documentations in support of their prayer for provisional authorizations for evaluation. On the basis of their completeness and their having complied with requirements, the Commission shall be issuing provisional authorizations. Clearly, a provisional authority may be issued even pending hearing and final determination of an application on its merits. Finally, this Court finds that the Manifestations of Extelcom alleging forum shopping on the part of the NTC and Bayantel are not impressed with merit. The divisions of the Supreme Court are not to be considered as separate and distinct courts. The Supreme Court remains a unit notwithstanding that it works in divisions. Although it may have three divisions, it is but a single court. Actions considered in any of these divisions and decisions rendered therein are, in effect, by the same Tribunal. The divisions of this Court are not to be considered as separate and distinct courts but as 52 divisions of one and the same court. Moreover, the rules on forum shopping should not be literally interpreted. We have stated thus: It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied as to achieve the purposes projected by the Supreme Court when it promulgated that circular. Circular No. 28-91 was designed to serve as an instrument to promote and facilitate the orderly administration of justice and should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objection or the goal of all rules of procedure which is to achieve 53 substantial justice as expeditiously as possible. Even assuming that separate actions have been filed by two different parties involving essentially the same subject matter, no forum shopping was committed as the parties did not resort to multiple judicial remedies. The Court, therefore, directed the consolidation of the two cases because they involve essentially the same issues. It would also prevent the absurd situation wherein two different divisions of the same court would render altogether different rulings in the cases at bar. We rule, likewise, that the NTC has legal standing to file and initiate legal action in cases where it is clear that its inaction would result in an impairment of its ability to execute and perform its functions. Similarly, we have previously held in Civil 54 Service Commission v. Dacoycoy that the Civil Service Commission, as an aggrieved party, may appeal the decision of the Court of Appeals to this Court. As correctly stated by the NTC, the rule invoked by Extelcom is Rule 65 of the Rules of Civil Procedure, which provides that public respondents shall not appear 55 in or file an answer or comment to the petition or any pleading therein. The instant petition, on the other hand, was filed under Rule 45 where no similar proscription exists. WHEREFORE, in view of the foregoing, the consolidated petitions are GRANTED. The Court of Appeals' Decision dated September 13, 2000 and Resolution dated February 9, 2001 are REVERSED and SET ASIDE. The permanent injunction issued by the Court of Appeals is LIFTED. The Orders of the NTC dated February 1, 2000 and May 3, 2000 are REINSTATED. No pronouncement as to costs. SO ORDERED.
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G.R. No. 164026 December 23, 2008 On February 20, 1996, the SEC approved the other amendments to the petitioners Articles of Incorporation, specifically Article 1 thereof referring to the corporate name of the petitioner as well as Article 2 thereof referring to the principal purpose for which the petitioner was formed. On March 19, 1996, the petitioner requested for an official opinion/ruling from the SEC on the validity and propriety of the assessment for application for extension of its corporate term.
1
SECURITIES AND EXCHANGE COMMISSION, petitioner, vs. 10 GMA NETWORK, INC., respondent. DECISION TINGA, J.: Petitioner Securities and Exchange Commission (SEC) assails the Decision dated February 20, 2004 of the Court of Appeals in CA-G.R. SP No. 68163, which directed that SEC Memorandum Circular No. 1, Series of 1986 should be the basis for computing the filing fee relative to GMA Network, Inc.s (GMAs) application for the amendment of its articles of incorporation for purposes of extending its corporate term. The undisputed facts as narrated by the appellate court are as follows: On August 19, 1995, the petitioner, GMA NETWORK, INC., (GMA, for brevity), a domestic corporation, filed an application for collective approval of various amendments to its Articles of Incorporation and By-Laws with the respondent Securities and Exchange Commission, (SEC, for brevity). The amendments applied for include, among others, the change in the corporate name of petitioner from "Republic Broadcasting System, Inc." to "GMA Network, Inc." as well as the extension of the corporate term for another fifty (50) years from and after June 16, 2000. Upon such filing, the petitioner had been assessed by the SECs Corporate and Legal Department a separate filing fee for the application for extension of corporate term equivalent to 1/10 of 1% of its authorized capital stock plus 20% thereof or an amount of P1,212,200.00. On September 26, 1995, the petitioner informed the SEC of its intention to contest the legality and propriety of the said assessment. However, the petitioner requested the SEC to approve the other amendments being requested by the petitioner without being deemed to have withdrawn its application for extension of corporate term. On October 20, 1995, the petitioner formally protested the assessment amounting to P1,212,200.00 for its application for extension of corporate term.
Consequently, the respondent SEC, through Associate Commissioner Fe Eloisa C. Gloria, on April 18, 1996, issued its ruling upholding the validity of the questioned assessment, the dispositive portion of which states: "In light of the foregoing, we believe that the questioned assessment is in accordance with law. Accordingly, you are hereby required to comply with the required filing fee." An appeal from the aforequoted ruling of the respondent SEC was subsequently taken by the petitioner on the ground that the assessment of filing fees for the petitioners application for extension of corporate term equivalent to 1/10 of 1% of the authorized capital stock plus 20% thereof is not in accordance with law. On September 26, 2001, following three (3) motions for early resolution filed by the petitioner, the respondent SEC En Banc issued the assailed order dismissing the petitioners appeal, the dispositive portion of which provides as follows: WHEREFORE, for lack of merit, the instant Appeal is hereby dismissed. SO ORDERED.
2
In its petition for review with the Court of Appeals, GMA argued that its application for the extension of its corporate term is akin to an amendment and not to a filing of new articles of incorporation. It further averred that SEC Memorandum Circular No. 2, Series of 1994, which the SEC used as basis for assessing P1,212,200.00 as filing fee for the extension of GMAs corporate term, is not valid. The appellate court agreed with the SECs submission that an extension of the corporate term is a grant of a fresh license for a corporation to act as a juridical being endowed with the powers expressly bestowed by the State. As such, it is not an ordinary amendment but is analogous to the filing of new articles of incorporation.
10
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However, the Court of Appeals ruled that Memorandum Circular No. 2, Series of 1994 is legally invalid and ineffective for not having been published in accordance with law. The challenged memorandum circular, according to the appellate court, is not merely an internal or interpretative rule, but affects the public in general. Hence, its publication is required for its effectivity. The appellate court denied reconsideration in a Resolution dated June 9, 2004. In its Memorandum dated September 6, 2005, the SEC argues that it issued the questioned memorandum circular in the exercise of its delegated legislative power to fix fees and charges. The filing fees required by it are allegedly uniformly imposed on the transacting public and are essential to its supervisory and regulatory functions. The fees are not a form of penalty or sanction and, therefore, require no publication. For its part, GMA points out in its Memorandum, dated September 23, 2005, that SEC Memorandum Circular No. 1, Series of 1986 refers to the filing fees for amended articles of incorporation where the amendment consists of extending the term of corporate existence. The questioned circular, on the other hand, refers only to filing fees for articles of incorporation. Thus, GMA argues that the former circular, being the one that specifically treats of applications for the extension of corporate term, should apply to its case. Assuming that Memorandum Circular No. 2, Series of 1994 is applicable, GMA avers that the latter did not take effect and cannot be the basis for the imposition of the fees stated therein for the reasons that it was neither filed with the University of the Philippines Law Center nor published either in the Official Gazette or in a newspaper of general circulation as required under existing laws. It should be mentioned at the outset that the authority of the SEC to collect and 7 receive fees as authorized by law is not in question. Its power to collect fees for examining and filing articles of incorporation and by-laws and amendments thereto, certificates of increase or decrease of the capital stock, among others, is recognized. Likewise established is its power under Sec. 7 of P.D. No. 902-A to recommend to the President the revision, alteration, amendment or adjustment of the charges which it is authorized to collect. The subject of the present inquiry is not the authority of the SEC to collect and receive fees and charges, but rather the validity of its imposition on the basis of a memorandum circular which, the Court of Appeals held, is ineffective. Republic Act No. 3531 (R.A. No. 3531) provides that where the amendment consists in extending the term of corporate existence, the SEC "shall be entitled to collect and
6 5 4
receive for the filing of the amended articles of incorporation the same fees 8 collectible under existing law as the filing of articles of incorporation." As is clearly the import of this law, the SEC shall be entitled to collect and receive the same fees it assesses and collects both for the filing of articles of incorporation and the filing of an amended articles of incorporation for purposes of extending the term of corporate existence. The SEC, effectuating its mandate under the aforequoted law and other pertinent 9 laws, issued SEC Memorandum Circular No. 1, Series of 1986, imposing the filing fee of 1/10 of 1% of the authorized capital stock but not less thanP300.00 nor more than P100,000.00 for stock corporations, and 1/10 of 1% of the authorized capital stock but not less than P200.00 nor more than P100,000.00 for stock corporations without par value, for the filing of amended articles of incorporation where the amendment consists of extending the term of corporate existence. Several years after, the SEC issued Memorandum Circular No. 2, Series of 1994, imposing new fees and charges and deleting the maximum filing fee set forth in SEC Circular No. 1, Series of 1986, such that the fee for the filing of articles of incorporation became 1/10 of 1% of the authorized capital stock plus 20% thereof but not less thanP500.00. A reading of the two circulars readily reveals that they indeed pertain to different matters, as GMA points out. SEC Memorandum Circular No. 1, Series of 1986 refers to the filing fee for the amendment of articles of incorporation to extend corporate life, while Memorandum Circular No. 2, Series of 1994 pertains to the filing fee for articles of incorporation. Thus, as GMA argues, the former circular, being squarely applicable and, more importantly, being more favorable to it, should be followed. What this proposition fails to consider, however, is the clear directive of R.A. No. 3531 to impose the same fees for the filing of articles of incorporation and the filing of amended articles of incorporation to reflect an extension of corporate term. R.A. No. 3531 provides an unmistakable standard which should guide the SEC in fixing and imposing its rates and fees. If such mandate were the only consideration, the Court would have been inclined to rule that the SEC was correct in imposing the filing fees as outlined in the questioned memorandum circular, GMAs argument notwithstanding. However, we agree with the Court of Appeals that the questioned memorandum circular is invalid as it does not appear from the records that it has been published in the Official Gazette or in a newspaper of general circulation. Executive Order No. 200, which repealed Art. 2 of the Civil Code, provides that "laws shall take effect
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after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided." In Taada v. Tuvera,
10
the Court, expounding on the publication requirement, held:
We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their 11 subordinates in the performance of their duties. The questioned memorandum circular, furthermore, has not been filed with the Office of the National Administrative Register of the University of the Philippines Law Center 12 as required in the Administrative Code of 1987. In Philsa International Placement and Services Corp. v. Secretary of Labor and 13 Employment, Memorandum Circular No. 2, Series of 1983 of the Philippine Overseas Employment Administration, which provided for the schedule of placement and documentation fees for private employment agencies or authority holders, was struck down as it was not published or filed with the National Administrative Register. The questioned memorandum circular, it should be emphasized, cannot be construed as simply interpretative of R.A. No. 3531. This administrative issuance is an implementation of the mandate of R.A. No. 3531 and indubitably regulates and affects the public at large. It cannot, therefore, be considered a mere internal rule or regulation, nor an interpretation of the law, but a rule which must be declared ineffective as it was neither published nor filed with the Office of the National Administrative Register. A related factor which precludes consideration of the questioned issuance as interpretative in nature merely is the fact the SECs assessment amounting
to P1,212,200.00 is exceedingly unreasonable and amounts to an imposition. A filing fee, by legal definition, is that charged by a public official to accept a document for processing. The fee should be just, fair, and proportionate to the service for which the fee is being collected, in this case, the examination and verification of the documents submitted by GMA to warrant an extension of its corporate term. Rate-fixing is a legislative function which concededly has been delegated to the SEC by R.A. No. 3531 and other pertinent laws. The due process clause, however, permits the courts to determine whether the regulation issued by the SEC is reasonable and within the bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a persons right to property. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 68163, dated February 20, 2004, and its Resolution, dated June 9, 2004, are AFFIRMED. No pronouncement as to costs. SO ORDERED.
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[G.R. No. 110379. November 28, 1997] HON. ARMAND FABELLA, in his capacity as SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS; DR. NILO ROSAS, in his capacity as REGIONAL DIRECTOR, DECS-NCR; DR. BIENVENIDO ICASIANO, in his capacity as the SUPERINTENDENT OF THE QUEZON CITY SCHOOLS and DIVISION; ALMA BELLA O. BAUTISTA, AURORA C. VALENZUELA and TERESITA V. DIMAGMALIW, petitioners, vs. THE COURT OF APPEALS, ROSARITO A. SEPTIMO, ERLINDA B. DE LEON, CLARISSA T. DIMAANO, WILFREDO N. BACANI, MARINA R. VIVAR, VICTORIA S. UBALDO, JENNIE L. DOGWE, NORMA L. RONGCALES, EDITA C. SEPTIMO, TERESITA E. EVANGELISTA, CATALINA R. FRAGANTE, REBECCA D. BAGDOG, MARILYNNA C. KU, MARISSA M. SAMSON, HENEDINA B.CARILLO, NICASIO C. BRAVO, RUTH F. LACANILAO, MIRASOL C. BALIGOD, FELISA S. VILLACRUEL, MA. VIOLETA ELIZABETH Y. HERNANDEZ, ANTONIO C. OCAMPO, ADRIANO S. 11 VALENCIA and ELEUTERIO S. VARGAS, respondents. DECISION PANGANIBAN, J.: Due process of law requires notice and hearing. Hearing, on the other hand, presupposes a competent and impartial tribunal. The right to be heard and, ultimately, the right to due process of law lose meaning in the absence of an independent, competent and impartial tribunal. Statement of the Case This principium is explained by this Court as it resolves this petition for review on [1] [2] certiorari assailing the May 21, 1993 Decision of the Court of Appeals in CA-G.R. [3] SP No. 29107 which affirmed the trial courts decision, as follows: WHEREFORE, the decision appealed from is AFFIRMED and the appeal is DISMISSED. The Hon. Armand Fabella is hereby ORDERED substituted as respondent-appellant in place of former Secretary Isidro Cario and henceforth this fact should be reflected in the title of this case. SO ORDERED.
[4]
The Antecedent Facts The facts, as found by Respondent Court, are as follows: On September 17, 1990, then DECS Secretary Cario issued a return -to-work order to all public school teachers who had participated in talk-outs and strikes on various dates during the period September 26, 1990 to October 18, 1990. The mass action had been staged to demand payment of 13th month differentials, clothing allowances and passage of a debt-cap bill in Congress, among other things. On October 18, 1990, Secretary Cario filed administrative cases against herein petitioner-appellees, who are teachers of the Mandaluyong High School. The charge sheets required petitioner-appellees to explain in writing why they should not be punished for having taken part in the mass action in violation of civil service laws and regulations, to wit: 1. 2. grave misconduct; gross neglect of duty;
3. gross violation of Civil Service Law and rules on reasonable office regulations;
5. 6.
conduct prejudicial to the best interest of the service; absence without leave (AWOL)
At the same time, Secretary Cario ordered petitioner-appellee to be placed under preventive suspension. The charges were subsequently amended by DECS-NCR Regional Director Nilo Rosas on November 7, 1990 to include the specific dates when petitionerappellees allegedly took part in the strike. Administrative hearings started on December 20, 1990. Petitioner-appellees counsel objected to the procedure adopted by the committee and demanded that he be furnished a copy of the guidelines adopted by the committee for the investigation and imposition of penalties. As he received no response from the
11
Requirement of Admin Due Process
54
4.
refusal to perform official duty;
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committee, counsel walked out. Later, however, counsel, was able to obtain a copy of the guidelines. On April 10, 1991, the teachers filed a an injunctive suit (Civil Case No. 60675) with the Regional Trial Court in Quezon City, charging the committee appointed by Secretary Cario with fraud and deceit and praying that it be stopped from further investigating them and from rendering any decision in the administrative case. However, the trial court denied them a restraining order. They then amended their complaint and made it one for certiorari and mandamus. They alleged that the investigating committee was acting with grave abuse of discretion because its guidelines for investigation place the burden of proof on them by requiring them to prove their innocence instead of requiring Secretary Cario and his staff to adduce evidence to prove the charges against the teachers. On May 30, 1991, petitioner-appellee Adriano S. Valencia of the Ramon Magsaysay High School filed a motion to intervene, alleging that he was in the same situation as petitioners since he had likewise been charged and preventively suspended by respondent-appellant Cario for the same grounds as the other petitioner-appellees and made to shoulder the burden of proving his innocence under the committees guidelines. The trial court granted his motion on June 3, 1991 and allowed him to intervene. On June 11, 1991, the Solicitor General answered the petitioner for certiorari and mandamus in behalf of respondent DECS Secretary. In the main he contended that, in accordance with the doctrine of primary resort, the trial court should not interfere in the administrative proceedings. The Solicitor General also asked the trial court to reconsider its order of June 3, 1991, allowing petitioner-appellee Adriano S. Valencia to intervene in the case. Meanwhile, the DECS investigating committee rendered a decision on August 6, 1991, finding the petitioner-appellees guilty, as charged and ordering their immediate dismissal. On August 15, 1991, the trial court dismissed the petition for certiorari and mandamus for lack of merit. Petitioner-appellees moved for a reconsideration, but their motion was denied on September 11, 1991. The teachers then filed a petition for certiorari with the Supreme Court which, on February 18, 1992, issued a resolution en banc declaring void the trial courts order of dismissal and reinstating petitioner-appellees action, even as it ordered the latters reinstatement pending decision of their case. Accordingly, on March 25, 1992, the trial court set the case for hearing. June 8, 1992, it issued a pre-trial order which reads: As prayed for by Solicitor Bernard Hernandez, let this case be set for pre -trial conference on June 17, 1992 at 1:30 p.m., so as to expedite the proceedings hereof. In which case, DECS Secretary Isidro Cario, as the principal respondent, is hereby ordered to PERSONALLY APPEAR before this Court on said date and time, with a warning that should he fail to show up on said date, the Court will declare him as IN DEFAULT. Stated otherwise, for the said Pre-Trial Conference, the Court will not recognize any representative of his. By agreement of the parties, the trial conference was reset on June 26, 1992. However, Secretary Cario failed to appear in court on the date set. It was explained that he had to attend a conference in Maragondon, Cavite. Instead, he was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili. But the court just the same declared them as in default. The Solicitor General moved for a reconsideration, reiterating that Cario could not personally come on June 26, 1992 because of prior commitment in Cavite. It was pointed out that Cario was represented by Atty. Reno Capinpin, while the other respondents were represented by Atty. Jocelyn Pili, both of the DECS-NCR and that both had special powers of attorney. But the Solicitor Generals motion for reconsideration was denied by the trial cou rt. In its order of July 15, 1992, the court stated: The Motion For Reconsideration dated July 3, 1992 filed by the respondents thru counsel, is hereby DENIED for lack of merit. It appears too obvious that respondents simply did not want to comply with the lawful orders of the Court. The respondents having lost their standing in Court, the Manifestation and Motion, dated July 3, 1992 filed by the Office of the Solicitor General is hereby DENIED due course. SO ORDERED. On July 3, 1992, the Solicitor General informed the trial court that Cario had ceased to be DECS Secretary and asked for his substitution. But the court failed to act on his motion. The hearing of the case was thereafter conducted ex parte with only the teachers allowed to present their evidence. On August 10, 1992, the trial court rendered a decision, in which it stated:
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The Court is in full accord with petitioners contention that Rep. Act No. 4670 otherwise known as the Magna Carta for Public School Teachers is the primary law that governs the conduct of investigation in administrative cases filed against public school teachers, with Pres. Decree No. 807 as its supplemental law. Respondents erred in believing and contending that Rep. Act. No. 4670 has already been superseded by the applicable provisions of Pres. Decree No. 807 and Exec. Order No. 292. Under the Rules of Statutory Construction, a special law, Rep. Act. No. 4670 in the case at bar, is not regarded as having been replaced by a general law, Pres. Decree No. 807, unless the intent to repeal or alter the same is manifest. A perusal of Pres. Decree No. 807 reveals no such intention exists, hence, Rep. Act No. 4670 stands. In the event that there is conflict between a special and a general law, the former shall prevail since it evidences the legislators intent more clearly than that of the general statute and must be taken as an exception to the General Act. The provision of Rep. Act No. 4670 therefore prevails over Pres. Decree No. 807 in the composition and selection of the members of the investigating committee. Consequently, the committee tasked to investigate the charges filed against petitioners was illegally constituted, their composition and appointment being violative of Sec. 9 of Rep. Act. No. 4670 hence all acts done by said body possess no legal color whatsoever. Anent petitioners claim that their dismissal was effected without any formal investigation, the Court, after consideration of the circumstances surrounding the case, finds such claim meritorious. Although it cannot be gain said that respondents have a cause of action against the petitioner, the same is not sufficient reason to detract from the necessity of basic fair play. The manner of dismissal of the teachers is tainted with illegality. It is a dismissal without due process. While there was a semblance of investigation conducted by the respondents their intention to dismiss petitioners was already manifest when it adopted a procedure provided for by law, by shifting the burden of proof to the petitioners, knowing fully well that the teachers would boycott the proceedings thereby giving them cause to render judgment exparte. The DISMISSAL therefore of the teachers is not justified, it being arbitrary and violative of the teachers right to due process. Due process must be observed in dismissing the teachers because it affects not only their position but also their means of livelihood. WHEREFORE, premises considered, the present petition is hereby GRANTED and all the questioned orders/decisions of the respondents are hereby declared NULL and VOID and are hereby SET ASIDE. The reinstatement of all the petitioners to their former positions without loss of seniority and promotional rights is hereby ORDERED. The payment, if any, of all the petitioners back salaries, allowances, bonuses, and other benefits and emoluments which may have accrued to them during the entire period of their preventive suspension and/or dismissal from the service is hereby likewise ORDERED. SO ORDERED.
[5]
From this adverse decision of the trial court, former DECS Secretary Isidro Cario filed an appeal with the Court of Appeals raising the following grounds: I. The trial court seriously erred in declaring appellants as in default. II. The trial court seriously erred in not ordering the proper substitution of parties. III. The trial court seriously erred in holding that R.A. No. 4670, otherwise known as Magna Carta for Public School Teachers, should govern the conduct of the investigations conducted. IV. The trial court seriously erred in ruling that the dismissal of the teachers are [6] without due process.
Hence, this petition for review. The Issues
[7]
Before us, petitioners raise the following issues: I Whether or not Respondent Court of Appeals committed grave abuse of discretion in holding in effect that private respondents were denied due process of law. II Whether or not Respondent Court of Appeals seriously erred and committed grave abuse of discretion in applying strictly the provision of R.A. No. 4670 in the composition of the investigating committee.
56
As mentioned earlier, the Court of Appeals affirmed the RTC decision, holding in the main that private respondents were denied due process in the administrative proceedings instituted against them.
Administrative Law
III Whether or not Respondent Court of Appeals committed grave abuse of discretion [8] in dismissing the appeal and in affirming the trial courts decision. These issues, all closely related, boil down to a single question: whether private respondents were denied due process of law. The Courts Ruling The petition is bereft of merit. We agree with the Court of Appeals that private respondents were denied due process of law. Denial of Due Process At the outset, we must stress that we are tasked only to determine whether or not due process of law was observed in the administrative proceedings against herein private respondents. We note the Solicitor Generals extensive disquisition that government [9] employees do not have the right to strike. On this point, the Court, in the case [10] of Bangalisan vs. Court of Appeals, has recently pronounced, through Mr. Justice Florenz D. Regalado: It is the settled rule in this jurisdiction that employees in the public service may not engage in strikes. While the Constitution recognizes the right of government employees to organize, they are prohibited from staging strikes, demonstrations mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of public services. The right of government employees to organize is limited only to the formation of unions or associations, without including the right to strike. More recently, in Jacinto vs. Court of Appeals, the Court explained the schoolteachers right to peaceful assembly vis-a-vis their right to mass protest: Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time -- recess, after classes, weekends or holidays -- to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one -- not the DECS, the CSC or even this Court -- could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes
[11]
resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations, [12] for which they must, therefore, be made answerable. In the present case, however, the issue is not whether the private respondents engaged in any prohibited activity which may warrant the imposition of disciplinary sanctions against them as a result of administrative proceedings. As already observed, the resolution of this case revolves around the question of due process of law, not on the right of government workers to strike. The issue is not whether private respondents may be punished for engaging in a prohibited action but whether, in the course of the investigation of the alleged proscribed activity, their right to due process has been violated. In short, before they can be investigated and meted out any penalty, due process must first be observed. In administrative proceedings, due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records [13] or made known to the parties affected. The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public schoolteachers. Section 9 of said law expressly provides that the committee to hear public schoolteachers administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers organization and a supervisor of the division. The pertinent provisions of RA 4670 read: Sec. 8. Safeguards in Disciplinary Procedure. Every teacher shall enjoy equitable safeguards at each stage of any disciplinary procedure and shall have: a. b. the right to be informed, in writing, of the charges; the right to full access to the evidence in the case;
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c. the right to defend himself and to be defended by a representative of his choice and/or by his organization, adequate time being given to the teacher for the preparation of his defense; and c. the right to appeal to clearly designated authorities. No publicity shall be given to any disciplinary action being taken against a teacher during the pendency of his case. Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. The foregoing provisions implement the Declaration of Policy of the statute; that is, to promote the terms of employment and career prospects of schoolteachers. In the present case, the various committees formed by DECS to hear the administrative charges against private respondents did no t include a representative of the local or, in its absence, any existing provincial or national teachers organization as required by Section 9 of RA 4670. Accordingly, these committees were deemed to have no competent jurisdiction. Thus, all proceedings undertaken by them were necessarily void. They could not provide any basis for the suspension or dismissal of private respondents. The inclusion of a representative of a teachers organization in these committees was indispensable to ensure an impartial tribunal. It was this requirement that would have given substance and meaning to the right to be heard. Indeed, in any proceeding, the essence of procedural due process is [14] embodied in the basic requirement of notice and a real opportunity to be heard. Petitioners argue that the DECS complied with Section 9 of RA 4670, because all the teachers who were members of the various committees are members of either the Quezon City Secondary Teachers Federation or the Quezon City Elementary [15] Teachers Federation and are deemed to be the representatives of a teachers organization as required by Section 9 of RA 4670. We disagree. Mere membership of said teachers in their respective teachers organizations does not ipso facto make them authorized representatives of such organizations as contemplated by Section 9 of RA 4670. Under this section, the teachers organization possesses the right to indicate its choice of representative to be included by the DECS in the investigating committee. Such right to designate cannot be usurped by the secretary of education or the director of public schools or their underlings. In the instant case, there is no dispute that none of the teachers appointed by the DECS as members of its investigating committee was ever designated or authorized by a teachers organization as its representative in said committee. Contrary to petitioners asseverations, RA 4670 is applicable to this case. It has not been expressly repealed by the general law PD 807, which was enacted later, nor has it been shown to be inconsistent with the latter. It is a fundamental rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are so clearly repugnant and patently inconsistent that they cannot co-exist. This is based on the rationale that the will of the legislature cannot be overturned by the judicial function of construction and interpretation. Courts cannot take the place of Congress in repealing statutes. Their function is to try to harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in favor of their validity and co[17] existence. Thus, a subsequent general law does not repeal a prior special law, unless the intent to repeal or alter is manifest, although the terms of the general [18] law are broad enough to include the cases embraced in the special law. The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers. Clearly, private respondents right to due process of law requires compliance with these requirements laid down by RA 4670. Verba legis non est recedendum. Hence, Respondent Court of Appeals, through Mr. Justice Vicente V. Mendoza who is now a member of this Court, perceptively and correctly stated: Respondent-appellants argue that the Magna Carta has been superseded by the Civil Service Decree (P.D. No. 807) and that pursuant to the latter law the head of a department, like the DECS secretary, or a regional director, like the respondentappellant Nilo Rosas, can file administrative charges against a subordinate, investigate him and take disciplinary action against him if warranted by his
[16]
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findings. Respondent-appellants cite in support of their argument the following provisions of the Civil Service Decree (P.D. No. 807): Sec. 37. Disciplinary Jurisdiction. -xxx xxx xxx representation of a teachers organization is intended by law for the protection of the rights of teachers facing administrative charges. There is thus nothing in the Magna Carta that is in any way inconsistent with the Civil Service Decree insofar as procedures for investigation is concerned. To the contrary, the Civil Service Decree, [S]ec. 38(b) affirms the Magna Carta by providing that the respondent in an administrative case may ask for a formal investigation, which was what the teachers did in this case by questi oning the absence of a representative of a teachers organization in the investigating committee. The administrative committee considered the teachers to have waived their right to a hearing after the latters counsel walked out of the preliminary hearing. The committee should not have made such a ruling because the walk out was staged in protest against the procedures of the committee and its refusal to give the teachers counsel a copy of the guidelines. The committee concluded its investigation and ordered the dismissal of the teachers without giving the teachers the right to full access of the evidence against them and the opportunity to defend themselves. Its predisposition to find petitioner-appellees guilty of the charges was in fact noted by the Supreme Court when in its resolution in G.R. No. 101943 (Rosario Septimo v. Judge Martin Villarama, Jr.) it stated: The facts and issues in this case are similar to the facts and issues in Hon. Isidro Cario, et al. v. Hon. Carlos C. Ofilada, et al. G.R. No. 100206, August 22, 1961. As in the Cario v. Ofilada case, the officials of the Department of Culture and Education are predisposed to summarily hold the petitioners guilty of the charges against them. In fact, in this case Secretary Cario, without awaiting formal administrative procedures and on the basis of reports and implied admissions found the petitioners guilty as charged and dismissed them from the service in separate decisions dated May 16, 1991 and August 6, 1991. The teachers went to [19] court. The Court dismissed the case. Furthermore, this Court sees no valid reason to disregard the factual findings and conclusions of the Court of Appeals. It is not our function to assess and evaluate all over again the evidence, testimonial and documentary, adduced by the parties particularly where, such as here, the findings of both the trial court and the [20] appellate court coincide. It is as clear as day to us that the Court of Appeals committed no reversible error in affirming the trial courts decision setting aside the questioned orders of petitioners; and ordering the unqualified reinstatement of private respondents and the payment
b) The heads of departments, agencies and instrumentalities xxx shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction xxx . Sec. 38,. Procedure in Administrative Cases Against Non-Presidential Appointees. a) Administrative Proceedings may be commenced against a subordinate officer or the employee by the head of department or officer of equivalent rank, or head of local government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other persons. There is really no repugnance between the Civil Service Decree and the Magna Carta for Public School Teachers. Although the Civil Service Decree gives the head of department or the regional director jurisdiction to investigate and decide disciplinary matters, the fact is that such power is exercised through committees. In cases involving public school teachers, the Magna Carta provides that the committee be constituted as follows: Sec. 9. Administrative Charges. - Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, that where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. Indeed, in the case at bar, neither the DECS [s]ecretary nor the DECS-NCR regional director personally conducted the investigation but entrusted it to a committee composed of a division supervisor, secondary and elementary school teachers, and consultants. But there was no representative of a teachers organization. This is a serious flaw in the composition of the committee because the provision for the
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to them of salaries, allowances, bonuses and other benefits that accrued to their [21] benefit during the entire duration of their suspension or dismissal. Because the administrative proceedings involved in this case are void, no delinquency or misconduct may be imputed to private respondents. Moreover, the suspension or dismissal meted on them is baseless. Private respondents should, as a [22] consequence, be reinstated and awarded all monetary benefits that may have [23] accrued to them during the period of their unjustified suspension or dismissal. This Court will never countenance a denial of the fundamental right to due process, which is a cornerstone of our legal system. WHEREFORE, premises considered, the petition is hereby DENIED for its utter failure to show any reversible error on the part of the Court of Appeals. The assailed Decision is thus AFFIRMED. SO ORDERED.
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[G.R. No. 139794. February 27, 2002] MARTIN S. EMIN, petitioner, vs. CHAIRMAN CORAZON ALMA G. DE LEON, COMMISSIONERS THELMA P. GAMINDE and RAMON P. ERENETA, JR., of the 12 CIVIL SERVICE COMMISSION, respondents. DECISION QUISUMBING, J.: This is a petition to review the decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549, affirming Civil Service Commission Resolution Nos. 96-3342 and 97-4049 finding petitioner Martin Emin, guilty of dishonesty, grave misconduct and conduct prejudicial to the best interest of the service, and dismissing him from the service as Non-Formal Education (NFE) Supervisor of the Department of Education, Culture and Sports (DECS), Kidapawan, Cotabato. The facts are as follows: Sometime in the year 1991, appointment papers for a change of status from provisional to permanent under Republic Act No. 6850 of teachers were submitted to the Civil Service Field Office-Cotabato at Amas, Kidapawan, Cotabato. Attached to these appointment papers were photocopies of certificates of eligibility of the teachers. Director Gantungan U. Kamed noticed that the certificates of eligibility were of doubtful authenticity. He called the Head Civil Service Field Officer. While the certificates seemed to be authentic, the signature of Civil Service Commission Director Elmer R. Bartolata and the initials of the processors of said certificates were clearly forgeries. Director Kamed initially forwarded five (5) appointments to Civil Service Regional Office No. XII for verification of their R.A. 6850 eligibilities and for appropriate action through an indorsement letter dated September 26, 1991. The appointment papers of the same nature subsequently submitted to the Field Office were likewise forwarded to the CSRO No. XII. Upon verification of the records of CSRO No. XII, it was found that said applications for civil service eligibility under R.A. 6850 were disapproved. However, the certificates of eligibility they submitted were genuine as their control number belonged to the batch issued to CSRO No. XII by the CSC Central Office. But the records showed that these certificates were never issued to any one. Two separate investigations were conducted by Director Cesar P. Buenaflor of Regional Office No. 12 of the Civil Service Commission in Cotabato City: (1) on how the R.A. 6850 certificates were issued/released from the Office, and (2) on how the teachers got said certificates. The teachers concerned were asked to report to the Office and bring the original copies of their certificates of eligibility. On several dates, the teachers appeared and gave their sworn statements pointing to petitioner as the person who gave them the R.A. 6850 certificates of eligibility they had attached to their appointments for a fee. Upon finding a prima facie case, petitioner was formally charged with dishonesty, grave misconduct and conduct [2] prejudicial to the best interest of the service. In his sworn letter dated April 8, 1992 to the CSC Regional Director, petitioner [3] [4] denied the accusation. He filed a motion to dismiss, dated June 5, 1992, but the motion was denied on July 8, 1992. During the hearing, the six teachers cited in the charge sheet, namely: Eufrocina Sicam, Ma. Elisa Sarce, Lilia Millondaga, Merla Entiero, Lourdes Limbaga and Florida P. Alforjas were presented as witnesses for the prosecution. Felixberta Ocho and Araceli G. Delgado who were also holders of fake certificates of eligibility were likewise presented as witnesses. Alforjas and Delgado identified petitioner and a certain Teddy Cruz as the persons who facilitated their applications for R.A. 6850 eligibility. The other witnesses corroborated Alforjas and Delgados testimonies. They all identified petitioner as the person who helped them obtain the fake certificates of eligibility. On June 29, 1994, Director Buenaflor submitted a report to the Chairman of the Civil Service Commission. The CSC found that there was sufficient evidence to warrant the conviction of petitioner. On May 14, 1996, the Civil Service Commission in its resolution decreed: WHEREFORE, Martin S. Emin is hereby found guilty of Grave Misconduct. Accordingly, the penalty of dismissal from the service including all its accessory [6] penalties is imposed upon him. Not satisfied with the abovecited resolution, the petitioner filed a motion for [7] reconsideration, but it was denied. On January 16, 1998, petitioner elevated the case to the Court of Appeals, but it was dismissed for failure to comply with Section 5, Rule 43 of the 1997 Rules of [8] Civil Procedure.
[5] [1]
12
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However, the CA granted petitioners motion for reconsideration and time to amend [10] his petition. In his amended petition, he raised before the CA the twin issues of (1) whether the CSC had original jurisdiction over the administrative cases against the [11] public school teachers; and (2) whether petitioner was accorded due process. Finding the petition unmeritorious, the appellate court ruled on the appeal, thus: WHEREFORE, premises considered, the petition (appeal) is DISMISSED, hereby affirming public respondents assailed appealed resolutions (Resolution No. 963342, dated May 14,1996; and Resolution No. 974049, dated October 14, 1997). SO ORDERED.
[12] [9]
and a supervisor of the Division, the last two to be designated by the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. For public respondent CSC, the Office of the Solicitor General maintains that original jurisdiction over the present case is with the CSC pursuant to the Constitution and P.D. 807 (Civil Service Law) which provide that the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including government-owned or controlled corporations whether performing governmental or proprietary function. We find merit in petitioners contention that R.A. 4670 is good law and is applicable to this case. R.A. 4670 has not been expressly repealed by the general law P.D. 807, nor has R.A. 4670 been shown to be inconsistent with the presidential [14] decree. Section 2 thereof specified those who are covered by the term teacher as follows: SEC. 2. Title Definition. - This Act shall be known as the Magna Carta for Public School Teachers and shall apply to all public school teachers except those in the professorial staff of state colleges and universities.
Petitioner is now before us raising the following issues: I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION HAS ORIGINAL JURISDICTION OVER ADMINISTRATIVE CASES AGAINST PUBLIC SCHOOL TEACHERS. II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PETITIONER WAS NOT ACCORDED HIS RIGHT TO DUE PROCESS. III. WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THERE WAS SUFFICIENT GROUND TO DISMISS THE PETITIONER FROM SERVICE. IV. WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT ADMITTING [13] THE NEWLY DISCOVERED EVIDENCE. Notwithstanding petitioners formulation, we find that the issues to be resolved are: (1) whether or not the CSC has original jurisdiction over the present case; and (2) whether or not petitioner was accorded due process. Petitioner avers that as a teacher, original jurisdiction over the administrative case against him is lodged with a committee and not with the CSC, as provided for by Republic Act 4670 otherwise known as the Magna Carta for Public School Teacher, specifically, Section 9 thereof, which provides: Sec. 9. Administrative Charges.- Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local, or, in its absence, any existing provincial or national teachers organization
Petitioner is the Non-Formal Education Supervisor of the DECS, in Kidapawan, [15] Cotabato, in-charge of the out-of-school programs. The 1993 Bureau of Non[16] formal Education Manual outlines the functions of a NFE Division Supervisor which include, (5) implementation of externally assisted NFE programs and projects; (6) monitoring and evaluation of NFE programs and projects (8) supervision of the implementation of NFE programs/projects at the grassroots [17] level. Clearly, petitioner falls under the category of all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the government or its political subdivisions.
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As used in this Act, the term teacher shall mean all persons engaged in classroom teaching, in any level of instruction, on full-time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees.
Administrative Law
Under Section 2 of R.A. 4670, the exclusions in the coverage of the term teachers are limited to: (1) public school teachers in the professorial staff of state colleges and universities; and (2) school nurses, school physicians, school dentists, and other school employees under the category of medical and dental personnel. Under the principle ofejusdem generis, general words following an enumeration of persons or things, by words of a particular and specific meaning, are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same [18] kind or class as those specifically mentioned. Too, the enumeration of persons excluded from the coverage of the term teachers is restricted, limited and exclusive to the two groups as abovementioned. Where the terms are expressly limited to certain matters, it may not by interpretation or construction be extended to other [19] matters. Exclusio unios est inclusio alterius. Had Congress intended to exclude an NFE Division Supervisor from the coverage of R.A. 4670, it could have easily done so by clear and concise language. As petitioner is covered by R.A. 4670, it is the Investigating Committee that should have investigated his case conformably with Section 9 of R.A. 4670, now being implemented by Section 2, Chapter VII of DECS Order No. 33, S. 1999, otherwise [20] known as the DECS Rules of Procedure. However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSCs jurisdiction over his case. But we must stress that nothing herein should be deemed as overriding the provision in the Magna Carta for Teachers on the jurisdiction of the Committee to investigate public school teachers as such, and the observance of due process in administrative proceedings involving them, nor modifying prior decided cases of teachers on the [21] observance of the said Magna Carta such as Fabella vs. Court of Appeals. Here what is crucial, in our view, is that the Civil Service Commission had afforded petitioner sufficient opportunity to be heard and defend himself against charges of participation in faking civil service eligibilities of certain teachers for a fee. Not only did he answer the charges before the CSC Regional Office but he participated in the hearings of the charges against him to the extent that we are left with no doubt that his participation in its proceedings was willful and voluntary. As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an [22] adverse decision is rendered against them. In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for [23] [24] review before the CA. He did not raise this matter in his Motion to Dismiss filed before the CSC Regional Office. Notably, in his Counter-Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was open to further [25] investigation by the CSC to bring light to the matter and by further praying for [26] any remedy or judgment which under the premises are just and equitable. It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting the judgment only if favorable, but attacking it [27] for lack of jurisdiction, when adverse. Equally unmeritorious is petitioners contention that he was denied due process. He avers that he was not allowed cross-examination. It is well to remember that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully [28] equated with due process in its strict judicial sense. Nothing on record shows he asked for cross-examination as most of the submissions were written. In our view, petitioner cannot argue that he has been deprived of due process merely because no cross-examination took place. The rule is well established that due process is satisfied when the parties are afforded fair and reasonable opportunity to explain their side of the controversy or given [29] opportunity to move for a reconsideration of the action or ruling complained of. In the present case, the record clearly shows that petitioner not only filed his Counter[30] Affidavit during the preliminary investigation, and later his Motion to [31] [32] Dismiss. He also filed a Motion for Reconsideration of the October 19, 1993 Order of the Commission. The essence of due process in administrative proceedings is an opportunity to explain ones side or an opportunity to seek [33] reconsideration of the action or ruling complained of. Neither is there merit in petitioners assertion that he was denied the right to due process when the CSC Regional Office, according to him, acted as investigator, prosecutor, judge and executioner. He laments that Director Buenaflor who formally filed the charge nominally was also the hearing officer, and that prosecutor Atty. Anabelle Rosell was also the one who submitted the recommendation to the CSC for the dismissal of petitioner. Recall, however, that it was ultimately the Civil Service Chairman who promulgated the decision. The report submitted by Atty. Rosell based on the hearing where Director Buenaflor sat as hearing officer, was merely recommendatory in character to the Civil Service Commission itself. Such procedure is not unusual in an administrative proceeding. Petitioner claims that there was no valid case to dismiss him as Director Elmer Bartolata was not presented to ascertain the alleged forged signature contained in the questioned certificates of eligibility. The Court of Appeals and the Civil Service Commission made a finding on this fact of forgery. It is not this Courts function
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now to evaluate factual questions all over again. This is particularly true in this case, [34] where the Commission and the appellate court agree on the facts. Lastly, petitioner contends that the affidavit of Teodorico Cruz should have been admitted as newly discovered evidence. Petitioner raised this issue for the first time on appeal, when he filed his Motion for New Trial and to Admit Newly Discovered Evidence before the CA. For a particular piece of evidence to be regarded as newly discovered for purposes of a new trial, it is essential that the offering party had exercised reasonable diligence in seeking to locate such evidence before or during [36] trial but had nonetheless failed to secure it. The OSG observed that despite the knowledge of the importance of Mr. Cruzs testimony on the matter, petitioner did not ask for a subpoena duces tecum to obtain said newly discovered evidence. Neither did petitioner, on his own, secure said affidavit or testimony during the proceedings to support his cause. We note too, that the said affidavit attempts to exonerate the petitioner and Cruz and points to someone else (Jing) as the culprit, leaving the impression that the idea of the affidavit was a mere afterthought, a last ditch effort to clear petitioners name. Thus, we are not persuaded by petitioners claim of newl y discovered evidence, for it appears to us as a dilatory contrivance for petitioners benefit. WHEREFORE, there being no reversible error committed by the Court of Appeals and the respondent officials of the CSC, the instant petition is hereby DENIED. The Decision dated October 30, 1998 of the Court of Appeals in CA-G.R. S.P. No. 46549 is AFFIRMED. Costs against petitioner. SO ORDERED.
[35]
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[G.R. No. 156063. November 18, 2003] MELECIO ALCALA, PERLA ALCALA, ROQUE BORINAGA, DIOSDADA BORINAGA, HELEN LENDIO, and MARY BABETH MAGNO,petitioners, vs. 13 JOVENCIO VILLAR, respondent. DECISION YNARES-SANTIAGO, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil [1] Procedure assailing the July 31, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 57391 which nullified and set aside the June 22, 1999 Resolution of the Office [2] of the Ombudsman in OMB-VIS-ADM-98-0103, as well as the Resolution dated October 25, 2002 denying petitioners motion for reconsideration. Respondent Jovencio D. Villar is the School Principal of Lanao National High School, Pilar, Cebu City. In February 1998, Rolando Torceno and petitioners, Melecio Alcala, Perla Alcala, Roque Borinaga, Helen Lendio, Emma Labaniego and Mary Babeth Mano, all teachers of Lanao National High School, as well as Asterio Villarante and petitioner Diosdada Borinaga, teachers of Dapdap National High School, Pilar, Dapdap, Cebu City (herein collectively referred to as complainants), filed with the Office of the Ombudsman an administrative complaint against respondent for [3] dishonesty. Complainants alleged that on August 18-22, 1997, they attended a mass training/seminar at the Consolacion National High School, Consolacion, Cebu. Respondent asked them to submit their respective Certificates of Appearance for the preparation of the vouchers for the refund of their expenses during the said training/seminar. Thereafter, they received from respondent the following amounts as refund: 1. 2. 3. 4. 5.
13
6. 7. 8. 9.
Melecio Alcala Diosdado Borinaga Rolando Torceno Helen Lendio
- 280.00 - 310.00 - 130.00 - 130.00

[4]
Upon verification with the Department of Education Culture and Sports (DECS) Division Office, complainants discovered that each of them were issued checks in the amount of P312.00 as reimbursement, and that respondent received the same by forging their signature. Complainants further alleged that sometime in November 1997, Melecio Alcala, Diosdada Borinaga, Helen Lendio, and Rolando Torceno received from respondent P1,500.00 each representing Loyalty Benefits. They learned, however, from the [5] DECS Division Office that they were entitled to receive P2,000.00 each. Respondent, on the other hand, claimed that he was in fact authorized by the complainants to claim and encash their checks at the E and E Lending Investors where most of them have existing loans. He contended that their school is located in the rural area where no banks are operating, such that it has been the practice of teachers to authorize the principal to claim, receive and encash the checks in their behalf. He explained that complainants did not receive the entire amount of P312.00 because they authorized the E and E Lending Investors to deduct certain [6] amounts from their checks as payment for their respective loans. As for the Loyalty Benefits, respondent alleged that complainants received the entire amount [7] due them and that he deducted nothing therefrom. He asserted that the real reason behind the filing of the complaint was to force him to resign so that one of [8] the complainants could apply for his post. On June 22, 1999, the Office of the Ombudsman issued a resolution finding respondent guilty of dishonesty and dismissing him from service. The dispositive portion thereof reads: WHEREORE, in view of the foregoing, respondent is meted the penalty of DISMISSAL FROM SERVICE WITH FORFEITURE OF ALL BENEFITS AND DISQUALIFICATION TO HOLD PUBLIC OFFICE. SO RESOLVED.
[9]
Perla Alcala Roque Borinaga Mary Babeth Magno Emma Labaniego Asterio Villarante
- P280.00 - 310.00 - 160.00 - 130.00 - 130.00
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A motion for reconsideration was filed by respondent; however, the same was denied [10] on October 13, 1999. On appeal, the Court of Appeals nullified and set aside the decision of the Office of the Ombudsman on the ground that the latter was without jurisdiction over administrative complaints against public school teachers. It ruled that the governing law is Republic Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, and not Republic Act No. 6770, the Ombudsman Act of 1989. Thus WHEREFORE, the Ombudsmans Resolution dated June 22, 1999 and Order dated October 13, 1999 are hereby NULLIFIED and SET ASIDE, without prejudice to the ventilation of the charges against respondent-appellant before the proper forum. SO ORDERED.
[11]
Likewise, in Emin v. De Leon, the Court ruled that although under Presidential Decree No. 807 (Civil Service Law), the civil service embraces every branch, agency, subdivision, and instrumentality of the government, including governmentowned or controlled corporations whether performing governmental or proprietary function, the Civil Service Commission does not have original jurisdiction over an administrative case against a public school teacher. It was stressed therein that jurisdiction over administrative cases of public school teachers is lodged with the Investigating Committee created pursuant to Section 9 of R.A. No. 4670, now being implemented by Section 2, Chapter VII of DECS Order No. 33, S. 1999, otherwise [16] known as the DECS Rules of Procedure. The foregoing notwithstanding, the Court of Appeals erred when it nullified the proceedings before the Office of the Ombudsman. Indeed, the question of jurisdiction may be tackled motu proprio on appeal even if none of the parties [17] [18] raised the same. This rule, however, is not absolute. In Emin v. De Leon, a public school teacher was administratively charged with and found guilty of dishonesty under P.D. No. 807 (Civil Service Law). The Supreme Court ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, is the applicable law and that the Civil Service Commission does not have jurisdiction over the administrative case. Nevertheless, the Court affirmed the dismissal from service of the public school teacher as the latter was found to have been sufficiently afforded due process. It was held that what is crucial is that the respondent be given sufficient opportunity to be heard and defend himself. Thus However, at this late hour, the proceedings conducted by the public respondent CSC can no longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSCs jurisdiction over his case. But we must stress that nothing herein should be deemed as overriding the provision in the Magna Carta for Teachers on the jurisdiction of the Committee to investigate public school teachers as such, and the observance of due process in administrative proceedings involving them, nor modifying prior decided cases of teachers on the observance of the said Magna Carta such as Fabella vs. Court of Appeals. Here what is crucial, in our view, is that the Civil Service Commission had afforded petitioner sufficient opportunity to be heard and defend himself against charges of participation in faking civil service eligibilities of certain teachers for a fee. Not only did he answer the charges before the CSC Regional Office but he participated in
[15]
Petitioners motion for reconsideration was denied on October 25, 2002. Hence, the instant petition.
[12]
Sec. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who would at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings: Provided, however, that where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. The foregoing provision implements the Declaration of Policy of the statute, that is, to promote the terms of employment and career prospects of schoolteachers.
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Republic Act No. 6770, the Ombudsman Act of 1989, provides that the Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries except over officials who may be removed by [13] impeachment or over Members of Congress, and the Judiciary. However, [14] in Fabella v. Court of Appeals, it was held that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. Section 9 of said law expressly provides that
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the hearings of the charges against him to the extent that we are left with no doubt that his participation in its proceedings was willful and voluntary. As held previously, participation by parties in the administrative proceedings without raising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. In the case at bar, petitioner raised the issue of lack of jurisdiction for the first time in his amended petition for review before the CA. He did not raise this matter in his Motion to Dismiss filed before the CSC Regional Office. Notably, in his Counter-Affidavit, he himself invoked the jurisdiction of the Commission by stating that he was open to further investigation by the CSC to bring light to the matter and by further praying for any remedy or judgment which under the premises are just and equitable. It is an undesirable practice of a party participating in the proceedings, submitting his case for decision, and then accepting [19] the judgment only if favorable, but attacking it for lack of jurisdiction, when adverse. In the case at bar, respondent was amply afforded due process in an administrative proceeding, the essence of which is an opportunity to explain ones side or an [20] opportunity to seek reconsideration of the action or ruling complained of. Not only did respondent file a counter-affidavit and a motion for reconsideration, he also participated in the hearings conducted by the Office of the Ombudsman and was given the opportunity to cross-examine the witnesses against him. Verily, participation in the administrative proceedings without raising any objection thereto amounts to a [21] waiver of jurisdictional infirmities. In the same vein, respondent in this case should be barred under the principle of estoppel by laches from assailing the jurisdiction of the Ombudsman. Therefore, the Court of Appeals should have resolved the appeal on its merits, considering that respondents right to procedural due process was properly observed. WHEREFORE, in view of all the foregoing, the July 31, 2002 Decision of the Court of Appeals in CA-G.R. SP No. 57391 which nullified the Resolution dated June 22, 1999 and Order dated October 13, 1999 of the Office of the Ombudsman, is REVERSED and SET ASIDE. Let this case be REMANDED to the Court of Appeals for determination of the appeal on its merits. SO ORDERED.
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G.R. No. 153155 September 30, 2005 MANUEL D. LAXINA, SR., Petitioners, vs. OFFICE OF THE OMBUDSMAN, EVANGELINE URSAL, HON. JOSE E. LINA, JR., in his capacity as Secretary of the Department of Interior and Local Government (DILG), and HON. FELICIANO BELMONTE, JR., in his capacity as 14 City Mayor of Quezon City, Respondent. DECISION Tinga, J.: The instant petition seeks the review of the 24 April 2002 Decision of the Court of Appeals (CA) in CA-G.R. SP No. 66412, affirming the 2 July 2001 Memorandum 2 3 Order and the 1 August 2001 Order of the Office of the Ombudsman in OMB-ADM4 00-0350, imposing upon petitioner the penalty of dismissal from office with forfeiture 5 of material benefits pursuant to Sec. 25(2) of Republic Act (R.A.) No. 6770. Petitioner Manuel D. Laxina, Sr. was Barangay Chairman of Brgy. Batasan Hills, Quezon City. On 15 December 1998, Evangeline Ursal ("Ursal"), Barangay Clerk of Batasan Hills, Quezon City, filed with the National Bureau of Investigation (NBI) a complaint for attempted rape against petitioner. Petitioner was subsequently charged 6 with sexual harassment before the Regional Trial Court of Quezon City. On 13 March 2000, Ursal brought before the Department of Interior and Local Government (DILG) a complaint-affidavit charging petitioner with grave misconduct for the alleged attempted rape. However, the DILG referred the complaint to the Quezon City Council ("City Council")for appropriate action. Said complaint was 7 docketed as Adm. Case No. 00-13 before the City Council. Thereafter, on 30 March 2000, Ursal filed with the Office of the Ombudsman a similar complaint-affidavit charging petitioner with grave misconduct, docketed as OMB ADM 8 Case No. 0-00-0350. Petitioner filed his counter-affidavit and attached thereto the affidavits of two witnesses. On 15 August 2000, the Administrative Adjudication Bureau (AAB) of the Office of the Ombudsman exonerated petitioner from the charge, 9 dismissing the complaint for lack of substantial evidence. However, on 2 July 2001, upon review, and with the approval of the Ombudsman, petitioner was found guilty of grave misconduct and meted the penalty of dismissal, with forfeiture of material 10 benefits, per its Memorandum Order.
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Petitioner sought reconsideration of the adjudication, alleging lack of jurisdiction on 11 the part of the Ombudsman, but the motion was denied. Meanwhile, Ursal asked the City Council to waive its jurisdiction in favor of the 12 13 Ombudsman. The City Council merely noted Ursals motion. On 20 August 2001, the AAB issued an order directing Quezon City Mayor Feliciano R. Belmonte, Jr. to implement the 2 July 2001 Memorandum Order and to 14 submit a compliance report. Mayor Belmonte issued an implementing order, notifying petitioner of his dismissal from service and enjoining him to cease and 15 desist from performing his duties as barangay captain. Petitioner sought the review of the Ombudsmans Memorandum Order before the CA, arguing that: (i) the Office of the Ombudsman did not have jurisdiction over the administrative complaint; (ii) Ursals filing of the same administrative case before the Office of the Ombudsman and the City Council through the DILG warranted the dismissal of both cases; and (iii) petitioner was denied due process in the 16 proceedings before the Ombudsman. In its Decision promulgated on 24 April 2002, the CA dismissed the petition for lack of merit. According to the CA, petitioner participated in the proceedings before the Ombudsman and questioned the Ombudsmans jurisdiction for the first time only in his motion for reconsideration, or after the Ombudsman had found him guilty of grave misconduct. Thus, he is estopped from impugning the jurisdiction of the 17 Ombudsman over the case. The CA found the Ombudsmans assumption of jurisdiction justified since it became aware of the earlier case before the City 18 Council only when petitioner filed his motion for reconsideration. In addition, the CA stated that the Ombudsman was justified in not dismissing the administrative cases as a penalty for forum-shopping because petitioner and Ursal are in pari 19 delicto. Neither was petitioner deprived of administrative due process since he was allowed to present evidence and said evidence were passed upon by the 20 Ombudsman, the CA added. Before this Court, petitioner seeks the dismissal of the administrative charge against him anchored on the following assignment of errors: I. THE PUBLIC RESPONDENTS COMMITTED A GRAVE ERROR OF LAW IN REFUSING TO DISMISS THE CASES AGAINST PETITIONER ON THE GROUND OF "FORUM SHOPPING" AND MISAPPLYING INSTEAD THE PRINCIPLE OF ESTOPPEL.
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II. THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW WHEN IT REFUSED TO PREVENT PUBLIC RESPONDENTS FROM PREMATURELY IMPLEMENTING THE MEMORANDUM ORDER DISMISSING PETITIONER A DULY ELECTED OFFICIAL DESPITE THE FACT THAT THE ORDER IS NOT YET FINAL AND EXECUTORY CONTRARY TO THE DOCTRINE LAID DOWN BY THE SUPREME COURT IN "LAPID VS. COURT OF APPEALS", 329 SCRA 771. III. THE RESPONDENTS AND THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW IN VIOLATING THE RIGHT OF PETITIONER TO DUE PROCESS IN DECREEING HIS DISMISSAL OF PETITIONER WITHOUT SUBSTANTIAL 21 EVIDENCE AND WITHOUT CONSIDERING THE EVIDENCE OF PETITIONER. Petitioner likewise seeks the issuance of a temporary restraining order and/or writ of preliminary injunction to enjoin public respondents from implementing the Order of the Ombudsman and to reinstate him to the position of Barangay Chairman of Brgy. Batasan Hills, Quezon City. Petitioner claims that estoppel cannot apply to him because he never invoked the jurisdiction of the Ombudsman, much less sought affirmative relief 22 therefrom. Arguing that he has no obligation to disclose the fact that there is another identical case pending before another forum since he is not the one who instituted the 23 identical cases, he reiterates the rule that when two or more courts have concurrent jurisdiction, the first to validly acquire jurisdiction takes it to the exclusion of the other 24 or the rest. On the second assignment of error, petitioner claims that he is entitled to the injunctive relief as prayed for in his petition before the CA. He asserts that Adm. Order No. 7, as amended by Adm. Order No. 14-A of the Office of the Ombudsman, decreeing that all administrative orders, directives and decisions rendered by the said office are immediately executory notwithstanding the perfection of an appeal unless a temporary restraining order shall have first been secured, is contrary to the expressed mandate of R.A. No. 6770. Moreover, citing the case of Lapid v. Court of 25 Appeals, petitioner claims that an appeal if timely filed stays the immediate implementation of a decision, and that the fact that the Ombudsman Act has given the parties the right to appeal should carry with it the stay of said decision pending 26 appeal. Lastly, petitioner maintains that he was deprived of administrative due process when the Ombudsman refused to consider his evidence and rendered a decision that is not 27 supported by substantial evidence. Questioning the findings of fact made by the Ombudsman, claiming that these were "speculations, surmises, probabilities, half28 truths and other unfounded/unsupported hearsay evidence," petitioner invokes the principles employed in a prosecution for the crime of rape 30 Ombudsman did not adhere to these principles.
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and points out that the
In his Comment, Mayor Belmonte substantially reiterates the findings and reasoning of the CA Decision. He notes that the injunctive reliefs prayed for by petitioner are improper as he had already issued an implementing order dismissing petitioner from service, and another person has been sworn into office as Barangay 32 Chairman of Brgy. Batasan Hills, Quezon City. Meanwhile, the Office of the Ombudsman, through the Office of the Solicitor General (OSG), while advancing the same reasoning as the appellate courts additionally argues that the City Councils assumption of jurisd iction over the case will not deprive the Ombudsman of its constitutional mandate to give justice to the victims of oppressive acts of public officials and to protect the citizenry from illegal 33 acts or omissions of any government official. Even assuming that there was forum-shopping, petitioner is estopped from questioning the technical 34 defect. Besides, technical rules of procedure should be applied with liberality, and at any rate, in administrative proceedings, technical rules of procedure and 35 evidence are not strictly applied, the OSG emphasizes. The petition must be denied. At the onset, it must be stressed that the rule on forum-shopping applies only to 36 judicial cases or proceedings, and not to administrative cases. Petitioner has not cited any rule or circular on forum-shopping issued by the Office of the Ombudsman or that of the City Council. In fact, it was only on 15 September 2003 that the Ombudsman, in Administrative Order No.17, S. 2003, required that a Certificate of Non-Forum Shopping be attached to the written complaint against a public official or employee. Supreme Court Administrative Circulars Nos. 04-94 and 37 28-91 adverted to by petitioner mention only initiatory pleadings in a court of law when another case is pending before other tribunals or agencies of the government as the pleadings to which the rule on forum-shopping applies, thus: The complaint and other initiatory pleadings referred to and subject of this Circular are the original civil complaint, counterclaim, cross-claim, third (fourth, etc.) party complaint, or complaint-in-intervention, petition, or application wherein a party asserts his claim for relief. Ursal filed identical complaint-affidavits before the City Council, through the DILG, and the Office of the Ombudsman. A review of the said complaints-affidavits shows that far from being the typical initiatory pleadings referred to in the abovementioned circulars, they merely contain a recital of the alleged culpable acts of
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petitioner. Ursal did not make any claim for relief, nor pray for any penalty for petitioner. Petitioner claims that the Ombudsman has no jurisdiction over the case since the City Council had earlier acquired jurisdiction over the matter. The Court is not convinced. The mandate of the Ombudsman to investigate complaints against erring public 38 39 officials, derived from both the Constitution and the law gives it jurisdiction over the complaint against petitioner. The Constitution has named the Ombudsman and his Deputies as the protectors of the people who shall act promptly on complaints filed in any form or manner against public officials or employees of the 40 government. To fulfill this mandate, R.A. No. 6770, or the Ombudsman Act of 1989, was enacted, giving the Ombudsman or his Deputies jurisdiction over complaints on 41 all kinds of malfeasance, misfeasance and non-feasance against officers or employees of the government, or any subdivision, agency or instrumentality therefor, including government-owned or controlled corporations, and the disciplinary authority over all elective and appointive officials, except those who may be removed only by 42 impeachment or over members of Congress and the Judiciary. On the other hand, under R.A. No. 7160 or the Local Government Code, the sangguniang panlungsod or sangguniang bayan has disciplinary authority over any elective barangay 43 official. Without a doubt, the Office of the Ombudsman has concurrent jurisdiction with the Quezon City Council over administrative cases against elective officials such as petitioner. The Ombudsman was not aware of the pending case before the Quezon City Council when the administrative complaint was filed before it. There was no mention of such complaint either in the complaint-affidavit or in the counter-affidavit of petitioner. Thus, the Ombudsman, in compliance with its duty to act on all complaints against officers and employees of the government, took cognizance of the case, made its investigation, and rendered its decision accordingly. As explained quite frequently, a party may be barred from raising questions of jurisdiction where estoppel by laches has set in. Estoppel by laches is failure or neglect for an unreasonable and unexplained length of time to do what, by exercising due diligence, ought to have been done earlier, warranting a presumption that the party entitled to assert it has either abandoned it or has acquiesced to the correctness and fairness of its resolution. This doctrine is based on grounds of public policy which for peace of society requires the discouragement of stale claims and, unlike the statute of limitations, is not a mere question of time but is principally an issue of 44 inequity or unfairness of permitting a right or claim to be enforced or espoused. Petitioner is also estopped from questioning the jurisdiction of the Ombudsman. A perusal of the records shows that he participated in the proceedings by filing his counter-affidavit with supporting evidence. Neither did he inform the Ombudsman of the existence of the other administrative complaint of which he is presumably aware at the time the proceedings in the Ombudsman were on-going. It was only when the Ombudsman rendered an adverse decision that he disclosed the proceedings before the Quezon City Council and raised the issue of jurisdiction. Thus, it has been held that participation in the administrative proceedings without raising any objection thereto bars the parties from raising any jurisdictional infirmity 45 after an adverse decision is rendered against them. Another submission made by petitioner is that he was deprived of his right to administrative due process when he was dismissed from service without substantial evidence and without consideration of the evidence he proffered. He raises as a defense Ursals failure to state the actual date of commission of the alleged attempted rape, the impossibility of the assault, and the affidavits of his 46 other subordinates. Calling attention to the weakness of Ursals evidence, he states that such evidence is not sufficient to establish the crime of rape, in 47 whatever stage. Finally, he argues that as testament to his innocence, his 48 constituents voted him to a third term. Again, the Court is not impressed.
A finding of guilt in an administrative case would have to be sustained for as long as it is supported by substantial evidence that respondent has committed the acts 49 stated in the complaint or formal charge. Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This is different from the degree of proof required in criminal proceedings, which calls for a finding of guilt beyond reasonable 50 doubt. Petitioners reliance on the rules on prosecution for the crime of rape is therefore misplaced. What is at issue in the case before the Ombudsman is whether his acts constitute grave misconduct, and not whether he is guilty of the crime of attempted rape. There is no basis for believing petitioners claim that the Ombudsman had refused 51 to consider his evidence. As properly observed by the CA, the Ombudsman passed upon petitioners evidence which, however, was found bereft of credibility.
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Petitioner was accorded the opportunity to be heard. He was required to answer the formal charge and given a chance to present evidence in his behalf. He was not denied due process. More importantly, the decision of the Ombudsman is well supported by substantial evidence.
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In fact, unfortunately for petitioner at that, the Ombudsman and the CA discovered Ursals allegations more credible, supported and corroborated as they were by the medical findings, the NBI reports and the surrounding circumstances. One final point. The Court notes that the order made by the Ombudsman requiring Mayor Belmonte to implement the Memorandum Order dated 2 July 2001 dismissing petitioner was made even though the Memorandum Orderhad not yet attained 52 finality. Under the Ombudsman Act, a motion for reconsideration may be filed within five (5) days after receipt of the written notice, while all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the order, directive or decision or denial of the motion for 53 reconsideration in accordance with Rule 45 of the Rules of Court. Petitioner received a copy of the Memorandum Order on 23 July 2001, and filed his motion for reconsideration on 27 July 2001. The motion was denied in the Order dated 1 August 2001, copy of which was received by petitioner on 21 August 2001. Petitioner thereafter filed his petition with the CA on 31 August 2001, or 54 within the reglementary period provided by the Rules. Thus, it was improper for the Ombudsman to order the implementation of the Memorandum Order before it could become final and executory. In Lapid v. Court 55 of Appeals, this Court held that the import of Section 27 of the Ombudsman Act is that all other decisions of the Office of the Ombudsman which impose penalties that are not enumerated in the said Section 27 are not final, unappealable and 56 immediately executory. An appeal timely filed, such as the one filed in the instant 57 case, will therefore stay the immediate implementation of the decision. Thus: In all these other cases therefore, the judgment imposed therein will become final after the lapse of the reglementary period of appeal if no appeal is perfected or, an appeal therefrom having been taken, the judgment in the appellate tribunal becomes final. It is this final judgment which is then correctly categorized as a "final and executory judgment" in respect to which execution shall issue as a matter of right. In other words, the fact that the Ombudsman Act gives parties the right to appeal from its decisions should generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being appealable would be 58 rendered nugatory. However, the implementation sought to be enjoined is already fait accompli. Petitioner had already stepped down and a new barangay chairman for Brgy. Batasan Hills had already been sworn in. Injunction would not lie anymore, as the acts sought to be enjoined have already been accomplished or consummated. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 24 April 2002 is AFFIRMED. Costs against petitioner. SO ORDERED.
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G.R. No.177580 October 17, 2008 Respondent, this time assisted by counsel, Atty. Alan P. Cabaero, moved for the lifting of the preventive suspension Order on the ground that the evidence of his 7 guilt is not strong. It was denied. Undaunted, respondent filed a Supplemental Motion for Reconsideration alleging that the Schools Division Superintendent Lilia T. Reyes had already designated Hereberto Jose D. Miranda as the new OIC of the school in his stead, effective 9 September 1, 2003. By Order of October 16, 2003, petitioner lifted the preventive suspension Order.
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OFFICE OF THE OMBUDSMAN, petitioner, vs. 15 VICTORIO N. MEDRANO, respondent. DECISION CARPIO MORALES, J.: Challenged via Petition for Review on Certiorari are the Decision dated June 29, 2006 and Resolution dated April 2, 2007 of the Court of Appeals in CA-G.R. SP No. 2 93165 which nullified the Decision dated July 19, 2004 of the Office of the Ombudsman (petitioner), as modified, finding Victorio N. Medrano (respondent) guilty of sexual harassment in the administrative complaint against him and dismissed the said complaint for lack of jurisdiction. Sometime in May 2003, Ma. Ruby A. Dumalaog (Ma. Ruby), a teacher at Jacobo Z. Gonzales Memorial National High School in Bian, Laguna (the school), filed a sworn 3 letter-complaint before the Office of the Ombudsman (for Luzon) charging her superiorherein respondent, Officer-In-Charge (OIC) of the school and concurrently the principal of San Pedro Relocation Center National High School in San Pedro, Laguna, with (1) violation of Republic Act (R.A.) No. 7877 (Anti-Sexual Harassment Act of 1995), docketed as OMB-L-C-03-0613-E (criminal case), and (2) grave misconduct, docketed as OMB-L-A-03-0488-E (administrative case). The administrative complaint, in essence, alleged that in the afternoon of March 28, 2003, respondent made sexual advances on Ma. Ruby and abused her sexually. In his Counter-Affidavit, respondent denied the charge, claiming that it was "maliciously designed to harass and threaten him to succumb to Ma. Rubys demand that she be given a regular teaching post." He thus prayed for the dismissal of the complaint. While the administrative case was pending investigation, Ma. Ruby filed an Urgent 5 Ex-Parte Motion for Preventive Suspension, alleging that respondent was "using the 6 powers of his office by utilizing his subordinates in harassing her." By Order of July 29, 2003, petitioner granted the motion and ordered the preventive suspension of respondent for six (6) months without pay.
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By Decision of July 19, 2004 rendered in the administrative case, petitioner adjudged respondent guilty of grave misconduct and imposed upon him the penalty of dismissal from the service. With respect to the criminal case, petitioner, by Resolution of July 19, 2004, found probable cause to indict respondent for violation of the Anti-Sexual Harassment Act of 1995. An information for violation of said Act, docketed as Criminal Case No. 29190 before the Metropolitan Trial Court (MeTC) of Bian, Laguna, was in fact filed. Respondent moved for reconsideration of petitioners issuances in both cases. 12 Respecting the administrative case, he assailed not only the factual findings and conclusions of petitioner, but, for the first time, he challenged its jurisdiction over the case. He argued that under Section 9 of R.A. No. 4670 (the Magna Carta for Public School Teachers), an administrative complaint against a public school teacher should be heard by an investigating committee of the Department of Education Culture & Sports, now Department of Education (DepEd), composed of the school superintendent of the division where the teacher belongs, a representative from a teachers organization, and a supervisor of the division. He thus prayed for the dismissal of the administrative case as petitioner has no jurisdiction over it. By Joint Order of April 8, 2005, petitioner affirmed its Resolution in the criminal case but modified its Decision in the administrative case by finding respondent guilty of sexual harassment, instead of grave misconduct, and meted on him the penalty of suspension from the service for one (1) year, without pay. Dissatisfied, respondent filed a Petition for Review (with prayer for the issuance of 14 a Temporary Restraining Order and/or Writ of Preliminary Injunction) before the Court of Appeals, assailing petitioners decision in the administrative case,
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attributing to it grave abuse of discretion amounting to lack or excess of jurisdiction when it I... assumed jurisdiction over the administrative case against petitioner, although under R.A. 4670, otherwise known as the Magna Carta for Public SchoolTeachers, only the appropriate committeeof the Department of Education has exclusive jurisdiction to hear and try administrativecomplaints against public sc hool teachers. II. . . denied him his right to present before the Graft Investigation Officer the text messages sent by complainant which would have established the fact that the sexual harassment charge did not actually happen. x x x III. . . totally ignored his overwhelming evidence positively establishing his presence in another place at the time the alleged acts of sexual harassment were committed against complainant. IV. . . found him guilty of sexual harassment and imposed upon him the penalty of 15 one (1) year suspension from the service. (Underscoring supplied) By the now assailed Decision of June 29, 2006, the appellate court annulled petitioners July 19, 2004 Decision, as modified, in the administrative case and dismissed the complaint on the sole ground that petitioner has no jurisdiction over it. It held that although respondent raised the issue of jurisdiction only after petitioner rendered an adverse decision, "the rule on estoppel will not apply against [Medrano]" because such jurisdictional issue was raised "when the case was still 16 before the Ombudsman." It thus found no need to address the other issues raised by respondent. Petitioners Motion for Reconsideration of the appellate courts Decision was denied 18 by Resolution of April 2, 2007, hence, the present Petition for Review on Certiorari. Petitioner contends that the Court of Appeals erred in not ruling that it (petitioner) has concurrent jurisdiction with the DepEd over the administrative complaint against 19 respondent. Instead of filing a comment on the present petition as directed, respondent filed 20 a Manifestation With Motion In Lieu Of Comment praying that "the instant petition be dismissed for being moot and academic" in view of the execution of an Affidavit of 21 Desistance by Ma. Ruby on September 17, 2007 before Assistant Provincial 22 Prosecutor Ramonito Delfin of Bian, Laguna, as well as the Order of even date 23 issued by the MeTC of Bian dismissing the criminal case against him due to her lack of interest to prosecute the case.
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In her Affidavit of Desistance, Ma. Ruby stated, inter alia: 2. That in retrospect and after an objective and sincere review of the events that led to the filing of the instant cases [referring to the criminal and administrative cases], I am now fully enlightened that said incident was just a product of mistake of fact and clear misunderstanding between me and the accused/respondent, who after all, was not actually criminally nor immorally motivated to do any formof offense/harm t o my person. Thus, I am now retracting everything I said against theaccused/respondent in my lettercomplaint with the Office of the Ombudsman dated May 13, 2003, which became the basis for the filing of the criminal and administrative cases against him; 3. That x x x, I am no longer interested in pursuing the criminal and administrative cases I filed against Mr. Victorio N. Medrano, and is now requesting the Honorable Court [referring to the trial court in the criminal case], the Office of the Ombudsman or the Honorable Supreme Court with whom the administrative case is pending, to dismiss the said cases. (Underscoring supplied) Petitioner opposes respondents move, contending that Ma. Rubys Affidavit of Desistance and the dismissal of the criminal case do not constitute legal bases for dismissing the present petition and the administrative complaint. The issues for resolution are: 1. Whether the petition has become moot and academic, Ma. Ruby having executed an affidavit of desistance and the criminal case having been dismissed due to her lack of interest to prosecute the same; 2. Whether petitioner has jurisdiction over the administrative complaint against respondent; and 3. Whether respondent is estopped to question jurisdiction over the administrative complaint. petitioners assumption of
With respect to the first issue, the Court holds in the negative. The flaw in respondents argument that the execution of Ma. Rubys Affidavit of Desistance and the dismissal of the criminal case must result in the dismissal of the administrative case is that it ignores the whale of a difference between those two remedies. In Gerardo R. Villaseor and Rodel A. Mesa v. Sandiganbayan and 24 Louella Mae Oco-Pesquerra (Office of the Special Prosecutor, Ombudsman), the Court stressed the distinct andindependent character of the remedies available to
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an offended party against any impropriety or wrongdoing committed by a public officer, thus: Significantly, there are three kinds of remedies available against a public officer for impropriety in the performance of his powers and the discharge of his duties: (1) civil, (2) criminal, and (3)administrative. These remedies may be invoked separately, alternately, simultaneo usly orsuccessively. Sometimes, the same offense may be the subject of all three kinds of remedies. Defeat of any of the three remedies will not necessarily preclude resort to other reme dies or affectdecisions reached thereat, as different degrees of evidence are required in these several actions. In criminal cases, proof beyond reasonable doubt is needed, whereas a mere preponderance of evidence will suffice in civil cases. In administrative cases, only substantial evidence is required. It is clear, then, that criminal and administrative cases are distinct from each other. The settled ruleis that criminal and civil cases are altogether different fro m administrative matters, suchthat the first two will not inevitably govern or aff ect the third and vice versa. Verily,administrative cases may proceed independ ently of the criminal proceedings. (Underscoring supplied) At any rate, an affidavit of desistance (or recantation) is, as a rule, viewed with suspicion and reservation because it can easily be secured from a poor and ignorant 25 witness, usually through intimidation or for monetary consideration. And there is always the probability that it would later be repudiated, and criminal prosecution 26 would thus be interminable. Hence, such desistance, by itself, is not usually a 27 ground for the dismissal of an action once it has been instituted in court. The suspicious and unreliable nature of Ma. Rubys Affidavit of Desistance is evident. Firstly, her affidavit was executed only on September 17, 2007 or more than three (3) years after petitioner had rendered its July 19, 2004 Decision, as modified by its Joint Order of April 8, 2005 finding respondent guilty of sexual harassment.Secondly, unlike her six-page sworn letter-complaint of May 13, 2003 wherein she narrated in her own Pilipino dialect the factual details of respondents acts complained of, Ma. Rubys one-page Affidavit of Desistance is couched in English with legal terms and conclusions only one with a trained legal mind can formulate, e.g., "I am now fully enlightened that said incident was just a product of mistake of fact and clear misunderstanding between me and the accused/respondent, who after all, was not actually criminally nor immorally motivated to do any formof offense/harm to my person." Thirdly, Ma. Rubys Affidavit is bereft of any factual particulars, engendering more questions that bolster its unreliability, e.g.: What was the "misunderstanding" between her and respondent? How was she "fully enlightened" about the whole incident? How did she arrive at her conclusion that he "was not actually criminally nor immorally motivated to do any form of offense/harm" against her person? In fine, the bases of respondents plea to have the present petition dismissed do not obliterate his liability in the administrative case subject of the present petition. In resolving the second issue whether petitioner has jurisdiction over the administrative complaint against respondent it is necessary to examine the source, nature and extent of the power and authority of the Ombudsman vis-vis the provisions of the Magna Carta for Public School Teachers. Section 5, Article XI of the Constitution "created the independent Office of the Ombudsman." Hailed as the "protectors of the people," the Ombudsman and his Deputies are bestowed with overreaching authority, powers, functions, and duties to act on complaints against public officials and employees, as provided in Sections 12 and 13 thereof, thus: Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly oncomplaints filed in any form or manner against public officials or employees of the Government, orany subdivision, agency or instrumentality ther eof, including government-owned or controlledcorporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. Sec. 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 an y public official,employee, office or agency, when such act or omission appears to b e illegal, unjust, improper, orinefficient; (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;
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(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 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; and (8) Promulgate its rules of procedure and exercise such other powers or perform such functions orduties as may be provided by law. (Underscoring supplied) The above enumeration of the Ombudsmans far-reaching powers is not exclusive as the framers of the Constitution gave Congress the leeway to prescribe, by subsequent legislation, additional powers, functions or duties to the Ombudsman, as mandated in Section 13(8), quoted above. Pursuant to the constitutional command, Congress enacted R.A. No. 6770 (The Ombudsman Act of 1989) providing for the functional, structural organization, and the extent of the administrative disciplinary authority of the petitioner.28 The provisions of this law "apply to all kinds of malfeasance, misfeasance, and nonfeasance" committed by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, "during his tenure in office."29 The acts or omissions which the petitioner may investigate are quite extensive: SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but notlimited, to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification.
Its mandate is not only to "act promptly on complaints" against such public officers or employees, but also to "enforce their administrative, civil and criminal liability in every case where the evidence warrants in order topromote efficient service by the Government to the people." R.A. No. 6770, however, restrains the petitioner from exercising its disciplinary authority "over officials who may beremoved only by impeachment or over Members of Congress and the Judiciary," thus: SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials whomay be removed only by impeachment or over Members of Congress and the Judiciary. SEC. 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for thepurpose of filing a verified complaint for impeachment, if warranted. In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. (Underscoring supplied) The above constitutional and statutory provisions taken together reveal the manifest intent of the lawmakers to bestow upon the petitioner full administrative
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disciplinary power over public officials and employees except those impeachable officials, Members of Congress and of the Judiciary. When an administrative charge is initiated against a public school teacher, however, Section 9 of the Magna Carta for Public School Teachers specifically provides that the same shall be heard initially by an investigating committeecomposed of the school superintendent of the division, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organiza tion, and a supervisor of the division, as members, thus: SEC. 9. Administrative Charges. Administrative charges against a teacher shall be heard initiallyby a committee composed of the corresponding Schools Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to theDirector of Public Schools within thirty days from termination of the hearings; Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. (Underscoring supplied) In Fabella v. Court of Appeals,31 the Court held: The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public schoolteachers. Section 9 of said law expressly provides that the committee to hear public schoolteachers administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers organization, and a supervisor of the division. x x x.x x x x The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose astandard and a separate set of procedural requirements in connection with administrativeproceedings involving public schoolteachers. x x x. (Emphasis and underscoring supplied) Significantly, The Ombudsman Act of 1989 recognizes the existence of some "proper disciplinary authorit[ies]," such as the investigating committee of the DepEd mentioned in Section 9 of the Magna Carta for Public School Teachers. Thus, Section 23 of The Ombudsman Act of 1989 directs that the petitioner "may refer certaincomplaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." In light of this, the Court holds that the administrative disciplinary authority of the Ombudsman over a public school teacher is not an exclusive power but is concurrent with the proper committee of the DepEd. In the instant case, respondent, although designated as then OIC of a public school and concurrently the school principal of another public school, is undoubtedly covered by the definition of the term "teacher" under the second paragraph of Section 2 of the Magna Carta for Public School Teachers which provides: SEC 2. Title Definition. This Act shall x x x apply to all public school teachers except those in the professorial staff of state colleges and universities. As used in this Act, the term teacher shall mean all persons engaged in the classroom, in any level of instruction; on full time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions inall schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees. (Underscoring supplied)
This brings the Court to the third issue. While petitioner should have desisted from hearing the administrative complaint against respondent and referred it to the proper DepEd committee, given that it had already concluded the proceedings and had rendered a decision thereon, respondent is now barred from assailing petitioners acts under the principle of estoppel. He had actively participated in the administrative proceedings before petitioner. In his Counter-Affidavit, he asked petitioner for affirmative relief by seeking the dismissal of the administrative 33 complaint allegedly for being baseless. From then on, he was assisted by counsel in filing several motions. When he was preventively suspended for six months without pay, he filed a Motion for Reconsideration praying that "a new Order be issued reversing or setting aside the preventive suspension 34 Order." When this was denied, he again filed a Supplemental Motion for 35 Reconsideration for the lifting of his suspension since he was already replaced as OIC, which motion was granted. It was only after petitioner had rendered an adverse Decision that he, in a Motion for Reconsideration, impugned
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Thus, the administrative complaint against respondent should have been referred by petitioner to the proper committee of the DepEd for the institution of appropriate administrative proceedings, in light of Section 23 of The Ombudsman Act of 1989.
Administrative Law
petitioners assumption of jurisdiction over his case. Verily, respondent cannot be permitted to challenge petitioners acts belatedly. In applying the principle of estoppel in Alcala v. Villar,
36
xxxx As held previously, participation by parties in the administrative proceedings without traising any objection thereto bars them from raising any jurisdictional infirmity after an adverse decision is rendered against them. x x x. Notably, in his Counter-Affidavit, petitioner himself invoked the jurisdiction of the Civil Service Commission by x x x further praying for any remedy or judgment which under the premises are just and equitable. It is an undesirable practice of a party participating in the proceedings ,submitting his case for decision and accepting the judgment only if favorable, but attacking it for lack of jurisdiction when adverse. xxxx In the same vein, respondent in the case should be barred under the principle of estoppel by laches from assailing the jurisdiction of the Ombudsman. Therefore, the Court of Appeals should have resolved the appeal on its merits, x x x. (Emphasis and underscoring supplied) The ruling by the Court of Appeals that estoppel will not apply against respondent because he raised the issue of jurisdiction "when the case was still before the Ombudsman"37 is thus bereft of merit. The appellate courts citation of Duero v. Court of Appeals38 in which this Court held that the therein private respondent Duero was not estopped from questioning the RTC jurisdiction, despite his active participation in the proceedings before it, is misplaced. For Duero involved lack of jurisdiction. The present case involves concurrent jurisdiction. WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision of June 29, 2006 and Resolution of April 2, 2007 in CA-G.R. SP No. 93165 are REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals which is directed to decide the case on the merits. SO ORDERED.
the Court held:
Respondent Jovencio D. Villar is the School Principal of Lanao National High School, Pilar, Cebu City. In February 1998, x x x, teachers of Lanao National High School, x x x, filed with the Office of the Ombudsman an administrative complaint against respondent for dishonesty. xxxx On June 22, 1999, the Office of the Ombudsman issued a resolution finding respondent guilty of dishonesty and dismissing him from the service. x x x. On appeal, the Court of Appeals nullified and set aside the decision of the Office of the Ombudsman on the ground that the latter was without jurisdiction over the administrative complaints against public school teachers. It ruled that the governing law is Republic Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, and not Republic Act No. 6770, the Ombudsman Act of 1989. x x x. xxxx x x x, in Fabella v. Court of Appeals, it was ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. x x x. xxxx The foregoing notwithstanding, the Court of Appeals erred when it nullified the proceedings before the Office of the Ombudsman. x x x. In Emin v. De Leon, a public school teacher was administratively charged with and found guilty of dishonesty under P.D. No. 807 (Civil Service Law). The Supreme Court ruled that R.A. No. 4670, the Magna Carta for Public School Teachers, is the applicable law and that the Civil Service Commission does not have jurisdiction over the administrative case. Nevertheless, the Court affirmed the dismissal from the service of the public school teacher as the latter was found to have been sufficiently afforded due process. x x x. Thus However, at this late hour, the proceedings conducted by the public respondent CSC canno longer be nullified on procedural grounds. Under the principle of estoppel by laches, petitioner is now barred from impugning the CSCs jurisdict ion over his case.
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G.R. No. 172635 October 20, 2010 2. Sometime on August 12, 2002, our Mathematics teacher, Mr. Pedro Delijero, started courting me, by sending love notes, valentines cards thru my classmates Angelyn del Pilar, Maricel Gayanes, Irene Cajote; 3. Last April 7, 2003, at about 10:00 a.m., more or less, my math teacher, Mr. Pedro Delijero, who was inside his room, [called] my attention, and as I got inside the said room, he abruptly closed the open door, thereby, immediately kissed my cheek, out of fear, I pushed him away from me, and I rushed to the door of said 8 room and went outside.
1
OFFICE OF THE OMBUDSMAN, Petitioner, vs. 16 PEDRO DELIJERO, JR., Respondent. DECISION PERALTA, J.: Before this Court is a petition for review on certiorari, under Rule 45 of the Rules of 2 Court, seeking to set aside the June 7, 2005 Decision and May 2, 2006 3 Resolution of the Court of Appeals (CA), in CA-G.R. SP No. 00017. The facts of the case, as culled from the records, are as follows: Respondent Pedro Delijero, Jr., was a public school teacher at the Burauen Comprehensive National High School, Burauen, Leyte and was administratively charged for Grave Misconduct. A complaint against respondent was filed before petitioner Office of the Ombudsman as a Request for Assistance (RAS) from the President of the Burauen Watchdog Committee for Good Government. Philip Camiguing, Graft Prevention & Control Officer I, submitted his final evaluation report and recommended that the RAS be 4 upgraded into an administrative and criminal complaint against respondent. The complainant, Cleofas P. dela Cruz, was the mother of the alleged victim Myra dela Cruz (Myra). At the time of the incident, Myra was only 12 years old and a first year high school student at the Burauen Comprehensive National High School. 5 Respondent, on the other hand, was Myra's 52-year-old Mathematics teacher. Sometime in May 2003, complainant learned from her cousin that respondent was courting her daughter Myra. Complainant then immediately confronted Myra, who admitted having received from respondent several handwritten love letters, a 6 Valentine's card and Two Hundred Pesos as allowance. In her Affidavit, Myra gave the following declarations, to wit: xxxx
7
Maricel Gayanes, Irene Cajote and Angelyn del Pilar, all classmates of Myra, 9 submitted their Joint Affidavit the pertinent portions of which read: xxxx In several instances, which we cannot anymore recall the dates, we were requested by our Math teacher Mr. Pedro Delijero, Jr. to handed the letters to my classmate Myra Dela Cruz, 4. We have the knowledge of all the letters sent to her, as "LOVE LETTERS" as it was confirmed by our classmate Myra dela Cruz, that those letters which we brought to her, were all love letters from our Math teacher, Mr. Pedro Delijero, since Mr. Delijiro is courting her, same were true with regard to Valentine's Cards, as well as the 2 pieces of One Hundred Peso Bill (P100.00) being inserted at the intermediate pad paper, x x x Respondent submitted a Counter-Affidavit in his defense. Respondent denied kissing Myra in the morning of April 7, 2003. Moreover, respondent claimed that Myra fell in love with him and wrote him love letters. Respondent claimed that he was merely forced to answer her letters as she threatened him that she would kill herself if he would not answer her and reciprocate her love. Lastly, respondent claimed that their relationship was merely platonic. Petitioner called the parties to a preliminary conference and, after which, ordered them to submit their respective position papers. Respondent, however, did not submit a position paper but instead submitted a 11 Manifestation stating that the administrative aspect of the complaint was likewise the subject of a complaint filed by complainant before the Office of the Regional Director, Department of Education, Regional Office VIII, Palo, Leyte.
10
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On May 17, 2004, petitioner rendered a Decision finding respondent guilty of Grave Misconduct and meted him the penalty of dismissal, the dispositive portion of which reads: WHEREFORE, premises considered, this Office finds respondent PEDRO DELIJERO, JR. guilty of Grave Misconduct and, pursuant to Section 46 (b) of the Revised Administrative Code of 1987, he is, therefore, meted the penalty of DISMISSAL from public service, forfeiture of all benefits and perpetual disqualification to hold public office. SO DECIDED.
13 12
Petitioner then filed an Omnibus Motion to Intervene and for 17 Reconsideration assailing the Decision of the CA. On May 2, 2006, the CA issued a Resolution denying petitioner's motion. Hence, herein petition, with petitioner raising the following issues for this Court's resolution, to wit: I. THE OFFICE OF THE OMBUDSMAN HAS FULL AND COMPLETE ADMINISTRATIVE DISCIPLINARY AUTHORITY OVER PUBLIC SCHOOL TEACHERS, WHICH AUTHORITY IS CONCURRENT WITH OTHER DISCIPLINING AUTHORITIES SANCTIONED BY NO LESS THAN REPUBLIC ACT NO. 4670, OTHERWISE KNOWN AS "THE MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS," AND THE CIVIL SERVICE LAW (PD 807, BOOK V OF EO 292). II. SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS) HAS NOT ADDED PUBLIC SCHOOL TEACHERS TO THE LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMAN'S ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE 1987 CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF UNCONSTITUTIONALITY. III. THE ISSUE OF WHETHER OR NOT THE OMBUDSMAN HAS THE AUTHORITY TO DETERMINE THE ADMINISTRATIVE LIABILITY OF AN ERRING PUBLIC OFFICIAL OR EMPLOYEE, AND TO DIRECT AND COMPEL THE HEAD OF THE CONCERNED OFFICE OR AGENCY TO IMPLEMENT THE PENALTY IMPOSED, HAS ALREADY BEEN SETTLED BY THE HONORABLE COURT IN THE CASE OF LEDESMA VS COURT OF APPEALS, ET AL., 465 SCRA 437 18 (2005). The petition is meritorious. This Court shall jointly discuss the first and second issues as the same are interrelated. Petitioner mainly argues that its administrative disciplinary authority over public school teachers is concurrent with the Department of Education, Culture and Sports (DECS) disciplining authority. Petitioner is correct. The issue is not novel. In Office of the Ombudsman v. Medrano, (Medrano) this Court ruled that the administrative disciplinary authority of the Ombudsman over a public school
19
Respondent moved for a reconsideration of petitioner's decision. Respondent asked that the order of dismissal be reconsidered and, instead, be changed to a penalty of 15 suspension. On May 14, 2004, petitioner issued an Order denying respondent's motion for reconsideration. Aggrieved, respondent then appealed to the CA. On June 7, 2005, the CA rendered a Decision ruling in favor of respondent, the dispositive portion of which reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case and SETTING ASIDE the Decision dated May 17, 2004 and the Order dated July 30, 2004 rendered and issued by the Office of the Ombudsman in OMB-VIS-A-03-0506-4. IT IS SO ORDERED.
16
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The CA, without ruling on the issues raised by respondent, instead tackled the issue of jurisdiction motu proprio.The CA ruled that petitioner had no jurisdiction to investigate the complaint filed before it as Republic Act No. 4670 (RA 4670), the Magna Carta for Public School Teachers, specifically covers and governs administrative proceedings involving public school teachers. The CA held that petitioner should have immediately dismissed the case after respondent had informed it, through a manifestation, of the pendency of an administrative complaint before the DECS. Moreover, the CA ruled that even assuming arguendo that petitioner had the power to investigate the complaint, it still had no power to directly impose sanctions against respondent as its power is limited to only recommend the appropriate sanctions, but not to directly impose the same.
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teacher is not an exclusive power but is concurrent with the proper committee of the DECS, to wit: In resolving the second issue whether petitioner has jurisdiction over the administrative complaint against respondent it is necessary to examine the source, nature and extent of the power and authority of the Ombudsman vis--vis the provisions of the Magna Carta for Public School Teachers. Section 5, Article XI of the Constitution "created the independent Office of the Ombudsman." Hailed as the "protectors of the people," the Ombudsman and his Deputies are bestowed with overreaching authority, powers, functions, and duties to act on complaints against public officials and employees, as provided in Sections 12 and 13 thereof, thus: Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed inany form or manner against public officials or employees of the Government, or any subdivision, agency orinstrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.1avvphil Sec. 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; (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; and (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties asmay be provided by law. (Underscoring supplied) The above enumeration of the Ombudsmans far-reaching powers is not exclusive as the framers of the Constitution gave Congress the leeway to prescribe, by subsequent legislation, additional powers, functions or duties to the Ombudsman, as mandated in Section 13(8), quoted above. Pursuant to the constitutional command, Congress enacted R.A. No. 6770 (The Ombudsman Act of 1989) providing for the functional, structural organization, and the extent of the administrative disciplinary authority of the petitioner. The provisions of this law "apply to all kinds of malfeasance, misfeasance, and nonfeasance" committed by any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, "during his tenure in office." The acts or omissions which the petitioner may investigate are quite extensive: SEC. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys funct ions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or
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(6) Are otherwise irregular, immoral or devoid of justification. Its mandate is not only to "act promptly on complaints" against such public officers or employees, but also to "enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people." R.A. No. 6770, however, restrains the petitioner from exercising its disciplinary authority "over officials who may be removed only by impeachment or over Members of Congress and the Judiciary," thus: SEC. 21. Officials Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and their subsidiaries, except over officials who may be removed only by impeachment orover Members of Congress and the Judiciary. SEC. 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted. In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed against such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. (Underscoring supplied) The above constitutional and statutory provisions taken together reveal the manifest intent of the lawmakers to bestow upon the petitioner full administrative disciplinary power over public officials and employees except those impeachable officials, Members of Congress and of the Judiciary. When an administrative charge is initiated against a public school teacher, however, Section 9 of the Magna Carta for Public School Teachers specifically provides that the same shall be heard initially by an investigating committee composed of the school superintendent of the division, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization, and a supervisor of the division, as members, thus: SEC. 9. Administrative Charges. Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding Schools Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a supervisor of the Division, the last two to be designated by the Director of Public Schools. The committee shall submit its findings and recommendations to the Director of Public Schools within thirty days from termination of the hearings; Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. (Underscoring supplied) In Fabella v. Court of Appeals, the Court held: The legislature enacted a special law, RA 4670 known as the Magna Carta for Public School Teachers, which specifically covers administrative proceedings involving public school teachers. Section 9 of said law expressly provides that the committee to hear public school teachers administrative cases should be composed of the school superintendent of the division as chairman, a representative of the local or any existing provincial or national teachers organization, and a supervisor of the division. x x x.
The aforementioned Section 9 of RA 4670, therefore, reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public school teachers. x x x. (Emphasis and underscoring supplied) Significantly, The Ombudsman Act of 1989 recognizes the existence of some "proper disciplinary authorit[ies]," such as the investigating committee of the DepEd mentioned in Section 9 of the Magna Carta for Public School Teachers. Thus, Section 23 of The Ombudsman Act of 1989 directs that the petitioner "may refer certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers or employees." In light of this, the Court holds that the administrative disciplinary authority of the Ombudsman over a public school teacher is not an exclusive power but is concurrent with the proper committee of the DepEd.
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Administrative Law
In the instant case, respondent, although designated as then OIC of a public school and concurrently the school principal of another public school, is undoubtedly covered by the definition of the term "teacher" under the second paragraph of Section 2 of the Magna Carta for Public School Teachers which provides: SEC 2. Title Definition. This Act shall x x x apply to all public school teachers except those in the professorial staff of state colleges and universities. As used in this Act, the term teacher shall mean all persons engaged in the classroom, in any level of instruction; on full time basis, including guidance counselors, school librarians, industrial arts or vocational instructors, and all other persons performing supervisory and/or administrative functions in all schools, colleges and universities operated by the Government or its political subdivisions; but shall not include school nurses, school physicians, school dentists, and other school employees. (Underscoring supplied) Thus, the administrative complaint against respondent should have been referred by petitioner to the proper committee of the DepEd for the institution of appropriate 20 administrative proceedings, in light of Section 23 of The Ombudsman Act of 1989. Based on the foregoing, while petitioner has concurrent administrative disciplinary authority with the DECS over public school teachers, Section 23 of the Ombudsman Act of 1989 provides that the Ombudsman may refer a complaint to the proper disciplinary authority. Under the circumstances obtaining herein, it would have been more prudent for petitioner to have referred the complaint to the DECS given that it would have been in a better position to serve the interest of justice considering the nature of the controversy. Respondent is a public school teacher and is covered by RA 4670, therefore, the proceedings before the DECS would have been the more appropriate venue to resolve the dispute. In any case, the foregoing pronouncement does not automatically mean that this Court is nullifying the proceedings before the Ombudsman as estoppel has already set in. In Medrano, this Court ruled that the active participation of an individual before the administrative proceedings and the belated challenge to the jurisdiction of the said body bars him from assailing such acts under the principle of estoppel, to wit: x x x While petitioner should have desisted from hearing the administrative complaint against respondent and referred it to the proper DepEd committee, given that it had already concluded the proceedings and had rendered a decision thereon, respondent is now barred from assailing petitioners acts under the principle of estoppel. He had actively participated in the administrative proceedings before petitioner. In his Counter-Affidavit, he asked petitioner for affirmative relief by seeking the dismissal of the administrative complaint allegedly for being baseless.From then on, he was assisted by counsel in filing several motions. When he was preventively suspended for six months without pay, he filed a Motion for Reconsideration praying that "a new Order be issued reversing or setting aside the preventive suspension Order." When this was denied, he again filed a Supplemental Motion for Reconsideration for the lifting of his suspension since he was already replaced as OIC, which motion was granted. It was only after petitioner had rendered an adverse Decision that he, in a Motion for Reconsideration, impugned petitioners assumption of jurisdiction over his case. Verily, respondent cannot be permitted to challenge 21 petitioners acts belatedly. (Underscoring supplied). Likewise, in Office of the Ombudsman v. Galicia, this Court ruled that the right to due process was not violated, notwithstanding that the DECS had original jurisdiction to hear the complaint, thus: In the present case, records show that Galicia was given the right to due process in the investigation of the charges against him. He participated in the proceedings by making known his defenses in the pleadings that he submitted. It was only when a decision adverse to him was rendered did he question the jurisdiction of the Ombudsman.
22
xxxx The essence of due process in administrative proceedings is an opportunity to explain ones side or an opportunity to seek reconsideration of the action or ruling complained of. During the proceedings before the Ombudsman, Galicia filed a Counter-Affidavit, Rejoinder-Affidavit, Comment on the Certification of the CCPC Registrar, and a Rejoinder to Reply. He also submitted documents in support of his contentions. Likewise, there is no indication that the proceedings were done in a manner that would prevent him from presenting his defenses. Verily, these suffice to satisfy the requirements of due process because the opportunity to be heard especially in administrative proceedings (where technical rules of procedure and evidence are not strictly applied) is not limited to oral arguments. More often, this opportunity is conferred through written pleadings that the parties submit to present their charges and defenses.
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Under the principles of estoppel and laches, We rule that it is now too late for Galicia to assail the administrative investigation conducted and the decision rendered against him.
Administrative Law
In sum, We reiterate that it is the School Superintendent and not the Ombudsman that has jurisdiction over administrative cases against public school teachers. Yet, Galicia is estopped from belatedly assailing the jurisdiction of the Ombudsman. His right to due process was satisfied when he participated fully in the investigation proceedings. He was able to present evidence and arguments in his defense. The 23 investigation conducted by the Ombudsman was therefore valid. In the case at bar, respondent actively participated in the proceedings before the Ombudsman. He submitted his counter-affidavit, an affidavit of his witness, and attached annexes. Respondent even filed a Motion for Reconsideration asking for affirmative relief from the Ombudsman. The case at bar is, however, somewhat peculiar because when petitioner asked the parties to submit their position papers, respondent did not submit one and instead 24 filed a Manifestation informing petitioner of another proceeding before the DECS, to wit: xxxx 2. That the administrative aspect of the complaint is likewise the subject of a complaint filed by the complainant before the Office of the Regional Director, DepEd, Regional Office VIII, Government Center, Palo, Leyte, a copy of which complaint is hereto attached and also made as part of this manifestation. 3. The with the investigation being made by this office, and the filing of the complaint with the Court as regard the criminal aspect of the complainant, and the pendency of the administrative complaint before the DepEd, it appears that the respondent is being charged and made to answer twice for the same offense. 4. That with the submission of the foregoing manifestation, and the respondent having already filed his counter affidavit and the affidavit of his witnesses and the exhibits attached thereto, the respondent submits the same for the 25 resolution of this Office. The CA ruled that in view of respondent's manifestation, petitioner should have immediately dismissed the case filed before it as the DECS has the proper jurisdiction to hear and determine the administrative complaint over respondent. We disagree. To this Court's mind, the foregoing manifestation cannot by any stretch be considered as a direct attack on the proceedings before the Ombudsman. A plain reading of such manifestation would even lead to a conclusion that respondent had in fact submitted The CA ruled that the power of the Ombudsman is only recommendatory and that it cannot impose sanctions against respondent. Petitioner, for its part, argues that the Office of Ombudsman has the authority to determine the administrative liability of an erring public official or employee, and to direct and compel the head of the concerned officer or agency to implement the penalty imposed. Petitioner is correct. In Office of the Ombudsman v. Masing, this Court settled that the power of the Ombudsman to determine and impose administrative liability is not merely recommendatory but actually mandatory, to wit: We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that "the Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or recommendatory but is actually mandatory." Implementation of the order imposing the penalty is, however, to be coursed through the proper officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x removal, suspension, demotion x x x" of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 28 6770. (Emphasis supplied.)
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himself to the body's jurisdiction as he had already submitted his counter-affidavit, an affidavit of his witness and exhibits. If respondent wanted to assail the jurisdiction of the Ombudsman, he should have clearly prayed for the same through a motion to dismiss, a manifestation ad cautelam, or any other document of similar import. The phrase, "the respondent submits the same for the resolution of this Office," is indicative of respondent's submission to the Ombudsman's jurisdiction. Such conclusion is even bolstered by the fact that when respondent filed his petition for review before the CA, he made the following declaration, to wit: 9. That with the filing of his counter-affidavit, and the affidavit of his witnesses, and the filing of a criminal case by the respondent against petitioner, which criminal case is now still pending before the Regional Trial Court, Branch 15, Burauen, Leyte, and another administrative complaint with the Regional Director, Region VIII, of DepEd, Government Center, Palo, Leyte, petitioner filed a manifestation with 26 the Ombudsman-Visayas, submitting this case for resolution. x x x 1avvphi1 Lastly, anent the third issue raised by petitioner, the same is again meritorious.
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This Court notes that the CA granted respondent's petition on the sole ground of petitioner's alleged lack of jurisdiction which it tackled motu proprio. The CA did not discuss the other issues raised by respondent involving the appreciation of the findings of fact of the Ombudsman as well as respondent's appeal for the imposition of a lesser penalty. Just like in Medrano, given the evidentiary nature of respondent's appeal, this Court deems that justice would be best served to remand the case to the CA for it to decide the case on the merits. WHEREFORE, the petition is GRANTED. The assailed Court of Appeals Decision dated June 7, 2005 and Resolution dated May 2, 2006, in CA-G.R. SP No. 00017, are REVERSED and SET ASIDE. The case is REMANDED to the Court of Appeals which is directed to decide the case on the merits. SO ORDERED.
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G.R. No. 165416 January 22, 2008 2. OMB-MIN-ADM-97-249 for violation of Republic Act No. 6713, against respondent Masing and a schoolteacher; 3. OMB-MIN-ADM-97-253 for violation of Republic Act No. 6713, against respondents Masing and Tayactac, and several schoolteachers; 4. OMB-MIN-ADM-97-254 for violation of Republic Act No. 6713, against respondent Masing and several schoolteachers. The complainants were parents of children studying at the DCISS, among whom were the petitioners in G.R. No. 165731, namely, Paul L. Cansino, Felicidad Mojica, Venerando Mojica, and Ricarte L. Mamparo. On July 2, 1998, respondents filed a motion to dismiss on the ground that the Ombudsman has no jurisdiction over them. Respondents alleged that the DECS has jurisdiction over them which shall exercise the same through a committee to be constituted under Section 9 of Republic Act (R.A.) No. 4670, otherwise known as the "The Magna Carta for Public School Teachers." The motion was denied, as well as respondents motion for reconsideration. On June 30, 2000, the Ombudsman for Mindanao rendered a joint decision finding respondents Masing and Tayactac guilty, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, this Office finds substantial evidence that: 1. Respondent Florita Masing is guilty of gross misconduct, neglect of duty and violation of Section 4, paragraphs (a), (b), and (c) of RA 6713 in relation to the collection of unauthorized fees, non-remittance of authorized fees and failure to account for public funds; and of misconduct in relation to the complaint of Felicidad Mojica, and she is hereby DISMISSED FROM [THE] SERVICE with all the accessory penalties including forfeiture of retirement benefits and disqualification from holding public office; and 2. Respondent Jocelyn Tayactac is guilty of simple neglect of duty, and is hereby suspended for a period of six (6) months. A repetition of the same offense will be 1 met with stiffer penalty. x x x x Respondents filed a motion for reconsideration which the Ombudsman denied in an Order dated September 26, 2000. Respondents sought recourse to the Court of Appeals via a petition for review under Rule 43 of the Rules of Court, docketed as
OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING and JOCELYN A. TAYACTAC, respondents. x - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 165584 January 22, 2008
OFFICE OF THE OMBUDSMAN, petitioner, vs. FLORITA A. MASING, respondent. x - - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 165731 January 22, 2008
PAUL L. CANSINO, FELICIDAD MOJICA, VENERANDO MOJICA and RICARTE L. MAMPARO, petitioners, vs. 17 FLORITA A. MASING and JOCELYN A. TAYACTAC, respondents. DECISION PUNO, C.J.: These cases involve the issue of whether the Ombudsman may directly discipline public school teachers and employees, or merely recommend appropriate disciplinary action to the Department of Education, Culture and Sports (DECS). In G.R. Nos. 165416 and 165731, respondent Florita A. Masing was the former Principal of the Davao City Integrated Special School (DCISS) in Bangkal, Davao City. Respondent Jocelyn A. Tayactac was an office clerk in the same school. In 1997, respondents were administratively charged before the Office of the Ombudsman for Mindanao for allegedly collecting unauthorized fees, failing to remit authorized fees, and to account for public funds. The cases were docketed as follows: 1. OMB-MIN-ADM-97-193 for grave misconduct and neglect of duty, against respondent Masing only;
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CA-G.R. SP No. 61993. On February 27, 2004, the Court of Appeals granted the petition, viz: WHEREFORE, the joint decision of June 30, 2000 and the Order of September 26, 2000 are REVERSED and SET ASIDE; and Administrative Cases Nos. OMB-MINADM-97-193, OMB-MIN-ADM-97-249, OMB-MIN-ADM-97-253, and OMB-MIN-ADM97-254 of the Office of the Ombudsman-Mindanao are hereby DISMISSED. The IMMEDIATE REINSTATEMENT of the petitioners with full backwages and other 2 benefits is further ORDEREDin the interest of justice. On April 13, 2004, the Office of the Ombudsman, which was not impleaded as respondent in the cases, filed anOmnibus Motion to Intervene and for 3 Reconsideration. The Court of Appeals denied the omnibus motion on the grounds that (1) intervention is not proper because it is sought by the quasi-judicial body whose judgment is on appeal, and (2) intervention, even if permissible, is belated 4 under Section 2, Rule 19 of the Rules of Court. Hence, the petition before us by the Office of the Ombudsman, docketed as G.R. No. 165416. The complainant-parents filed their own petition for review of the Court of Appeals decision dated February 27, 2004, docketed as G.R. No. 165731. In G.R. No. 165584, respondent Florita A. Masing faced yet another administrative 5 case before the Office of the Ombudsman-Mindanao filed by Erlinda P. Tan. The charges were oppression, serious misconduct, discourtesy in the conduct of official duties, and physical or mental incapacity or disability due to immoral or vicious habits. As in the other administrative cases, respondent Masing filed a motion to dismiss on the ground that the Office of the Ombudsman has no jurisdiction over the case. The motion was denied, as well as respondents motion for reconsideration. On December 27, 1999, the Ombudsman for Mindanao found respondent Masing guilty as charged and ordered her suspension for six (6) months without pay. The DECS Regional Director, Regional Office No. XI, was ordered to implement the decision upon its finality. Respondent Masing filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 58735. On July 31, 2003, the Court of Appeals set aside the assailed Ombudsman decision, viz: WHEREFORE, finding merit in the herein petition, the same is hereby given due course and the decision of the agency a quo in Case No. OMB-MIN-ADM-97-282 is hereby SET ASIDE, and petitioner is further declared as entitled to her salary 6 which she failed to receive during the period of her flawed suspension. The Office of the Ombudsman filed an Omnibus Motion to Intervene and for Reconsideration which the Court of Appeals denied in its Resolution dated 7 September 30, 2004. Hence, this petition by the Office of the Ombudsman, docketed as G.R. No. 165584. We consolidated G.R. Nos. 165416 and 165584 in our Resolution dated November 9, 2005. G.R. No. 165731 was consolidated per Resolution dated June 21, 2006. The Office of the Ombudsman contends I. THE x x x COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AND IGNORED THE CLEAR LANGUAGE OF THE CONSTITUTION, LAW AND JURISPRUDENCE WHEN IT RULED THAT PETITIONER OFFICE OF THE OMBUDSMAN HAS NO AUTHORITY TO DISCIPLINE ERRING MEMBERS OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS), THIS CONSIDERING THAT: (A) THE TAPIADOR [TAPIADOR VS. OFFICE OF THE OMBUDSMAN, 379 SCRA 322 (2002)] CASE CITED BY THE APPELLATE COURT A QUO IS NOT APPLICABLE, AS THE TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID RATIO DECIDENDI; (B) THE FABELLA [FABELLA VS. COURT OF APPEALS, 282 SCRA 256 (1997)] CASE, WHICH INVOLVED AN ILLEGAL CONSTITUTION OF AN INVESTIGATING COMMITTEE IN THE DECS, IS NOT APPLICABLE TO THE DISCIPLINARY CASE AGAINST PRIVATE RESPONDENTS PUBLIC SCHOOL PRINCIPAL AND OFFICE CLERK OF THE DECS; (C) SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS) HAS NOT ADDED PUBLIC SCHOOL PRINCIPALS, TEACHERS AND EMPLOYEES, LIKE HEREIN PRIVATE RESPONDENTS, TO THE LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMANS ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE SUBSEQUENT 1987 CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF UNCONSTITUTIONALITY; (D) THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE PETITIONER OMBUDSMAN OVER PRIVATE RESPONDENTS, A PUBLIC SCHOOL PRINCIPAL AND AN OFFICE CLERK OF THE DECS, WHICH IS
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FULLY SUPPORTED BY THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6770 (THE OMBUDSMAN ACT OF 1989) AND EXISTING JURISPRUDENCE, CANNOT BE SUPPLANTED BY SECTION 9 OF REPUBLIC ACT NO. 4670 (MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS); AND (E) THE POWER OF THE OMBUDSMAN TO DISCIPLINE PUBLIC SERVANTS NOT EXEMPTED FROM ITS JURISDICTION AND TO IMPLEMENT ITS JUDGMENTS HAS BEEN AFFIRMED IN LEDESMA VS. COURT OF APPEALS, G.R. NO. 161629, 9 29 JULY 2005. (F) THE OFFICE OF THE OMBUDSMAN HAS CONCURRENT INVESTIGATIVE AND DISCIPLINARY AUTHORITY WITH THE DECS OVER PUBLIC SCHOOL TEACHERS, INCLUDING HEREIN PRIVATE RESPONDENT MASING, AS THERE IS SIMPLY NO REPUGNANCE BETWEEN THE LAWS CONFERRING INVESTIGATIVE AND DISCIPLINARY JURISDICTION ON THE OFFICE OF THE OMBUDSMAN (ART. XI, 1987 CONSTITUTION AND R.A. 6770) AND THE LAWS CONFERRING THE SAME INVESTIGATIVE AND DISCIPLINARY JURISDICTION TO DECS (R.A. 4670 [MAGNA CARTA FOR PUBLIC SCHOOL TEACHERS] AND 10 P.D. 807, NOW BOOK V OF E.O. 292 [CIVIL SERVICE LAW]). II. CONTRARY TO THE APPELLATE COURT A QUOS RULING, THE PETITIONER OFFICE OF THE OMBUDSMAN TIMELY AND RIGHTFULLY FILED ITS OMNIBUS MOTION TO INTERVENE AND FOR RECONSIDERATION ON A PATENTLY ERRONEOUS DECISION OF THE COURT OF APPEALS WHICH HAS NOT YET 11 ATTAINED FINALITY. The petitioners in G.R. No. 165731 contend I. TAPIADOR V. OFFICE OF THE OMBUDSMAN (379 SCRA 322) CITED BY THE COURT OF APPEALS IS NOT APPLICABLE, AS THE TAPIADOR OBITER DICTUM CAN NEVER BE CITED AS A VALID RATIO DECIDENDI. MOREOVER, THE TAPIADOR RULING HAS EFFECTIVELY BEEN ABANDONED BY THE HONORABLE SUPREME COURT WHEN IT UPHELD THE DISCIPLINARY AUTHORITY OF THE OMBUDSMAN IN SUBSEQUENT CASES EVEN AS TAPIADOR FAILED TO TAKE INTO ACCOUNT THE PROPER CONSTITUTIONAL AND STATUTORY BASES OF THE OMBUDSMANS DISCIPLINARY POWER OVER ALL APPOINTIVE AND ELECTIVE PUBLIC OFFICIALS AND EMPLOYEES. II. TO INSIST THAT PUBLIC SCHOOL TEACHERS PURSUANT TO THE RULING IN FABELLA V. COURT OF APPEALS (G.R. NO. 110379, 28 NOVEMBER 1997) CAN ONLY BE PROCEEDED AGAINST ADMINISTRATIVELY THROUGH THE "COMMITTEE" UNDER SECTION 9 OF R.A. NO. 4670 WOULD BE AN UNDUE, UNWARRANTED AND INVALID "CLASSIFICATION" BY JUDICIAL FIAT OF A CERTAIN GROUP OF PUBLIC SERVANTS WHICH IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION. MOREOVER, THE SAID LAW DOES NOT CONFER JURISDICTION ON THE "COMMITTEE." III. SECTION 9 OF REPUBLIC ACT NO. 4670 HAS NOT ADDED PUBLIC SCHOOL TEACHERS TO THE LIST OF SPECIAL PRIVILEGED CLASSES OF PUBLIC SERVANTS EXEMPTED FROM THE OMBUDSMANS ADMINISTRATIVE DISCIPLINARY AUTHORITY UNDER THE 1987 CONSTITUTION, AND ANY SUCH INTERPRETATION SUFFERS FROM THE VICE OF UNCONSTITUTIONALITY. IV. THE CONCEDED ADMINISTRATIVE DISCIPLINARY JURISDICTION OF THE OMBUDSMAN OVER THE HEREIN RESPONDENTS, WHICH IS FULLY SUPPORTED BY THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6770 AND EXISTING JURISPRUDENCE CANNOT BE SUPPLANTED BY SECTION 9 OF REPUBLIC ACT NO. 4670. In sum, the pivotal issues are (1) whether the Office of the Ombudsman may intervene and seek reconsideration of the adverse decisions rendered by the Court of Appeals, and (2) whether the Office of the Ombudsman may directly discipline public school teachers and employees. First, the procedural issue. The Office of the Ombudsman was not allowed by the Court of Appeals to intervene because (1) the motions to intervene were filed after the decisions have already been rendered in CA-G.R. SP Nos. 58735 and 61993, and (2) the Office of the Ombudsman was the quasi-judicial body which rendered the impugned decisions. Section 2, Rule 19 of the Rules of Court provides that a motion for intervention may be filed before rendition of judgment, viz: SECTION 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-inintervention shall be attached to the motion and served on the original parties. (emphasis ours) We have ruled however that allowance or disallowance of a motion for intervention 12 rests on the sound discretion of the court after consideration of the appropriate 13 circumstances. Rule 19 of the Rules of Court is a rule of procedure whose object 14 is to make the powers of the court fully and completely available for justice. Its
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purpose is not to hinder or delay but to facilitate and promote the administration of 15 justice. Thus, interventions have been allowed even beyond the prescribed period in the Rule in the higher interest of justice. Interventions have been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after 16 a decision has been rendered by the trial court, when the petition for review of the 17 judgment was already submitted for decision before the Supreme Court, and even 18 where the assailed order has already become final and executory. In Lim v. 19 Pacquing, the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In the cases at bar, the rulings of the Court of Appeals adversely affected the allimportant jurisdiction of the Office of the Ombudsman. The rulings aggrieved the Office of the Ombudsman for they have serious consequences on its effectiveness as the body charged by the Constitution with the prosecution of officials and employees of the government suspected of violating our laws on graft and corruption. In Civil Service Commission v. Dacoycoy, we recognized the standing of the Civil Service Commission (CSC) to appeal a decision of the Court of Appeals which reversed its decision finding Dacoycoy guilty of nepotism and ordering his dismissal from the service. Although the CSC was the quasi-judicial body which rendered the decision appealed to the Court of Appeals, it became the party aggrieved or adversely affected by its decision which "seriously prejudices the civil service 21 22 system." In Constantino-David v. Pangandaman-Gania, we likewise ruled that the CSC may seek a review of decisions of the Court of Appeals that are detrimental 23 to its constitutional mandate as the central personnel agency of the government. However, rather than remand the cases at bar to the Court of Appeals for a ruling on the merits of the Ombudsmans motions for reconsideration, we shall resolve the legal issues involved in the interest of speedy justice. The authority of the Ombudsman to act on complaints filed against public officers and employees is explicit in Article XI, Section 12 of the 1987 Constitution, viz: The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. ( emphasis ours)
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Article XI, Section 13 of the same Constitution delineates the powers, functions and duties of the Ombudsman as follows: (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. (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 and transactions entered into by his office involving the disbursement or use of public funds or properties, to the Commission on Audit for appropriate and report any irregularity action.
(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 and procedure and exercise such other powers or perform such functions or duties as may be provided by law. The enumeration of these powers is non-exclusive. Congress enacted R.A. No. 25 6770, otherwise known asThe Ombudsman Act of 1989, on November 17, 1989 giving the Office such other powers that it may need to efficiently perform the task 26 given by the Constitution, viz:
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(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.
Administrative Law
Section 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 the Government, the investigation of such cases; (2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations 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 officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act; Provided, That the refusal by any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said officer; (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its rules of procedure, 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 is investigation of the matters mentioned in paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due prudence: Provided, That the Ombudsman under its rules and regulations may determine what cases may not be made public: Provided, further, That any publicity issued by the Ombudsman shall be balanced, fair and true; (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) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records; (9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein; (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; (11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed after February 25, 1986 and the prosecution of the 27 parties involved therein. x x x x In fine, the manifest intent of the lawmakers was to bestow on the Office of the Ombudsman full administrative disciplinary authority in accord with the 28 constitutional deliberations. Unlike the Ombudsman-like agencies of the past the powers of which extend to no more than making findings of fact and recommendations, and the Ombudsman or Tanodbayan under the 1973 Constitution who may file and prosecute criminal, civil or administrative cases against public officials and employees only in cases of failure of justice, the Ombudsman under the 1987 Constitution and R.A. No. 6770 is intended to play a more active role in the enforcement of laws on anti-graft and corrupt practices and 29 other offenses committed by public officers and employees. The Ombudsman is 30 to be an "activist watchman," not merely a passive one. He is vested with broad 31 powers to enable him to implement his own actions. Respondents, however, insist that the findings of the Ombudsman are mere recommendations, and that he may not directly impose administrative sanctions on public officials and employees, citing Tapiador v. Office of the 32 Ombudsman where the following statement is found, viz: x x x x Besides, assuming arguendo, that petitioner was administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only
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"recommend" the removal of the public official or employee found to be at fault, to the public official concerned. The foregoing is now a settled issue. In Ledesma v. Court of Appeals, explained Tapiador and ruled categorically that: x x x x Under Section 13(3) of Article XI of the 1987 Constitution, it is provided: Section 13. The Office of the Ombudsman shall have the following powers, functions, and 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. (Emphasis supplied) Petitioner insists that the word "recommend" be given its literal meaning; that is, that the Ombudsmans action is only advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman, thus: . . . Besides, assuming arguendo, that petitioner were administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service, more particularly from his position in the BID. Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only "recommend" the removal of the public official or employee found to be at fault, to the public official concerned. For their part, the Solicitor General and the Office of the Ombudsman argue that the word "recommend" must be taken in conjunction with the phrase " and ensure compliance therewith." The proper interpretation of the Courts statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely concerns the procedural aspect of the Ombudsmans functions and not its jurisdiction. We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject Constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by
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sufficient explanation, is susceptible to varying interpretations x x x x [h]ence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination. (emphases ours) We reiterated this ruling in Office of the Ombudsman v. Laja, where we emphasized that "the Ombudsmans order to remove, suspend, demote, fine, censure, or prosecute an officer or employee is not merely advisory or 35 recommendatory but is actually mandatory." Implementation of the order imposing the penalty is, however, to be coursed through the proper 36 37 officer. Recently, in Office of the Ombudsman v. Court of Appeals, we also held While Section 15(3) of RA 6770 states that the Ombudsman has the power to "recommend x x x removal, suspension, demotion x x x" of government officials and employees, the same Section 15(3) also states that the Ombudsman in the alternative may "enforce its disciplinary authority as provided in Section 21" of RA 6770. (emphasis supplied) Finally, respondent Masing contends that she may be administratively dealt with only by following the procedure prescribed in Section 9 of R.A. No. 4670 or the The Magna Carta for Public School Teachers. She citesFabella v. Court of 38 Appeals.
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we
Section 9. Administrative Charges.- Administrative charges against a teacher shall be heard initially by a committee composed of the corresponding School Superintendent of the Division or a duly authorized representative who should at least have the rank of a division supervisor, where the teacher belongs, as chairman, a representative of the local or, in its absence, any existing provincial or national teachers organization and a superviso r of the Division, the last two to be designated by the Director of Public Schools. The Committee shall submit its findings, and recommendations to the Director of Public Schools within thirty days from the termination of the hearings; Provided, however, That where the school superintendent is the complainant or an interested party, all the members of the committee shall be appointed by the Secretary of Education. In Fabella, several public schoolteachers were administratively charged by then DECS Secretary Isidro Cario for taking part in mass actions in violation of civil service laws and regulations. A committee was constituted to hear the charges. The teachers assailed the procedure adopted by the committee in a petition for certiorari filed before the Regional Trial Court of Quezon City. In affirming the
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Section 9, R.A. No. 4670 provides
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regional trial courts decision which declared illegal the constitution of the committee, we ruled x x x x Section 9 of RA 4670 x x x reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers. x x x [R]ight to due process of law 39 requires compliance with these requirements laid down by RA 4670. Fabella, however, does not apply to the cases at bar. The public schoolteachers in Fabella were charged with violations of civil service laws, rules and regulations in administrative proceedings initiated by the DECS Secretary. In contrast, herein respondents Masing and Tayactac were administratively charged in letter-complaints duly filed before the Office of the Ombudsman for Mindanao. The charges were for violations of R.A. No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees, collecting unauthorized fees, failure to remit authorized fees, failure to account for public funds, oppression, serious misconduct, discourtesy in the conduct of official duties, and physical or mental incapacity or disability due to immoral or vicious habits. In short, the acts and omissions complained of relate to respondents conduct as public official and employee, if not to outright graft and corruption. The authority of the Office of the Ombudsman to conduct administrative investigations 40 is beyond cavil. As theprincipal and primary complaints and 41 action center against erring public officers and employees, it is mandated by no 42 less than Section 13(1), Article XI of the Constitution. In conjunction therewith, Section 19 of R.A. No. 6770 grants to the Ombudsman the authority to act on all 43 administrative complaints, viz: Sec. 19. Administrative complaints. The Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which: (1) Are contrary to law or regulation; (2) Are unreasonable, unfair, oppressive or discriminatory; (3) Are inconsistent with the general course of an agencys functions, though in accordance with law; (4) Proceed from a mistake of law or an arbitrary ascertainment of facts; (5) Are in the exercise of discretionary powers but for an improper purpose; or (6) Are otherwise irregular, immoral or devoid of justification. Section 23(1) of the same law provides that administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules of procedure and consistent with due process. It is erroneous, therefore, for respondents to contend that R.A. No. 4670 confers an exclusive disciplinary authority on the DECS over public school teachers and prescribes an exclusive procedure in administrative investigations involving 44 them. R.A. No. 4670 was approved on June 18, 1966. On the other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770 was enacted on November 17, 1989. It is basic that the 1987 Constitution should not be restricted in its meaning by a law of earlier enactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in conferring authority on the Ombudsman to act on complaints against all public officials and employees, with the exception of officials who may be removed only by impeachment or over 45 members of Congress and the Judiciary. If an issue should ever arise, therefore, it should rather be whether the 1987 Constitution and R.A. No. 6770 have abrogated R.A. No. 4670. However, repeals by implication are not favored, and courts have the duty to harmonize, so far as it is practicable, apparently conflicting or inconsistent provisions. Therefore, the statement in Fabella that Section 9 of R.A. No. 4670 "reflects the legislative intent to impose a standard and a separate set of procedural requirements in connection with administrative proceedings involving public schoolteachers" should be construed as referring only to the specificprocedure to be followed in administrative investigations conducted by the DECS. IN VIEW WHEREOF, the petitions are GRANTED. The assailed Decisions of the Court of Appeals dated February 27, 2004 and July 31, 2003, as well as its Resolutions dated September 27, 2004 and September 30, 2004, in CA-G.R. SP No. 61993 and CA-G.R. SP No. 58735, respectively, are REVERSED and SET ASIDE. The Joint Decision dated June 30, 2000 of the Office of the Ombudsman for Mindanao in Administrative Case Nos. OMB-MIN-ADM-97-193, OMB-MINADM-97-249, OMB-MIN-ADM-97-253 and OMB-MIN-ADM-97-254 and its Decision dated December 27, 1999 in OMB-MIN-ADM-97-282, as well as its orders denying reconsideration, are REINSTATED. SO ORDERED.
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G.R. No. 141949 October 14, 2002 2. That the Provisional Relief shall be in form of an interim toll rate adjustment in accordance with Section 7.04(3) of the Supplemental Toll Operation Agreement, dated November 27, 1995, referring to Interim Adjustments in Toll Rates upon the occurrence of a significant currency devaluation: "Be APPROVED, as it is hereby APPROVED. "RESOLVED FURTHER, as it is hereby RESOLVED: "That the ProvisionalToll Rates, which are not to exceed the following: Toll Rates for Implementation October 14, 2002 Section Unrounded Toll Rates CLASS 1 EDUARDO C. ZIALCITA, petitioner, vs. TOLL REGULATORY BOARD AND CITRA METRO MANILA TOLLWAYS 18 CORPORATION, respondents. DECISION SANDOVAL-GUTIERREZ, J.: The focal point upon which these two consolidated cases converge is whether Resolution No. 2001-89 issued by the Toll Regulatory Board (TRB) is valid. A brief narration of the factual backdrop is imperative, thus: On November 9, 2001, the TRB issued Resolution No. 2001-89 authorizing provisional toll rate adjustments at the Metro Manila Skyway, effective January 1, 2002,[1] thus: "NOW THEREFORE, it is RESOLVED, as it is hereby RESOLVED: 1. That in view of urgent public interest, the Board hereby GRANTS to the Metro Manila Skyway Project, Provisional Relief in accordance with Rule 10, Section 3 of the Rules of Practice and Procedure Governing Hearing before the Toll Regulatory Board which states, among others "that the Board may grant (provisional relief)in its own initiativewithout prejudice to the final decision after completion of the hearing;"
18
CEFERINO PADUA, petitioner, vs. HON. SANTIAGO RANADA, PRESIDING JUDGE OF MAKATI, RTC, BRANCH 137, PHILIPPINE NATIONAL CONSTRUCTION CORP., TOLL REGULATORY BOARD, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, and REPUBLIC OF THE PHILIPPINES, respondents. ----------------------------G.R. No. 151108
CLASS 2
CLASS 3
Elevated Portion
75.00
75.00
150.00
225.00
At-Grade Portion
Magallanes to Bicutan
19.35
19.50
38.50
58.00
Bicutan to Sucat
11.21
11.00
22.50
34.00
Sucat to Alabang
10.99
11.00
21.00
32.50
* includes C5 entry/exit and Merville exit. "For implementation starting January 1, 2002 after its publication once a week for three (3) consecutive weeks in a newspaper of general circulation and that said Provisional Toll Rate Increase shall remain in effect until such time that the TRB Board has determined otherwise: "Be APPROVED as it is hereby APPROVED. "RESOLVED FURTHERMORE, as it is hereby RESOLVED that the Provisional Toll Rates be implemented in two (2) stages in accordance with the following schedule:
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a. The Investor and/or the Operator shall be entitled to apply for and if warranted, to be granted an interim adjustment of Toll Rates upon the occurrence of any of the following events: xxx xxx
Section
Unrounded Toll Toll Rates for Implementation For Class 1 as Reference Rates as Maximum for JANUARY 1, 2002 to JUNE 30, 2002 to One (1) Year JULY 1, 2002 DECEMBER 31, 2002
(ii) a significant currency devaluation xxx xxx
Elevated Portion
75.00
65.00
75.00
At-Grade Portion
(i) A currency devaluation shall be deemed "significant" if it results in a depreciation of the value of the Philippine peso relative to the US dollar by at least 10%. For purposes hereof the exchange rate between the Philippine peso and the US dollar which shall be applicable shall be the exchange rate between the above mentioned currencies in effect as of the date of approval of the prevailing preceding Toll Rate. (ii) The Investors right to apply for an interim Toll Rate adjustment under section 7.04 (3) (a) (ii) shall be effective only while any Financing is outstanding and have not yet been paid in full. xxx xxx
Magallanes to Bicutan
19.35
15.00
20.00
Bicutan Sucat
to
11.21
9.00
11.00 (iv) An interim adjustment in Toll Rate shall be considered such amount as may be required to provide interim relief to the Investor from a substantial increase in debtservice burden resulting from the devaluation."[5] Claiming that the peso exchange rate to a U.S. dollar had devaluated from P26.1671 in 1995 to P48.00 in 2000, CITRA alleged that there was a compelling need for the increase of the toll rates to meet the loan obligations of the Project and the substantial increase in debt-service burden. Due to heavy opposition, CITRAs petition remained unresolved. This prompted CITRA to file on October 9, 2001 an "Urgent Motion for Provisional Approval,"[6] this time, invoking Section 3, Rule 10 of the "Rules of Practice and Procedure Governing Hearing Before the Toll Regulatory Board" (TRB Rules of Procedure) which provides: "SECTION 3. Provisional Relief. Upon the filing of an application or petition for the approval of the initial toll rate or toll rate adjustment, or at any stage, thereafter, the Board may grant on motion of the pleader or in its own initiative, the relief prayed for without prejudice to a final decision after completion of the hearing should the Board find that the pleading, together with the affidavits and supporting documents attached thereto and such additional evidence as may have been
10.99
9.00
11.00
"PROVIDED that the recovery of the sum from the interim rate adjustment shall be applied starting the year 2003. "APPROVED as it is hereby APPROVED." On December 17, 24 and 31, 2001, the above Resolution approving provisional toll rate adjustments was published in the newspapers of general circulation.[2] Tracing back the events that led to the issuance of the said Resolution, it appears that on February 27, 2001 the Citra Metro Manila Tollways Corporation (CITRA) filed with the TRB an application for an interim adjustment of the toll rates at the Metro Manila Skyway Project Stage 1.[3] CITRA moored its petition on the provisions of the "Supplemental Toll Operation Agreement" (STOA),[4] authorizing it, as the investor, to apply for and if warranted, to be granted an interim adjustment of toll rates in the event of a "significant currency devaluation." The relevant portions of the STOA read:
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Sucat Alabang
to
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requested and presented, substantially support the provisional order; Provided: That the Board may, motu proprio, continue to issue orders or grant relief in the exercise of its powers of general supervision under existing laws. Provided: Finally, that pending finality of the decision, the Board may require the Petitioner to deposit in whole or in part in escrow the provisionally approved adjustment or initial toll rates." (Emphasis supplied) On October 30, 2001, CITRA moved to withdraw[7] its "Urgent Motion for Provisional Approval" without prejudice to its right to seek or be granted provisional relief under the above-quoted provisions of the TRB Rules of Procedure, obviously, referring to the power of the Board to act on its own initiative. On November 7, 2001, CITRA wrote a letter[8] to TRB expressing its concern over the undue delay in the proceeding, stressing that any further setback would bring the Projects financial condition, as well as the Philippine banking system, to a total collapse. CITRA recounted that out of the US$354 million funding from creditors, twothirds (2/3) thereof came from the Philippine banks and financial institutions, such as the Landbank of the Philippines and the Government Service Insurance Services. Thus, CITRA requested TRB to find a timely solution to its predicament. On November 9, 2001, TRB granted CITRAs motion to withdraw[9] the Urgent Motion for Provisional Approval and, at the same time, issued Resolution No. 200189,[10] earlier quoted. Hence, petitioners Ceferino Padua and Eduardo Zialcita assail before this Court the validity and legality of TRB Resolution No. 2001-89. Petitioner Ceferino Padua, as a toll payer, filed an "Urgent Motion for a Temporary Restraining Order to Stop Arbitrary Toll Fee Increases"[11] in G.R. No. 141949,[12] a petition for mandamus earlier filed by him. In that petition, Padua seeks to compel respondent Judge Santiago Ranada of the Regional Trial Court, Branch 137, Makati City, to issue a writ of execution for the enforcement of the Court of Appeals Decision dated August 4, 1989 in CA-G.R. SP No. 13235. In its Decision, the Court of Appeals ordered the exclusion of certain portions of the expressways (from Villamor Air Base to Alabang in the South, and from Balintawak to Tabang in the North) from the franchise of the PNCC. In his urgent motion, petitioner Padua claims that: (1) Resolution No. 2001-89 was issued without the required publication and in violation of due process; (2) alone, TRB Executive Director Jaime S. Dumlao, Jr., could not authorize the provisional toll rate adjustments because the TRB is a collegial body; and (3) CITRA has no standing to apply for a toll fee increase since it is an "investor" and not a "franchisee-operator." On January 4, 2002, petitioner Padua filed a "Supplemental Urgent Motion for a TRO against Toll Fee Increases,"[13] arguing further that: (1) Resolution 2001-89 refers exclusively to the Metro Manila Skyway Project, hence, there is no legal basis for the imposition of the increased rate at the at-grade portions; (2) Resolution No. 2001-89 was issued without basis considering that while it was signed by three (3) of the five members of the TRB, none of them actually attended the hearing; and 3) the computation of the rate adjustment under the STOA is inconsistent with the rate adjustment formula under Presidential Decree No. 1894.[14] On January 10, 2002, the Office of the Solicitor General (OSG) filed, in behalf of public respondent TRB, Philippine National Construction Corporation (PNCC), Department of Public Works and Highways (DPWH) and Judge Ranada, a "Consolidated Comment"[15] contending that: (1) the TRB has the exclusive jurisdiction over all matters relating to toll rates; (2) Resolution No. 2001-89 covers both the Skyway and the at-grade level of the South Luzon Expressway as provided under the STOA; (3) that while Resolution No. 2001-89 does not mention any factual basis to justify its issuance, however, it does not mean that TRB's finding of facts is not supported by evidence; and (4) petitioner Padua cannot assail the validity of the STOA because he is not a party thereto. Upon the other hand, on January 9, 2002, petitioner Eduardo Zialcita, as a taxpayer and as Congressman of Paraaque City, filed the present petition for prohibition[16] with prayer for a temporary restraining order and/or writ of preliminary injunction against TRB and CITRA, docketed as G.R. No. 151108, impugning the same Resolution No. 2001-89. Petitioner Zialcita asserts that the provisional toll rate adjustments are exorbitant and that the TRB violated its own Charter, Presidential Decree No. 1112,[17] when it promulgated Resolution No. 2001-89 without the benefit of any public hearing. He also maintains that the TRB violated the Constitution when it did not express clearly and distinctly the facts and the law on which Resolution No. 2001-89 was based. And lastly, he claims that Section 3, Rule 10 of the TRB Rules of Procedure is not sanctioned by P.D. No. 1112. Private respondent CITRA, in its comment[18] on Congressman Zialcitas petition, counters that: (1) the TRB has primary administrative jurisdiction over all matters relating to toll rates; (2) prohibition is an inappropriate remedy because its function is to restrain acts about to be done and not acts already accomplished; (3) Resolution No. 2001-89 was issued in accordance with law; (4) Section 3, Rule 10
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of the TRB Rules is constitutional; and (5) private respondent and the Republic of the Philippines would suffer more irreparable damages than petitioner. The TRB, through the OSG, filed a separate comment[19] reiterating the same arguments raised by private respondent CITRA. On January 11, 2002, this Court resolved to consolidate the instant petitions, G.R. No. 141949 and G.R. No. 151108.[20] We rule for the respondents. In assailing Resolution No. 2001-89, petitioners came to us via two unconventional remedies one is an urgent motion for a TRO to stop arbitrary toll fee increases; and the other is a petition for prohibition. Unfortunately, both are procedurally impermissible. I Petitioner Paduas motion is a leap to a legal contest of different dimension. As previously stated, G.R. No. 141949 is a petition for mandamus seeking to compel respondent Judge Ranada to issue a writ of execution for the enforcement of the Court of Appeals Decision dated August 4, 1989 in CA-G.R. SP No. 13235. The issue therein is whether the application for a writ of execution should be by a mere motion or by an action for revival of judgment. Thus, for petitioner Padua to suddenly interject in the same petition the issue of whether Resolution No. 2001-89 is valid is to drag this Court to his web of legal convolution. Courts cannot, as a case progresses, resolve the intrinsic merit of every issue that comes along its way, particularly those which bear no relevance to the resolution of the case. Certainly, petitioner Paduas recourse in challenging the validity of TRB Resolution No. 2001-89 should have been to institute an action, separate and independent from G.R. No. 141949. II The remedy of prohibition initiated by petitioner Zialcita in G.R. No. 151108 also suffers several infirmities. Initially, it violates the twin doctrine of primary administrative jurisdiction and non-exhaustion of administrative remedies. P.D. No. 1112 explicitly provides that "the decisions of the TRB on petitions for the increase of toll rate shall be appealable to the Office of the President within ten (10) days from the promulgation thereof."[21] P.D. No. 1894 reiterates this instruction and further provides: "SECTION 9. The GRANTEE shall have the right and authority to adjust any existing toll being charged the users of the Expressways under the following guidelines: xxx xxx
c) Any interested Expressways user shall have the right to file, within a period of ninety (90) days after the date of publication of the adjusted toll rate (s), a petition with the Toll Regulatory Board for a review of the adjusted toll rate (s); provided, however, that notwithstanding the filing of such petition and the pendency of the resolution thereof, the adjusted toll shall be enforceable and collectible by the GRANTEE effective on the first day of January in accordance with the immediately preceding paragraph. xxx xxx
e) Decisions of the Toll Regulatory Board on petitions for review of adjusted toll shall be appealable to the Office of the President within ten (10) days from the promulgation thereof." These same provisions are incorporated in the TRB Rules of Procedure, particularly in Section 6, Rule 5 and Section 1, Rule 12 thereof.[22] Obviously, the laws and the TRB Rules of Procedure have provided the remedies of an interested Expressways user.[23] The initial proper recourse is to file a petition for review of the adjusted toll rates with the TRB. The need for a prior resort to this body is with reason. The TRB, as the agency assigned to supervise the collection of toll fees and the operation of toll facilities, has the necessary expertise, training and skills to judiciously decide matters of this kind. As may be gleaned from the petition, the main thrust of petitioner Zialcitas argument is that the provisional toll rate adjustments are exorbitant, oppressive, onerous and unconscionable. This is obviously a question of fact requiring knowledge of the formula used and the factors considered in determining the assailed rates. Definitely, this task is within the province of the TRB. We take cognizance of the wealth of jurisprudence on the doctrine of primary administrative jurisdiction and exhaustion of administrative remedies. In this era of clogged court dockets, the need for specialized administrative boards or commissions with the special knowledge, experience and capability to hear and determine promptly disputes on technical matters or intricate questions of facts, subject to judicial review in case of grave abuse of discretion, is indispensable. Between the power lodged in an administrative body and a court, the unmistakable
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trend is to refer it to the former."[24] In Industrial Enterprises, Inc. vs. Court of Appeals,[25] we ruled: "x x x, if the case is such that its determination requires the expertise, specialized skills and knowledge of the proper administrative bodies because technical matters or intricate questions of facts are involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court." Moreover, petitioner Zialcitas resort to prohibition is intrinsically inappropriate. It bears stressing that the office of this remedy is not to correct errors of judgment but to prevent or restrain usurpation of jurisdiction or authority by inferior tribunals and to compel them to observe the limitation of their jurisdictions. G.R. No. 151108, while designated as a petition for prohibition, has for its object the setting aside of Resolution No. 2001-89 on the ground that it was issued without prior notice, hearing and publication and that the provisional toll rate adjustments are exorbitant. This is not the proper subject of prohibition because as long as the inferior court, tribunal or board has jurisdiction over the person and subject matter of the controversy, the writ will not lie to correct errors and irregularities in procedure, or to prevent an erroneous decision or an enforcement of an erroneous judgment. And even in cases of encroachment, usurpation, and improper assumption of jurisdiction, the writ will not issue where an adequate and applicable remedy by appeal, writ or error, certiorari, or other prescribed methods of review are available.[26] In this case, petitioner Zialcita should have sought a review of the assailed Resolution before the TRB. III Even granting that petitioners recourse to the instant remedies is in order, still, we cannot rule in their favor. For one, it is not true that the provisional toll rate adjustments were not published prior to its implementation on January 1, 2002. Records show that they were published on December 17, 24 and 31, 2001[27] in three newspapers of general circulation, particularly the Philippine Star, Philippine Daily Inquirer and The Manila Bulletin. Surely, such publications sufficiently complied with Section 5 of P.D. No. 1112 which mandates that "no new rates shall be collected unless published in a newspaper of general publication at least once a week for three consecutive weeks." At any rate, it must be pointed out that under Letter of Instruction No. 1334-A,[28] the TRB may grant and issue ex-parte to any petitioner, without need of notice, publication or hearing, provisional authority to collect, pending hearing and decision on the merits of the petition, the increase in rates prayed for or such lesser amount as the TRB may in its discretion provisionally grant. That LOI No. 1334-A has the force and effect of law finds support in a catena of cases decreeing that "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the former President (Ferdinand E. Marcos) are part of the law of the land, and shall remain valid, legal, binding, and effective, unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the President."[29] In Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform,[30] this Court held: "The Court wryly observes that during the past dictatorship, every presidential issuance, by whatever name it was called, had the force and effect of law because it came from President Marcos. Such are the ways of despots. Hence, it is futile to argue, as the petitioners do in G.R. No. 79744, that LOI 474 could not have repealed P.D. No. 27 because the former was only a letter of instruction. The important thing is that it was issued by President Marcos, whose word was law during that time." (Emphasis supplied) For another, it is not true that it was TRB Executive Director Dumlao, Jr. alone who issued Resolution No. 2001-89. The Resolution itself contains the signature of the four TRB Directors, namely, Simeon A. Datumanong, Emmanuel P. Bonoan, Ruben S. Reinoso, Jr. and Mario K. Espinosa.[31] Petitioner Padua would argue that while these Directors signed the Resolution, none of them personally attended the hearing. This argument is misplaced. Under our jurisprudence, an administrative agency may employ other persons, such as a hearing officer, examiner or investigator, to receive evidence, conduct hearing and make reports, on the basis of which the agency shall render its decision. Such a procedure is a practical necessity.[32] Thus, in Mollaneda vs. Umacob,[33] we ruled: " x x x At any rate, it cannot be gainsaid that the term "administrative body or agency" includes the subordinate officials upon whose hand the body or agency delegates a portion of its authority. Included therein are the hearing officers through whose eyes and ears the administrative body or agency observes the demeanor, conduct and attitude of the witnesses and listens to their testimonies. "It must be emphasized that the appointment of competent officers to hear and receive evidence is commonly resorted to by administrative bodies or agencies in the interest of an orderly and efficient disposition of administrative cases. x x x "x x x Corollarily, in a catena of cases, this Court laid down the cardinal requirements of due process in administrative proceedings, one of which is that "the tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate." Thus, it is logical to say that this mandate was rendered
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precisely to ensure that in cases where the hearing or reception of evidence is assigned to a subordinate, the body or agency shall not merely rely on his recommendation but instead shall personally weigh and assess the evidence which the said subordinate has gathered." Be that as it may, we must stress that the TRBs authority to grant provisional toll rate adjustments does not require the conduct of a hearing. Pertinent laws and jurisprudence support this conclusion. It may be recalled that Former President Ferdinand E. Marcos promulgated P.D. No. 1112 creating the TRB on March 31, 1977. The end in view was to authorize the collection of toll fees for the use of certain public improvements in order to attract private sector investment in the government infrastructure projects. The TRB was tasked to supervise the collection of toll fees and the operation of toll facilities. One of its powers is to "issue, modify and promulgate from time to time the rates of toll that will be charged the direct users of toll facilities and upon notice and hearing, to approve or disapprove petitions for the increase thereof."[34] To clarify the intent of P.D. No. 1112 as to the extent of the TRBs power,[35] Former President Marcos further issued LOI No. 1334-A expressly allowing the TRB to grant ex-parte provisional or temporary increase in toll rates, thus: "NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby direct, order and instruct the Toll Regulatory Board to grant and issue ex-parte to any petitioner, without need of notice, publication or hearing, provisional authority to collect, pending hearing of and decision on the merits of such petition, the increase in rates prayed for or such lesser amount as the Board may in its discretion provisionally grant, upon (a) a finding that the said petition is sufficient in form and substance, (b) the submission of an affidavit by the petitioner showing that the increase in rates substantially conforms to the formula, if any stipulated in the franchise or toll operation agreement/certificate of the petitioner and that failure to immediately impose and collect the increase in rates would result in outright delay or stoppage of urgently needed improvements, expansion or repairs of toll facilities and/or in great irreparable injury to the petitioner, and (c) the submission by the petitioner to the Board of a bond, in such amount and from such surety or sureties and under such terms and conditions as the Board shall fix, to guarantee the refund of the increase in rates to the affected toll payers in case it is finally determined, after notice and hearing, that the petitioner is not entitled, in whole or in part, to the same. Any provisional toll rate increases shall be effective immediately upon approval without need of publication." Thereafter, the TRB promulgated as part of its Rules of Procedure, the following provision: "RULE 5 PROCEDURE FOR APPROVAL OF TOLL RATE "Section 2. Provisional Relief Upon initial findings of the Board that the Petition for the approval of initial toll rate or the petition for toll rate adjustment is in accordance with Sections 1 and 2 of Rule 2, Section 2 of Rule 3 and Section 1 of Rule 4 hereof, the Board within a reasonable time after the filing of the Petition, may in an en banc decision provisionally approve the initial toll rate or toll rate adjustment, without the necessity of any notice and hearing." From the foregoing, it is clear that a hearing is not necessary for the grant of provisional toll rate adjustment. The language of LOI No. 1334-A is not susceptible of equivocation. It "directs, orders and instructs" the TRB to issue provisional toll rates adjustment ex-parte without the need of notice, hearing and publication. All that is necessary is that it be issued upon (1) a finding that the main petition is sufficient in form and substance; (2) the submission of an affidavit showing that the increase in rates substantially conforms to the formula, if any is stipulated in the franchise or toll operation agreement, and that failure to immediately impose and collect the increase in rates would result in great irreparable injury to the petitioner; and (3) the submission of a bond. Again, whether or not CITRA complied with these requirements is an issue that must be addressed to the TRB. The practice is not something peculiar. We have ruled in a number of cases that an administrative agency may be empowered to approve provisionally, when demanded by urgent public need, rates of public utilities without a hearing. The reason is easily discerned from the fact that provisional rates are by their nature temporary and subject to adjustment in conformity with the definitive rates approved after final hearing.[36] In Maceda vs. Energy Regulatory Board,[37] we ruled that while the ERB is not precluded from conducting a hearing on the grant of provisional authority which is of course, the better procedure however, it can not be stigmatized if it failed to conduct one. Citing Citizens Alliance for Consumer Protection vs. Energy Regulatory Board,[38] this Court held: In the light of Section 8 quoted above, public respondent Board need not even have conducted formal hearings in these cases prior to issuance of its Order of 14 August 1987 granting a provisional increase of prices. The Board, upon its own discretion and on the basis of documents and evidence submitted by private respondents, could have issued an order granting provisional relief immediately
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upon filing by private respondents of their respective applications. In this respect, the Court considers the evidence presented by private respondents in support of their applications -.i.e., evidence showing that importation costs of petroleum products had gone up; that the peso had depreciated in value; and that the Oil Price Stabilization Fund (OPSF) had been depleted as substantial and hence constitutive of at least prima facie basis for issuance by the Board of a provisional relief order granting an increase in the prices of petroleum products. Anent petitioner Paduas contention that CITRA has no standing to apply for a toll fee increase, suffice it to say that CITRAs right stems from the STOA which was entered into by no less than the Republic of the Philippines and by the PNCC. Section 7.04 of the STOA provides that the Investor, CITRA, and/or the Operator, PNCC, shall be entitled to apply for and if warranted, to be granted an interim adjustment of toll rates in case of force majeure and a significant currency valuation.[39] Now, unless set aside through proper action, the STOA has the force and effect of law between the contracting parties, and is entitled to recognition by this Court. [40] On the same breath, we cannot sustain Paduas contention that the term "Metro Manila Skyway" Project excludes the at-grade portions of the South Luzon Expressway considering that under the same STOA the "Metro Manila Skyway" includes: "(a) the South Metro Manila Skyway, coupled with the rehabilitated at-grade portion of the South Luzon Expressway, from Alabang to Quirino Avenue; (b) the Central Metro Manila Skyway, from Quirino Avenue to A. Bonifacio Avenue; x x x."[41] Petitioner Zialcita faults the TRB for not stating the facts and the law on which Resolution No. 2001-89 is based. Petitioner is wrong. Suffice it to state that while Section 14, Article VIII of the 1987 Constitution provides that "no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based," this rule applies only to a decision of a court of justice, not TRB.[42] At this point, let it be stressed that we are not passing upon the reasonableness of the provisional toll rate adjustments. As we have earlier mentioned, this matter is best addressed to the TRB. IV In fine, as what we intimated in Philippine National Construction Corp. vs. Court of Appeals,[43] we commend petitioners for devoting their time and effort on a matter so imbued with public interest as in this case. But we can do no better than to brush aside their chief objections to the provisional toll rate adjustments, for a different approach would lead this Court astray into the field of factual conflict where its pronouncements would not rest on solid grounds. Time and again, we have impressed that this Court is not a trier of facts, more so, in the consideration of an extraordinary remedy of prohibition where only questions of lack or excess of jurisdiction or grave abuse of discretion is to be entertained. And to accord the main petition for mandamus in G.R. No. 141949 the full deliberation it deserves, we deem it appropriate to discuss its merit on another occasion. Anyway, G.R. No. 141949 was consolidated with G.R. No. 151108 only by reason of petitioner Paduas deviant motion assailing Resolution 2001 -89. As we have previously said, the main petition in G.R. No. 141949 presents an entirely different issue and is set on a different factual landscape. WHEREFORE, petitioner Paduas "Urgent Motion for Temporary Restraining Order to Stop Arbitrary Toll Fee Increases" is DENIED and petitioner Zialcitas "Petition for Prohibition" is DISMISSED. SO ORDERED.
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[G.R. No. 157684. April 27, 2005] DEPARTMENT OF HEALTH, petitioner, vs. PRISCILLA G. CAMPOSANO, 19 ENRIQUE L. PEREZ, and IMELDA Q. AGUSTIN, respondents. DECISION PANGANIBAN, J.: Administrative due process requires that, prior to imposing disciplinary sanctions, the disciplining authority must make an independent assessment of the facts and the law. On its face, a decision imposing administrative sanctions must show the bases for its conclusions. While the investigation of a case may be delegated to and conducted by another body or group of officials, the disciplining authority must nevertheless weigh the evidence gathered and indicate the applicable law. In this manner, the respondents would be informed of the bases for the sanctions and thus be able to prepare their appeal intelligently. Such procedure is part of the sporting idea of fair play in a democracy. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the [2] March 19, 2003 Decision of the Court of Appeals (CA) in CA-GR SP No. 67720. The challenged Decision disposed as follows: WHEREFORE, based on the foregoing, the petition is GRANTED. The assailed Resolutions of the CSC are hereby SET ASIDE. The Department of Health is hereby ordered to: 1) Reinstate petitioners without loss of seniority rights but without prejudice to an administrative investigation that may be undertaken against them by the DOH should the evidence warrant; and 2) Pay petitioners their back salaries from the time their preventive suspension [3] expired. Mandatory leave credits shall not be charged against their leave credits. The Facts The facts are narrated by the CA as follows: WHEREFORE, premises considered, this Commission finds Respondents Rosalinda U. Majarais, Priscilla G. Camposano, Financial Management Chief II, Horacio D. Cabrera, Acting Administrative Officer V, Imelda Q. Agustin, Accountant
[1]
[Respondents] are former employees of the Department of HealthNational Capital Region (hereinafter DOH-NCR). They held various positions as follows: [Respondent] Priscilla B. Camposano (hereinafter Camposano) was the Finance and Management Officer II, [Respondent] Imelda Q. Agusin (hereinafter Agustin) was an Accountant I, and [Respondent] Enrique L. Perez (hereinafter Perez) was the Acting Supply Officer III. On May 15, 1996, some concerned [DOH-NCR] employees filed a complaint before the DOH Resident Ombudsman Rogelio A. Ringpis (hereinafter the Resident Ombudsman) against Dir. IV Rosalinda U. Majarais, Acting Administrative Officer III Horacio Cabrera, and [respondents], arising out of an alleged anomalous purchase by DOH-NCR of 1,500 bottles of Ferrous Sulfate 250 mg. with Vitamin B Complex and Folic Acid capsules worth P330,000.00 from Lumar Pharmaceutical Laboratory on May 13, 1996. On August 6, 1996, the Resident Ombudsman submitted an investigation report to the Secretary of Health recommending the filing of a formal administrative charge of Dishonesty and Grave Misconduct against [respondents] and their corespondents. On August 8, 1996, the Secretary of Health filed a formal charge against the [respondents] and their co-respondents for Grave Misconduct, Dishonesty, and Violation of RA 3019. On October 25, 1996, then Executive Secretary Ruben D. Torres issued Administrative Order No. 298 (hereafter AO 298) creating an ad-hoc committee to investigate the administrative case filed against the DOH-NCR employees. The said AO was indorsed to the Presidential Commission Against Graft and Corruption (hereafter PCAGC) on October 26, 1996. The same reads: I have the honor to transmit herewith, for your information and guidance, a certified copy of Administrative Order No. 298 dated October 25, 1996 entitled CREATING AN AD HOC COMMITTEE TO INVESTIGATE THE ADMINISTRATIVE CASES FILED AGAINST NCR HEALTH DIRECTOR ROSALINDA U. MAJARAIS AND OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF HEALTH, NATIONAL CAPITAL REGION. On December 2, 1996, the PCAGC took over the investigation from the DOH. After the investigation, it issued a resolution on January 23, 1998 disposing [respondents] case as follows:
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I and Enrique L. Perez, Acting Supply Officer III, all of the Department of Health National Capital Region (DOH-NCR) guilty as charged and so recommends to his Excellency President Fidel V. Ramos that the penalty of dismissal from the government service be imposed thereon. SO ORDERED. On April 20, 1998, President Ramos issued [Administrative Order No. 390 (hereinafter AO 390)] that reads: WHEREFORE, premises considered, respondent Dr. Rosalinda U. Majarais is hereby found guilty as charged and, as recommended by the Presidential Commission Against Graft and Corruption, is meted the Penalty of dismissal from the service. The records of the case with respect to the other respondents are remanded to Secretary Carmencita N. Reodica, Department of Health for appropriate action. Thereafter, on May 8, 1998, the Secretary of Health issued an Order disposing of the case against [respondents] and [Horacio Cabrera]. The dispositive portion reads: WHEREFORE, pursuant to the Resolution rendered by the Presidential Commission Against Graft and Corruption (PCAGC) dated 23 January 1998 on the abovecaptioned case, respondents Priscilla G. Camposano, Financial Management Chief II, Horacio D. Cabrera, Acting Administrative Officer V, Imelda Q. Agustin, Accountant I and Enrique L. Perez, Acting Supply Officer III, all of the Department of Health NCR are hereby DISMISSED from the service. SO ORDERED. On May 28, 1998 [respondents] filed a motion for reconsideration of the said Order. The Secretary of Health denied the same on June 5, 1998. Thus, [respondents] filed a Notice of Appeal on June 29, 1998. On July 17, 1998, [respondents] filed their appeal with the CSC. The appeal was denied by the CSC on May 21, 1999. Horacio Cabrera filed a separate appeal with the CSC which was denied on August 17, 1999. [Respondents] motion for reconsideration was denied on September 30, 1999. While Cabreras motion for reconsideration was denied on January 27, 2000. [Respondents], however, received the resolution denying their motion for reconsideration on November 2001. Thus, Horacio Cabrera was able to appeal to [the CA] the CSCs resolutions ahead of [respondents]. The petition of Cabrera was granted [by the CA] in a decision dated October 15, 2001 with a dispositive portion which reads: WHEREFORE, the instant petition is GRANTED. The Assailed Resolutions of the Civil Service Commission are hereby SET ASIDE. Petitioner Horacio D. Cabrera is exonerated of the administrative charges against him. The Civil Service Commission is hereby ORDERED[:] (1) To reinstate petitioner immediately, without loss of seniority rights; and
(2) To pay petitioners back salaries from the time his preventive suspension expired. Mandatory leave credits shall not be charged against his leave credits. SO ORDERED.
[4]
Not satisfied with the denial by the CSC (Civil Service Commission) of their appeal, respondents brought the matter to the CA. Ruling of the Court of Appeals While the herein assailed Decision made no reference to the separate appeal of Horacio Cabrera, the CA nonetheless used the same legal bases for annulling the [5] CSCs Resolution against respondents. The appellate court held that the PCAGCs jurisdiction over administrative complaints pertained only to presidential appointees. Thus, the Commission had [6] no power to investigate the charges against respondents. Moreover, in simply and completely relying on the PCAGCs findings, the secretary of health failed to [7] comply with administrative due process. Hence, this Petition. The Issues Petitioner raises the following grounds for our consideration: I The Court of Appeals erred in finding that the Presidential Commission Against Graft and Corruption (PCAGC) did not have jurisdiction to investigate the anomalous transaction involving respondents. II The Court of Appeals erred in concluding that the authority to investigate and decide was relinquished by the Secretary of Health and that the Secretary of Health merely performed a mechanical act when she ordered the dismissal of respondents from government service.
[8]
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III The Court of Appeals erred in ignoring the fact that an exhaustive investigation was already conducted by the Presidential Commission Against Graft and Corruption (PCAGC) which resulted in the finding that the anomalous contract for the purchase [9] of medicines without the required public bidding is patently illegal. The second and the third grounds will be discussed together, as they are necessarily intertwined. The Courts Ruling The Petition is partly meritorious. First Issue: Jurisdiction to Investigate Executive Order (EO) No. 151 granted the PCAGC the jurisdiction to investigate administrative complaints against presidential appointees allegedly involved in graft and corruption. From a cursory reading of its provisions, it is evident that EO 151 authorizes the PCAGC to investigate charges against presidential, not nonpresidential, appointees. In its Preamble, specifically in its Whereas clauses, the EO specifically tasked [the PCAGC] to x x x investigate presidential appointees charged with graft and corruption x x x. More pointedly, Section 3 states that the Commission shall have jurisdiction over all administrative complaints involving graft and corruption filed in any form or manner against presidential appointees x x x. We quote the pertinent provisions below: Section 3. Jurisdiction. The Commission shall have jurisdiction over all administrative complaints involving graft and corruption filed in any form or manner against presidential appointees, including those in government-owned or controlled corporations. (emphasis supplied) Section 4. Powers, Functions and Duties. The Commission shall have the following powers, functions and duties: (a) Investigation The Commission shall have the power to investigate administrative complaints against presidential appointees in the executive department of the government, including those in government-owned or controlled corporations, charged with graft and corruption. In the exercise thereof, the Commission is (1) authorized to summon witnesses, administer oaths, or take testimony or evidence relevant to the investigation by subpoena ad testificandum and subpoena duces tecum, and do such other acts necessary and incidental to the discharge of its function and duty to investigate the said administrative complaints;
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and (2) empowered to call upon and secure the assistance of any department, bureau, office, agency, or instrumentality of the government, including governmentowned or controlled corporations. The Commission shall confine itself to cases of graft and corruption involving one or a combination of the following criteria: 1. Presidential appointees with the rank equivalent to or higher than an Assistant Regional Director; 2. 3. 4. The amount involved is at least Ten Million Pesos (P10,000,000.00); Those which threaten grievous harm or injury to the national interest; and Those which may be assigned to it by the President.
[11]
The Commission may refer to the Office of the Ombudsman, when warranted and necessary, any case calling for the investigation and/or prosecution of the party or parties concerned for violation of anti-graft and corruption laws. Administrative investigation of complaints against presidential appointees currently undertaken by various presidential committees or government agencies, including government-owned or controlled corporations shall continue notwithstanding the creation and organization of the Commission. This, however, shall be without prejudice to the Commission, in its discretion, taking over the investigation if the matter under investigation is within its jurisdiction. (b) Coordination The Commission shall coordinate with different government agencies for the purpose of eradicating opportunities and the climate [12] favorable to the commission of graft and corruption. x x x. (emphasis supplied) On the basis of the foregoing verba legis approach, respondents claim that the PCAGC did not have jurisdiction over them, because they were not presidential appointees. The Court notes, however, that respondents were not investigated pursuant to EO 151. The investigation was authorized under Administrative Order No. 298 dated October 25, 1996, which had created an Ad Hoc Committee to look into the administrative charges filed against Director Rosalinda U. Majarais, Priscilla G. Camposano, Horacio D. Cabrera, Imelda Q. Agustin and Enrique L. Perez. The Investigating Committee was composed of all the members of the PCAGC: Chairman Eufemio C. Domingo, Commissioner Dario C. Rama and Commissioner
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Jaime L. Guerrero. The Committee was directed by AO 298 to follow the procedure prescribed under Section 38 to 40 of the Civil Service Law (PD 807), as amended. It was tasked to forward to the Disciplining Authority the entire records of the case, together with its findings and recommendations, as well as the draft decision for the approval of the President. The Chief Executives power to create the Ad Hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure [13] that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry. Parenthetically, the perceived vacuum in EO 151 with regard to cases involving non[14] presidential appointees was rectified in Executive Order No. 12, which created the Presidential Anti-Graft Commission (PAGC). Non-presidential appointees who may have acted in conspiracy, or who may have been involved with a presidential [15] appointee, may now be investigated by the PAGC. Second and Third Issues: Neither the PCAGC under EO 151 nor the Ad Hoc Investigating Committee created under AO 298 had the power to impose any administrative sanctions directly. Their authority was limited to conducting investigations and preparing their findings and recommendations. The power to impose sanctions belonged to the disciplining authority, who had to observe due process prior to imposing penalties. Due process in administrative proceedings requires compliance with the following cardinal principles: (1) the respondents right to a hearing, which includes the right to present ones case and submit supporting evidence, must be observed; (2) the tribunal must consider the evidence presented; (3) the decision must have some basis to support itself; (4) there must be substantial evidence; (5) the decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its own consideration of the law and the facts of the controversy and must not have simply accepted the views of a subordinate; and (7) the decision must be rendered in such manner that respondents would know the [20] reasons for it and the various issues involved. The CA correctly ruled that administrative due process had not been observed in the present factual milieu. Noncompliance with the sixth requisite is equally evident from the health secretarys Order dismissing the respondents thus: ORDER This refers to the Resolution of the Presidential Commission Against Graft and Corruption (PCAG[C]) on the above captioned case dated January 23, 1998, the dispositive portion of which reads: WHEREFORE, premises considered, this Commission finds Respondents Rosalinda U. Majarais, Priscilla G. Camposano, Financial Management Chief II, [Horacio] D. Cabrera, Acting Supply Officer III, all of the Department of Health National Capital Region (DOH-NCR) guilty as charged and so recommends to his Excellency President Fidel V. Ramos that the penalty of dismissal from the government be imposed thereon. Acting on the aforequoted resolution of the PCAGC[,] His Excellency President Fidel V. Ramos issued Administrative Order No. 390 dated [A]pril 20, 1998, resolving thus: WHEREFORE, premises considered, respondent Dr. Rosalinda U. Majarais is hereby found guilty as charged and, as recommended by the Presidential Commission Against Graft and Corruption, is meted the penalty of dismissal from
The Administrative Code of 1987 vests department secretaries with the authority to investigate and decide matters involving disciplinary actions for officers and [16] employees under the formers jurisdiction. Thus, the health secretary had disciplinary authority over respondents. Note that being a presidential appointee, Dr. Rosalinda Majarais was under the jurisdiction of the President, in line with the principle that the power to remove is [17] inherent in the power to appoint. While the Chief Executive directly dismissed her from the service, he nonetheless recognized the health secretarys disciplinary authority over respondents when he remanded the PCAGCs findings against them [18] for the secretarys appropriate action. As a matter of administrative procedure, a department secretary may utilize other [19] officials to investigate and report the facts from which a decision may be based. In the present case, the secretary effectively delegated the power to investigate to the PCAGC.
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the service. The records of the case with respect to the other respondents are remanded to Secretary Carmencita N. Reodica, Department of Health for appropriate action. WHEREFORE, pursuant to the Resolution rendered by the Presidential Commission Against Graft and Corruption (PCAGC) dated January 23, 1998 on the above captioned case, respondents Priscilla G. Camposano, Financial Management Chief II; Horacio D. Cabrera, Acting Administrative Officer V; Imelda Q. Agustin, Accountant I; and Enrique G. Perez, Acting Supply Officer III; all of the Department of HealthNCR, [21] are hereby DISMISSED from the service. Concededly, the health secretary has the competence and the authority to decide what action should be taken against officials and employees who have been administratively charged and investigated. However, the actual exercise of the disciplining authoritys prerogative requires a prior independent consideration of the law and the facts. Failure to comply with this requirement results in an invalid decision. The disciplining authority should not merely and solely rely on an investigators recommendation, but must personally weigh and assess the evidence gathered. There can be no shortcuts, because at stake are the honor, the reputation, and the livelihood of the person administratively charged. In the present case, the health secretarys two -page Order dismissing respondents pales in comparison with the presidential action with regard to Dr. Majarais. Prior to the issuance of his seven-page decision, President Fidel V. Ramos conducted a restudy of the doctors case. He even noted a violation that had not been considered [22] by the PCAGC. On the other hand, Health Secretary Carmencita N. Reodica simply and blindly relied on the dispositive portion of the Commissions Resolution. She even misquoted it by inadvertently omitting the recommendation with regard to Respondents Enrique L. Perez and Imelda Q. Agustin. The Order of Secretary Reodica denying respondents Motion for Reconsideration [23] also failed to correct the deficiency in the initial Order. She improperly relied on the Presidents findings in AO 390 which, however, pertained only to the administrative charge against Dr. Majarais, not against respondents. To repeat, the Chief Executive recognized that the disciplinary jurisdiction over respondents belonged to the health [24] secretary, who should have followed the manner in which the President had rendered his action on the recommendation. The Presidents endorsement of the records of the case for the appropriate action of [25] the health secretary did not constitute a directive for the immediate dismissal of respondents. Like that of President Ramos, the decision of Secretary Reodica should have contained a factual finding and a legal assessment of the controversy to enable respondents to know the bases for their dismissal and thereafter prepare their appeal intelligently, if they so desired. To support its position, petitioner cites American Tobacco Co. v. Director of [26] Patents. However, this case merely authorized the delegation of the power to investigate, but not the authority to impose sanctions. Verily, in requiring the disciplining authority to exercise its own judgment and discretion in deciding a case, American Tobacco supports the present respondents cause. In that case, the petitioners objected to the appointment of hearing officers and sought the [27] personal hearing of their case by the disciplining authority. The Court, however, sustained the right to delegate the power to investigate, as long as the adjudication would be made by the deciding authority. By the same token, the Constitution grants the Supreme Court disciplinary authority over all lower court justices and judges, as well as judicial employees and lawyers. While the investigation of administrative complaints is delegated usually to the Office of the Court Administrator (OCA) or the Integrated Bar of the [29] Philippines (IBP), the Court nonetheless makes its own judgments of the cases when sanctions are imposed. It does not merely adopt or solely rely on the recommendations of the OCA or the IBP. Inasmuch as the health secretarys twin Orders were patently void for want of due process, the CA did not err in refusing to discuss the merit of the PCAGCs (or the Ad Hoc Committees) recommendations. Such a discussion should have been made by the health secretary before it could be passed upon by the CA. In representation of petitioner, the Office of the Solicitor General insists that respondents are guilty of the charges and, like Dr. Majarais, deserve dismissal from the service. Suffice it to stress that the issue in this case is not the guilt of respondents, but solely due process. In closing, the Court reiterates the oft-quoted aphorism that the end does not justify the means. Guilt cannot be pronounced nor penalty imposed, unless due process is first observed. This is the essence of fairness and the rule of law in a democracy. WHEREFORE, the Petition is PARTLY GRANTED. The assailed Decision of the Court of Appeals is MODIFIED in the sense that the authority of the Ad Hoc Investigating Committee created under Administrative Order 298 is SUSTAINED. Being violative of administrative due process, the May 8, 1998 and the June 5, 1998 Orders of the health secretary are ANNULLED and SET ASIDE. Let the
[28]
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records of this case be REMANDED to the Department of Health, so that proper steps can be taken to correct the due-process errors pointed out in this Decision. No pronouncement as to costs. SO ORDERED.
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[G.R. No. 117618. March 29, 1996] VIRGINIA MALINAO, petitioner, vs. HON. LUISITO REYES, in his capacity as Governor of the Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and WILFREDO RED, in his capacity as Mayor of Sta. Cruz, 20 Marinduque, respondents. DECISION MENDOZA, J.: This is a petition for certiorari and mandamus to annul the decision dated October 21, 1994 of the Sangguniang Panlalawigan of Marinduque, dismissing the administrative case filed by petitioner against respondent Mayor Wilfredo Red of Sta. Cruz, Marinduque. The ground for the present petition is that the same body already found respondent Mayor guilty of abuse of authority in removing petitioner from her post as Human Resource Manager without due process in another decision which is now final and executory. The facts are as follows: Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque. Respondent Mayor filed a case against her in the Office of the Ombudsman for gross neglect of duty, inefficiency and incompetence. While the case was pending, he appointed a replacement for petitioner. On February 24, 1994 petitioner filed an administrative case, docketed as Administrative Case No. 93-03, against respondent Mayor in the Sangguniang Panlalawigan of Marinduque, charging him with abuse of authority and denial of due process. On August 12, 1994, the case was taken up in executive session of the [1] Sanggunian. The transcript of stenographic notes of the session shows that the Sanggunian, by the vote of 5 to 3 of its members, found respondent Mayor guilty of the charge and imposed on him the penalty of one-month suspension, The result of the voting was subsequently embodied in a Decision dated September [2] 5, 1994, signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. Copies of the Decision were served on respondent Mayor Red as well as on respondent Governor Luisito Reyes on September 12, 1994.
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On September 14, 1994, respondent Mayor filed a manifestation before the Sanggunian, questioning the Decision on the ground that it was signed by Sotto alone, apparently acting in his capacity and designated as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. He contended that because of this the decision could only be considered as a recommendation of the Blue Ribbon Committee and he was not bound thereby. On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the Department of the Interior and Local Government regarding the validity of the Decision. In his letter dated September 14, 1994, DILG Secretary Rafael M. Alunan III opined that the decision alluded to does not appear to be in accordance with Section 66 of the Local Government Code of 1991 and settled jurisprudence since in the instant case, the purported decision of the Blue Ribbon Committee should have been submitted to, approved and/or adopted by the Sangguniang Panlalawigan as a collegial body inasmuch as the Sangguniang Panlalawigan has the administrative jurisdiction to take cognizance thereof in conformity with Section 61 and Section 66 of the Code. It is not for the said committee to decide on the merits thereof, more so to impose the suspension, as its duty and function is purely recommendatory. If it were at all the intention of the Sangguniang Panlalawigan to adopt entirely the recommendation of the Blue Ribbon Committee, it should have so stated and the members of the Sangguniang Panlalawigan, who may have affirmatively voted thereon or participated in its deliberations, should have affixed their respective signatures on whatever decision that could have been arrived at. . . . On the other hand petitioner sent a letter on October 14, 1994 to respondent Governor Reyes, demanding that the Decision suspending respondent Mayor from office be implemented without further delay. In his letter dated October 20, 1994, respondent Governor informed the Sanggunian that he agreed with the opinion of the DILG for which reason he could not implement the Decision in question. On October 21, 1994, the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the charges against him. The vote was embodied in a Decision of the same [8] date, which was signed by all members who had thus voted. Hence this petition.
[7] [6] [5] [4]
[3]
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I. Petitioners basic contention is that inasmuch as the Decision of September 5, 1994 had become final and executory, for failure of respondent Mayor to appeal, it was beyond the power of the Sanggunian to render another decision on October 21, 1994 which in effect reversed the first decision. These contentions are without merit. What petitioner claims to be the September 5, 1994 Decision of the Sangguniang Panlalawigan bore the signature of only one member (Rodrigo V. Sotto) who signed the Decision as Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan. Petitioner claims that at its session on August 12, 1994, the Sanggunian by the vote of five members against three found respondent Mayor guilty of having removed petitioner as Human Resources Officer III without due process and that this fact is shown in the minutes of the session of the Sanggunian. The minutes referred to read in pertinent part as follows: KGD. SOTTO - No if he [respondent Mayor] is acquitted, then lets acquit it. Whatever is the decision everybody goes to the majority. (There was nominal voting from the Sangguniang Panlalawigan member. For NOT GUILTY OR GUILTY) KGD. ZOLETA - I vote not guilty. KGD. MUHI - Guilty. KGD. LIM - Not guilty. KGD. RAZA - First I would like to say that I will decide on the merit of the case. The fact that the Civil Service ordered the reinstatement wherein Virginia Molinao is included, only means that the Supreme Court duly constituted has found the merit of the decision of the Civil Service. I vote that the Mayor is guilty. KGD. PINAROC - Guilty. KGD. DE LUNA - Guilty, there is no due process and to protect the integrity of the Sangguniang Panlalawigan. KGD. LAGRAN - Guilty. KGD. ZOLETA - My reason for voting not guilty is that the mayor acted in good faith, he just followed the order of the reorganization recommended by the Placement Committee. KGD. REJANO - The order of the reorganization was given by the Civil Service Commission and based on the contention made by Kgd. Palamos that since there should be reorganization to be conducted by the Civil Service Commission the mayor was supposed to go on with that reorganization and based on the reorganization there should be a screening committee to check whether the employees are really working efficiently. Based on the case that has been given to Mrs. Malinao, based on the witnesses, Ligeralde, Monterozo and Pastrana and then decided that Mayor Red has done in good faith. So I vote Not Guilty. Five (5) voted GUILTY: Kgd. Muhi Kgd. Raza Kgd. Pinaroc Kgd. Lagran Kgd. De Luna Three (3) voted NOT GUILTY: Kgd. Rejano Kgd. Zoleta Kgd. Lim KGD. SOTTO - Punishment... Censure? Reprimand? Suspension? KGD. LAGRAN - I suggest that only those who voted guilty should vote as to what punishment should be given. KGD. LIM - All the members should be given the right to vote. (THE VOTING PROCEEDED.) Kgd. Muhi - Suspension
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Kgd. Raza - Suspension Kgd. Pinaroc - Suspension Kgd. Lagran - Suspension Kgd. de Luna - Suspension KGD. ZOLETA - Since we voted not guilty therefore no punishment. KGD. REJANO - No punishment. KGD. LIM - No punishment. KGD. SOTTO - How many months? KGD. MUHI - One month. KGD. RAZA - One month. KGD. PINAROC - One month. KGD. LAGRAN - One month. KGD. DE LUNA - One month. KGD SOTTO - Be it on record that on August 12, 1994 during the Executive Session of the Sangguniang Panlalawigan en banc the respondent is hereby found guilty. Effective upon receipt of the Decision, copy furnished: the counsel for Respondent, the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG, Boac, Marinduque, the Provincial Governor. Contrary to petitioners claim, what the minutes only show is that on August 12, 1994 the Sanggunian took a vote on the administrative case of respondent Mayor and not that it then rendered a decision as required by 66(a) of the Local Government Code (R.A. No. 7160) which provides as follows: 66. Form and Notice of Decision. - (a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the In order to render a decision in administrative cases involving elective local officials, the decision of the Sanggunian must thus be in writing stating clearly and distinctly the facts and the reasons for such decision. What the Sanggunian, therefore, did on August 12, 1994 was not to render a decision. Neither may the so-called Decision prepared by Sanggunian Member Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures of the requisite majority. Like the procedure in the Supreme Court, the voting following the deliberation of the members of the Sanggunian did not necessarily constitute their decision unless this was embodied in an opinion prepared by one of them and concurred in by the others, in the same way that the voting following the deliberation on a case in the Supreme Court becomes its decision only after the opinion prepared by a Justice is concurred in by others composing the majority. Until they have signed the opinion and the decision is [9] promulgated, the Justices are free to change their votes. Indeed, in his comment in this case, Member Sotto admits that the draft decision he prepared had only his signature due to the reluctance of some Kagawads to affix their signatures. Consequently the draft never became a decision. It is noteworthy that the draft was signed by Member Sotto in his capacity as Presiding Chairman of the Blue Ribbon Committee of the Sangguniang Panlalawigan and that it did not provide spaces for the signatures of other members of the Sanggunian had it been intended that it be signed by them. This fact led the DILG to conclude that the draft was simply the report and recommendation of the Blue Ribbon Committee to the Sanggunian. Now, as already stated, the Sanggunian, at its session on October 21, 1994, took another vote and, 7 to 2, decided to dismiss the case against respondent Mayor. This time its decision was made in writing, stating the facts and the law on which it was based, and it was signed by the members taking part in the decision. This, and not the so-called decision of September 5, 1994, is the decision of the Sanggunian. Petitioner complains that no notice of the session by the Sanggunian on October 21, 1994 was given to her. None was really required to be given to her. The deliberation of the Sanggunian was an internal matter. II. Petitioner brought this case by way of Petition for certiorari and mandamus. A prime specification of the writ of certiorari, however, is that there is no appeal nor
[10]
reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties.
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any plain, speedy and adequate remedy in the ordinary course of law available to petitioner. But, in the case at bar, petitioner could have appealed the decision of the Sanggunian to the Office of the President as provided in 67(b) of the Local Government Code. III. At all events, this case is now moot and academic as a result of the expiration of respondents term during which the act complained of was allege dly committed, and further proceedings against respondent Mayor are barred by his reelection on May 8, 1995. Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense. On the other hand, any administrative disciplinary proceeding against respondent is abated if in the meantime he is reelected, because his reelection results in a condonation of whatever misconduct he might have committed [11] during his previous term. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED.
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Power to issue subpoena

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Power to punish contempt

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

There is merit in the argument. In Taada vs. Tuvera

, the Court held, as follows:

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Malone-Cervantes, M., Respicio, L., Tuballa, L.

Implementing Rules of Interpretative Policies

Malone-Cervantes, M., Respicio, L., Tuballa, L.