THIRD DIVISION [G.R. No. 112386. June 14, 1994.] MARCELINO C. LIBANAN, petitioner, vs.

SANDIGANBAYAN and AGUSTIN B. DOCENA, respondents.

SYLLABUS 1. CRIMINAL LAW; REPUBLIC ACT NO. 3019; PREVENTIVE SUSPENSION; TERM "OFFICE" CONSTRUED. In Deloso vs. Sandiganbayan, (173 SCRA 409) this Court rejected a similar argument advanced by Governor Deloso who, at the time of issuance of the suspension order, was already occupying the office of governor and not the position of municipal mayor that he held previously when charged with having violated the Anti-Graft Law. Prior to Deloso, in Bayot vs. Sandiganbayan, (128 SCRA 383) the suspension of then Cavite mayor Bayot was also sustained even as he was charged for acts committed as a government auditor of the Commission on Audit. In both instances, this Court ruled that the term "office" used in the law could apply to any office which the officer charged might currently be holding and not necessarily the particular office under which he was charged. 2. ID.; ID.; ID.; NOT DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW; RATIONALE THEREFOR. Obviously, the suspension order cannot amount to a deprivation of property without due process of law. Public office is "a public agency or trust," and it is not the property envisioned by the Constitutional provision which petitioner invokes. 3. ID.; ID.; ID.; LEGAL BASIS FOR SUSPENSION FROM OFFICE IN SUBSEQUENT TERM. Petitioner's so-called "covenant" with the people of Eastern Samar is far from being synonymous to, or the equivalent of, license, and it is not one that can cut athwart the long arm of the law. In Oliveros vs. Villaluz, (57 SCRA 163) we have said: "Since the criminal prosecution against petitioner-accused is concededly not abated by the fact of his reelection, the pendency of such criminal case under a valid information under Republic Act 3019 may clearly be and supplies the legal basis for his suspension from office in a subsequent term in the event of his reelection by virtue of the provisions of section 13 of the Act." 4. ID.; ID.; ID.; IMPOSITION THEREOF MANDATORY. When the statute is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory, and there are no "ifs" and "buts" about it.

RESOLUTION

VITUG, J p: Petitioner Marcelino C, Libanan, the incumbent Vice-Governor of Eastern Samar, was a member of the Sangguniang Panlalawigan of that province prior to the 11 May 1992 elections. He was among those charged before the Sandiganbayan, on 25 May 1992, with having violated Section 3(e) of Republic Act No.

3019 in an information, docketed Criminal Case No. 17756, stating "That on or about 08 January 1991, and for sometime thereafter, in Borongan, Eastern Samar, and within the jurisdiction of this Honorable Court, accused Lutgardo B. Barbo, Governor of Eastern Samar; Camilo A. Camenforte, Vice-Governor of same province; Sangguniang Panlalawigan Members Marcos B. Alido, Nonato A. Gerna, Ismael G. Kho, Marcelino C. Libanan, Nicolas P. Pimentel, and Generoso A. Yu, of the same province, conspiring with one another, did then and there, wilfully and unlawfully, through evident bad faith and manifest partiality, prevent and exclude Agustin B. Docena, a duly appointed and Qualified replacement of deceased Sangguniang Panlalawigan member Luis A. Capito, from exercising his rights and prerogatives as a member of the said body, by promulgating in their official capacities Sangguniang Panlalawigan Resolution No. 01, Series of 1991, wherein accused expressed their recognition of Atty. Socrates B. Alar as the official replacement of aforesaid deceased member, notwithstanding the recall of his appointment by the Department of Local Government, to the damage and prejudice of Agustin B. Docena. prLL "CONTRARY TO LAW." 1 On motion of the prosecution for the suspension of the accused public officials pendente lite, and finding that said accused were charged under a valid information, the Second Division of the Sandiganbayan issued a resolution, dated 26 July 1993, to the following effect: "WHEREFORE, premises considered, accused Gov. Lutgardo Barbo, Vice-Gov. Marcelino C. Libanan, and Sangguniang Panlalawigan members Nonato A. Gerna and Generoso A. Yu are hereby suspended from their respective public positions, or from any other public office that they may be holding, the same to commence upon their receipt hereof and for a period of ninety (90) days thereafter. cdphil "Let copies of this Resolution be furnished the Hon. Secretary, Department of Interior and Local Government, and the Hon. Commissioner, Civil Service Commission, for their information and guidance and they are hereby directed to inform this Court within ten (10) days from receipt hereof of any action they have undertaken on the matter. "SO ORDERED." 2 Accused Barbo and Libanan filed their respective motions for reconsideration, which the Sandiganbayan denied in its resolution of 30 September 1993. From the orders, Libanan appealed. Petitioner presents three grounds to support his appeal, to wit: That I. THE ORDER OF SUSPENSION IF EXECUTED WOULD CONSTITUTE AN AFFRONT ON PETITIONER('S) CONSTITUTIONAL RIGHT TO DUE PROCESS. II. THE ORDER OF SUSPENSION ONCE IMPLEMENTED WOULD AMOUNT TO AN ASSAULT OF THE SACRED COVENANT REPOSED ON PETITIONER VICE-GOVERNOR, MARCELINO C. LIBANAN BY THE PEOPLE OF EASTERN SAMAR. LibLex III. THE REASONS SOUGHT TO BE PREVENTED BY THE SUSPENSION ORDER PENDENTE LITE NO LONGER EXIST.

The petition is without merit. The amendatory provision of Section 13, Republic Act No. 3019, here applicable, provides: "Sec. 13. Suspension and Loss of Benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under title 7, book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. . . ." Petitioner contends that the order of suspension, being predicated on his acts supposedly committed while still a member of the Sangguniang Bayan, can no longer attach to him now that he is the duly elected and incumbent Vice-Governor of Eastern Samar. The implementation of the suspension order, he further claims, would amount to a deprivation of property without due process of law. Cdpr In Deloso vs. Sandiganbayan, 3 this Court rejected a similar argument advanced by Governor Deloso who, at the time of issuance of the suspension order, was already occupying the office of governor and not the position of municipal mayor that he held previously when charged with having violated the Anti-Graft Law. Prior to Deloso, in Bayot vs. Sandiganbayan, 4 the suspension of then Cavite mayor Bayot was also sustained even as he was charged for acts committed as a government auditor of the Commission on Audit. In both instances, this Court ruled that the term "office" used in the law could apply to any office which the officer charged might currently be holding and not necessarily the particular office under which he was charged. Obviously, the suspension order cannot amount to a deprivation of property without due process of law. Public office is "a public agency or trust," 5 and it is not the property envisioned by the Constitutional provision 6 which petitioner invokes. Libanan's second contention neither holds water. His so-called "covenant" with the people of Eastern Samar is far from being synonymous to, or the equivalent of, license, and it is not one that can cut athwart the long arm of the law. In Oliveros vs. Villaluz, 7 we have said: cdll "Since the criminal prosecution against petitioner-accused is concededly not abated by the fact of his reelection, the pendency of such criminal case under a valid information under Republic Act 3019 may clearly be and supplies the legal basis for his suspension from office in a subsequent term in the event of his reelection by virtue of the provisions of Section 13 of the Act." The third assigned error raised by petitioner need not be delved into. When the statute is clear and explicit, there is hardly room for any extended court ratiocination or rationalization of the law. Republic Act No. 3019 unequivocally mandates the suspension of a public official from office pending a criminal prosecution against him. This Court has repeatedly held that such preventive suspension is mandatory, 8 and there are no "ifs" and "buts" about it. 9 WHEREFORE, the petition is DISMISSED. The assailed resolution of respondent Sandiganbayan is AFFIRMED in toto. LLphil SO ORDERED. Feliciano, Bidin, Romero and Melo JJ., concur.

Footnotes 1. Rollo, pp. 46-47. 2. Rollo, pp. 30-31. 3. 173 SCRA 409. 4. 128 SCRA 383. 5. Sibal, The Law on Public Offices and Officers, 1993 ed., p. 3, citing 42 Am. Jur. 881. 6. Martin and Martin, Administrative Law, Law of Public Officers and Election Law, 1987 ed., p. 138. 7. 57 SCRA 163. 8. Bunye, et al. vs. Associate Justices Escareal, et al., G.R. No. 110216, 10 September 1993; Gonzaga vs. Sandiganbayan, 201 SCRA 417; People vs. Albano, 163 SCRA 511, People vs. Court of Appeals, 135 SCRA 372. 9. Bunye, et al. vs. Associate Justices Escareal, et al., supra.

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EN BANC [G.R. Nos. L-68379-81. September 22, 1986.] EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for petitioner.

SYLLABUS 1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A CASE OF. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent both of whom have gone their separate ways could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same.

There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. 2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. 3. ID.; ID.; "CONTEST"; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claims as title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. 4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME SENSE UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his delivery or ineligibility or the inadequacy of his certificate of candidacy. 5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. 6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY SITTING EN BANC; PURPOSE. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-the-proclamation-and-delay-theprotest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre-proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the cause and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired.

7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF DUE PROCESS. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. 9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR PLAY. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. 10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF DELICADEZA. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceedings null and void. FELICIANO, J., concurring: 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. Although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. J. Feliciano reaches this result on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J., that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XIIC of the 1973 Constitution. These Sections do not distinguish between "pre-proclamation" and "postproclamation" contests nor between "cases" and "contests." MELENCIO-HERRERA, J., concurring: 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER

CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA. I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution.

DECISION

CRUZ, J p: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that, Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa. The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent both of whom have gone their separate ways could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to

manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the decision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power. LLjur What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court. Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, vote-buying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner

had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? LibLex The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to: "(2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials." Section 3 provides: "The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision." While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law despite all the canards that have been flung against it exerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be in fact, should be filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest.

A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including pre-proclamation controversies and up to the election protest, In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. Cdpr It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: "Sec. 175. Suspension and annulment of proclamation. The Commission shall be the sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidateelect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof." Before that time all proceedings affecting the election, returns and qualifications of public officers came

under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the post-proclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial. Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. LLjur All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-toofamiliar with the grab-the-proclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre-proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired.

It may be argued that in conferring the initial power to decide the pre-proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission. A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution. Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14

Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded protestations of innocence and proved the motives of the Second Division when it rendered its decision. cdll This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion.

Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17 Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the records of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons,' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." LLpr That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED.

Feria, Yap, Narvasa, Alampay and Paras, JJ ., concur. Teehankee, C . J ., I concur and reserve the filing of a separate concurrence. Fernan and Gutierrez, Jr., JJ ., concur in the result.

Separate Opinions MELENCIO-HERRERA, J ., concurring: I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without any distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution. FELICIANO, J ., concurring: I agree with the result reached, that is, although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the Province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. I reach this result on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J.: that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do not distinguish between "preproclamation" and "post-proclamation" contests nor between "cases" and "contests." Footnotes 1. Rollo, p. 26. 2. Rollo, p. 26. 3. Ibid., p. 9; p. 28. 4. Id., p. 30. 5. Id., p. 30. 6. Id., p. 62. 7. Id., p. 62; pp. 107-111. 8. Id., pp. 11-16; pp. 196-208. 9. Art. XII-C, Sec. 2(1), 1973 Constitution. 10. Vera vs. Avelino, 77 Phil. 191.

11. Art. XII-C, Sec. 3, 1973 Constitution. 12. Election Code of 1971, Sec. 219. 13. 88 SCRA 251. 14. Rollo, pp. 109-111. 15. Mateo vs. Villaluz, 50 SCRA 18; Gutierrez vs. Santos, 2 SCRA 249. 16. People vs. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez vs. Presbitero, 79 SCRA 61; Sardinia-Linco vs. Pineda, 104 SCRA 757. 17. Comelec Res. No. 1669, Sec. 5

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EN BANC [G.R. No. 144464. November 27, 2001.] GILDA G. CRUZ and ZENAIDA C. PAITIM, petitioner, vs. THE CIVIL SERVICE COMMISSION, respondent.

Ponciano Hernandez for petitioners. The Solicitor General for respondent.

SYNOPSIS Petitioners Zenaida Paitim, Municipal Treasurer of Norzagaray, Bulacan and Gilda Cruz were charged with dishonesty, grave misconduct and conduct prejudicial to the best interest of the service after a fact-finding investigation disclosed that Paitim impersonated Gilda Cruz in the non-professional career civil service examinations conducted on July 30, 1989 in Quezon City. Petitioners denied the charges against them, declared that they were electing a formal investigation on the matter and subsequently moved to dismiss on the ground of denial of due process because the Civil Service Commission (CSC) was the complainant, the prosecutor and the judge, all at the same time. The motion was denied. The CSC, in a resolution dated July 1, 1998, found petitioners guilty as charged and ordered their dismissal from the government service. Petitioners elevated the case to the Court of Appeals via a petition for review which was, however, dismissed. Their subsequent motion for reconsideration was also denied. Hence, this recourse. The Civil Service Commission is vested with the appellate jurisdiction in all administrative cases where the penalty imposed is removal or dismissal from office and where the complaint was filed by a private citizen. This appellate jurisdiction does not contemplate a case where the acts complained of was committed

against the Commission itself as when the employee committed irregularity or anomaly in the conduct of its examinations. Factual findings of administrative bodies like the Civil Service Commission, if supported by substantial evidence, are binding on this Court. There is no denial of administrative due process where after being formally charged, respondents submitted their answer and given opportunity to defend themselves.

SYLLABUS 1. ADMINISTRATIVE LAW; CIVIL SERVICE COMMISSION; APPELLATE JURISDICTION OVER ALL ADMINISTRATIVE CASES; REFERS TO CASES FILED AGAINST EMPLOYEES IN CONNECTION WITH THEIR DUTIES AND FUNCTIONS; DOES NOT REFER TO IRREGULARITIES OR ANOMALIES CONNECTED TO EXAMINATIONS UNDER THE DIRECT CONTROL AND SUPERVISION OF THE COMMISSION; CASE AT BAR. Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative Code of 1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the penalty imposed is removal or dismissal from the office and where the complaint was filed by a private citizen against the government employee. Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative cases are filed against erring employees in connection with their duties and functions of the office. This is, however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations were under the direct control and supervision of the Civil Service Commission. The culprits are government employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was dismissal from the office. Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can rightfully take cognizance over any irregularities or anomalies connected to the examinations. 2. REMEDIAL LAW; EVIDENCE; FINDINGS OF ADMINISTRATIVE BODIES SUPPORTED BY SUBSTANTIAL EVIDENCE, BINDING ON SUPREME COURT. The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. 3. ADMINISTRATIVE LAW; ADMINISTRATIVE DUE PROCESS; NOT DENIED WHERE PETITIONERS WERE GIVEN OPPORTUNITY TO BE HEARD. It can not be denied that the petitioners were formally charged after a finding that a prima facie case for dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do not find reversible error with the decision of the Court of Appeals in upholding the CSC Resolution. DEcITS

DECISION

KAPUNAN, J p:

Assailed in the instant petition is the decision of the Court of Appeals upholding Resolution No. 981695 of the Civil Service Commission for allegedly being contrary to law and jurisprudence. The facts are as follows: On September 9, 1994, the Chairperson of the Civil Service Commission (CSC), received a letter from a private individual, Carmelita B. Esteban, claiming that, during the examinations for non-professional in the career civil service, given by the Civil Service Commission, on July 30, 1989 in Quezon City, Zenaida C. Paitim, the Municipal Treasurer of Norzagaray, Bulacan, falsely pretending to be the examinee, Gilda Cruz, a co-employee in the said office, took the examinations for the latter. Carmelita Esteban requested the CSC to investigate the matter, appending to said letter, pictures purporting to be those of Gilda Cruz and Zenaida Paitim. On September 20, 1994, Erlinda A. Rosas, Director IV of the Commission, issued a Memorandum to Eliseo Gatchalian, the Director of the Management Information Office of the Commission, requesting the latter to furnish her with the picture seat plan of the room where Gilda G. Cruz was during the said examination, to ascertain the veracity of the letter-complaint. Eliseo S. Gatchalian did furnish Erlinda Rosas with certified true copies of the picture seat plans of the rooms where Gilda G. Cruz was assigned not only in the 1989 but also in the 1987 and 1988 career service (sub-professional) examinations. On November 8, 1994, Erlinda Rosas thereby wrote a Memorandum to Civil Service Commissioner Thelma P. Gaminde, dated November 8, 1994, declaring that based on the record, she found a prima facie case against Zenaida Paitim and Gilda G. Cruz. On the basis of said memorandum, a fact finding investigation was conducted. On March 31, 1995, a "Formal Charge" for "Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service" signed by Bella Amilhasan, Director IV of the Civil Service Commission Regional Office No. 3 was filed against Gilda Cruz and Zenaida C. Paitim, with the Civil Service Commission, docketed as Administrative Case No. D3-95-052, which reads as follows: FORMAL CHARGE MESDAMES: This Office has found after a fact finding investigation that a prima facie case exists against you for DISHONESTY, GRAVE MISCONDUCT and CONDUCT PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE, committed as follows: "That Gilda Cruz applied to take the July 30, 1989 Career Service Subprofessional examination. A verification of our records revealed that the picture of Cruz pasted in the Picture Seat Plan of the said examination held at Room 21 of the Ramon Magsaysay Elementary School, Quezon City, bears no resemblance to the pictures of Cruz as appearing in the picture seat plans of the previous Career Service Subprofessional Examinations which she took last July 26, 1987 and July 31, 1988 respectively. It would appear that the purported picture of Cruz pasted in the Picture Seat Plan of the said July 30, 1989 examination is the picture of a different person. Further verification showed that this picture belongs to a certain Zenaida Paitim, Municipal Treasurer of Norzagaray, Bulacan who apparently took the said examination on behalf of Cruz and on the basis of the application bearing the name

and personal circumstances of Cruz." WHEREFORE, Gilda Cruz and Zenaida Paitim are hereby directed to answer in writing and under oath within five (5) days from receipt hereof. To support your Answer, you may submit supporting documents/sworn statements. In your Answer, you should state whether you elect to have a formal investigation or waive your right to said investigations should your Answer be found not satisfactory. You are advised that you are entitled to the assistance of a counsel. By Authority of the Commission: (Sgd.) Bella A. Amilhasan Director IV 1 The petitioners filed their Answer to the charge entering a general denial of the material averments of the "Formal Charge." They also declared that they were electing a formal investigation on the matter. The petitioners subsequently filed a Motion to Dismiss averring that if the investigation will continue, they will be deprived of their right to due process because the Civil Service Commission was the complainant, the Prosecutor and the Judge, all at the same time. On July 17, 1995, Director Bella A. Amilhasan issued an order denying the motion. 2 The subsequent motion for reconsideration of said order was likewise dismissed. Dulce J. Cochon, Attorney III of the CSC was thereby directed to conduct the formal administrative investigation of petitioners' case. On November 16, 1995, Dulce J. Cochon issued an "Investigation Report and Recommendation" finding the Petitioners guilty of "Dishonesty" and ordering their dismissal from the government service, the decretal portion of which reads as follows: WHEREFORE, foregoing premises considered, this Office recommends the dismissal from the service with all its accessory penalties of respondents Zenaida Paitim and Gilda Cruz, both employees of the Municipality of Norzagaray, Bulacan for the offenses of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. Furthermore, this Office recommends the filing of criminal charges against them that shall serve as a deterrent to all possible plans of making a mockery to the sanctity of Civil Service Law and Rules as well as the constitutional mandate that 'A public office is a public trust. (Idem. Supra.) 3

The aforesaid "Investigation Report and Recommendation" was then forwarded, to the Civil Service Commission for its consideration and resolution. On July 1, 1998, the Civil Service Commission issued Resolution No. 981695 finding the petitioners guilty of the charges and ordered their dismissal from the government service. The decretal portion reads as follows:

WHEREFORE, Zenaida Paitim and Gilda Cruz are hereby found guilty of Dishonesty. Accordingly, they are imposed the penalty of dismissal from the service with all its accessory penalties. The Civil Service (Subprofessional) Eligibility of Gilda Cruz is also cancelled. Let a copy of this Resolution, as well as other relevant documents, be furnished the Office of the Ombudsman for whatever action it may take under the premises." 4 Petitioners then went up to the Court of Appeals assailing the resolution of the CSC. On November 29, 1999, the Court of Appeals dismissed the petition before it. The motion for reconsideration was, likewise, denied on August 9, 2000. Hence, this petition. In the instant petition, petitioners raised the following assignment of errors: I THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT PETITIONERS' CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT VIOLATED IN ADMINISTRATIVE CASE NO. D3-95-052 WHERE RESPONDENT COMMISSION ACTED AS THE INVESTIGATOR, THE COMPLAINANT, THE PROSECUTOR, AND THE JUDGE, ALL AT THE SAME TIME, AGAINST PETITIONERS. IN SO DOING, RESPONDENT COMMISSION COMMITTED A MOCKERY OF ADMINISTRATIVE JUSTICE AND THE COURT OF APPEALS SANCTIONED IT. II THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN RULING THAT RESPONDENT COMMISSION HAS ORIGINAL JURISDICTION TO HEAR AND DECIDE A COMPLAINT OR CHARGE WHETHER FILED BY A PRIVATE CITIZEN OR BY THE CIVIL SERVICE COMMISSION ITSELF. THE LAW VESTS IN RESPONDENT COMMISSION ONLY APPELLATE, NOT ORIGINAL, JURISDICTION IN ALL ADMINISTRATIVE CASES AGAINST A PUBLIC OFFICIAL OR EMPLOYEE INVOLVING THE IMPOSITION OF A PENALTY OF REMOVAL OR DISMISSAL FROM OFFICE WHERE THE COMPLAINT THEREFORE WAS NOT FILED BY A PRIVATE CITIZEN AS IN ADMINISTRATIVE CASE NO. D3-95-052 OF RESPONDENT COMMISSION. 5 We find no merit in the petition. There is no question that petitioner Zenaida Paitim, masquerading herself as petitioner Gilda Cruz, took the civil service examinations in her behalf. Gilda Cruz passed the examinations. On the basis of a tip-off that the two public employees were involved in an anomalous act, the CSC conducted an investigation and verified that the two employees were indeed guilty of dishonesty. Thus, in accordance with the CSC law, the petitioners merited the penalty of dismissal. Petitioners maintain that the CSC did not have original jurisdiction to hear and decide the administrative case. Allegedly, in accordance with Section 47(1), Chapter 7, Subtitle A, Title 1, Book V, Administrative

Code of 1987, the CSC is vested with appellate jurisdiction only in all administrative cases where the penalty imposed is removal or dismissal from the office and where the complaint was filed by a private citizen against the government employee. 6 It reads: SECTION 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or a fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken. 7 (Italics supplied.) Petitioners' invocation of the law is misplaced. The provision is applicable to instances where administrative cases are filed against erring employees in connection with their duties and functions of the office. This is, however, not the scenario contemplated in the case at bar. It must be noted that the acts complained of arose from a cheating caused by the petitioners in the Civil Service (Subprofessional) examination. The examinations were under the direct control and supervision of the Civil Service Commission. The culprits are government employees over whom the Civil Service Commission undeniably has jurisdiction. Thus, after the petitioners were duly investigated and ascertained whether they were indeed guilty of dishonesty, the penalty meted was dismissal from the office. Section 28, Rule XIV of the Omnibus Civil Service Rules and Regulations explicitly provides that the CSC can rightfully take cognizance over any irregularities or anomalies connected to the examinations, as it reads: SECTION 28. The Commission shall have original disciplinary jurisdiction over all its officials and employees and over all cases involving civil service examination anomalies or irregularities. Petitioners' contention that they were denied due process of law by the fact that the CSC acted as investigator, complainant, prosecutor and judge, all at the same time against the petitioners is untenable. The CA correctly explained that the CSC is mandated to hear and decide administrative case instituted by it or instituted before it directly or on appeal including actions of its officers and the agencies attached to it pursuant to Book V, Title 1, Subtitle A, Chapter 3, Section 12, paragraph 11 of the Administrative Code of 1987 which states: (11) Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions of its offices and of the agencies attached to it. Officials and employees who fail to comply with such decisions, orders, or rulings shall be liable for contempt of the Commission. Its decisions, orders, or rulings shall be final and executory. Such decisions, orders, or rulings may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof; The fact that the complaint was filed by the CSC itself does not mean that it could not be an impartial judge. As an administrative body, its decision was based on substantial findings. Factual findings of administrative bodies, being considered experts in their field, are binding on the Supreme Court. 8 The records clearly disclose that the petitioners were duly investigated by the CSC and found that: AcHCED

After a careful examination of the records, the Commission finds respondents guilty as charged. The photograph pasted over the name Gilda Cruz in the Picture Seat Plan (PSP) during the July 30, 1989 Career Service Examination is not that of Cruz but of Paitim. Also, the signature over the name of Gilda Cruz in the said document is totally different from the signature of Gilda Cruz. It should be stressed that as a matter of procedure, the room examiners assigned to supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In cases where the examinee does not look like the person in the picture submitted and attached on the PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa) The facts, therefore, that Paitim's photograph was attached over the name of Gilda Cruz in the PSP of the July 30, 1989 Career Service Examination, shows that it was Paitim who took the examination. In a similar case, the Commission ruled: "It should be stressed that the registered examinee's act of asking or allowing another person to take the examination in her behalf constitutes that the evidence on record clearly established that another person took the Civil Service Examination for De Guzman, she should be held liable for the said offense." At the outset, it is axiomatic that in the offense of impersonation, two persons are always involved. In the instant case, the offense cannot prosper without the active participation of both Arada and de Leon. Thus, the logical conclusion is that de Leon took the examination for and in behalf of Arada. Consequently, they are both administratively liable. (Arada, Carolina C. and de Leon, Ponciana Anne M.) 9 It can not be denied that the petitioners were formally charged after a finding that a prima facie case for dishonesty lies against them. They were properly informed of the charges. They submitted an Answer and were given the opportunity to defend themselves. Petitioners can not, therefore, claim that there was a denial of due process much less the lack of jurisdiction on the part of the CSC to take cognizance of the case. We do not find reversible error with the decision of the Court of Appeals in upholding the CSC Resolution. WHEREFORE, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED. Davide, Jr., C. J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. Footnotes

1. Rollo, p. 19. 2. Id., at 26-27. 3. Id., at 50. 4. Id., at 39. 5. Id., at 6-7. 6. Id., at 96. 7. Id., at 11. 8. Golden Thread Knitting Industries, Inc. v. NLRC, 305 SCRA 327 (1999). 9. Id., at 38-39.

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THIRD DIVISION [G.R. No. 111397. August 12, 2002.] HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs. THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE, INC., respondents.

Felix C. Chavez and Angel P. Aguirre for petitioners.

SYNOPSIS When Mayor Lim disrupted the business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro, the latter went to court where its application for writ of prohibitory preliminary injunction was granted. Despite the same, however, Mayor Lim still issued a closure order of the establishments, even sending policemen to carry out the order. The issue is the validity of the preliminary injunction, which the Court upheld. The power of the mayor to suspend business licenses and work permits is expressly premised on the violation of the terms and conditions thereof; and the power to inspect and investigate does not include the power to order a police raid on the establishments. Further, Mayor Lim has no authority to close down a business establishment without due process of law. The Court noted that Mayor Lim did not charge Bistro with any specific violation; that he closed down the clubs before expiration of Bistro's business license; and that he refused to accept the license and work applications of Bistro without examining whether it complies with the legal

prerequisites. IAEcaH

SYLLABUS 1. POLITICAL LAW; ADMINISTRATIVE LAW; MAYORS; POWER TO ISSUE BUSINESS LICENSES AND PERMITS; INCLUDES POWER TO SUSPEND, REVOKE OR REFUSE BUT ONLY IN CASE OF VIOLATION OF CONDITIONS. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. And the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. 2. ID.; ID.; ID.; POWER TO INSPECT AND INVESTIGATE PRIVATE COMMERCIAL ESTABLISHMENTS DOES NOT INCLUDE POWER TO ORDER POLICE RAID. True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 7716 which expressly prohibits police raids and inspections, to wit: "Section 1. No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies." These local government officials include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the City of Manila, and the City Treasurer pursuant to Section 470 of the Local Government Code. 3. ID.; ID.; ID.; REGULATORY POWERS OF MUNICIPAL CORPORATIONS DOES NOT INCLUDE POWER OF MAYOR TO CLOSE DOWN A BUSINESS ESTABLISHMENT WITHOUT DUE PROCESS OF LAW. Lim has no authority to close down Bistro's business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lim's exercise of this power violated Bistro's property rights that are protected under the due process clause of the Constitution. Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistro's operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistro's license application for 1993, in effect denying the application without examining whether it complies with legal prerequisites. 4. REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; PURPOSE. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case

can be heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of. In the instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case for mandamus. The trial court issued the injunction in view of the disruptions and stoppage in Bistro's operations as a consequence of Lim's closure orders. The injunction was intended to maintain the status quo while the petition has not been resolved on the merits. EHcaAI

DECISION

CARPIO, J p: The Case Before us is a petition for review on certiorari 1 of the Decision of the Court of Appeals dated March 25, 1993, 2 and its Resolution dated July 13, 1993 3 which denied petitioners' motion for reconsideration. The assailed Decision sustained the orders dated December 29, 1992, January 20, 1993 and March 2, 1993, 4 issued by Branch 36 of the Regional Trial Court of Manila. The trial court's orders enjoined petitioner Alfredo Lim ("Lim" for brevity), then Mayor of Manila, from investigating, impeding or closing down the business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro Pigalle Inc. ("Bistro" for brevity). The Antecedent Facts On December 7, 1992 Bistro filed before the trial court a petition 5 for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the City of Manila. Bistro filed the case because policemen under Lim's instructions inspected and investigated Bistro's license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistro's night club and restaurant operations. 6 Lim also refused to accept Bistro's application for a business license, as well as the work permit applications of Bistro's staff, for the year 1993. 7 In its petition, Bistro argued that Lim's refusal to issue the business license and work permits violated the doctrine laid down this Court in De la Cruz vs. Paras, 8 to wit: "Municipal corporations cannot prohibit the operation of nightclubs. They may be regulated, but not prevented from carrying on their business." Acting on Bistro's application for injunctive relief, the trial court issued the first assailed temporary restraining order on December 29, 1992, the dispositive portion of which reads: "WHEREFORE, respondent and/or his agents and representatives are ordered to refrain from inspecting or otherwise interfering in the operation of the establishments of petitioner (Bistro Pigalle, Inc.)." 9 At the hearing, the parties submitted their evidence in support of their respective positions. On January 20, 1993, the trial court granted Bistro's application for a writ of prohibitory preliminary injunction. The dispositive portion of the trial court's order declared: "WHEREFORE, in view of all the foregoing, Petitioners' application for a writ of

prohibitory preliminary injunction is granted, and Respondent, and any/all persons acting under his authority, are and (sic) ordered to cease and desist from inspecting, investigating and otherwise closing or impeding the business operations of Petitioner Corporation's establishments while the petition here is pending resolution on the merits. Considering that the Respondent is a government official and this injunction relates to his official duties, the posting of an injunction bond by the Petitioners is not required. On the other hand, Petitioners' application for a writ of mandatory injunction is hereby denied, for to grant the same would amount to granting the writ of mandamus prayed for. The Court reserves resolution thereof until the parties shall have been heard on the merits." 10 However, despite the trial court's order, Lim still issued a closure order on Bistro's operations effective January 23, 1993, even sending policemen to carry out his closure order. ESHAIC On January 25, 1993, Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who stopped Bistro's operations on January 23, 1993. At the hearing of the motion for contempt on January 29, 1993, Bistro withdrew its motion on condition that Lim would respect the court's injunction. However, on February 12, 13, 15, 26 and 27, and on March 1 and 2, 1993, Lim, acting through his agents and policemen, again disrupted Bistro's business operations.

Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in Section 11 (1), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the Local Government Code of 1991. The trial court denied Lim's motion to dissolve the injunction and to dismiss the case in an order dated March 2, 1993, the dispositive portion of which stated: "WHEREFORE, premises considered, the Court hereby orders: (1) The denial of respondent's motion to dissolve the writ of preliminary prohibitory injunction or the dismissal of the instant case; (2) Petitioner-corporation is authorized to remove the wooden cross-bars or any other impediments which were placed at its establishments, namely, New Bangkok Club and Exotic Garden Restaurant on February 12, 1993 and February 15, 1993, respectively, and thereafter said establishments are allowed to resume their operations; (3) All the other petitioners are allowed to continue working in the aforenamed establishments of petitioner-corporation if they have not yet reported; and (4) The hearing on the contempt proceedings is deferred to give sufficient time to respondent to elevate the matters assailed herein to the Supreme Court." 11

On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. On March 25, 1993, the Court of Appeals rendered the assailed decision. 12 In a resolution dated July 13, 1993, the Court of Appeals denied Lim's motion for reconsideration. 13 On July 1, 1993, Manila City Ordinance No. 7783 14 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once. 15 The Ruling of the Court of Appeals In denying Lim's petition, the Court of Appeals held that the trial court did not commit grave abuse of discretion since it issued the writ after hearing on the basis of the evidence adduced. The Court of Appeals reasoned thus: " . . . A writ of preliminary injunction may issue if the act sought to be enjoined will cause irreparable injury to the movant or destroy the status quo before a full hearing can be had on the merits of the case. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the pendency of the principal action. It is primarily intended to maintain the status quo between the parties existing prior to the filing of the case. In the case at bar, We find that the respondent Judge did not act improvidently in issuing the assailed orders granting the writ of preliminary injunction in order to maintain the status quo, while the petition is pending resolution on the merits. The private respondent correctly points out that the questioned writ was regularly issued after several hearings, in which the parties were allowed to adduce evidence, and argue their respective positions. The issuance of a writ of preliminary injunction is within the limits of the sound exercise of discretion of the court and the appellate court will not interfere, except, in a clear case of abuse thereof. . . WHEREFORE, the petition is DENIED DUE COURSE and is accordingly DISMISSED." 16 Hence, this petition. The Issues In their Memorandum, petitioners raise the following issues: 1. "DID RESPONDENT JUDGE COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING HIS SAID ASSAILED ORDERS OF DECEMBER 29, 1992, JANUARY 20,

1993 AND MARCH 2, 1993?" 2. "DID RESPONDENT COURT OF APPEALS COMMIT REVERSIBLE ERRORS IN RENDERING ITS ASSAILED DECISION OF MARCH 25, 1993 AND ITS ASSAILED RESOLUTION OF JULY 13, 1993?" 3. "DID SAID CIVIL CASE NO. 92-63712 AND SAID CA-G.R. SP NO. 30381 BECOME MOOT AND ACADEMIC WHEN THE NEW BANGKOK CLUB AND THE EXOTIC GARDEN RESTAURANT OF PRIVATE RESPONDENT WERE CLOSED ON JULY 1, 1993 PURSUANT TO ORDINANCE NO. 7783?" The Ruling of the Court The petition is without merit. Considering that the constitutionality of Ordinance No. 7783 was not raised before the trial court or the Court of Appeals, and this issue is still under litigation in another case, 17 the Court will deal only with the first two issues raised by petitioner. Validity of the Preliminary Injunction Bistro's cause of action in the mandamus and prohibition proceedings before the trial court is the violation of its property right under its license to operate. The violation consists of the work disruption in Bistro's operations caused by Lim and his subordinates as well as Lim's refusal to issue a business license to Bistro and work permits to its staff for the year 1993. The primary relief prayed for by Bistro is the issuance of writs of mandatory and prohibitory injunction. The mandatory injunction seeks to compel Lim to accept Bistro's 1993 business license application and to issue Bistro's business license. Also, the mandatory injunction seeks to compel Lim to accept the applications of Bistro's staff for work permits. The writ of prohibitory injunction seeks to enjoin Lim from interfering, impeding or otherwise closing down Bistro's operations. The trial court granted only the prohibitory injunction. This enjoined Lim from interfering, impeding or otherwise closing down Bistro's operations pending resolution of whether Lim can validly refuse to issue Bistro's business license and its staffs work permits for the year 1993. Lim contends that the Court of Appeals erred in upholding the prohibitory injunction. Lim relies primarily on his power, as Mayor of the City of Manila, to grant and refuse municipal licenses and business permits as expressly provided for in the Local Government Code and the Revised Charter of the City of Manila. Lim argues that the powers granted by these laws implicitly include the power to inspect, investigate and close down Bistro's operations for violation of the conditions of its licenses and permits. On the other hand, Bistro asserts that the legal provisions relied upon by Lim do not apply to the instant case. Bistro maintains that the Local Government Code and the Revised Charter of the City of Manila do not expressly or impliedly grant Lim any power to prohibit the operation of night clubs. Lim failed to specify any violation by Bistro of the conditions of its licenses and permits. In refusing to accept Bistro's business license application for the year 1993, Bistro claims that Lim denied Bistro due process of law. The Court of Appeals held that the trial court did not commit grave abuse of discretion in issuing the prohibitory preliminary injunction.

We uphold the findings of the Court of Appeals. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. Section 11 (1), Article II of the Revised Charter of the City of Manila, reads: "Sec. 11. General duties and powers of the mayor. The general duties and powers of the mayor shall be: xxx xxx xxx (1) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinances are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other reason of general interest." (Italics supplied) On the other hand, Section 455 (3) (iv) of the Local Government Code provides: "Sec. 455. Chief Executive, Powers, Duties and Compensation: . . . (b) For efficient, effective and economical governance the purpose of which is the general welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor shall: (3) . . . (iv) Issue licenses and permits and suspend or revoke the same for any violation of the condition upon which said licenses or permits had been issued, pursuant to law or ordinance." (Italics supplied) From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 7716 18 which expressly prohibits police raids and inspections, to wit: "Section 1. No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies." (Italics supplied)

These local government officials include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the City of Manila, 19 and the City Treasurer pursuant to Section 470 of the Local Government Code. 20 Lim has no authority to close down Bistro's business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law. 21 Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lim's exercise of this power violated Bistro's property rights that are protected under the due process clause of the Constitution. Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistro's operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistro's license application for 1993, in effect denying the application without examining whether it complies with legal prerequisites. Lim's zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith and was motivated by his concern for his constituents when he implemented his campaign against prostitution in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due process of law, the business operations of Bistro. For this reason, the trial court properly restrained the acts of Lim. Consequently, the Court of Appeals did not err in upholding the trial court's orders. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of. 22 In the instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case for mandamus. The trial court issued the injunction in view of the disruptions and stoppage in Bistro's operations as a consequence of Lim's closure orders. The injunction was intended to maintain the status quo while the petition has not been resolved on the merits. WHEREFORE, the petition is denied for lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 30381 is AFFIRMED in toto. SO ORDERED. Puno and Panganiban, JJ., concur. Sandoval-Gutierrez, J., is on leave. Footnotes 1. Under Rule 45 of the Rules of Court.

2. Penned by Justice Consuelo Ynares-Santiago and concurred in by Justices Luis Javellana and Minerva Gonzaga-Reyes, Rollo, pp. 193-196. 3. Rollo, p. 209. 4. Temporary restraining order dated December 29, 1992; Order of Injunction dated January 20, 1993 and Order of Denial of petitioners' Motion to Dissolve Injunction dated March 2, 1993, issued by Judge Wilfredo Reyes, Regional Trial Court of Manila, Branch 36; Rollo, pp. 76-77, 94-100, and 145-152, respectively. 5. Docketed as Civil Case No. 92-63712. 6. The New Bangkok Club and the Exotic Garden Restaurant. 7. Bistro Pigalle, Inc., the owner-operator of the New Bangkok Club and the Exotic Garden Restaurant, was issued Mayor's Permit by then Manila Mayor Gemiliano Lopez to operate as a night club, restaurant, with a caf day club which permit was valid until December 31, 1992. 8. 123 SCRA 569 (1983). 9. Rollo, pp. 76-77. 10. Rollo, pp. 94-100. 11. Rollo, p. 152. 12. Supra, see note 2. 13. Supra, see note 3. 14. An Ordinance Prohibiting the Establishment or Operation of Businesses providing Certain Forms of Amusement, Entertainment, Services and Facilities in the Ermita-Malate Area. 15. Rollo, pp. 218-219. 16. Supra, see note 2; CA Decision, pp. 3-4, Rollo, pp. 195-196. 17. Pending before the 2nd Division of the Court of Appeals, docketed as CA-S.P. G.R. No. 44429, entitled "Cotton Club Corp. vs. Hon. Alfredo Lim"; Rollo, p. 415. 18. An Ordinance Amending Section 1 of Ordinance No. 6507. This ordinance was approved on December 22, 1989 by then Manila Mayor Gemiliano Lopez. 19. "Section 994: Inspection and Supervision: All articles of food and drink sold or offered for sale, all places for their preparation, manufacture or sale, and all food travelers or persons engaged in the preparation, manufacture or sale of any kind of food or drink shall be at all times subject to inspection and supervision by the Director of Health (now City Health Officer) and to such rules and regulations as are promulgated or may be promulgated by him. . . . " 20. "Section 470. (d), sub-par 4: Inspect private commercial and industrial establishments within the

jurisdiction of the local government unit concerned in relation to the implementation of tax ordinances, pursuant to the provisions under Book II of this Code." 21. Acebedo Optical Company, Inc. vs. Court of Appeals, 329 SCRA 314 (2000). 22. Miriam College Foundation, Inc. vs. Court of Appeals, 348 SCRA 265 (2000).

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EN BANC [G.R. No. 148571. December 17, 2002.] GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippines Department of Justice, petitioners, vs. HON. GUILLERMO G. PURGANAN, Presiding Judge, Regional Trial Court of Manila, Branch 42, and MARK JIMENEZ a.k.a. MARIO BATACAN CRESPO, respondents.

RESOLUTION

Before the Court are private respondent's Motion for Reconsideration dated 10 October 2002, petitioner's Comment thereon dated 05 November 2002, private respondent's Motion for Leave of Court to File and to Admit Additional Arguments in Support of Motion for Reconsideration dated November 6, 2002, and Reply (to petitioner's Comment) dated November 26, 2002. First, private respondent insists that the Extradition Court acted properly in granting bail to him. We have already exhaustively discussed this issue in our Decision and in the Concurring Opinion of Mr. Justice Antonio T. Carpio. Thus, we will not belabor our ruling on this point. Suffice it to say that petitioner's repeated invocation of the Extradition Court's grant of bail has not convinced us that he deserves bail under the exception laid down in our Decision, namely, "(1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exists special, humanitarian and compelling circumstances including, as matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein." There has been no clear and convincing showing as to the absence of flight risk and the non-endangerment of the community, or as to the existence of special, humanitarian and compelling circumstances justifying grant of bail. Second, private respondent claims that our Decision did not make an express finding of grave abuse of discretion on the part of the lower court. This is incorrect. On page 24 of our Decision, we plainly stated: "Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez." Such grave abuse continued to characterize the subsequent actions of Judge Purganan in illegally granting bail to private respondent. Again, we will not repeat here why respondent does not deserve temporary liberty. This

point has been already exhaustively taken up in our Decision and in the Opinions individually written by the members of the Court. Further, contrary to Jimenez's claims, the Extradition Court did not negate the flight risk posed by him. It did not make a finding on flight risk as it considered the issue irrelevant, having already determined bail to be a matter of right. Without making any finding on flight risk, it found the capacity to flee subservient to "the benefits that respondent may be able to deliver to his constituents" despite the absence from the records of evidence showing the existence of such benefits. And in any event, in his Memorandum, private respondent submitted factual issues i.e., existence of special circumstances and absence of flight risk for the consideration of this Court. He even reiterated some of those factual submissions in his Motion for Reconsideration. He is therefore deemed estopped to claim that this Court cannot, on certiorari, address factual issues and review and reverse the factual findings of the Extradition Court. Third, private respondent's arguments (1) that the Extradition Court exercised due discretion in its grant of bail and (2) that our "ruling that bail is not a matter of right in extradition cases is contrary to prevailing law and jurisprudence" are neither novel nor deserving of further rebuttal. Again, they have been extensively taken up in Decision as well as in Concurring, Separate and Dissenting Opinions. Fourth, private respondent argues that allegedly our Decision violates his due process rights. Again, we have discussed this matter in our Decision saying that, in its simplest concept, due process is merely the opportunity to be heard which opportunity need not always be a prior one. In point of fact, private respondent has been given more than enough opportunity to be heard in this Court as well as in the Extradition Court. Even his Motion for Reconsideration has been given all the chances to persuade by way of allowing "additional arguments" in his Motion dated November 6, 2002 and Reply. These latter pleadings are normally not allowed, but precisely because this Court wanted to give him more than enough opportunity to be heard and to argue, we have bent backwards and admitted these additional pleadings. Finally, private respondent contends that as a member of Congress, he is immune from arrest "arising from offenses punishable by not more than six (6) years imprisonment," saying that he cannot be prevented from performing his legislative duties because his constituents would be disenfranchised. He perorates that a member of Congress may be suspended or removed from office only by two thirds vote of the House of Representatives. TaEIAS Citing People v. Jalosjos, our Decision (pp. 38-40) has already debunked the disenfranchisement argument. Furthermore, our Decision does not in any manner suspend or remove him from office. Neither his arrest or detention arising from the extradition proceeding will constitute his suspension or removal from office. That is clear enough. While equal protection and reasonable classifications are not directly in issue in this case, we nevertheless stress, paraphrasing Jalosjos, that respondent's election to the position of congressman, with the concomitant duty to discharge legislative functions, does not constitute a substantial differentiation which warrants placing him in a classification or category apart from all other persons confined and deprived of their liberty pending resolution of their extradition cases. We reiterate that lawful arrest and temporary confinement of a potential extraditee are germane to the purposes of the law and apply to all those belonging to the same class. As we have stated, the procedure adopted by the Extradition Court of first notifying and hearing a prospective extraditee before the actual issuance of the warrant for his arrest, is tantamount to giving notice to flee and avoid extradition. Whether a candidate for extradition does in fact go into hiding or not is beside the point. In the final analysis, the method adopted by the lower court was completely at loggerheads with

the purpose, object and rationale of the law, and overlooked the evils to be remedied. As already suggested in our Decision (p. 32), private respondent can avoid arrest and detention which are the consequences of the extradition proceeding simply by applying for bail before the courts trying the criminal cases against him in the USA. He himself has repeatedly told us that the indictments against him in the United States are bailable. Furthermore, he is capable, financially and otherwise, of producing the necessary bail in the US. Why then has he not done so? Otherwise stated, Respondent Jimenez has the actual power to lift his arrest and detention arising from his extradition by simply and voluntarily going to and filing bail in the USA. AT BOTTOM, private respondent's Motion for Reconsideration presents no new or substantial arguments which have not been presented in his prior pleadings and which have not been taken up in our Decision. His present allegations and asseverations are mere rehashes of arguments previously presented to us or are mere restatements of the Separate and Dissenting Opinions which were already adequately discussed in our Decision. In short, private respondent has not given any compelling reason to warrant a reversal or modification of our earlier rulings. WHEREFORE, the Motion for Reconsideration is hereby DENIED with finality. SO ORDERED. Davide, Jr., C .J ., Mendoza, Panganiban, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ ., concur. Bellosillo and Puno JJ ., the latter joined by Quisumbing, J ., reiterate their Separate Opinions. Vitug and Ynares-Santiago, JJ ., both joined by Sandoval-Gutierrez, J ., filed their Dissenting Opinions.

Separate Opinions VITUG, J p: I vote to grant the motion for reconsideration and maintain my dissent. Extradition is an exceptional measure running against the tradition of asylum International Extradition is a process under which a sovereign state surrenders to another sovereign state a person accused in a case or a fugitive offender in the latter state. 1 The practice has its origins as early as the ancient Egyptian, Chinese, Chaldean and Assyro-Babylonian civilizations. 2 The surrender of a person who has been granted the privilege of presence or refuge in the requested state is deemed to be an exceptional measure running against the tradition of asylum and hospitality of the requesting state, and it has given rise to the speculation that the term "extradition" evolved from what used to be then known as "extra-tradition." 3 The widely accepted explanation for the term still appears to be the Latin original extradere on pacts and treaties. The first recorded extradition treaty in the world dates circa 1280 BC, where Rameses II, Pharaoh of Egypt, and King Hattusili III of the Hittites signed a peace treaty expressly providing for the return of persons sought by each sovereign taking refuge in the territory of the other. Since then, however, only the practice of Greece and Rome on extradition arrangements evidently found

their way into European texts of international law. 4 The participants of the process remained the same over time the two states and the individual sought to be extradited. But while, historically, extradition was for the purpose of obtaining the surrender of political offenders, the trend, starting in the 19th century, has been to refuse the extradition of a person sought for political crimes. This shift can be explained partly to the emergence of humanitarian international law which has given impetus to a new legal status of one of the participants, i.e., the individual, thus placing some limitations on the power of the respective sovereigns that did not historically exist. 5

Extradition, nevertheless, does not find basis in Customary International Law International customary law is, as its name suggests, created by custom. It is one of the two (the other being treaties) primary law-creating processes of international law. Its evolution, according to Schwarzenberger, 6 can be traced to the early development of a global society when international law consisted primarily of express agreements, which the parties freely accepted as legally binding between or among themselves. Little was taken for granted, and everything that was considered if only remotely relevant had been incorporated into the text of these treaties. Some of the rules were found to be so convenient and generally acceptable that their inclusion in the succeeding agreements gradually became non-essential. Time hardened them into international customary law. International customary law has two constitutive elements: (1) a general practice of sovereign states and (2) the acceptance by the states of this general practice as law. 7 In the Lotus (1927) and Asylum (1950) cases, the World Court ruled that to prove the existence of a rule in international customary law, it is necessary to establish not only that States act a certain way but that they do so because they recognize a legal obligation to this effect, i.e., with or without a treaty. 8 Despite its ancient roots, extradition, as it is presently exercised by states, adopts the view represented by Puffendorf who argues that the duty to extradite is only an imperfect obligation which requires an explicit agreement in order to become fully binding under international law and secure reciprocal rights and duties of the contracting states. 9 The exception would be with respect to international crimes, such as terrorism and genocide, in which extradition is seen as being a definite legal duty. As D.W. Grieg so bluntly puts it, there exists no duty to extradite under customary international law. 10 Prevailing practice among states indeed supports the conclusion that the duty to extradite can be demanded only by virtue of a treaty, whether bilateral or multilateral; 11 conversely, in its absence, there is no legal right to demand and no corresponding obligation to extradite. Once, of course, an extradition treaty is concluded, respect for and compliance with the treaty obligation is, under the international principle of pacta sunt servanda, expected from the states that enter into the agreement. Neither can extradition be considered a generally accepted principle of international law Article 38 (1) (c) of the Statute of the International Court of Justice refers to the "general principles of law" recognized by civilized nations as being a source of law which comes after customary law, international conventions and treaties, all of which are based on the consent of nations. 12 Article 38 (1) (c) is identified as being a "secondary source" of international law and, therefore, not ranked at par with treaties and customary international law. 13 The phrase is innately vague; and its exact meaning still eludes any general consensus. The widely preferred opinion, however, appears to be that of Oppenheim which views "general principles of law" as being inclusive of principles of private or municipal law when these are applicable to international relations. 14 Where, in certain cases, there is no applicable treaty nor a generality of state

practice giving rise to customary law, the international court is expected to rely upon certain legal notions of justice and equity in order to deduce a new rule for application to a novel situation. 15 This reliance or "borrowing" by the international tribunal from general principles of municipal jurisprudence is explained in many ways by the fact that municipal or private law has a higher level of development compared to international law. Brownlie submits that the term "generally-accepted principles of international law" could also refer to rules of customary law, to general principles of law, or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal law analogies. 16 In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill three requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited functional scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fair number of states in the community of nations. 17 Examples of these principles, most of which are drawn from Roman law, encompasses rules on prescription, estoppel, res judicata, 18 consent and pacta sunt servanda. It can also include generally accepted principles enshrined under the Universal Declaration of Human Rights, such as the basic human right to life and liberty without distinction as to race, color, sex, race language or religion, political or other opinion, nationality, social origin, property, birth or other status. 19 At the moment, extradition, at most a process resorted to by states under the policy of cooperation and comity with each other, does not qualify as a generally accepted principle of international law nor as being thereby incorporated and deemed part of the law of the land under Section 11, Article II, of the 1987 Philippine Constitution. 20 Clarifying the term "generally-accepted principles of international law" during the deliberations of the 1987 Constitutional Commission, Commissioner Adolfo S. Azcuna points out that "(w)hen we talk of generallyaccepted principles of international law as part of the law of the land, we mean that it is part of the statutory part of laws, not of the Constitution. 21 The remark is shared by Professor Merlin M. Magallona who expresses that the phrase "as part of the law of the land" in the incorporation clause refers to the levels of legal rules below the Constitution such as legislative acts and judicial decisions. Thus, he contends, it is incorrect to so interpret this phrase as including the Constitution itself because it would mean that the "generally-accepted principles of international law" falls in parity with the Constitution. 22 A treaty being the primary source of the obligation to extradite has given occasion to a lack of cohesive and uniform standards on extradition Not finding basis in customary law and failing to qualify as a generally-accepted principles of international law, the present state of international law on the return of fugitives for trial is hypothesized by Brownlie: "With the exception of alleged crimes under international law, surrender of an alleged criminal cannot be demanded of right in the absence of treaty." 23 The result has been a failure of consistency in extradition practice among states. Indeed, the reality is that there is to date no uniform standard applicable to all states. D.W. Gregg 24 attributes this lack of "universal" and cohesive standards in the extradition process to the adoption of a variety of procedures which can be as diverse as the contracting states would want them to be. In formulating their extradition treaties, contracting states insert particular provisions and stipulations to address specific particularities in their relationships. Thus, extradition under American law is different from that under English law; to illustrate, the English Extradition Act of 1870 requires that the offense, for which a fugitive is to be extradited, be also considered a crime under English law. No such requirement, upon the other hand, exists under the US Extradition Act, which limits "extraditable crimes" to those enumerated under the treaty, regardless of whether the same are considered crimes under its laws. While both England and the United States are amenable to extraditing their own nationals, France and Belgium

absolutely refuse to do so. This refusal to surrender one's own nationals is likewise adopted by most states in Continental Europe which, under their own municipal laws, are obliged to unconditionally reject any request for the surrender of their own nationals, preferring to try them under their own laws even though the offense is committed abroad. While Common Law countries require a prima facie showing of guilt before they surrender a fugitive, almost all other legal systems require only that the offense be committed in the jurisdiction of the demanding state. 25 In the United States, extradition is demanded with an opportunity for a judicial hearing, while in other countries, extradition is exclusively an administrative function. 26 It may also happen that a single state may have as many extradition processes as the number of extradition treaties it has with other countries. Thus, while the general extradition process with England is governed by the Extradition Act of 1870, any extradition it may undertake with member states of the British Commonwealth is governed by the Fugitive Act of 1967. 27 Fenwick, another recognized authority in international law, concludes "Since extradition is effected as the result of the provisions of treaties entered into by the nations two by two, it is impossible to formulate any general rule of law upon the subject." 28 The elevated status of a treaty over that of an ordinary statute is taking ground The International Tribunal, has consistently held that, in consonance with the Vienna Convention, a state cannot plead provisions of its own laws or deficiencies in that law in an answer to a claim against it for an alleged breach of its obligations under international law. 29 From the standpoint of International Law and of the International Court, municipal laws are merely expressions of the will and constitute the activities of the states within its boundaries in the same manner as do ordinary legal decisions or administrative measures. 30 But, viewed domestically, reactions have been varied. Differing internal laws among the members of the international community has resulted in the divergence of responses when treaty law clashes with ordinary municipal law.

In the United Kingdom, despite pronouncements that the law of nations is "adopted in its full extent by common law and is held to be part of the law of the land," cases decided since 1876 point to the displacement of the doctrine of incorporation by that of transformation, viz.: customary law is part of the law of England only insofar as the rules have been clearly adopted and made part of England by legislation, judicial decision, or established usage. 31 In the United States there has not been much hesitation in recognizing the priority of legislative enactment when passed not only in contravention of established custom but even of the provisions of a specific treaty. 32 Meeting objection to the validity of a tax on immigrants as a violation of the "numerous treaties of the US government with friendly nations," the United States Supreme Court, in the Head Money Cases (112 US 580 [1884]), observed: A treaty, then, is a law of the land as an act of Congress whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined, and when such rights are of a nature to be enforced in a court of justice, courts resort to treaties for a rule of decision of the case as it would to a statute. Nevertheless, added the Court, "so far as a treaty made by the US with any foreign nation can become subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal." In France, a treaty has supremacy over an inconsistent prior statute as long as the other state party to the agreement accords a similar superiority in its domestic forum. French precedent also exists for treaty supremacy over a subsequent inconsistent statute. 33 The European Court once ruled that the European Economic Community Treaty has precedence over national law, even if the national law were later in time. 34 This ambivalent attitude towards the relationship between international and municipal law exemplifies the still on-going debate between two schools of thought "monism" and "dualism". Monists believe that

international law and domestic law are part of a single legal order; international law is automatically incorporated into each nation's legal system and that international law is supreme over domestic law. 35 Monism requires that domestic courts "give effect to international law, notwithstanding inconsistent domestic law, even constitutional law of a constitutional character." 36 Dualists, however, contend that international law and domestic law are distinct, each nation ascertaining for itself and to what extent international law is incorporated into its legal system, and that the status of international law in the domestic system is determined by domestic law. 37 Under this view, "when municipal law provides that international law applies in whole or in part within our jurisdiction, it is but an exercise of the authority of municipal law, an adoption or transformation of the rules of international law. 38 In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly defined, the established pattern, however, would show a leaning towards the dualist model. The Constitution exemplified by its incorporation clause (Article II, Section 2), as well as statutes such as those found in some provisions of the Civil Code and of the Revised Penal Code, 39 would exhibit a remarkable textual commitment towards "internalizing" international law. The Supreme Court itself has recognized that "the principle of international law" are deemed part of the law of the land as a condition and as a consequence of our admission in the society of nations. 40 The principle being that treaties create rights and duties only for those who are parties thereto pacta tertiis nec nocre nec prodesse possunt it is considered necessary to transform a treaty into a national law in order to make it binding upon affected state organs, like the courts, and private individuals who could, otherwise, be seen as non-parties. 41 The US-RP Extradition Treaty in particular, undoubtedly affects not only state organs but also private individuals as well. It is said that, in treaties of this nature, it should behoove the state to undertake or adopt the necessary steps to make the treaty binding upon said subjects either by incorporation or transformation. 42 Article 2, Section 2, of the 1987 Philippine Constitution provides for an adherence to general principles of international law as part of the law of the land. One of these principles is the basic rule of pacta sunt servanda or the performance in good faith of a state's treaty obligations. Pacta sunt servanda is the foundation of all conventional international law, for without it, the superstructure of treaties, both bilateral and multilateral, which comprise a great part of international law, could well be inconsequential. Existing legislation contrary to the provisions of the treaty becomes invalid, but legislation is necessary to put the treaty into effect. 43 The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of treaty law into municipal law. In preserving harmony between treaty law and municipal law, it is submitted 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda. As so observed by Fenwick: "Legislation passed, or administrative action taken subsequent to the adoption of the treaty and in violation of its provisions is invalid, but this should be declared so by the appropriate agency of national government. In like manner, in doubtful cases where the national legislation or administrative ruling is open to different interpretations, the courts of the state will give the benefit of the doubt to the provisions of the treaty. A treaty, nevertheless, cannot override the Constitution; in case of conflict, the Constitution must prevail When a controversy calls for a determination of the validity of a treaty in the light of the Constitution, there is no question but that the Constitution is given primary consideration. 44 The deference to the

interpretation of the national law by competent organs of a state, was exhibited by the Permanent Court of International Justice in the case of Serbian Loans 45 where it held that the construction given by the Highest Court of France on French law should be followed. When a state, through its government, concludes a treaty with another state, the government of the latter has no reason and is not entitled to question the constitutionality of the act of the former. 46 But this rule does not prevent the government of a state, after having concluded a treaty with another state, from declaring the treaty null and void because it is made in violation of its own constitution. 47 In the United States, treaties are regarded as part of the law of the land but this general rule is qualified by the stipulation that a treaty must not be violative of the Constitution. 48 The United States government, in carrying out its treaty obligations, must conform its conduct to the requirements of the Constitution which override the provisions of a treaty that may be contrary to any specific constitutional right. 49 In Reyes vs. Bagatsing 50 this Court has had the occasion to resolve the see-sawing interests of preserving fundamental freedoms such as free speech and assembly, as espoused by the members of the Anti-Bases Coalition seeking permit to hold a rally in front of the American Embassy and the corresponding international obligation of the state to protect the integrity and safety of diplomatic mission and premises under the Vienna Convention. While holding that the prohibition against holding rallies within a 500 meter radius from any foreign mission is valid, the ponencia sees a possible scenario that in case a treaty or a general principle of international law is found to be in irreconcilable conflict with Constitutional mandates, the Court would uphold the latter every time, even to the possible detriment of its obligations under international law. This preeminence of the Constitution over any treaty is not hard to explain. The Constitution is the act of the people from whom sovereignty emanates. It reflects the popular will. A treaty, on the other end, is merely negotiated by the treaty-making authority. Surely a few good men, themselves mere delegates of the sovereign people, cannot be permitted to thwart the intent of the Constitution. An agent could never go beyond the mandate of the agency under whose authority he acts. The 1987 Philippine Constitution has its own standards for the grant of bail No country is under any legal obligation to adopt, or blindly be in conformity with, procedures from other jurisdictions. The proposed solution of developing a "special circumstances standard" in determining whether bail should be granted or not, following what could be considered to be mere pro hac vice pronouncements of some foreign courts, might not be apropos. Indeed, setting up the so-called "special circumstances standard" would be to ignore our own constitutional mandate on bail. Section 13, Article III, of the 1987 Constitution clearly sets the parameters for the judicial exercise of the grant of bail "All persons, except those charged with offenses punishable by reclusion perpetua, when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."

Starting with the declaration that the right to bail is available to all persons, the Constitution proceeds to define its exceptions and qualifications 1) when a criminal offense is a capital one and the evidence of guilt is strong, and 2) when granted the bail shall not be excessive. The circumstance of "high risk of flight" upon which the main decision anchors its refusal to grant bail is conspicuously absent from the recital. The Eighth Amendment of the US Federal Constitution, unlike the Philippine

Constitution does not categorically provide for bail as a matter of right. Thus, wrestling with the compatibility of the grant of bail in extradition proceedings with basic constitutional guarantees, which US judges have been faced with, should not be our dilemma. TaCEHA Extradition proceedings are part of the criminal process Verily, an extradition proceeding before the extradition court forms part of the criminal process. It is predicated on criminal indictment of an extraditee. Like any criminal proceeding, it ultimately ends in either conviction or acquittal for the potential extraditee. Except for the reality that it involves two sovereign states, at least, extradition proceedings before the extradition court can be likened to the preliminary investigation conducted before an investigating fiscal. Like the investigating fiscal, the judge acting in an extradition proceeding does not rule on the issue of guilt or innocence of the potential extraditee, his main concern being the determination of whether a prima facie case exists against the potential extraditee. 51 Stated otherwise, both proceedings are an inquiry into whether a person should stand trial. 52 The right to a preliminary investigation is a component part of due process in the criminal justice system. The initial findings of the investigating fiscal, which may result in a dismissal of the case, could spare the respondent from hasty malicious prosecution, as well as the resultant prolonged anxiety, aggravation and humiliation, that a protracted trial brings. In the same vein, the extradition process can result in an extended restraint of liberty following arrest that can even be more severe than the accompanying detention within a single state. 53 Extradition involves, at minimum, administrative processings in both the asylum state and the demanding state and a forced transportation in between. 54 Thus, the rules governing the extradition process should not be viewed as existing in a vacuum, totally divergent and isolated from the entire criminal process of which it, in fact, forms part. Indubitably, bail is available in this country even in the preliminary investigation stage. The eligibility for bail exists once the person is placed under legal custody regardless of whether a complaint or information has been filed or yet to be filed in court against him. 55 In sum, I yield to the following submissions: a) The obligation to extradite does not find basis in customary international law, nor is it a generally accepted principle of international law, the commitment to extradite being dependent, by and large, on an extradition treaty between two sovereign states. b) There is an absence of a "universal" or "uniform" extradition practice applicable to all states. This lack of a "standard" extradition procedure should mean that the Philippines is not obligated to follow extradition practices from other jurisdictions, particularly when its own Constitution itself has provided for such standards. c) A treaty, entered into by the delegated authority although occupying an elevated status in the hierarchy of laws predicated on the principle of pacta servanda, cannot override the Constitution, the latter being the ultimate expression of the will of the People from whom all sovereignty emanates. In case conflict, the of Constitution must prevail. WHEREFORE, I vote to grant the motion for reconsideration. YNARES-SANTIAGO, J ., dissenting: I maintain my stand regarding the issues raised in the main decision of this case, as laid out in my original

dissent. However, the ponente raised several points which compel further comment and discussion on my part. If the majority's overriding concern is upholding "the government's interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime," 1 then I submit that this policy is adequately served by the denial to a potential extraditee of any notice or hearing during the evaluation stage of the extradition process. 2 This procedure is peculiar to the extradition process and must be implemented with goals of extradition in mind. However, once the extradition petition is filed with the extradition court, the threat of deprivation of liberty becomes imminent, and it is submitted that the Constitutional rights of the accused including the right to bail begin to attach similarly to the extraditee. SCDaHc The draft resolution has reasserted its position that admission to bail in extradition cases is reserved to certain exceptions; it is not the general rule. 3 It has effectively reiterated its formalistic stand that the constitutional provision on bail will not apply to a case of extradition, where the presumption of innocence is not at issue. 4 It is interesting to note that, in making such a stand, the ponente cited former Chief Justice Enrique Fernando. The eminent jurist spoke thus: [The right to bail] flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. 5 (emphasis supplied) True, the determination of guilt or innocence is not in issue in extradition proceedings. However, the loss of precious freedom of the accused most certainly is. Mr. Justice Vitug, in his separate opinion, made the following apt observations: The draft ponencia would assume that the Constitution confines the grant of provisional liberty to criminal cases, and that it has no application to extradition proceedings. This assumption would have reason for being if it was solely in criminal cases that a person could face an imminent threat of deprivation of his right to life or liberty, for indeed, it is this threat, rather than case nomenclature, that must be the focus and it would be superficial to think otherwise. While defying a neat definition, extradition has all the earmarks of a criminal process an extraditee would suffer deprivations, be denied his freedom and restricted in his movements, not much unlike a criminal indictee. Extradition proceedings involve an extended restraint of liberty following arrest, peculiar to an accused in a criminal case, which can even be more severe than an accompanying detention in a single state, for at a minimum, it can mean protracted proceedings in both the asylum state and the demanding state and a forced transportation in between. In Herras Teehankee vs. Rovira, the Court observed that bail is constitutionally available to all persons, even those against whom no formal charges are filed. 6 It should be borne in mind that the private respondent has most definitely been indicted, 7 and the threat to the loss of his freedom is very real. If the purpose of bail is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at trial, 8 then by analogy, an extraditee, who may or may not yet have been charged, and who is threatened with temporary imprisonment in both the requested and requesting states, should also benefit from the right to bail. Due to the striking similarity in their circumstances, there is therefore no sufficient basis for distinguishing between an accused person and a potential extraditee in terms of their entitlement to bail. This occasion calls for the adherence to the well-entrenched principle ubi lex non distinguit nec nos distinguere debemos. 9 The Constitutional grant of bail should, as a matter of right, be made available to the accused and the extraditee alike.

The main decision seems to have brushed away the facts entirely, content in making distinctions where they are not warranted. The majority sought to draw a distinction by characterizing its stand as one that is consistent with and in implementation of the Philippines' obligations under the RP-U.S. Extradition treaty. It further reads thus: In the absence of any provision in the Constitution, the law or the treaty expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors. 10 (emphasis supplied) In answer to this sweeping policy statement, I submit that it is our Constitution itself that governs the right to bail in extradition eases. As the majority has conceded, the RP-U.S. Extradition Treaty and P.D. 1069 are silent with regard to the question of bail. In case of omissions such as these, Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties authorizes reference to secondary sources as aids to interpretation. One of these devices is subsequent practice of a state party in interpreting said treaty, 11 and the U.S. has resorted to this device on several occasions. 12 The grant of bail by the U.S. District Court of Las Vegas, Nevada to Mr. Charlie "Atong" Ang, a fugitive whose extradition from the United States is sought by the Philippine government, 13 can therefore aid in the interpretation of the RP-U.S. Extradition Treaty, being an example of subsequent state practice. In our jurisdiction, no case has been decided which fills this gap in the RP-U.S. Extradition Treaty. This area should then be considered outside the coverage of the treaty and, therefore, covered by municipal law. In our jurisdiction, the supreme law governing the question of bail is the Constitution, and its hallowed provisions dictate the general rule that bail is granted as a matter of right, with its denial reserved to very few and very specific instances. Being the subject of an extradition request is not one of these exceptions. CacHES

The draft resolution cites once more my ponencia in People v. Jalosjos 14 as the basis for countering private respondent's concern that the constituents of his district will be effectively disenfranchised by his forced absence from office. I must once again reiterate that said case is not on all fours with the case before us. Simply put, a convicted rapist awaiting final judgment and a man accused of several non-capital crimes, whose extradition is sought by the state that has made the accusations, involve two very different sets of circumstances, meriting different treatments. Furthermore, the question of disenfranchisement should be considered in light of the U.S. Federal Rules of Criminal Procedure, which grant a judicial officer wide latitude in imposing conditions for the grant of bail, including limitations on the right to travel. 15 A member of the House of Representatives of the Republic of the Philippines who is indicted in the U.S. and admitted to bail therein may not be returning to his district and his constituents any time soon. It is unfortunate that the draft resolution proposes to summarily deny petitioner's Motion for Reconsideration. This case could have provided this Court with the opportunity to pass upon a novel issue and, in the process, uphold the supremacy of Constitutional rights. Instead, the right to bail has been reduced to a hollow promise and has lost its efficacy as a fundamental right of the individual. I vote to GRANT the motion for reconsideration. Footnotes Vitug, J ., separate opinion: 1. Jeffrey A. Hall, "A Recommended Approach to Bail in International Extradition Cases," Michigan

Law Review, December 1987. 2. M. Cherif Bassiouni, "International Extradition," Oceana Publications Inc., 2nd Edition, (1987), Vol. 1, p. 5. 3. Ibid. 4. Ibid., p. 6. The history of extradition can be divided into four periods (1) ancient times to seventeenth century a period revealing almost exclusive concern for political and religious offenders, (2) the eighteenth century and half of the nineteenth century a period of treatymaking chiefly concerned with military offenders characterizing the condition of Europe during the period, (3) from 1833 to 1948 a period of collective concern in suppressing common criminality, (4) post 1948 developments which ushered in a greater awareness of the need to have international due process of law regulate international relations. (Ibid., p. 7) 5. Ibid., 8-9. 6. Georg Schwarzenberger, "A Manual of International Law," 5th Edition, Stevens and Sons Limited (1967), p. 28. 7. Ibid. p. 32. 8. Ibid. 9. Bassiounni, supra, p.10 10. D.W. Greig, M.A., LL.B., "International Law," London, (1970), p. 322. 11. Ibid. 12. Ian Brownlie, "Principles of Public International Law," Claredon Press, Oxford, 5th Edition, (1998), p. 15. 13 RESTATEMENT (THIRD), OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES S102 (2) (1987) 14 J.L. Brierly, "The Law of Nations", Oxford University Press, (1963), 6th Ed. pp. 62-63. 15. D.W. Greig, supra, p. 26. 16. Brownlie, supra, pp. 18-19. 17. Schwarzenberger, supra, p. 34. 18. Brierly, supra. 19. Mejoff vs. Director of Prisons, 90 Phil. 70 (1951). 20. Section II, Article II of the 1987 Constitution provides: "The Philippines denounces war as an instrument of national policy, adopts the generally-accepted principles of international law as

part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations. 21. Ibid. 22. Merlin M. Magallona, A Primer in International Law in Relation to Philippine Law (1997), p. 47. 23. Browlie, Principles of Public International Law, 4th Edition, 315-316, cited in Fr. Ranhilio C. Aquino, "International Law and the International Legal Processes, The Law on Extradition." 24. D.W. Greig, supra, pp. 323-348. 25. Charles Rhyne, International Law," CLB Publishers, (1971), 119. 26. Ibid. 27 D.W. Grieg, supra, 323-247 28 Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 3rd Ed, (1948), p. 331. 29. Brownlie, supra, p. 34. 30. See Certain German Interests in Polish Upper Silesia, PCIJ, Ser. A, no. 7, p. 17. 31. Brownlie, supra, 43. 32. D.P. O'Connell, supra, p. 92 33. See In re Rekhov, 1981, cited in Maris, ibid. 34. Stein, 1981; 11, 13, quoting the Costa, 1964, and Simmenthal, 1978 cases, cited in Maris, Ibid. 35. Rosalyn Higgins, Problems and Process: International Law and How We Use It. (1994), p. 205. 36. Louis Henkin, International Law: Politics and Values (1995) p. 280. 37. Higgins, supra, p. 19. 38. Brownlie, supra, p. 33 39. Article 14 of the Civil Code provides: "[p]enal laws and those of public security and safety shall be obligatory upon all who live and sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations. The Revised Penal Code provides: "Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone but also outside of its jurisdiction . . . (. . . ) 40. US vs. Guinto 182 SCRA 644.

41. Kelsen, supra, pp. 351-352. 42. Ibid. 43. Fenwick, supra, pp. 95-96. 44. Hans Kelsen, "Basic Principles of International Law," Rinehart & Company, Inc., New York (1956 Ed.) p. 324. 45. From the Publications of the Permanent Court of Justice, 1929, Series A, Nos. 20-21, p. 41. In this case, the Permanent Court of International Justice, after having decided that French law was to be applied in the case, stated: "The Court, having in these circumstances to decide as to the meaning and scope of a municipal law, makes the following observations: For the Court itself to undertake its own construction of municipal law, leaving on one side existing judicial decisions, with the ensuing danger of contradicting the construction which has been placed in such law by the highest national tribunal and which, in its results, seems to the Court reasonable, would not be in conformity with the task for which the Court has been established and would not be compatible with the principles governing the selection of its Members. It would be a most delicate matter to do so, especially in cases concerning public policy a conception of the definition of which particular country is largely dependent on the opinion prevailing at any given time in such country itself and in cases where to relevant provisions directly relate to the question at issue. It is French legislation, as applied in France, which really constitutes French law." (Ibid., f. 26) 46. Ibid. 47. Ibid. 48. Gary L. Maris, "International Law, An Introduction," University Press of America, (1984), p. 224, citing the US federal cases of Missouri vs. Holland (1920), Reid vs. Covert (1957). 49. Bassiounni, supra, p. 73. 50. 125 SCRA 553 (1983). 51. Preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial. (Section 1, Rule 112, Rules of Court). 52. Bassiuonni, supra, p. 562. 53. Jeffrey Hall, supra. 54. Ibid. 55. Section 14, Rule 114 of the Rules of Criminal Procedure provides Sec. 14. Bail, where filed. . . . (c) Any person in custody who is not charged in court may apply for bail with any court, in the province, city, or municipality where he is held.

Ynares-Santiago, J ., dissenting: 1. Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al., supra. 2. Resolution, Secretary of Justice v. Lantion, G.R. No. 139465, October 17, 2000. 3. Resolution, Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al., G.R. No. 148571, December 17, 2002. 4. Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al. , G.R. No. 148571, September 24, 2002. 5. De la Camara v. Enage, G.R. No. 32951-2, September 17, 1971, 41 SCRA 1, 6. 6. Separate Opinion of Vitug, J., Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al., G.R. No. 148571, September 24, 2002, citing Hall, A Recommended Approach to Bail in International Extradition Cases, MICHIGAN L. REV, December 1987. 7. Indictment No. 99-00281 CR-SEITZ. 8. Paderanga v. Court of Appeals, G.R. No. 115407, August 28, 1995, 247 SCRA 741, 749, citing Almeda v. Villaluz, G.R. No. 31665, August 6, 1965, 66 SCRA 38. 9. Where the law does not distinguish, we should not distinguish. 10. Government of the United States of America, et al. v. Hon. Guillermo G. Purganan, et al., supra. 11. VIENNA CONVENTION ON THE LAW OF TREATIES, art 31 (3). 12. Husserl v. Swiss Air Transport, Co., Ltd., 351 F. Supp. 702 (S.D.N.Y. 1972), Day v. Trans World Airlines, Inc., 528 F. 2d 31 (2d Cir. 1975). 13. U.S. Judge rejects bid to increase Ang's bail, Manila Bulletin, December 8, 2002. 14. G.R. No. 132875-132876, February 3, 2000, 324 SCRA 689. 15. 18 U.S.C.A. 3146.

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THIRD DIVISION [A.M. No. RTJ-02-1674. January 22, 2004.] BAILINANG P. MAROHOMBSAR, complainant, vs. JUDGE SANTOS B. ADIONG, respondent.

RESOLUTION

CORONA, J p: This is a complaint filed against Judge Santos B. Adiong of the Regional Trial Court, Branch 8, Marawi City, Lanao del Sur, charging him with gross ignorance of law, abuse of discretion and conduct unbecoming of a judge in connection with his issuance of a temporary restraining order (TRO) and a preliminary restraining order in Civil Case No. 1670-99, entitled Ms. Yasmira N. Pangadapun vs. Ms. Bailinang P. Marohombsar. After respondent filed his comment, we issued a resolution on February 6, 2000 referring the case to Associate Justice Eugenio S. Labitoria of the Court of Appeals for investigation, report and recommendation. Complainant Marohombsar was the defendant in Civil Case No. 1670-99 for "injunction with prayer for preliminary injunction." The case was filed on March 17, 1999 by Yasmira Pangadapun, daughter of Judge Yusoph Pangadapun of RTC Branch 10, Marawi City. In the said complaint, Pangadapun questioned the legality of Marohombsar's appointment by DSWD Regional Secretary Salic-Malna as provincial social welfare officer V of the Department of Social Welfare and Development Autonomous Region for Muslim Mindanao (DSWD-ARMM). Prior to Marohombsar's appointment, Pangadapun used to occupy said position as officer-in-charge. Upon the filing of the said complaint, respondent judge issued a TRO and set the hearing on the application for the issuance of a writ of preliminary injunction on April 6, 1999. Summons, together with a copy of the complaint and a notice indicating that a preliminary conference would be held on March 22, 1999, was also served on both parties. On March 18, 1999, Marohombsar filed an ex parte urgent motion to dissolve the TRO. Pangadapun was given until March 26, 1999 to comment and, pending the filing of the same, the TRO was extended up to said date. On March 22, 1999, respondent issued an order stating that a preliminary conference had been held and that both parties had waived the raffle of the case. He reset the hearing on the application for the issuance of a writ of preliminary injunction from April 6, 1999 to April 5, 1999 at 2:00 p.m. On March 29, 1999, respondent gave Pangadapun up to April 5, 1999 to file her comment and again, the TRO was extended to that date. During the hearing on the application for the issuance of a writ of preliminary injunction on April 5, 1999, none of the lawyers appeared. Hence, respondent considered it submitted for resolution and issued the preliminary injunction the following day. In his partial Comment dated November 13, 2000, respondent denied that: (1) he issued the TRO in favor of Pangadapun without benefit of a hearing; (2) in his order dated March 22, 1999, he made it appear that a preliminary conference was held where the parties agreed to waive the raffle of the case, when in fact there was none; (3) he falsified the records of the case and (4) he granted the preliminary injunction without a hearing. He alleged that the complaint was purely a harassment case filed by a disgruntled party because of the latter's failure to obtain a favorable resolution from him. Although respondent judge admitted that Judge Yusoph Pangadapun and Judge Abdulhakim Ibrahim were his distant relatives and townmates, he stressed that "never in our careers in the judiciary have we interfered nor influenced one another on any pending

case before our courts." During the preliminary hearing of the complaint on April 18, 2002 before Justice Labitoria, the parties agreed to have the case decided based on the pleadings presented. Respondent submitted the following additional evidence and exhibits to strengthen his case: a) partial Comment on the Complainant's Affidavit-Complaint; b) 2nd Indorsement dated December 11, 2000 in OCA IPI No. 00929-RTJ executed by Judge Abdulhakim A.R. Ibrahim showing that the complainant likewise filed an administrative case against him involving the same parties and cause of action, and c) Supreme Court resolution dated September 11, 2001 dismissing the administrative case against Judge Ibrahim. On the other hand, complainant filed her "comment/objection to respondent's formal offer of exhibits" on the ground that all the documents were irrelevant and immaterial to the instant case. In his final report and recommendation, Justice Labitoria recommended that respondent judge be absolved of all the charges against him. We find the recommendation of Justice Labitoria to be supported by the evidence and we approve the same. A TRO is generally granted without notice to the opposite party and is intended only as a restraint on him until the propriety of granting a temporary injunction can be determined. It goes no further than to preserve the status quo until that determination. 1 Respondent judge was justified in issuing the TRO ex parte due to his assessment of the urgency of the relief sought. Rule 58, Section 5 of the 1997 Rules of Civil Procedure provides: Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with provisions of the next preceding section as to service of summons and the documents to be served therewith.

Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two (72) hours provided therein. Complainant also contends that respondent issued an order dated March 22, 1999 making it appear that a preliminary conference was held and the parties agreed to waive the raffle of the case when, in truth and in fact, no conference was held. We are not persuaded. The order of March. 22, 1999 stated in part: In the preliminary conference scheduled this morning, counsels of both parties jointly agreed to waive the raffling of the case and for this court to continue further proceedings considering that the plaintiff is the daughter of Hon. Yusoph Pangadapun, Presiding Judge of RTC-Branch 10 and per manifestation of Atty. Tingcap Mortaba, counsel for the plaintiff, should the case be raffled to Branch 9, the Presiding Judge, Hon. Amer R. Ibrahim will voluntarily inhibit himself from hearing the case. In the summary hearing that followed for the purpose of determining whether the TRO previously issued on March 17, 1999 shall be extended or not, the counsels is (sic) submitting the same for resolution on the basis of the pleading. We note that complainant did not dispute the order of respondent judge immediately after its issuance. Hence, the presumption was that the order in question was proper and well taken. Complainant likewise insists that respondent judge tampered with the records of the case, as shown by its inconsistent pagination. We agree with the finding of Justice Labitoria who accepted respondent judge's explanation that: Resolutions or orders are dictated either in open Court or inside the chamber. The attending stenographers type the same in a draft form and then presented to me for proper correction or modification before finally typing them for my signature. Because of the many number of cases calendared daily and other related works being attended to, all this paper works take a little time to finish until finally attach (sic) to the records of the cases. This explains the little delay sometimes in sewing or attaching some orders or other Court processes to the records. All of this is always under the strict and direct supervision of the Branch Clerk of Court. In the same investigation report, Justice Labitoria went on to say: Besides, complainant merely assumes that respondent judge doctored the records to favor plaintiff. Her mind was already set that it would be impossible for the staff or respondent judge not to commit any error in sewing the records. However, as human beings all of us are prone to commit some mistakes. As what happened in the instant case. Thus, a mere suspicion that a judge was partial to party is not enough as there should be adequate evidence to prove the charge.

Finally, complainant's assertion that she was denied due process because the preliminary injunction was issued without hearing is likewise untenable. In applications for preliminary injunction, the dual requirement of prior notice and hearing before injunction may issue has been relaxed to the point that not all petitions for preliminary injunction need undergo a trial-type hearing, it being doctrinal that a formal or trial-type hearing is not, at all times and in all instances, essential to due process. 2 The essence of due process is that a party is afforded a reasonable opportunity to be heard and to present any evidence he may have in support of his defense. In the present case, complainant was able to move for a reconsideration of the order in question, hence her right to due process was not in anyway transgressed. We have ruled that a party cannot claim that he has been denied due process when he has availed of the opportunity to present his position. 3

Even assuming for the sake of argument that respondent judge erred in ordering the issuance of the writ of preliminary injunction, we ruled in Equatorial Realty vs. Anunciacion, Jr. 4 that, as a matter of public policy, the acts of a judge in his official capacity are not subject to disciplinary action even though such acts are erroneous, provided he acts in good faith and without malice. Respondent judge, or any other member of the bench for that matter, is presumed to have acted regularly and in the manner that preserves the ideal of the cold neutrality of an impartial judge implicit in the guarantee of due process. 5 WHEREFORE, the administrative complaint against Judge Santos B. Adiong is hereby DISMISSED for lack of merit. aHTDAc SO ORDERED. Vitug, Sandoval-Gutierrez and Carpio Morales, JJ ., concur. Footnotes 1. Herrera, Remedial Law, Vol. III, 1999 Ed., p. 113 citing Francisco, The Revised Rules of Court, Vol. IV-A, 1972 ed., pp. 184-185. 2. Batangas Laguna Tayabas Bus Company, Inc. vs. Bitanga, 362 SCRA 635, 646-647 [2001]. 3. Amarillo, et al., vs. Sandiganbayan, G.R. Nos. 145007-08, Jan. 28, 2003, National Police Commission vs. Bernabe, 332 SCRA 74, 81 [2000]; Toh vs. Court of Appeals, 344 SCRA 831, 836 [2000]. 4. 280 SCRA 571 [1997]. 5. People vs. Castillo, 289 SCRA 213 [1998].

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EN BANC

[G.R. Nos. 156399-400. June 27, 2008.] VICTOR JOSE TAN UY, petitioner, vs. OFFICE OF THE OMBUDSMAN, PEOPLE OF THE PHILIPPINES, SANDIGANBAYAN (SPECIAL DIVISION), CARLOS S. CAACBAY OF THE NATIONAL BUREAU OF INVESTIGATION, ROMEO T. CAPULONG, LEONARD DE VERA, AND DENNIS B. FUNA, respondents.

DECISION

BRION, J p: We resolve in this Decision the petition filed by petitioner Victor Jose Tan Uy (the "petitioner") under Rule 65 of the Revised Rules of Court to assail the interrelated Orders dated 13 September 2002 1 and 16 October 2002 2 of the respondent Office of the Ombudsman (the "Ombudsman") in OMB-0-00-1720 3 and OMB-0-00-1756 4 for grave abuse of discretion and/or lack or excess of jurisdiction. IcAaEH THE ANTECEDENTS The Ombudsman filed on 4 April 2001 with the Sandiganbayan an Information 5 charging former President Joseph Ejercito Estrada, together with Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, John Does and Jane Does, with the crime of Plunder, defined and penalized under Republic Act (R.A.) No. 7080, as amended by Section 12 of R.A. No. 7659. The Ombudsman moved to amend the Information twice initially, to introduce changes in the Information (including a change in the appellation of the accused Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy to John Doe a.k.a. as Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy), and thereafter, to include Jaime C. Dichaves as accused; the Sandiganbayan granted the motions. 6 The pertinent portions of the Amended Information 7 read: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the president of the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or other persons, by taking undue advantage of his official position, authority, relationship, connection or influence, did then and there willfully, unlawfully and criminally amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of Four Billion Ninety-seven Million Eight Hundred Four Thousand One Hundred Seventy-three Pesos and Seventeen Centavos [P4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the expense and to the damage of the Pilipino people and the Republic of the Philippines, through any or a combination or a series of overt or criminal acts, or similar schemes or means, described as follows: (a) by receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of Five Hundred Forty-five Million Pesos (P545,000,000.00), more or less, from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit, by himself

and/or in connivance with co-accused Charlie 'Atong' Ang, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte and Edward Serapio and John Does and Jane Does, in consideration of toleration or protection of illegal gambling; ACSaHc (b) by diverting, receiving, misappropriating, converting OR misusing directly, or indirectly for his or their personal gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the Two Hundred Million Pesos (P200,000,000.00) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas AND OTHER JOHN DOES AND JANE DOES; [underscores supplied ] (c) by directing, ordering and compelling, for his personal gain and benefit, the Government Service Insurance System (GSIS) to purchase 351,878,000 shares of stocks, more or less, and the Social Security System (SSS) 329,855,000 shares of stocks, more or less, of the Belle Corporation in the amount of more or less One Billion One Hundred Two Million Nine Hundred Sixty-five Thousand Six Hundred Seven Pesos and Fifty Centavos (P1,102,965,607.50) and more or less Seven Hundred Forty-four Million Six Hundred Twelve Thousand and Four Hundred Fifty Pesos (P744,612,450.00), respectively or a total of more or less One Billion Eight Hundred Forty-seven Million Five Hundred Seventy-eight Thousand Fifty-seven Pesos and Fifty Centavos (P1,847,578,057.50); and by collecting or receiving, directly or indirectly, by himself and/or in connivance with Jaime Dichaves, John Does and Jane Does, commissions or percentages by reason of said purchases of shares of stock in the amount of One Hundred Eighty-nine Million Seven Hundred Thousand Pesos (P189,700,000.00) more or less, from the Belle Corporation which became part of the deposit in the Equitable-PCI Bank under the account name "Jose Velarde"; (d) by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or any form of pecuniary benefits, in connivance with Jaime C. Dichaves, John Does and Jane Does in the amount of more or less, Three Billion Two Hundred Thirty-three Million One Hundred Four Thousand One Hundred Seventy-three Pesos and Seventeen Centavos (P3,233,104,173.17) and depositing the same under his account name "Jose Velarde" at the Equitable-PCI Bank. ECTIcS CONTRARY TO LAW. The case, which originated from OMB-0-00-1720 (entitled National Bureau of Investigation v. Luis "Chavit" Singson, et. al.) and OMB-0-00-1756 (entitled Romeo T. Capulong, et. al., v. Joseph Ejercito Estrada, et. al.), was docketed in the Sandiganbayan as Criminal (Crim.) Case No. 26558. In the course of the proceedings, the Ombudsman filed before the Sandiganbayan an Omnibus Motion dated 8 January 2002 8 seeking, among others, the issuance of a warrant of arrest against Victor Jose Tan Uy alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. The Ombudsman alleged that no warrant of arrest had been issued against the accused John Doe who was designated in the Information as Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy; and that, in order not to frustrate the ends of justice, a warrant of arrest

should issue against him after he had been identified to be also using the name Victor Jose Tan Uy with address at 2041 M. J. Cuenco Avenue, Cebu City. Allegedly, a positive identification had been made through photographs, as early as the Senate Impeachment Trial against former President Joseph Ejercito Estrada, that John Doe a.k.a. Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy and VICTOR JOSE TAN UY are one and the same person. To support this motion, the Ombudsman attached: (1) copies of the photographs identified at the Senate Impeachment Trial; and (2) the Sworn Statement of Ma. Caridad Manahan-Rodenas (the "Rodenas Sworn Statement") dated 26 June 2001 executed before Atty. Maria Oliva Elena A. Roxas of the Fact Finding and Intelligence Bureau of the Office of the Ombudsman ("FFIB"). [For purposes of this Decision, these are collectively referred to as the "identification documents." ] The Ombudsman further filed a Manifestation and Motion dated 5 March 2002 9 asking for the manual insertion in the Amended Information of the name VICTOR JOSE TAN UY; it relied on Section 7, Article 110 of the Revised Rules of Criminal Procedure, which provides: SEC. 7. Name of the accused. The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. The petitioner's response was a Petition to Conduct Preliminary Investigation 10 filed with the Ombudsman. The petitioner argued that: (1) he was not subjected to a preliminary investigation or to any previous inquiry to determine the existence of probable cause against him for the crime of plunder or any other offense, as: (a) he was not included as respondent in either of the two Ombudsman cases bases of the criminal proceeding; (b) neither his name nor his address at No. 2041 M.J. Cuenco Avenue, Cebu City was mentioned at any stage of the preliminary investigation conducted in the criminal cases; (c) the preliminary investigation in the cases that led to the filing of Crim. Case No. 26558 was conducted without notice to him and without his participation; (d) he was not served any subpoena, whether at his address at No. 2041 M.J. Cuenco Avenue, Cebu City or at any other address, for the purpose of informing him of any complaint against him for plunder or any other offense and for the purpose of directing him to file his counter-affidavit; and (2) dictates of basic fairness and due process of law require that petitioner be given the opportunity to avail himself of the right to a preliminary investigation since the offense involved is nonbailable in character. aHTcDA The petitioner additionally alleged that he filed a complaint with the Regional Trial Court of Cebu City docketed as CEB-25990 against a certain Eleuterio Tan for maligning him by using his picture, address, and other personal circumstances without his consent or authority, which acts led to his alleged involvement in the tobacco excise tax scandal. 11 He also claimed that he personally visited then Senate President Aquilino Pimentel at the height of the impeachment trial to dispute his identification as Eleuterio Tan; he then expressed his willingness to testify before the Impeachment Court and subsequently wrote Senator Pimentel a letter about these concerns. 12 He claimed further that he submitted the signatures appearing on the signature cards supposedly signed by Eleuterio Tan and the two (2) company identification cards supposedly presented by the person who opened the Land Bank account for examination by a handwriting expert; the result of the handwriting examination disclosed that the signatures were not his. 13

In a parallel Manifestation and Motion 14 dated 11 April 2002 filed with the Sandiganbayan, the petitioner asked for the suspension of the criminal proceedings insofar as he is concerned; he likewise moved for a preliminary investigation. DacTEH The Ombudsman opposed 15 the petitioner's Manifestation and Motion with a refutation of the petitioner's various claims. Among others, it claimed that it served, in the preliminary investigation it conducted, the subpoena at the purported address of Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy at Bagbaguin, Valenzuela City as indicated in the complaint-affidavits. It posited that it was the petitioner's fault that his true name was not ascertained, the petitioner having made clever moves to make it difficult to identify him with his nefarious deeds. It also argued that the petitioner could not ask for any affirmative relief from the Sandiganbayan which had not acquired jurisdiction over the petitioner's person. The petitioner reiterated in his Reply to Opposition 16 (filed with the Sandiganbayan) the points he raised before the Ombudsman. He additionally stressed that: (1) the fundamental issue is whether or not a preliminary investigation was conducted with respect to him; as the records show, he was never subjected to any preliminary investigation; (2) he was never given by the prosecution the opportunity to prove in any preliminary investigation that he is not Eleuterio Tan; had he been given such opportunity, petitioner would have shown that he wasted no time and took immediate steps to establish his innocence shortly after the illegal use and submission of his photo and usurpation of his identity surfaced at the impeachment proceedings; (3) he timely invoked his right to a preliminary investigation, as motions or petitions for the conduct of preliminary investigation may be entertained by the Sandiganbayan even before the movant or petitioner is brought under its jurisdiction under the rule that any objection to a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before plea; (4) while the invalidity of the preliminary investigation does not affect the jurisdiction of the Sandiganbayan, it should however suspend the proceedings and remand the case for the holding of a proper preliminary investigation; and (5) a preliminary investigation is imperative because the offense involved is non-bailable. DTAaCE The Ombudsman denied in an Order dated 10 May 2002 17 the petition for the conduct of a preliminary investigation. It rejected the petitioner's claims, reasoning out that the petitioner's requested preliminary investigation had long been terminated and the resulting case had already been filed with the Sandiganbayan in accordance with the Rules of Criminal Procedure; hence, the petitioner's remedy is to ventilate the issues with the Sandiganbayan. The Sandiganbayan, on the other hand, granted in a Resolution dated 19 June 2002 18 the petitioner's motion and directed the Ombudsman to conduct a preliminary investigation with respect to the petitioner. It also held in abeyance until after the conclusion of this preliminary investigation action on the Ombudsman's motion to amend the Information to insert the petitioner's name and to issue a warrant for his arrest. In compliance with the Sandiganbayan Resolution, the Ombudsman issued an Order 19 requiring the petitioner to file his counter-affidavit, the affidavits of his witnesses, and other supporting documents. Attached to the Ombudsman's Order were the Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-00-1720. The petitioner filed his counter-affidavit, 20 pertinent portions of which read: CSIDEc 2. With respect to the Complaint-Affidavit in OMB-0001720, it may be noted that the same was originally filed with the Department of Justice as I.S. No. 2000-1829, with the National Bureau of Investigation as complainant and the following as respondents, namely: (1) Luis 'Chavit' Singson, (2) Deogracias Victor B. Savellano, (3) Carolyn M. Pilar, (4) Antonio A. Gundran, (5) Dr. Ernie A. Mendoza II, Ph. D., (6) Leonila Tadena, (7) Estrella Mercurio, (8) Dionisia Pizarro, (9) Cornelio Almazan, (10) Erlita

Q. Arce, (11) Maricar Paz, (12) Marina Atendido, (13) Nuccio Saverio, (14) Alma Aligato Alfaro, (15) Eleuterio Tan or Eleuterio Ramos Tan, and (16) Delia Rajas. (I.S. No. 2000-1829 was thereafter referred to the Office of the Ombudsman as per the 1st indorsement of Secretary Artemio G. Tuquero dated 14 December 2000). 2.1. As may easily be gleaned from the documents served upon me with the 08 August 2002 Order, I am not among the respondents named or included in either I.S. No. 2000-1829 or OMB-0-00-1720. Neither has there been any mention of my name in the Complaint-Letter dated 14 November 2000 of Carlos Caacbay, Deputy Director for Special Investigation Services or in any of its supporting documents. DACTSa 2.2. Neither has any allegation been made in the Complaint-Letter dated 14 November 2000 of Carlos S. Caacbay, Deputy Director for Special Investigation Services, or in any of its supporting documents that I have been identified as being among the named respondents therein. 2.3. Moreover, there has been no allegation linking me to any criminal act for any of the offenses charged or any other criminal offense. 3. With respect to the Complaint-Affidavit in OMB-0-00-1756 filed by Romeo T. Capulong, Leonard de Vera and Dennis B. Funa, the only respondents named are: (1) (former) President Joseph E. Estrada, (2) (former) First Lady Luisa Estrada, (3) Jinggoy Estrada, (4) Charlie Ang, (5) Delia Rajas, (6) Eleuterio Tan, and (7) Alma Alfaro. 3.1. As may easily be gleaned from the documents served upon me with the 08 August 2002 Order, I am not among the respondents named or included in OMB-0-00-1756. Neither has there been any mention of my name in the Complaint-Affidavit dated 28 November 2000 or in any of its supporting documents marked Annexes 'A-1' to 'A-5' (consisting of 523 pages, more or less, of the transcripts of stenographic notes of Gov. Luis Singson's testimony before the Senate Blue Ribbon Committee and the Senate Committee on Justice) and Annex 'B' (the 25 September 2000 Affidavit of Gov. Luis Singson). aCcEHS 3.2 Neither has any allegation been made in the Complaint-Affidavit dated 28 November 2000 nor any of its supporting documents that I have been identified as being among the named respondents therein. 3.3. Moreover, there has been no allegation linking me to any criminal act for any of the offenses charged or any other criminal offense. 4. In view of the foregoing, it is submitted that the instant cases ought to be dismissed with respect to me, there being no factual allegation or basis in the instant cases to warrant any further action thereon. The instant cases should thus be dismissed outright for want of palpable merit. The Ombudsman thereafter issued an order requiring the attendance of Rodenas and the petitioner in a clarificatory hearing. 21 The petitioner filed a Manifestation and Motion, 22 arguing that considering the thrust of his counter-affidavit, there is no need for a hearing because there is nothing that would require clarification as to matters stated in his counter-affidavit and there is also no point for a clarificatory hearing on the complaints-affidavits given the patent want of probable cause as against him .

The petitioner did not personally attend the clarificatory hearing. Rodenas did not also show up. The petitioner then filed a Motion to Resolve 23 the case. DaEcTC At this point, the Ombudsman issued the first of the orders assailed in the present petition; it found probable cause to charge the petitioner before the Sandiganbayan. The basis for the finding runs: It has to be emphasized that during the investigation conducted by the Fact-Finding and Intelligence Bureau (FFIB), this Office, and referred to on page 2 of the Resolution of the Sandiganbayan dated June 19, 2002, granting the motion for preliminary investigation of respondent Victor Jose Tan Uy, Ma. Caridad Manahan-Rodenas of the Land Bank of the Philippines identified the picture bearing the name Victor Jose Tan Uy as Eleuterio Tan who presented to her two identification cards (IDs), which were found to exactly match the picture of the said respondent with his LTO license. Verily, the identification made by Rodenas based on pertinent documents which respondent presented when he opened the account at Land Bank remains credible, and that Victor Jose Tan Uy was the same person who appeared and introduced himself as Eleuterio Tan or Eleuterio Ramos Tan to Ma. Caridad A. Manahan-Rodenas of the Land Bank, thereby establishing his true identity. It is therefore, clear that the person mentioned in OMB0-00-1720 and OMB-0-00-1756, during the preliminary investigation thereof, as Eleuterio Tan or Eleuterio Ramos Tan is no other than Victor Jose Tan Uy. [underscoring supplied] cHDEaC Further, a perusal of the allegations in respondent's counter-affidavit [sic] the same has not proffered any material evidence to contradict the allegations that Eleuterio Tan or Eleuterio Ramos Tan refers to Victor Jose Tan Uy as one and the same person. What are contained in the counter-affidavit are mere general denials without defenses on why respondent is distinct and different from Eleuterio Tan. In all likelihood, respondent used the name of Eleuterio Tan or Eleuterio Ramos Tan in making his transaction with Land Bank to hide his real identity. Notwithstanding the concealment, there were available pieces of evidence unearthing respondent's true identity thus, arriving to the firm conclusion that Eleuterio Tan or Eleuterio Ramos Tan is the same person as herein respondent Victor Jose Tan Uy. 24 The petitioner moved to reconsider the Ombudsman's Order, 25 but the latter denied the motion in the second order assailed in this petition. 26 The second assailed order in part reads:

After an assiduous evaluation of the grounds and arguments raised by the movant in his motion, we find no cogent reason to disturb the resolution and order finding probable cause to indict respondent Victor Jose Tan Uy. TAHCEc xxx xxx xxx It has to be emphasized that the fact of identifying Victor Jose Tan Uy as one and the same person as Eleuterio Tan or Eleuterio Ramos Tan by Landbank employee, Ma. Caridad Rodenas, has already formed part of the preliminary investigation conducted by the Office of the Ombudsman. In the said preliminary investigation, Victor Jose Tan Uy was ordered to appear in a clarificatory conference to confront Rodenas. But Uy did not appear. Instead, his counsel submitted a manifestation to dispense with the

clarificatory hearing and submit the case for resolution. The scheduled conference could have provided opportunity for Victor Jose Tan Uy to dispute the findings that Eleuterio Tan or Eleuterio Ramos Tan is one and the same person. Instead, per information and admission of counsel, accused Victor Jose Tan Uy was in the United States. As to the exact date of departure, counsel refused to divulge. The skill and cleverness of accused in playing hide and seek is putting a heavy toll in the proper administration of justice. Further, Victor Jose Tan Uy did not submit any evidence, documentary or otherwise, that would lead the Office of the Ombudsman to believe that Victor Jose Tan Uy is different from Eleuterio Tan or Eleuterio Ramos Tan. aTADCE Moreover, previously before the Honorable Court, the accused-movant, through counsel, was already confronted with pieces of evidence. He was identified through an I.D. with computer-generated photograph marked as Exhibit "J" by previous prosecution witnesses: Jemis Singson, Atty. David Yap and Ilonor Madrid as the same person Victor Jose Tan Uy. Due process cannot be compartmentalized. The court proceedings participated in by the accused-movant form part and parcel of such due process, in the same manner that the further preliminary investigation is inseparable from the said court proceedings. [emphasis supplied] Finally, if only to highlight the redundant opportunity given to the accused-movant to controvert the pieces of evidence against him, in the hearing on the "Motion to Expunge and Opposition" last 9 October 2002, the accused-movant's counsel was directly confronted with the same ID that identified his client as the very same person using the pseudonym Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. However, again the accused-movant through counsel literally refused to admit or deny if the person depicted in the I.D. is his client Victor Jose Tan Uy. This indicates the futility of pursuing another round of such repetitious opportunity to controvert the said evidence. cSTHAC THE PETITION AND THE PARTIES' SUBMISSIONS Faced with the Ombudsman's rulings, the petitioner filed the present petition based on grounds that are rehashes of the issues already ventilated below. For clarity, the petitioner alleged grave abuse of discretion in the Ombudsman's finding of probable cause on the grounds that: (a) he was not among the respondents named or included in either OMB-0-00-1720 or OMB-0-00-1756; neither has there been any mention of his name in the respective complaint-affidavits or in any of their supporting documents; neither has any allegation been made in the respective complaint-affidavits or in any of their supporting documents that he had been identified as being among the named respondents; and there has been no allegation linking him to any criminal act for any of the offenses charged or any other criminal offense; and (b) the Ombudsman relied on evidence and findings that were never part of the complaints-affidavits or their supporting documents served upon the petitioner and were never adduced or presented in the course of the preliminary investigation conducted with respect to the petitioner. STIcaE The petitioner's supporting arguments essentially center on the irregularity of the Sandiganbayan-ordered preliminary investigation and the worth and efficacy of the evidence the complainants presented with

respect to his identification as Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy. He questions the regularity of the preliminary investigation for having been attended by shortcuts and for being a sham proceeding that violates his right to due process. Specifically, he claims that the duty of the Ombudsman is to determine the existence of probable cause based on the evidence presented, not to fill up the deficiencies of the complaint, nor to remedy its weaknesses. He objects to the use of the FFIB investigation results to support the finding of probable cause since these investigation results were never presented at the preliminary investigation of OMB-0-00-1720 and OMB-0-00-1756, and reliance thereon violates his due process rights. He adds that the FFIB was never a complainant heard in either of these cases. He emphasizes that the Rodenas sworn statement in the FFIB investigation identifying him as Eleuterio Tan is a mere scrap of paper that does not constitute evidence in the preliminary investigation since it was never presented therein, and that the burden of proving at the preliminary investigation that he is Eleuterio Tan rests with the complainants. ScHAIT The Ombudsman counters all these with the position that the first preliminary investigation, conducted prior to the filing of the Sandiganbayan charges, was conducted fully in accordance with the rules and thus carried no infirmities. Specifically, the order for the petitioner to file his counter- and supporting affidavits was regular because it was issued in his assumed names and was sent to the addresses stated in the complaint as required by the procedural rules on preliminary investigations. The respondent posits further that the issue of the validity of the first preliminary investigation with respect to the petitioner has been rendered academic by the subsequent reinvestigation that the Sandiganbayan ordered. At this subsequent investigation, the complaint-affidavits were duly furnished the petitioner who merely alleged general denials in the counter-affidavit he filed. The petitioner failed to attend the clarificatory hearing where he could have controverted the identification made by Rodenas in the FFIB investigation; he likewise had at least seven opportunities in the totality of the proceedings to controvert his identification as Eleuterio Tan, 27 but failed to avail himself of any of these opportunities. These opportunities were: TCDcSE First, when he received copies of the identification documents attached to the Ombudman's Omnibus Motion (dated 8 January 2002) and Manifestation and Motion (dated 5 March 2002), he then filed his petition to conduct a preliminary investigation with the Ombudsman; Second, when he filed his Manifestation and Motion (dated 11 April 2002) with the Sandiganbayan wherein he refused to directly controvert the identification issues, although he quoted the Ombudsman's previous motions; Third, when the petitioner filed his "Reply to Opposition" to the Ombudsman's "Manifestation and Motion" with the Sandiganbayan, his averments therein were in the nature of denials that met head on the positive identification made by Rodenas; thus, the identification issues were joined and it then became the petitioner's duty to confront the evidence of identification; Fourth, when the Sandiganbayan ordered the preliminary investigation, this proceeding presented an opportunity to confront the identification documents, but he did not; Fifth, when a clarificatory hearing was called during the Sandiganbayan-ordered preliminary investigation, the hearing presented another opportunity, but the petitioner's counsel filed a manifestation that his client did not wish to participate; CTHDcS Sixth, when the petitioner filed his motion for reconsideration of the first assailed order in the present petition, he could have controverted the identification documents therein, but he did not; and Seventh, at the hearing of an incident before the Sandiganbayan, when the petitioner's counsel was asked

whether the man in the photograph shown him was his client, he refused to answer the question although he could have simply denied it. The respondent Ombudsman further argues that fault can be imputed only to the petitioner who demands equity but has not come to Court with clean hands; through various machinations and by his own fault, he has avoided confronting the evidence of his identification. The Ombudsman stresses finally that its factual finding of the existence of probable cause against the petitioner has full basis in evidence and, being factual, should be accorded respect, if not finality. cCaEDA OUR RULING We find the petition impressed with merit. We clarify at the outset that the present petition is filed under Section 1, Rule 65 of the Revised Rules of Court whose scope of review is limited to the question: was the order by the tribunal, board or officer exercising judicial or quasi judicial functions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of or excess of jurisdiction? The "grave abuse of discretion" that the petitioner alleges in this case is defined by jurisprudence to be a "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an exercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law." 28 At the core of the present controversy is the regularity, in the context of accepted standards of due process, of the Ombudsman's conduct of the Sandiganbayan-ordered preliminary investigation. The petition must fail if the Ombudsman complied with the basic requirements of due process and the prevailing rules and jurisprudence on preliminary investigation. HDITCS

A preliminary investigation is held before an accused is placed on trial to secure the innocent against hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to protect the state from having to conduct useless and expensive trials. While the right is statutory rather than constitutional, it is a component of due process in administering criminal justice. The right to have a preliminary investigation conducted before being bound for trial and before being exposed to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right. To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his right to due process. 29 Thus, as in a court proceeding (albeit with appropriate adjustments because it is essentially still an administrative proceeding in which the prosecutor or investigating officer is a quasi-judicial officer by the nature of his functions), a preliminary investigation is subject to the requirements of both substantive and procedural due process. This view may be less strict in its formulation than what we held in Cojuangco, Jr. v. PCGG, et al. 30 when we said: AcSIDE It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process. xxx xxx xxx

Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon. 31 but we commonly recognize the need for the observance of due process. We likewise fully agree with Cojuangco in terms of the level of scrutiny that must be made we do not expect the rigorous standards of a criminal trial, but "[s]ufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal." TcCDIS In light of the due process requirement, the standards that at the very least assume great materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial Relations. 32 This case instructively tells us in defining the basic due process safeguards in administrative proceedings that the decision (by an administrative body) must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected; only by confining the administrative tribunal to the evidence disclosed to the parties, can the latter be protected in their right to know and meet the case against them; it should not, however, detract from the tribunal's duty to actively see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. 33 Mindful of these considerations, we hold that the petitioner's right to due process has been violated. ECSHAD We firstly note that the question of the petitioner's entitlement to a preliminary investigation apart from the earlier preliminary investigation conducted by the Ombudsman in OMB-0-00-1720 and OMB-0-001756 has been fully settled by the Sandiganbayan Resolution of June 19, 2002. None of the parties questioned this ruling which, in its material points, provides: 1. The preliminary investigation conducted in OMB-0-00-1720 and OMB-0-00-1756 which led to the filing of the above-entitled case never mentioned the name of herein movant Jose Victor Tan Uy. Instead, the preliminary investigation involves one "Eleuterio Tan" a.k.a. "Eleuterio Ramos Tan" with address at Brgy. Bagbaguin, Valenzuela City, Metro Manila or on [sic] No. 20 Pilar St. Mandaluyong City. As declared by the prosecution itself, Barangay Chairman Jose S. Gregorio, Jr. of Brgy. Bagbaguin, Valenzuela, Metro Manila certified that "Eleuterio Tan" a.k.a. "Eleuterio Ramos Tan" is non-existent within the jurisdiction of their barangay. While the prosecution asserted that "Eleuterio Tan" and 'Eleuterio Ramos Tan' are the aliases of herein movant, we agree in the latter's observation that the one charged before the Office of the Ombudsman was "Eleuterio Tan" alias "Eleuterio Ramos Tan" which indicates that the real name of the person charged is "Eleuterio Tan", not an alias only and his alias is "Eleuterio Ramos Tan". We find merit in the contention of the movant that there was no showing of any effort on the part of the Office of Ombudsman to determine whether the names "Eleuterio Tan" and "Eleuterio Ramos Tan" are mere aliases of an unidentified person. Further, as aptly observed by the movant, while 'Eleuterio Tan' has other [sic] address at No. 20 Pilar St. Mandaluyong City, there

was no showing that subpoena or copies of the complaints-affidavits were sent at the said address and no explanation was submitted by the prosecution for such omission. [italics supplied] AcSEHT 2. The claim of the prosecution that movant's address at No. 2041 M. J. Cuenco Avenue, Cebu City was not indicated because the said address was not yet discovered by the investigation panel during the preliminary investigation was rebutted by the movant. Movant was able to show that his address at Cebu City was made known during the hearing before the Impeachment Court on December 22, 2000. Yet, despite knowledge of the movant's address, no subpoena or copies of the complaints-affidavits had been served upon him at said address by the prosecution. We understand the clamor of herein movant that while the prosecution did not give him the opportunity to present his side, it already formed a conclusion that he and "Eleuterio Tan" are one and the same person. [italics supplied] 3. Movant, after learning from media reports that he was being identified as "Eleuterio Tan", immediately took steps to disprove the same, as follows: a. On December 29, 2000, he filed a complaint before the RTC of Cebu City, entitled "Victor Jose Tan Uy, v. Eleuterio Tan", docketed as CEB-25990 . . . DTISaH b. Movant, through counsel, wrote a letter dated January 5, 2001 to Senate President Aquillino Pimentel, disputing the claim that he is "Eleuterio Tan" and expressed his willingness to testify at the Senate Impeachment Proceeding to clear his name as to the imputation that he is "Eleuterio Tan" (Annex "E", Reply) c. Movant, through counsel, sent a letter dated January 8, 2001 to the Regional Chief, PNP Crime Laboratory, Cebu City, requesting for examination of the handwriting appearing on the signature cards as supposedly signed by Eleuterio Tan and on the two (2) identification cards (IDs) from two (2) different companies supposedly presented to the Land Bank of the Philippines by the person who opened the account (Annex "F", Reply). As shown in the Questioned Document Report of Romeo Varona, handwriting expert who conducted the examination, "the questioned signatures/handwritings of Mr. Jose [sic] Victor Jose Tan Uy appearing in the signature cards of Land Bank of the Philippines, ET Enterprises Inc., I.D. San Juan, Metro Manila and Solid Builders Center Mandaluyong City I.D. No, 19-0198 with their corresponding date marked "Q-1" and "Q-8" inclusive and the standard signatures/handwritings submitted for comparison marked "S-1" to "S-49" inclusive were written by two different persons" (Annex "G", Reply). Relative hereto, Mr. Varona executed an affidavit dated April 16, 2002 (Annex "B", Reply)." 34 TAESDH We quote this ruling as it contains the premises that justified the holding of the Sandiganbayan-ordered preliminary investigation specifically for the petitioner. To restate the Sandiganbayan reasoning in simple terms: the petitioner was never identified in the previous preliminary investigation to be the person identified by assumed names or aliases in the supporting complaint-affidavits; hence, a new preliminary investigation should be conducted to identify him as the person who, using the aliases Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, opened and withdrew from the Landbank account in the course of a series of acts collectively constituting the crime of plunder.

The critical evidence linking the petitioner to the plunder case is his identification through the identification documents. This notwithstanding and quite inexplicably, the identification documents despite the fatal infirmity the Sandiganbayan found in the first preliminary investigation were once again not given to the petitioner in the subsequent Sandiganbayan-ordered preliminary investigation to inform him of his alleged links to the charges under the complaint-affidavits. 35 ETDSAc How and why this happened was never satisfactorily explained in the parties' various submissions. Based on the records of what actually transpired at the Sandiganbayan-ordered preliminary investigation, we can glean the Ombudsman's intent to either confront and identify the petitioner through Ma. Caridad ManahanRodenas, or at least to introduce the Rodenas sworn statement and the identification documents into the preliminary investigation records through her own personal appearance. For these purposes, the Ombudsman specifically called the petitioner and Rodenas to a clarificatory hearing that unfortunately did not result in either of these possibilities; the petitioner did not personally attend the hearing and Rodenas herself failed to show up. At the same time, the Ombudsman was forced, upon the insistence of the petitioner's counsel, to consider the inquiry submitted for resolution based on the records then existing. 36 Thus, the Ombudsman still failed to establish in the Sandiganbayan-ordered preliminary investigation the direct link between the individual identified by aliases and the petitioner. ACETIa

Unfortunately for the Ombudsman, the holding of the clarificatory hearing, in which Rodenas and the petitioner were the invitees, is replete with implications touching on the existence of probable cause at that stage of the proceedings. To be sure, the prosecutor (Ombudsman) cannot be faulted for calling the clarificatory hearing as it is within his authority to do so. 37 As a rule, however, no clarificatory hearing is necessary if the evidence on record already shows the existence of probable cause; conversely, a clarificatory hearing is necessary to establish the probable cause that up to the time of the clarificatory hearing has not been shown. This implication becomes unavoidable for the present case, given the reason for the Sandiganbayan's order to conduct another preliminary investigation for the petitioner, and in light of the evidence so far then presented which, as in the first preliminary investigation, did not link the petitioner to the assumed names or aliases appearing in the Information. Under the above circumstances, the respondent Ombudsman could only fall back on the simple response that due process cannot be compartmentalized; the court proceedings participated in by the accusedmovant (the petitioner) form part and parcel of such due process in the same manner that the further preliminary investigation is inseparable from the said court proceedings. 38 We do not however find this response sufficiently compelling to save the day for the respondent. That the petitioner may have actual prior knowledge of the identification documents from proceedings elsewhere is not a consideration sufficiently material to affect our conclusion. Reasonable opportunity to controvert evidence and ventilate one's cause in a proceeding requires full knowledge of the relevant and material facts specific to that proceeding. One cannot be expected to respond to collateral allegations or assertions made, or be bound by developments that transpired, in some other different although related proceedings, except perhaps under situations where facts are rendered conclusive by reason of judgments between the same parties 39 a situation that does not obtain in the present case. Otherwise, surprise which is anathema to due process may result together with the consequent loss of adequate opportunity to ventilate one's case and be heard. Following Ang Tibay, a decision in a proceeding must be rendered based on the evidence presented at the hearing (of the proceeding), or at least contained in the record (of the proceeding) and disclosed to the parties affected (during or at the proceeding). ADCTac Thus, we cannot agree with the Ombudsman's position that the petitioner should controvert the identification documents because they already form part of the records of the preliminary investigation, having been introduced in various incidents of Crim. Case No. 26558 then pending with the Sandiganbayan. The rule closest to a definition of the inter-relationship between records of a preliminary

investigation and the criminal case to which it relates is Section 8 (b), Rule 112 of the Revised Rules of Court which provides that the record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case; the court, on its own initiative or on motion of any party, may order the production of the record or any of its parts when necessary in the resolution of the case or any incident therein, or when it is introduced as an evidence in the case by the requesting party . This rule, however, relates to the use of preliminary investigation records in the criminal case; no specific provision in the Rules exists regarding the reverse situation. We are thus guided in this regard by the basic due process requirement that the right to know and to meet a case requires that a person be fully informed of the pertinent and material facts unique to the inquiry to which he is called as a party respondent. Under this requirement, reasonable opportunity to contest evidence as critical as the identification documents should have been given the petitioner at the Sandiganbayan-ordered preliminary investigation as part of the facts he must controvert; otherwise, there is nothing to controvert as the burden of evidence lies with the one who asserts that a probable cause exists. The Ombudsman's failure in this regard tainted its findings of probable cause with grave abuse of discretion that effectively nullifies them. We cannot avoid this conclusion under the constitutional truism that in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. 40 ESCTaA WHEREFORE, premises considered, we hereby GRANT the petition and accordingly ANNUL the Ombudsman's interrelated Orders dated 13 September 2002 and 16 October 2002 in OMB-0-00-1720 and OMB-0-00-1756. SO ORDERED. Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes and Leonardo-de Castro, JJ., concur. Carpio, J., took no part. I was co-complainant in a related case. Footnotes 1. Rollo, pp. 97-102. EAcTDH 2. Id., pp. 103-110. 3. National Bureau of Investigation, Rep. by Atty. Carlos S. Caacbay versus Luis "Chavit" Singson, Deogracias B. Victor Savellano, Antonio A. Gundran, Carolyn M. Pilar, Erlita Q. Arce, Ernie A. Mendoza, Leonila Tadena, Estrella Mercurio, Dionisio Pizarro, Cornelio Almazan, Marina Atendido, Maricar Paz, Nuccio Saverio, Alma A. Alfaro, Eleuterio Tan or Eleuterio Ramos Tan, and Delia Rajas. 4. Romeo T. Capulong, Leonardo de Vera and Dennis B. Funa versus Joseph Ejercito Estrada, Dr. Luisa "Loi" Ejercito, Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Delia Rajas, Eleuterio Tan and Alma Alfaro. 5. Apart from this Information, the Ombudsman filed two (2) others charging Former President Estrada with the crimes of Illegal Use of Alias and Perjury. These cases, which do not include the present petitioner either as Eleuterio Tan, Eleuterio Ramos Tan, or Mr. Uy, or Mr. Victor Jose Tan Uy, are irrelevant to the issues raised in the petition and are, therefore, not discussed here. 6. Rollo, pp. 160-164; Sandiganbayan Resolution dated 30 October 2001.

7. Ibid. 8. Id., pp. 137-149; The other grounds for the Omnibus Motion were the following: (1) the issuance of a warrant of arrest for accused Jaime Dichaves; (2) the arraignment at pre-trial of accused Joseph Ejercito Estrada for Illegal Use of Alias in Criminal Case No. 26565 and for Perjury in Criminal Case No. 26905; and (3) the transfer of the accused Estradas to Fort Sto. Domingo, Sta. Rosa, Laguna. 9. Id., pp. 150-159. CAcIES 10. Id., pp. 112-126. 11. Id., p. 120. 12. Id., p. 121. 13. Id. 14. Id., pp. 262-269. 15. Id., pp. 273-293. 16. Id., pp. 294-358. 17. Id., pp. 366-368. 18. Id., pp. 359-365. 19. Id., p. 370. DAHEaT 20. Id., pp. 1050-1062. 21. Id., pp. 1063-1064. 22. Id., pp. 1065-1068. 23. Id., pp. 1069-1072. 24. Supra, note 1. 25. Rollo, pp. 1073-1087. 26. Supra, note 2. 27. Rollo, pp. 1183-1190. 28. See: Lalican v. Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518; Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424, February 13, 1989, 170 SCRA 246. IDaEHS

29. Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998, 289 SCRA 721, 737-738. 30. G.R. No. 92319-201, October 2, 1990, 190 SCRA 226. 31. See also Cruz v. People of the Philippines, G.R. No. 110436, June 27, 1994, 233 SCRA 439, 449450. (Boldface supplied) 32. 69 Phil. 635 (1940). 33. Id., p. 642. 34. Supra, note 18. 35. Memorandum of Petitioner, pp. 17-19, rollo, pp. 1534-1536. 36. See narration at pp. 10-11 hereof. SECcIH 37. Section 4 (f), Rule II of Administrative Order No. 7 (Rules of Procedure of the Office of the Ombudsman). 38. Supra, note 2, Order dated 16 October 2002, quoted at pp. 11-12 of this Decision. 39. Res judicata under Rule 39, Section 47, pars. (a) and (b) of the Revised Rules of Court or conclusiveness of judgment under Section 47, par. (c) of the same Rule, under which the underlying facts are conclusive on the same parties. 40. Allado v. Diokno, G.R. No. 113630, May 5, 1994, 232 SCRA 192, 210. CSAaDE

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