G.R. No. 161596.
 February 20, 2013 perform the duty enjoined or to act in contemplation of law, such as when such judge,
ROBERTO BORDOMEO, JAYME SARMIENTO and GREGORIO BARREDO,
petitioners, vs. COURT OF APPEALS, HON. SECRETARY OF LABOR, and
INTERNATIONAL PHARMACEUTICALS, INC., respondents.
Remedial Law; Civil Procedure; Appeals; Petition for Review on Certiorari; An
appeal by petition for review on certiorari under Rule 45 of the Rules of Court, to be
taken to this Court within 15 days from notice of the judgment or final order raising
only questions of law, was the proper remedy available to the petitioners.—An appeal
by petition for review on certiorari under Rule 45 of the Rules of Court, to be taken to
this Court within 15 days from notice of the judgment or final order raising only
questions of law, was the proper remedy available to the petitioners. Hence, their filing of
the petition for certiorari on January 9, 2004 to assail the CA’s May 30, 2003 decision
and October 30, 2003 resolution in C.A.-G.R. SP No. 65970 upon their allegation of
grave abuse of discretion committed by the CA was improper. The averment therein that
the CA gravely abused its discretion did not warrant the filing of the petition
for certiorari, unless the petition further showed how an appeal in due course under Rule
45 was not an adequate remedy for them. By virtue of its being an extraordinary
remedy, certiorari cannot replace or substitute an adequate remedy in the ordinary
course of law, like an appeal in due course.
Same; Same; Same; Same; Requisites of a Petition for Review on Certiorari.—Rule
65 of the Rules of Court still requires the petition for certiorari to comply with the
following requisites, namely: (1) the writ of certiorari is directed against a tribunal, a
board, or an officer exercising judicial or quasi-judicial functions; (2) such tribunal,
board, or officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any
plain, speedy, and adequate remedy in the ordinary course of law.
Same; Special Civil Actions; Certiorari; Situations when the extraordinary
remedy of certiorari may be deemed proper.―Jurisprudence recognizes certain
situations when the extraordinary remedy of certiorari may be deemed proper, such as:
(a) when it is necessary to prevent irreparable damages and injury to a party; (b) where
the trial judge capriciously and whimsically exercised his judgment; (c) where there may
be danger of a failure of justice; (d) where an appeal would be slow, inadequate, and
insufficient; (e) where the issue raised is one purely of law; (f) where public interest is
involved; and (g) in case of urgency. Yet, a reading of the petition for certiorari and its
annexes reveals that the petition does not come under any of the situations. Specifically,
the petitioners have not shown that the grant of the writ of certiorari will be necessary to
prevent a substantial wrong or to do substantial justice to them.
Same; Same; Grave Abuse of Discretion; Words and Phrases; Grave abuse of
discretion means either that the judicial or quasi-judicial power was exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused to
tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction.—In a special civil action for
certiorari brought against a court with jurisdiction over a case, the petitioner carries the
burden to prove that the respondent tribunal committed not a merely reversible error but
a grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
impugned order. Showing mere abuse of discretion is not enough, for the abuse must be
shown to be grave. Grave abuse of discretion means either that the judicial or quasi-
judicial power was exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, or that the respondent judge, tribunal or board evaded a positive duty,
or virtually refused to perform the duty enjoined or to act in contemplation of law, such
as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted in
a capricious or whimsical manner as to be equivalent to lack of jurisdiction. Under the
circumstances, the CA committed no abuse of discretion, least of all grave, because its
justifications were supported by the history of the dispute and borne out by the
applicable laws and jurisprudence.
Labor Law; Separation Pay; Backwages; The computation of separation pay and
backwages due to illegally dismissed employees should not go beyond the date when
they were deemed to have been actually separated from their employment, or beyond
the date when their reinstatement was rendered impossible.—Under the circumstances,
the employment of the 15 employees or the possibility of their reinstatement terminated
by March 15, 1995. Thereafter, their claim for separation pay and backwages beyond
March 15, 1995 would be unwarranted. The computation of separation pay and
backwages due to illegally dismissed employees should not go beyond the date when they
were deemed to have been actually separated from their employment, or beyond the date
when their reinstatement was rendered impossible. Anent this, the Court has observed
in Golden Ace Builders v. Talde, 620 SCRA 283 (2010): The basis for the payment of
backwages is different from that for the award of separation pay. Separation pay is
granted where reinstatement is no longer advisable because of strained relations between
the employee and the employer. Backwages represent compensation that should have
been earned but were not collected because of the unjust dismissal. The basis for
computing backwages is usually the length of the employee’s service while that for
separation pay is the actual period when the employee was unlawfully prevented from
working.
BERSAMIN, J.:
As an extraordinary remedy, certiorari cannot replace or supplant an adequate
remedy in the ordinary course of law, like an appeal in due course. It is the
inadequacy of a remedy in the ordinary course of law that determines
whether certiorari can be a proper alternative remedy.
 The Case
The petitioners implore the Court to reverse and set aside the Decision of the
Court of Appeals (CA) promulgated on May 30, 2003 in C.A.-G.R. SP No. 65970
entitled Roberto Bordomeo, Anecito Cupta, Jaime Sarmiento and Virgilio Saragena
v. Honorable Secretary of Labor and Employment and International
Pharmaceuticals, Inc., dismissing their petition for certiorari by which they had
assailed the Order2 issued on July 4, 2001 by Secretary Patricia A. Sto. Tomas of the
Department of Labor and Employment (DOLE), to wit:
WHEREFORE, the Order of this Office dated March 27, 1998 STANDS and
having become final and having been fully executed, completely CLOSED and
TERMINATED this case. No further motion shall be entertained. SO ORDERED.
5. directing the IPI Employees Union-ALU and the International
Pharmaceuticals, Inc. to enter into their new CBA, incorporating therein the
dispositions hereinbefore stated. All other provisions in the old CBA not otherwise
touched upon in these proceedings are, likewise, to be incorporated in the new CBA.
SO ORDERED.
Resolving the parties’ ensuing respective motions for reconsideration or
clarification, Secretary Torres rendered on December 5, 1991 another
ruling, disposing thus:
WHEREFORE, in the light of the foregoing considerations, judgment is hereby
rendered:

and the CA’s resolution promulgated on October 30, 2003, denying their motion 1. Dismissing the motions for reconsideration filed by the International
Pharmaceutical, Inc. and the Workers Trade Alliance Unions (WATU) for lack of
for reconsideration.
merit;
2. Ordering the International Pharmaceutical Inc. to reinstate to their former
In effect, the Court is being called upon again to review the March 27, 1998 order positions with full backwages reckoned from 8 December 1989 until actually
issued by the DOLE Secretary in response to the petitioners’ demand for the reinstated without loss of seniority rights and other benefits the “affected workers”
execution in full of the final orders of the DOLE issued on December 26, 1990 and herein-below listed:
December 5, 1991 arising from the labor dispute in International Pharmaceuticals,
Inc. (IPI). 1. Reynaldo C. Menor 24. Carmelita Ygot
2. Geronimo S. 25. Gregorio Barredo
Antecedents Banquirino
3. Rogelio Saberon 26. Dario Abella
In 1989, the IPI Employees Union-Associated Labor Union (Union), representing
the workers, had a bargaining deadlock with the IPI management. This deadlock 4. Estefanio G. Maderazo 27. Artemio Pepito
resulted in the Union staging a strike and IPI ordering a lockout. 5. Herbert G. Veloso 28. Anselmo Tareman
6. Rogelio G. Enricoso 29. Merope Lozada
On December 26, 1990, after assuming jurisdiction over the dispute, DOLE 7. Colito Virtudazo 30. Agapito Mayorga
Secretary Ruben D. Torres rendered the following Decision, to wit: 8. Gilbert Encontro 31. Narciso M. Leyson
9. Bebiano Pancho 32. Ananias Dinolan
WHEREFORE, PREMISES CONSIDERED, decision is hereby rendered as
follows: 10. Merlina Gomez 33. Cristy L. Caybot
11. Lourdes Mergal 34. Johnnelito S. Corilla
1. finding the IPI Employees Union-ALU as the exclusive bargaining agent of all 12. Anecito Cupta 35. Noli Silo
rank and file employees of ALU including sales personnel;
13. Prescillano O. Naquines 36. Danilo Palioto
2. dismissing, for lack of merit, the charges of contempt filed by the Union
against the IPI officials and reiterating our strict directive for a restoration of the 14. Alejandro O. 37. Winnie dela Cruz
status quo ante the strike as hereinbefore discussed; Rodriguez
3. dismissing the Union’s complaint against the Company for unfair labor 15. Godofredo Delposo 38. Edgar Montecillo
practice through refusal to bargain;
16. Jovito Jayme 39. Pompio Senador
4. dismissing the IPI petition to declare the strike of the Union as illegal; and
17. Emma L. Lana 40. Ernesto Palomar
 18. Koannia M. Tangub 41. Reynante Germininano To speed-up the settlement of the issue, the undersigned on 7 February 1995
issued an order directing the parties to submit within ten (10) calendar days from
19. Violeta Pancho 42. Pelagio Arnaiz
receipt of the Order, their respective Computations. To date, only the computation
20. Roberto Bordomeo 43. Ireneo Russiana from complainants including those that were not specifically mentioned in the
21. Mancera Vevincio 44. Benjamin Gellangco, Jr. Supreme Court decision were submitted and received by this office.
22. Caesar Sigfredo 45. Nestor Ouano (listed in
Upon verification of the Computation available at hand, management is hereby
23. Trazona Roldan paragraphs 1 & 9 of the IPI Employees directed to pay the employees including those that were not specifically mentioned in
Union-ALU’s Supplemental Memo- the decision but are similarly situated, the aggregate amount of FORTY-THREE
randum dated 6 March 1991) MILLION SIX HUNDRED FIFTY THOUSAND NINE HUNDRED FIVE AND 87/100
PESOS (P43,650,905.87) involving NINE HUNDRED SIXTY-TWO (962) employees,
3. Ordering the International Pharmaceutical Inc. to reinstate to their former in the manner shown in the attached Computation forming part of this Order. This is
positions the following employees, namely: without prejudice to the final Order of the Court to reinstate those covered
a. Alexander Aboganda employees.
b. Pacifico Pestano
c. Carlito Torregano This Order is to take effect immediately and failure to comply as instructed will
d. Clemencia Pestano cause the issuance of a WRIT OF EXECUTION.
e. Elisea Cabatingan
(listed in paragraph 3 of the IPI Employees Union-ALU’s Supplemental In effect, Regional Director Macaraya increased the number of the workers to be
Memorandum dated 6 March 1991). benefitted to 962 employees―classified into six groups―and allocated to each group
a share in the P43,650,905.87 award, as follows:
No further motions of the same nature shall be entertained.
GROUP NO. OF TOTAL CLAIM
IPI assailed the issuances of Secretary Torres directly in this Court through a EMPLOYEES
petition for certiorari (G.R. No. 103330), but the Court dismissed its petition on Those represented by Atty. Arnado 15 P4,162,361.50
October 14, 1992 on the ground that no grave abuse of discretion had attended the Salesman 9 P6,241,535.44
issuance of the assailed decisions. Considering that IPI did not seek the For Union Members 179 P6,671,208.86
reconsideration of the dismissal of its petition, the entry of judgment issued in due
For Non-Union Members 33 P1,228,321.09
course on January 19, 1994.
Employees who ratified the CBA 642 P23,982,340.14
With the finality of the December 26, 1990 and December 5, 1991 orders of the Separated Employees 84 P1,365,136.84
DOLE Secretary, the Union, represented by the Seno, Mendoza and Associates Law TOTAL 962 P43,650,905.87
Office, moved in the National Conciliation and Mediation Board in DOLE, Region VII
on June 8, 1994 for their execution.
On May 24, 1995, Assistant Regional Director Jalilo dela Torre of DOLE Region
VII issued a writ of execution for the amount of P4,162,361.50 (which covered
On November 21, 1994, one Atty. Audie C. Arnado, who had meanwhile entered
monetary claims corresponding to the period from January 1, 1989 to March 15,
his appearance on October 4, 1994 as the counsel of 15 out of the 50 employees
1995) in favor of the 15 employees represented by Atty. Arnado, to be distributed
named in the December 5, 1991 judgment of Secretary Torres, likewise filed a so-
thusly:
called Urgent Motion for Execution.
1. Barredo, Gregorio P278,700.10
After conducting conferences and requiring the parties to submit their position 2. Bordomeo, Roberto P278,700.10
papers, Regional Director Alan M. Macaraya of DOLE Region VII issued a Notice of 3. Cupta, Anecito P278,700.10
Computation/Execution on April 12, 1995, the relevant portion of which stated: 4. Delposo, Godofredo P278,700.10
5. Dinolan, Ananias P278,700.10
 6. Jayme, Jovito P278,700.10 Aggrieved by the reinstatement of the May 24, 1995 writ of execution, IPI moved
7. Lozada, Merope P278,700.10 for a reconsideration.
8. Mayorga, Agapito P278,700.10
On September 3, 1996, and pending resolution of IPI’s motion for
9. Mergal, Lourdes P278,700.10 reconsideration, Regional Director Macaraya issued a writ of execution in favor of
10.  Pancho, Bebiano P278,700.10 the 15 employees represented by Atty. Arnado to recover P3,416,402.10 pursuant to
11.  Pancho, Violeta P278,700.10 the order dated August 27, 1996 of Secretary Quisumbing. Thereafter, the sheriff
12.  Rodriguez, Alejandro P278,700.10 garnished the amount of P3,416,402.10 out of the funds of IPI with China Banking
13.  Russiana, Ireneo P263,685.10 Corporation, which released the amount. Hence, on September 11, 1996, the 15
14.  Tangub, Joannis P278,700.10 employees represented by Atty. Arnado executed a Satisfaction of Judgment and
Quitclaim/Release upon receipt of their respective portions of the award, subject to
15.  Trazona, Rolsan P275,575.10
the reservation of their right to claim “unsatisfied amounts of separation pay as well
TOTAL P4,162,361.50 as backwages reckoned from the date after 15 March 1995 and up to the present, or
until separation pay is fully paid.”
On June 5, 1995, Assistant Regional Director dela Torre issued another Writ of
Execution for the amount of P1,200,378.92 in favor of the second group of Notwithstanding the execution of the satisfaction of judgment and
employees. Objecting to the reduced computation for them, however, the second quitclaim/release, Atty. Arnado still filed an omnibus motion not only in behalf of the
group of employees filed a Motion Declaring the Writ of Execution dated June 5, 15 employees but also in behalf of other employees named in the notice of
1995 null and void. computation/execution, with the exception of the second group, seeking another writ
of execution to recover the further sum of P58,546,767.83.
On July 11, 1995, IPI challenged the May 24, 1995 writ of execution issued in favor
of the 15 employees by filing its Appeal and Prohibition with Prayer for Temporary Atty. Arnado filed a supplemental omnibus motion for the denial of IPI’s Motion
Restraining Order in the Office of then DOLE Undersecretary Cresenciano Trajano. for Reconsideration on the ground of mootness.

On December 22, 1995, Acting DOLE Secretary Jose Brillantes, acting on IPI’s
appeal, recalled and quashed the May 24, 1995 writ of execution, and declared and
considered the case closed and terminated.
Aggrieved, the 15 employees sought the reconsideration of the December 22, 1995
Order of Acting DOLE Secretary Brillantes.
On August 27, 1996, DOLE Secretary Leonardo A. Quisumbing granted the
Motion for Reconsideration, and reinstated the May 24, 1995 writ of execution,
subject to the deduction of the sum of P745,959.39 already paid pursuant to
quitclaims from the award of P4,162,361.50. Secretary Quisumbing declared the
quitclaims executed by the employees on December 2, 3, and 17, 1993 without the
assistance of the proper office of the DOLE unconscionable for having been entered
into under circumstances showing vitiation of consent; and ruled that the execution
of the quitclaims should not prevent the employees from recovering their monetary
claims under the final and executory decisions dated December 26, 1990 and
December 5, 1991, less the amounts received under the quitclaims.
In the meanwhile, the employees belonging to the second group reiterated their
Motion Declaring the Writ of Execution dated June 5, 1995 null and void, and filed
on May 15, 1996 a Motion for Issuance of Writ, praying for another writ of execution
based on the computation by Regional Director Macaraya.
On December 24, 1997, Secretary Quisumbing, affirming his August 27, 1996
order, denied IPI’s Motion for Reconsideration for being rendered moot and
academic by the full satisfaction of the May 24, 1995 writ of execution. He also
denied Atty. Arnado’s omnibus motion for lack of merit; and dealt with the issue
involving the June 5, 1995 writ of execution issued in favor of the second group of
employees, which the Court eventually resolved in the decision promulgated in G.R.
No. 164633.
The employees represented by Atty. Arnado moved for the partial reconsideration
of the December 24, 1997 order of Secretary Quisumbing. Resolving this motion on
March 27, 1998, Acting DOLE Secretary Jose M. Español, Jr. held as follow:
WHEREFORE, Our Order dated December 24, 1997, is hereby AFFIRMED. The
Motion for Reconsideration/Amend/Clarificatory and Reiteration of Motion for
 Issuance of Writ of Execution dated January 12, 1998, filed by six (6) salesmen,
namely, Geronimo S. Banquirigo, Reynaldo C. Menor, Rogelio Enricoso, Danilo
Palioto, Herbert Veloso and Colito Virtudazo as well as the Motion for
Reconsideration and/or Clarification filed by Salesman Noli G. Silo, are hereby
DISMISSED, for lack of merit. The June 5, 1995 Writ of Execution is now considered
fully executed and satisfied.
The Motion for Partial Reconsideration filed by Roberto Bordomeo and 231
others, is likewise DENIED, for lack of merit. SO ORDERED.
Records reveal, however, that Virgilio Saragena, et al. brought to this Court a
petition for certiorari to assail the December 24, 1997 and March 27, 1998 Orders of
the Secretary of Labor (G.R. No. 134118). As stated at the start, the Court dismissed
the petition of Saragena, et al. on September 9, 1998 for having been filed out of time
and for the petitioners’ failure to comply with the requirements under Rule 13 and
Rule 45 of the Rules of Court. The entry of judgment was issued on December 7,
1998.
In the meanwhile, on July 27, 1998, Atty. Arnado filed a Motion for Execution
with the DOLE Regional Office, demanding the following amounts from IPI, to wit:
For Roberto Bordomeo and 14 others P4,990,401.00
The rest of complainants 33,824,820.41
Total P 38,815,221.41
Again, on September 22, 1998, Atty. Arnado filed a Motion for Execution with the
Regional Office. This time, no monetary claims were demanded but the rest of the
complainants sought to collect from IPI the reduced amount of P6,268,818.47.
Another Motion for Execution was filed by Atty. Arnado on July 6, 1999, seeking
the execution of the December 26, 1990 order issued by Secretary Torres and of the
April 12, 1995 notice of computation/execution issued by Regional Director
Macaraya.
Ultimately, on July 4, 2001, DOLE Secretary Patricia Sto. Tomas issued her
Order affirming the order issued on March 27, 1998, and declaring that the full
execution of the order of March 27, 1998 “completely CLOSED and TERMINATED
this case.”
Only herein petitioners Roberto Bordomeo, Anecito Cupta, Jaime Sarmiento and
Virgilio Saragena assailed the July 4, 2001 order of Secretary Sto. Tomas by petition
for certiorari in the CA (C.A.-G.R. SP No. 65970).
On May 30, 2003, the CA rendered its decision in C.A.-G.R. SP No. 65970, to wit:
It is worthy to note that all the decisions and incidents concerning the case
between petitioners and private respondent IPI have long attained finality. The
records show that petitioners have already been granted a writ of execution. In fact,
the decision has been executed. Thus, there is nothing for this Court to modify. The
granting of the instant petition calls for the amendment of the Court of a decision
which has been executed. In this light, it is worthy to note the rule that final and
executory decisions, more so with those already executed, may no longer be amended
except only to correct errors which are clerical in nature. Amendments or alterations
which substantially affect such judgments as well as the entire proceedings held for
that purpose are null and void for lack of jurisdiction. (Pio Barreto Realty
Development Corporation v. Court of Appeals, 360 SCRA 127).
This Court in the case of CA-GR No. 54041 dated February 28, 2001, has ruled
that the Orders of the Secretary of Labor and Employment dated December 24, 1997
and March 27, 1998 have become final and executory. It may be noted that the said
orders affirmed the earlier orders of the Secretary of Labor and Employment dated
December 22, 1995 and August 27, 1996 granting the execution of the decision in the
case between petitioners and IPI.
xxxx
WHEREFORE, based on the foregoing, the instant petition is hereby DENIED
DUE COURSE and is DISMISSED for lack of merit. SO ORDERED.
The petitioners filed a Motion for Reconsideration, but the CA denied the motion
on October 30, 2003. Hence, they commenced this special civil action for certiorari.
Issues
The petitioners hereby contend that:
THE COURT OF APPEALS RULED CONTRARY TO SUPREME COURT DECISIONS
AND GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT:
A. HELD THAT GRANTING THE PETITION FOR MANDAMUS(WHICH MERELY
SEEKS FULL EXECUTION OF DOLE FINAL JUDGMENTS 26 DECEMBER 1990
AND 5 DECEMBER 1991 WOULD AMEND SAID FINAL AND EXECUTORY
JUDGMENTS.
B. FAILED TO IMPLEMENT THE SUPREME COURT DOCTRINE SET IN PDCP
VS. GENILO, G.R. NO. 106705, THAT SIMILARLY SITUATED EMPLOYEES HAS
THE RIGHT TO PROVE THEIR ENTITLEMENT TO THE BENEFITS AWARDED
UNDER FINAL JUDGMENTS.
C. HELD THAT THE QUESTIONED JUDGMENTS HAD BEEN EXECUTED WHEN
THE RESPONDENTS THEMSELVES ADMIT THE CONTRARY.
 D. HELD THAT DOLE SECRETARY DID NOT COMMIT GRAVE ABUSE OF
DISCRETION WHEN SHE REFUSED TO FULLY EXECUTE THE 1990 AND 1991
DOLE FINAL JUDGMENTS AND ISSUE CORRESPONDING WRITS OF
EXECUTION.
The petitioners submit that of the six groups of employees classified under the
April 12, 1995 notice of computation/execution issued by Regional Director
Macaraya, only the first two groups, that is, the 15 employees initially represented by
Atty. Arnado; and the nine salesmen led by Geronimo S. Banquirigo, had been
granted a writ of execution. They further submit that the May 24, 1995 writ of
execution issued in favor of the first group of employees, including themselves, had
only been partially satisfied because no backwages or separation pay from March 16,
1995 onwards had yet been paid to them; that the reduced award granted to the
second group of employees was in violation of the April 12, 1995 notice of
computation/execution; that no writ of execution had been issued in favor of the
other groups of employees; and that DOLE Secretary Sto. Tomas thus committed
grave abuse of discretion in refusing to fully execute the December 26, 1990 and
December 5, 1991 orders.
In its comment, IPI counters that the petition for certiorari should be dismissed
for being an improper remedy, the more appropriate remedy being a petition for
review on certiorari; that a petition for review on certiorari should have been filed
within 15 days from receipt of the denial of the motion for reconsideration, as
provided in Section 1 and Section 2 of Rule 45; and that the petition must also be
outrightly dismissed for being filed out of time.
IPI contends that the finality of the December 24, 1997 and March 27, 1998 orders
of the DOLE Secretary rendered them unalterable; that Atty. Arnado had already
brought the December 24, 1997 and March 27, 1998 orders to this Court for review
(G.R. No. 134118); and that the Court had dismissed the petition for having been filed
out of time and for the petitioners’ failure to comply with Rule 13 and Rule 45 of
the Rules of Court.
Ruling
We dismiss the petition for certiorari.
Firstly, an appeal by petition for review on certiorari under Rule 45 of the Rules
of Court, to be taken to this Court within 15 days from notice of the judgment or final
order raising only questions of law, was the proper remedy available to the
petitioners. Hence, their filing of the petition for certiorari on January 9, 2004 to
assail the CA’s May 30, 2003 decision and October 30, 2003 resolution in C.A.-G.R.
SP No. 65970 upon their allegation of grave abuse of discretion committed by the CA
was improper. The averment therein that the CA gravely abused its discretion did not
warrant the filing of the petition for certiorari, unless the petition further showed
how an appeal in due course under Rule 45 was not an adequate remedy for them. By
virtue of its being an extraordinary remedy, certiorari cannot replace or substitute an
adequate remedy in the ordinary course of law, like an appeal in due course.
We remind them that an appeal may also avail to review and correct any grave
abuse of discretion committed by an inferior court, provided it will be adequate for
that purpose.
It is the adequacy of a remedy in the ordinary course of law that determines
whether a special civil action for certiorari can be a proper alternative remedy. We
reiterate what the Court has discoursed thereon in Heirs of Spouses Teofilo M.
Reterta and Elisa Reterta v. Spouses Lorenzo Mores and Virginia Lopez, viz.:
Specifically, the Court has held that the availability of appeal as a remedy does
not constitute sufficient ground to prevent or preclude a party from making use of
certiorari if appeal is not an adequate remedy, or an equally beneficial, or speedy
remedy. It is inadequacy, not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually
determine the propriety of certiorari. A remedy is plain, speedy and
adequate if it will promptly relieve the petitioner from the injurious
effects of the judgment, order, or resolution of the lower court or
agency. It is understood, then, that a litigant need not mark time by
resorting to the less speedy remedy of appeal in order to have an order
annulled and set aside for being patently void for failure of the trial
court to comply with the Rules of Court.
Nor should the petitioner be denied the recourse despite certiorari not being
available as a proper remedy against an assailed order, because it is better on
balance to look beyond procedural requirements and to overcome the ordinary
disinclination to exercise supervisory powers in order that a void order of a lower
court may be controlled to make it conformable to law and justice. Verily, the
instances in which certiorari will issue cannot be defined, because to do so is to
destroy the comprehensiveness and usefulness of the extraordinary writ. The wide
breadth and range of the discretion of the court are such that authority is not
wanting to show that certiorari is more discretionary than either prohibition
or mandamus, and that in the exercise of superintending control over inferior
courts, a superior court is to be guided by all the circumstances of each particular
case “as the ends of justice may require.” Thus, the writ will be granted whenever
necessary to prevent a substantial wrong or to do substantial justice. (Emphasis
supplied)
Even so, Rule 65 of the Rules of Court still requires the petition for certiorari to
comply with the following requisites, namely: (1) the writ of certiorari is directed
against a tribunal, a board, or an officer exercising judicial or quasi-judicial
functions; (2) such tribunal, board, or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal or any plain, speedy, and adequate remedy in
the ordinary course of law.
Jurisprudence recognizes certain situations when the extraordinary remedy
of certiorari may be deemed proper, such as: (a) when it is necessary to prevent
irreparable damages and injury to a party; (b) where the trial judge capriciously and
whimsically exercised his judgment; (c) where there may be danger of a failure of
justice; (d) where an appeal would be slow, inadequate, and insufficient; (e) where
the issue raised is one purely of law; (f) where public interest is involved; and (g) in
case of urgency. Yet, a reading of the petition for certiorari and its annexes reveals
that the petition does not come under any of the situations. Specifically, the
petitioners have not shown that the grant of the writ of certiorari will be necessary to
prevent a substantial wrong or to do substantial justice to them.
In dismissing the petitioners’ petition for certiorari, the CA in effect upheld the
Secretary of Labor’s declaration in her assailed July 4, 2001 decision that the full
satisfaction of the writs of execution had completely closed and terminated the labor
dispute.
Yet, the petitioners have ascribed grave abuse of discretion to the CA for doing so.
We do not agree. We find no just cause to now issue the writ of certiorari in order
to set aside the CA’s assailed May 30, 2003 decision. Indeed, the following well
stated justifications for the dismissal of the petition show that the CA was
correct, viz.:
x x x x It is worthy to note that all the decisions and incidents concerning the
case between petitioners and private respondent IPI have long attained finality. The
records show that petitioners have already been granted a writ of execution. In fact,
the decision has been executed. Thus, there is nothing for this Court to modify. The
granting of the instant petition calls for the amendment of the Court of a decision
which has been executed. In this light, it is worthy to note the rule that final and
executory decisions, more so with those already executed, may no longer be
amended except only to correct errors which are clerical in nature. Amendments or
alterations which substantially affect such judgments as well as the entire
proceedings held for that purpose are null and void for lack of jurisdiction (Pio
Barretto Realty Development Corporation v. Court of Appeals, 360 SCRA 127).
This Court in the case of CA-GR No. 54041 dated February 28, 2001, has ruled
that the Orders of the Secretary of Labor and Employment dated December 24, 1997
and March 27, 1998 have become final and executory. It may be noted that the said
orders affirmed the earlier orders of the Secretary of Labor and Employment dated
December 22, 1995 and August 27, 1996 granting the execution of the decision in
the case between petitioners and IPI.
There is nothing on the records to support the allegation of petitioners that the
Secretary of Labor and Employment abused her discretion. The pertinent portion of
the assailed order reads:
“Given that this office had already ruled on all incidents of the case in its March
27, 1998 order and the Writ of Execution dated June 5, 1995 had already attained
finality and had in fact been completely satisfied through the deposit with the
Regional Office of the amount covered by the Writ, the subsequent Motions filed by
Atty. Arnado can no longer be entertained, much less granted by this Office. Thus, at
this point, there is nothing more to grant nor to execute.”
In a special civil action for certiorari brought against a court with jurisdiction
over a case, the petitioner carries the burden to prove that the respondent tribunal
committed not a merely reversible error but a grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the impugned order. Showing mere abuse of
discretion is not enough, for the abuse must be shown to be grave. Grave abuse of
discretion means either that the judicial or quasi-judicial power was exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused to
perform the duty enjoined or to act in contemplation of law, such as when such
judge, tribunal or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of jurisdiction. Under the
circumstances, the CA committed no abuse of discretion, least of all grave, because
its justifications were supported by the history of the dispute and borne out by the
applicable laws and jurisprudence.
And, secondly, the records contradict the petitioners’ insistence that the two writs
of execution to enforce the December 26, 1990 and December 5, 1991 orders of the
DOLE Secretary were only partially satisfied. To recall, the two writs of execution
issued were the one for P4,162,361.50, later reduced to P3,416,402.10, in favor of the
15 employees represented by Atty. Arnado, and that for P1,200,378.92 in favor of the
second group of employees led by Banquerigo.
There is no question that the 15 employees represented by Atty. Arnado, inclusive
of the petitioners, received their portion of the award covered by the September 3,
1996 writ of execution for the amount of P3,416,402.10 through the release of the
garnished deposit of IPI at China Banking Corporation. That was why they then
executed the satisfaction of judgment and quitclaim/release, the basis for the DOLE
Secretary to expressly declare in her July 4, 2001 decision that the full satisfaction of
the writ of execution “completely CLOSED and TERMINATED this case.”

Still, the 15 employees demand payment of their separation pay and backwages
from March 16, 1995 onwards pursuant to their reservation reflected in the
satisfaction of judgment and quitclaim/release they executed on September 11, 1996.
The demand lacked legal basis. Although the decision of the DOLE Secretary
dated December 5, 1991 had required IPI to reinstate the affected workers to their
former positions with full backwages reckoned from December 8, 1989 until actually
reinstated without loss of seniority rights and other benefits, the reinstatement thus
decreed was no longer possible. Hence, separation pay was instead paid to them. This
alternative was sustained in law and jurisprudence, for “separation pay may avail in
lieu of reinstatement if reinstatement is no longer practical or in the best interest of
the parties. Separation pay in lieu of reinstatement may likewise be awarded if the
employee decides not to be reinstated.”
Under the circumstances, the employment of the 15 employees or the possibility
of their reinstatement terminated by March 15, 1995. Thereafter, their claim for
separation pay and backwages beyond March 15, 1995 would be unwarranted. The
computation of separation pay and backwages due to illegally dismissed employees
should not go beyond the date when they were deemed to have been actually
separated from their employment, or beyond the date when their reinstatement was
rendered impossible. Anent this, the Court has observed in Golden Ace Builders v.
Talde:
The basis for the payment of backwages is different from that for the award of
separation pay. Separation pay is granted where reinstatement is no longer advisable
because of strained relations between the employee and the employer. Backwages
represent compensation that should have been earned but were not collected because
of the unjust dismissal. The basis for computing backwages is usually the length of
the employee’s service while that for separation pay is the actual period when the
employee was unlawfully prevented from working.
As to how both awards should be computed, Macasero v. Southern Industrial
Gases Philippines instructs:
[T]he award of separation pay is inconsistent with a finding that there was no
illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of
cases, an employee who is dismissed without just cause and without due process is
entitled to backwages and reinstatement or payment of separation pay in lieu
thereof:
Thus, an illegally dismissed employee is entitled to two reliefs: backwages and
reinstatement. The two reliefs provided are separate and distinct. In instances where
reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally
dismissed employee is entitled to either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages.
The normal consequences of respondents’ illegal dismissal, then, are
reinstatement without loss of seniority rights, and payment of backwages
computed from the time compensation was withheld up to the date of
actual reinstatement. Where reinstatement is no longer viable as an
option, separation pay equivalent to one (1) month salary for every year
of service should be awarded as an alternative. The payment of
separation pay is in addition to payment of backwages. (emphasis, italics
and underscoring supplied)
Clearly then, respondent is entitled to backwages andseparation pay as his
reinstatement has been rendered impossible due to strained relations. As correctly
held by the appellate court, the backwages due respondent must be computed from
the time he was unjustly dismissed until his actual reinstatement, or from February
1999 until June 30, 2005 when his reinstatement was rendered impossible without
fault on his part.
The Court, however, does not find the appellate court’s computation of separation
pay in order. The appellate court considered respondent to have served petitioner
company for only eight years. Petitioner was hired in 1990, however, and he must be
considered to have been in the service not only until 1999, when he was unjustly
dismissed, but until June 30, 2005, the day he is deemed to have been actually
separated (his reinstatement having been rendered impossible) from petitioner
company or for a total of 15 years.
As for the portions of the award pertaining to the rest of the employees listed in
the April 12, 1995 notice of execution/computation (i.e., those allegedly similarly
situated as the employees listed in the December 5, 1991 order of the DOLE
Secretary) still remaining unsatisfied, the petitioners are definitely not the proper
parties to ventilate such concern in this or any other forum. At any rate, the concern
has already been addressed and resolved by the Court in G.R. No. 164633.
WHEREFORE, the Court DISMISSES the petition for certiorari for its lack of
merit; AFFIRMS the decision promulgated on May 30, 2003; and ORDERS the
petitioners to pay the costs of suit. SO ORDERED.
Notes.―The computation of separation pay in lieu of reinstatement includes the
period for which backwages were awarded. (Aliling vs. Feliciano, 671 SCRA 186
[2012])
If reinstatement proves impracticable, and hardly in the best interest of the
parties, due to the lapse of time since the employee’s dismissal, the latter should be
awarded separation pay in lieu of reinstatement. (Park Hotel vs. Soriano, 680 SCRA
328 [2012])
 ――o0o――
G.R. No. 149036. April 2, 2002.*
MA. J. ANGELINA G. MATIBAG, petitioner, vs.ALFREDO L. BENIPAYO,
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO,
and GIDEON C. DE GUZMAN in his capacity as Officer-in-Charge, Finance
Services Department of the Commission on Elections, respondents.
Courts; Judicial Review; An employee’s personal and substantial injury, if a
particular appointee is not the lawful COMELEC Chairman, clothes her with the
requisite locus standi to raise the constitutional issue regarding the ad interim
appointment of said COMELEC Chairman.—Benipayo reassigned petitioner from the
EID, where she was Acting Director, to the Law Department, where she was placed on
detail service. Respondents claim that the reassignment was “pursuant to x x x
Benipayo’s authority as Chairman of the Commission on Elections, and as the
Commission’s Chief Executive Officer.” Evidently, respondents anchor the legality of
petitioner’s reassignment on Benipayo’s authority as Chairman of the COMELEC. The
real issue then turns on whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created
by the Constitution. On the other hand, if Benipayo is the lawful COMELEC Chairman
because he assumed office in accordance with the Constitution, then petitioner’s
reassignment is legal and she has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner has a personal and material
stake in the resolution of the constitutionality of Benipayo’s assumption of office.
Petitioner’s personal and substantial injury, if Benipayo is not the lawful COMELEC
Chairman, clothes her with the requisite locus standi to raise the constitutional issue in
this petition.
Same; Same; The earliest opportunity to raise a constitutional issue is to raise it in
the pleadings before a competent court that can resolve the same.—Respondents harp
on petitioner’s belated act of questioning the constitutionality of the ad
interimappointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition
only on August 3, 2001, when the first ad interimappointments were issued as early as
March 22, 2001. However, it is not the date of filing of the petition that determines
whether the constitutional issue was raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, “if it is not raised in the pleadings,
it cannot be considered at the trial, and, if not considered at the trial, it cannot be
considered on appeal.” Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when she filed her petition before
this Court, which is the earliest opportunity for pleading the constitutional issue before a
competent body. Furthermore, this Court may determine, in the exercise of sound
discretion, the time when a constitutional issue may be passed upon. There is no doubt
petitioner raised the constitutional issue on time.
Same; Same; In keeping with the Supreme Court’s duty to determine whether
other agencies of government have remained within the limits of the Constitution and
have not abused the discretion given them, the Supreme Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised.—In any event,
the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001
national elections may be put in doubt if the constitutional issue raised by petitioner is
left unresolved. In keeping with this Court’s duty to determine whether other agencies of
government have remained within the limits of the Constitution and have not abused the
discretion given them, this Court may even brush aside technicalities of procedure and
resolve any constitutional issue raised. Here the petitioner has complied with all the
requisite technicalities. Moreover, public interest requires the resolution of the
constitutional issue raised by petitioner.
Administrative Law; Public Officers; Appointments; Words and Phrases; An ad
interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into
office—the fact that it is subject to confirmation by the Commission on Appointments
does not alter its permanent character.—An ad interim appointment is a permanent
appointment because it takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interimappointment permanent in
character by making it effective until disapproved by the Commission on Appointments
or until the next adjournment of Congress. The second paragraph of Section 16, Article
VII of the Constitution provides as follows: “The President shall have the power to make
appointments during the recess of the Congress, whether voluntary or compulsory, but
such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.” (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the President.
The fear that the President can withdraw or revoke at any time and for any reason an ad
interim appointment is utterly without basis.
Same; Same; Same; Same; The Constitution imposes no condition on the
effectivity of an ad interim appointment, and thus an ad interim appointment takes
effect immediately; In case of an appointment made by the President when Congress is
in session, the President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office, while with reference to an ad
interim appointment, it takes effect at once, and the individual chosen may thus qualify
and perform his function without loss of time.—The Constitution imposes no condition
on the effectivity of an ad interimappointment, and thus an ad interim appointment
takes effect immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the
Commission on Appointments,this Court elaborated on the nature of an ad
interim appointment as follows: “A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the Commission on Appointments
when Congress is in session and when it is in recess. In the former, the President
nominates, and only upon the consent of the Commission on Appointments may the
person thus named assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may thus qualify and
perform his function without loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective ‘until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.’ ”
Same; Same; Same; Same; The term “ad interim appointment,” as used in letters
of appointment signed by the President, means a permanent appointment made by the
President in the meantime that Congress is in recess.—The term “ad
interimappointment”, as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in
recess. It does not mean a temporary appointment that can be withdrawn or revoked at
any time. The term, although not found in the text of the Constitution, has acquired a
definite legal meaning under Philippine jurisprudence. The Court had again occasion to
explain the nature of an ad interim appointment in the more recent case
of Marohombsar vs. Court of Appeals, where the Court stated: “We have already
mentioned that an ad interimappointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in
an acting capacity, rather it denotes the manner in which the appointment was made. In
the instant case, the appointment extended to private respondent by then MSU President
Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent
status of private respondent’s appointment as Executive Assistant II was recognized and
attested to by the Civil Service Commission Regional Office No. 12. Petitioner’s
submission that private respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly
untenable. Ad interim appointments are permanent but their terms are only until the
Board disapproves them.” (Emphasis supplied)
Same; Same; Same; Same; An ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office, and the withdrawal or
revocation of an ad interim appointment is possible only if it is communicated to the
appointee before the moment he qualifies, as any withdrawal or revocation thereafter
is tantamount to removal from office.—An ad interimappointee who has qualified and
assumed office becomes at that moment a government employee and therefore part of
the civil service. He enjoys the constitutional protection that “[n]o officer or employee in
the civil service shall be removed or suspended except for cause provided by law.” Thus,
an ad interimappointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the moment he qualifies, and
any withdrawal or revocation thereafter is tantamount to removal from office. Once an
appointee has qualified, he acquires a legal right to the office which is protected not only
by statute but also by the Constitution. He can only be removed for cause, after notice
and hearing, consistent with the requirements of due process.
Same; Same; Same; An ad interim appointment can be terminated for two causes
specified in the Constitution—first, by the disapproval of his ad interim appointment by
the Commission on Appointments, and, second, by the adjournment of Congress
without the Commission on Appointments acting on his appointment.—An ad
interim appointment can be terminated for two causes specified in the Constitution. The
first cause is the disapproval of his ad interim appointment by the Commission on
Appointments. The second cause is the adjournment of Congress without the
Commission on Appointments acting on his appointment. These two causes are
resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interimappointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads of
the ad interim appointees.
Same; Same; Same; Security of Tenure; An appointment or designation in a
temporary or acting capacity is the kind of appointment that the Constitution prohibits
the President from making to the three independent constitutional commissions.—While
an ad interim appointment is permanent and irrevocable except as provided by law, an
appointment or designation in a temporary or acting capacity can be withdrawn or
revoked at the pleasure of the appointing power. A temporary or acting appointee does
not enjoy any security of tenure, no matter how briefly. This is the kind of appointment
that the Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC.
Same; Same; Same; ConstitutionalCommissions; CommissiononElections; Statuto
ry Construction; To hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad interim
appointments.—While the Constitution mandates that the COMELEC “shall be
independent,” this provision should be harmonized with the President’s power to
extend ad interim appointments. To hold that the independence of the COMELEC
requires the Commission on Appointments to first confirm ad interim appointees before
the appointees can assume office will negate the President’s power to make ad
interimappointments. This is contrary to the rule on statutory construction to give
meaning and effect to every provision of the law. It will also run counter to the clear
intent of the framers of the Constitution.
Same; Same; Same; Commission on Appointments; Principle of Check and
Balance; An ad interim appointee disapproved by the Commission on Appointments
can no longer be extended a new appointment—the disapproval is a final decision of the
Commission on Appointments in the exercise of its checking power on the appointing
authority of the President.—There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the Commission on Appointments in
the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on
Appointments to give its consent after deliberating on the qualifications of the appointee.
Since the Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the appointing power. In
this instance, the President can no longer renew the appointment not because of the
constitutional prohibition on reappointment, but because of a final decision by the
Commission on Appointments to withhold its consent to the appointment.
Same; Same; Same; Same; Same; A by-passed appointment is one that has not
been finally acted upon on the merits by the Commission on Appointments at the close
of the session of Congress.—An ad interim appointment that is by-passed because of lack
of time or failure of the Commission on Appointments to organize is another matter. A
by-passed appointment is one that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of Congress. There is no final
decision by the Commission on Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent such decision, the President is free
to renew the ad interim appointment of a by-passed appointee. This is recognized in
Section 17 of the Rules of the Commission on Appointments, which provides as follows:
“Section 17. Unacted Nominations or Appointments Returned to the
President.Nominations or appointments submitted by the President of the Philippines
which are not finally acted upon at the close of the session of Congress shall be returned
to the President and, unless new nominations or appointments are made, shall not again
be considered by the Commission.” (Emphasis supplied) Hence, under the Rules of the
Commission on Appointments, a by-passed appointment can be considered again if the
President renews the appointment.
Same; Same; Same; Same; Same; Statutory Construction; The jurisprudence
under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution.—Guevara was decided under the 1935
Constitution from where the second paragraph of Section 16, Article VII of the present
Constitution on ad interimappointments was lifted verbatim. The jurisprudence under
the 1935 Constitution governing ad interim appointments by the President is doubtless
applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad
interimappointees. This is a continuation of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing power in the President.
Same; Same; Same; Same; Same; The prohibition on reappointment in Section 1
(2), Article IX-C of the Constitution applies neither to disapprove nor by-passed ad
interim appointments.—The prohibition on reappointment in Section 1 (2), Article IX-C
of the Constitution applies neither to disapproved nor by-passed ad
interim appointments. A disapproved ad interimappointment cannot be revived by
another ad interimappointment because the disapproval is final under Section 16, Article
VII of the Constitution, and not because a reappointment is prohibited under Section 1
(2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived
by a new ad interim appointment because there is no final disapproval under Section 16,
Article VII of the Constitution, and such new appointment will not result in the appointee
serving beyond the fixed term of seven years.
Same; Same; Same; Same; Same; The framers of the Constitution made it quite
clear that any person who has served any term of office as COMELEC member—
whether for a full term of seven years, a truncated term of five or three years, or even
for an unexpired term of any length of time—can no longer be reappointed to the
COMELEC.—The framers of the Constitution made it quite clear that any person who has
served any term of office as COMELEC member—whether for a full term of seven years, a
truncated term of five or three years, or even for an unexpired term of any length of time
—can no longer be reappointed to the COMELEC. Commissioner Foz succinctly
explained this intent in this manner: “MR. FOZ. But there is the argument made in the
concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Miraflor, to the
effect that the prohibition on reappointment applies only when the term or tenure is for
seven years. But in cases where the appointee serves only for less than seven years, he
would be entitled to reappointment. Unless we put the qualifying words “without
reappointment” in the case of those appointed, then it is possible that an interpretation
could be made later on their case, they can still be reappointed to serve for a total of
seven years. Precisely, we are foreclosing that possibility by making it clear that even
in the case of those first appointed under the Constitution, no reappointment can be
made.” (Emphasis supplied)
Same; Same; Same; Same; Same; An ad interim appointment that has lapsed by
inaction of the Commission on Appointments does not constitute a term of office—the
period from the time the ad interim appointment is made to the time it lapses is neither
a fixed term nor an unexpired term.—However, an ad interimappointment that has
lapsed by inaction of the Commission on Appointments does not constitute a term of
office. The period from the time the ad interim appointment is made to the time it lapses
is neither a fixed term nor an unexpired term. To hold otherwise would mean that the
President by his unilateral action could start and complete the running of a term of office
in the COMELEC without the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of the Commission on Appointments.
Same; Same; Same; Same; Same; Words and Phrases; The phrase “without
reappointment” applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes
his term of office.—The phrase “without reappointment” applies only to one who has
been appointed by the President and confirmed by the Commission on Appointments,
whether or not such person completes his term of office. There must be a confirmation by
the Commission on Appointments of the previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to absurdities and negate the
President’s power to make ad interim appointments.
Same; Same; Same; Same; Same; The Supreme Court will not subscribe to a
proposition that will wreak havoc on vital government services.—In the great majority
of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad interim appointments can no
longer be renewed, the President will certainly hesitate to make ad interim appointments
because most of her appointees will effectively be disapproved by mere inaction of the
Commission on Appointments. This will nullify the constitutional power of the President
to make ad interimappointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition that will wreak havoc
on vital government services.
Same; Same; Same; Same; Same; The framers of the present Constitution
prohibited reappointments for two reasons—first, to prevent a second appointment for
those who have been previously appointed and confirmed even if they served for less
than seven years, and, second, to insure that the members of the three constitutional
commissions do not serve beyond the fixed term of seven years.—The prohibition on
reappointment is common to the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two reasons. The first is to prevent a
second appointment for those who have been previously appointed and confirmed even if
they served for less than seven years. The second is to insure that the members of the
three constitutional commissions do not serve beyond the fixed term of seven years.
Same; Same; Same; Same; Same; One who has been given an ad interim
appointment as COMELEC Chairman is a de jure officer, and consequently, he has full
authority to exercise all the powers of that office for so long as his ad interim
appointment remains effective; The Chairman, as the Chief Executive of the COMELEC,
is expressly empowered on his own authority, without having to secure the approval of
the COMELEC en banc, to transfer or reassign COMELEC personnel in accordance with
Civil Service Law.—Petitioner’s posturing will hold water if Benipayo does not possess
any color of title to the office of Chairman of the COMELEC. We have ruled, however,
that Benipayo is the de jureCOMELEC Chairman, and consequently he has full authority
to exercise all the powers of that office for so long as his ad interimappointment remains
effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:
“Section 7. Chairman as Executive Officer; Powers and Duties.The Chairman, who shall
be the Chief Executive Officer of the Commission, shall: x x x (4) Make temporary
assignments, rotate and transfer personnel in accordance with the provisions of the
Civil Service Law.” (Emphasis supplied) The Chairman, as the Chief Executive of the
COMELEC, is expressly empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en
banc.
Same; Same; Same; Same; Same; Transfers; Security of Tenure; Career
Executive Service; One who is not a Career Executive Service (CES) officer, nor a holder
of a Career Executive Service Eligibility, which are necessary qualifications for holding
the position of Director IV as prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission, does not enjoy security of tenure as Director IV.
—Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and
February 15, 2001, attached as Annexes “X”, “Y” and “Z” to her Petition, indisputably
show that she held her Director IV position in the EID only in
an acting or temporary capacity. Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission.
Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, this Court held that: “As respondent
does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no
security of tenure in respect of that position.
Same; Same; Same; Same; Same; Same; The COMELEC Chairman is the sole
officer specifically vested with the power to transfer or reassign COMELEC personnel,
the COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.—The proviso in COMELEC Resolution No. 3300, requiring due notice and
hearing before any transfer or reassignment can be made within thirty days prior to
election day, refers only to COMELEC field personnel and not to head office personnel
like the petitioner. Under the Revised Administrative Code, the COMELEC Chairman is
the sole officerspecifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot legally
do.
Same; Same; Same; Same; Same; Same; Election Period; COMELEC Resolution
No. 3300 does not require that every transfer or reassignment of COMELEC personnel,
should carry the concurrence of the COMELEC as a collegial body.—COMELEC
Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to approve every personnel transfer
or reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of
a writ of preliminary injunction and a temporary restraining order under Rule 65 of
the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag (“Petitioner”
for brevity) questions the constitutionality of the appointment and the right to hold
office of the following: (1) Alfredo L. Benipayo (“Benipayo” for brevity) as Chairman
of the Commission on Elections (“COMELEC” for brevity); and (2) Resurreccion Z.
Borra (“Borra” for brevity) and Florentino A. Tuason, Jr. (“Tuason” for brevity) as
COMELEC Commissioners. Petitioner also questions the legality of the appointment
of Velma J. Cinco (“Cinco” for brevity) as Director IV of the COMELEC’s Education
and Information Department (“EID” for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as “Acting
Director IV” of the EID. On February 15, 2000, then Chairperson Harriet O.
Demetriou renewed the appointment of petitioner as Director IV of EID in a
“Temporary” capacity. On February 15, 2001, Commissioner Rufino S.B. Javier
renewed again the appointment of petitioner to the same position in a “Temporary”
capacity.
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad
interim, Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC
Commissioners, each for a term of seven years and all expiring on February 2, 2008.
Benipayo took his oath of office and assumed the position of COMELEC Chairman.
Borra and Tuason likewise took their oaths of office and assumed their positions as
COMELEC Commissioners. The Office of the President submitted to the Commission
on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra
and Tuason for confirmation. However, the Commission on Appointments did not
act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of
Benipayo, Borra and Tuason to the same positions and for the same term of seven
years, expiring on February 2, 2008. They took their oaths of office for a second time.
The Office of the President transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.
Congress adjourned before the Commission on Appointments could act on their
appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again
the ad interim appointments of Benipayo, Borra and Tuason to the same
positions. The Office of the President submitted their appointments for confirmation
to the Commission on Appointments. They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated
April 11, 2001 addressed to petitioner as Director IV of the EID and to Cinco as
Director III also of the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-
Charge Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum
dated April 14, 2001 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to consult the Commissioner-in-
Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as
Director IV of the EID and her reassignment to the Law Department. Petitioner cited
Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001,
reminding heads of government offices that “transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001.”
Benipayo denied her request for reconsideration on April 18, 2001, citing COMELEC
Resolution No. 3300 dated November 6, 2000, which states in part:
“NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred
upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing.”
Petitioner appealed the denial of her request for reconsideration to the
COMELEC en banc in a Memorandum dated April 23, 2001. Petitioner also filed an
administrative and criminal complaint with the Law Department against Benipayo,
alleging that her reassignment violated Section 261 (h) of the Omnibus Election
Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07,
s. 001, and other pertinent administrative and civil service laws, rules and
regulations.
During the pendency of her complaint before the Law Department, petitioner
filed the instant petition questioning the appointment and the right to remain in
office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the
COMELEC, respectively. Petitioner claims that the ad interim appointments of
Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and members. Petitioner also
assails as illegal her removal as Director IV of the EID and her reassignment to the
Law Department. Simultaneously, petitioner challenges the designation of Cinco as
Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services Department Officer-in-Charge
Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed
once again the ad interimappointments of Benipayo as COMELEC Chairman and
Borra and Tuason as Commissioners, respectively, for a term of seven years expiring
on February 2, 2008. They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this
Court may exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on
the basis of the ad interim appointments issued by the President amounts to
a temporary appointment prohibited by Section 1 (2), Article IX-C of the
Constitution;
3. Assuming that the first ad interim appointments and the first assumption of
office by Benipayo, Borra and Tuason are legal, whether or not the renewal
of their ad interim appointments and subsequent assumption of office to the
same positions violate the prohibition on reappointment under Section 1 (2),
Article IX-C of the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as
Director IV of the EID and her reassignment to the Law Department is
illegal and without authority, having been done without the approval of the
COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services
Department, in continuing to make disbursements in favor of Benipayo,
Borra, Tuason and Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before
this Court may exercise its power of judicial review in constitutional cases. Out of
respect for the acts of the Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the constitutionality of the ad
interimappointments issued by the President to Benipayo, Borra and Tuason unless
all the four requisites are present. These are: (1) the existence of an actual and
appropriate controversy; (2) a personal and substantial interest of the party raising
the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.
Respondents argue that the second, third and fourth requisites are absent in this
case. Respondents maintain that petitioner does not have a personal and substantial
interest in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be lawfully entitled to any of
the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim
to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality
of the ad interimappointments at the earliest opportunity. Petitioner filed the
petition only on August 3, 2001 despite the fact that the ad interim appointments of
Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the
petition was filed after the third time that these three respondents were issued ad
interim appointments.
Respondents insist that the real issue in this case is the legality of petitioner’s
reassignment from the EID to the Law Department. Consequently, the
constitutionality of the ad interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to
the Law Department, where she was placed on detail service. Respondents claim that
the reassignment was “pursuant to x x x Benipayo’s authority as Chairman of the
Commission on Elections, and as the Commission’s Chief
Executive Officer.” Evidently, respondents anchor the legality of petitioner’s
reassignment on Benipayo’s authority as Chairman of the COMELEC. The real issue
then turns on whether or not Benipayo is the lawful Chairman of the COMELEC.
Even if petitioner is only an Acting Director of the EID, her reassignment is without
legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he
assumed office in accordance with the Constitution, then petitioner’s reassignment is
legal and she has no cause to complain provided the reassignment is in accordance
with the Civil Service Law. Clearly, petitioner has a personal and material stake in the
resolution of the constitutionality of Benipayo’s assumption of office. Petitioner’s
personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the constitutional issue in this
petition.
Respondents harp on petitioner’s belated act of questioning the constitutionality
of the ad interimappointments of Benipayo, Borra and Tuason. Petitioner filed the
instant petition only on August 3, 2001, when the first ad interim appointments were
issued as early as March 22, 2001. However, it is not the date of filing of the petition
that determines whether the constitutional issue was raised at the earliest
opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the
pleadings before a competent court that can resolve the same, such that, “if it is not
raised in the pleadings, it cannot be considered at the trial, and, if not considered at
the trial, it cannot be considered on appeal.” Petitioner questioned the
constitutionality of the ad interimappointments of Benipayo, Borra and Tuason
when she filed her petition before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body. Furthermore, this Court
may determine, in the exercise of sound discretion, the time when a constitutional
issue may be passed upon. There is no doubt petitioner raised the constitutional
issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the constitutionality
of Benipayo’s ad interimappointment and assumption of office. Unless the
constitutionality of Benipayo’s ad interim appointment and assumption of office is
resolved, the legality of petitioner’s reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the
public. The legality of the directives and decisions made by the COMELEC in the
conduct of the May 14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In keeping with this
Court’s duty to determine whether other agencies of government have remained
within the limits of the Constitution and have not abused the discretion given them,
this Court may even brush aside technicalities of procedure and resolve any
constitutional issue raised.Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the constitutional
issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a
temporary appointment that is prohibited by Section 1 (2), Article IX-C of the
Constitution, which provides as follows:
“The Chairman and the Commissioners shall be appointed by the President with
the consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity.” (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or
revoked by the President at her pleasure, and can even be disapproved or simply by-
passed by the Commission on Appointments. For this reason, petitioner claims that
an ad interim appointment is temporary in character and consequently prohibited by
the last sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioner’s theory, there can be no ad interimappointment to the
COMELEC or to the other two constitutional commissions, namely the Civil Service
Commission and the Commission on Audit. The last sentence of Section 1 (2), Article
IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for
the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to
mean that the ad interim appointee cannot assume office until his appointment is
confirmed by the Commission on Appointments for only then does his appointment
become permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an appointee who is
confirmed by the Commission on Appointments can guarantee the independence of
the COMELEC. A confirmed appointee is beyond the influence of the President or
members of the Commission on Appointments since his appointment can no longer
be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated
at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over
the head of every appointee whose confirmation is pending with the Commission on
Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee
has qualified into office. The fact that it is subject to confirmation by the Commission
on Appointments does not alter its permanent character. The Constitution itself
makes an ad interim appointment permanent in character by making it effective
until disapproved by the Commission on Appointments or until the next
adjournment of Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
“The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only untildisapproval by the Commission on Appointments or until the next
adjournment of the Congress.” (Emphasis supplied)
Thus, the ad interim appointment remains effective untilsuch disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the
President. The fear that the President can withdraw or revoke at any time and for any
reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad
interim appointment is permanent in character. In Summers vs. Ozaeta, decided on
October 25, 1948, we held that:
“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section
10, Article VII of the Constitution, which provides that the ‘President shall have the
power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course distinguishable from an
‘acting’ appointment which is merely temporary, good until another permanent
appointment is issued.” (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad
interim appointment, and thus an ad interimappointment takes effect immediately.
The appointee can at once assume office and exercise, as a de jure officer, all the
powers pertaining to the office. In Pacete vs. Secretary of the Commission on
Appointments, this Court elaborated on the nature of an ad interim appointment as
follows:
“A distinction is thus made between the exercise of such presidential prerogative
requiring confirmation by the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the President nominates, and only
upon the consent of the Commission on Appointments may the person thus named
assume office. It is not so with reference to ad interim appointments. It takes effect
at once. The individual chosen may thus qualify and perform his function without
loss of time. His title to such office is complete. In the language of the Constitution,
the appointment is effective ‘until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.’ ”
Petitioner cites Black’s Law Dictionary which defines the term “ad interim” to
mean “in the meantime” or “for the time being.” Hence, petitioner argues that an ad
interimappointment is undoubtedly temporary in character. This argument is not
new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court, where we explained that:
“x x x From the arguments, it is easy to see why the petitioner should experience
difficulty in understanding the situation. Private respondent had been extended
several ‘ad interim’appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal translation of the word
‘ad interim’ which creates such belief. The term is defined by Black to mean “in the
meantime” or “for the time being”. Thus, an officer ad interim is one appointed to fill
a vacancy, or to discharge the duties of the office during the absence or temporary
incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use intended in the context of Philippine
law. In referring to Dr. Esteban’s appointments, the term is not descriptive of the
nature of the appointments given to him. Rather, it is used to denote the manner in
which said appointments were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of Regents, which is originally
vested by the University Charter with the power of appointment, is unable to act. x x
x.” (Emphasis supplied)
Thus, the term “ad interim appointment”, as used in letters of appointment
signed by the President, means a permanent appointment made by the President in
the meantime that Congress is in recess. It does not mean a temporary appointment
that can be withdrawn or revoked at any time. The term, although not found in the
text of the Constitution, has acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the nature of an ad
interimappointment in the more recent case of Marohombsar vs. Court of
Appeals, where the Court stated:
 “We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim
appointment is synonymous with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board disapproves them.” (Emphasis
supplied)
An ad interim appointee who has qualified and assumed office becomes at that
moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that “[n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by law.” Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee before the moment he qualifies,
and any withdrawal or revocation thereafter is tantamount to removal from
office. Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed
for cause, after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the
Constitution. The first cause is the disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the adjournment of Congress
without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads
of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as
provided by law, an appointment or designation in a temporary or acting capacity
can be withdrawn or revoked at the pleasure of the appointing power. A temporary or
acting appointee does not enjoy any security of tenure, no matter how briefly. This is
the kind of appointment that the Constitution prohibits the President from making to
the three independent constitutional commissions, including the COMELEC. Thus,
in Brillantes vs. Yorac, this Court struck down as unconstitutional the designation by
then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
“A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at
any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the
Commission on Elections, foremost among which is the security of tenure of its
members. That guarantee is not available to the respondent as Acting Chairman of
the Commission on Elections by designation of the President of the Philippines.”
Earlier, in Nacionalista Party vs. Bautista, a case decided under the 1935
Constitution, which did not have a provision prohibiting temporary or acting
appointments to the COMELEC, this Court nevertheless declared unconstitutional
the designation of the Solicitor General as acting member of the COMELEC. This
Court ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared
then: “It would be more in keeping with the intent, purpose and aim of the framers of
the Constitution to appoint a permanentCommissioner than to designate one to act
temporarily.” (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to
fill the vacancies in the COMELEC, subject only to confirmation by the Commission
on Appointments. Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not appointed or designated
in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes
vs. Yorac and Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista. The ad interim appointments of Benipayo, Borra and Tuason are expressly
allowed by the Constitution which authorizes the President, during the recess of
Congress, to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC “shall be independent,” this
provision should be harmonized with the President’s power to extend ad
interim appointments. To hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad
interim appointments. This is contrary to the rule on statutory construction to give
meaning and effect to every provision of the law. It will also run counter to the clear
intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution—on the
nomination of officers subject to confirmation by the Commission on Appointments
—did not provide for ad interim appointments. The original intention of the framers
of the Constitution was to do away with ad interim appointments because the plan
was for Congress to remain in session throughout the year except for a brief 30-day
compulsory recess. However, because of the need to avoid disruptions in essential
government services, the framers of the Constitution thought it wise to reinstate the
provisions of the 1935 Constitution on ad interimappointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:
“FR. BERNAS:x x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps
there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might
present problems in terms of anticipating interruption of government
business,considering that we are not certain of the length of involuntary recess or
adjournment of the Congress. We are certain, however, of the involuntary
adjournment of the Congress which is 30 days, but we cannot leave to conjecture
the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner
Aquino and after conferring with the Committee, Commissioner Aquino and I
propose the following amendment as the last paragraph of Section 16, the
wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE
THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF
CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH
APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY
THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT
ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is approved.”
(Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose of avoiding
interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional
commissions. In his concurring opinion in Guevara vs. Inocentes, decided under the
1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
“Now, why is the lifetime of ad interim appointments so limited? Because, if they
expired before the session of Congress, the evil sought to be avoided—interruption in
the discharge of essential functions—may take place. Because the same evil would
result if the appointments ceased to be effective during the session of Congress and
before its adjournment. Upon the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments.” (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the
Constitution barely avoided the interruption of essential government services in the
May 2001 national elections. Following the decision of this Court in Gaminde vs.
Commission on Appointments, promulgated on December 13, 2000, the terms of
office of constitutional officers first appointed under the Constitution would have to
be counted starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the terms of
office of three Commissioners of the COMELEC, including the Chairman, would end
on February 2, 2001.
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on
January 11, 2000 to serve, pursuant to her appointment papers, until February 15,
2002, the original expiry date of the term of her predecessor, Justice Bernardo P.
Pardo, who was elevated to this Court. The original expiry date of the term of
Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3, 2001. The original expiry dates of
the terms of office of Chairperson Demetriou and Commissioners Flores and
Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were three vacancies in the
seven-person COMELEC, with national elections looming less than three and one-
half months away. To their credit, Chairperson Demetriou and Commissioner Flores
vacated their offices on February 2, 2001 and did not question any more before this
Court the applicability of the Gaminderuling to their own situation.
In a Manifestation dated December 28, 2000 filed with this Court in
the Gaminde case, Chairperson Demetriou stated that she was vacating her office on
February 2, 2001, as she believed any delay in choosing her successor might create a
“constitutional crisis” in view of the proximity of the May 2001 national elections.
Commissioner Desamito chose to file a petition for intervention in the Gaminde case
but this Court denied the intervention. Thus, Commissioner Desamito also vacated
his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between
February and June considering that many of the members of the House of
Representatives and the Senate run for re-election. In 2001, the Eleventh Congress
adjourned from January 9, 2001 to June 3, 2001. Concededly, there was no more
time for Benipayo, Borra and Tuason, who were originally extended ad
interimappointments only on March 22, 2001, to be confirmed by the Commission
on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill
up the three vacancies in the COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the May 2001 elections.
Considering that the Constitution requires that “all x x x election cases shall be heard
and decided in division,” the remaining one division would have been swamped with
election cases. Moreover, since under the Constitution motions for reconsideration
“shall be decided by the Commission en banc”, the mere absence of one of the four
remaining members would have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to travel around the country
before, during and after the elections. There was a great probability that disruptions
in the conduct of the May 2001 elections could occur because of the three vacancies
in the COMELEC. The successful conduct of the May 2001 national elections, right
after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional
power to make ad interimappointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the President
to be exercised by her in her sound judgment. Under the second paragraph of Section
16, Article VII of the Constitution, the President can choose either of two modes in
appointing officials who are subject to confirmation by the Commission on
Appointments. First, while Congress is in session, the President may nominate the
prospective appointee, and pending consent of the Commission on Appointments,
the nominee cannot qualify and assume office. Second, during the recess of Congress,
the President may extend an ad interim appointment which allows the appointee to
immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend
an ad interim appointment is a matter within the prerogative of the President
because the Constitution grants her that power. This Court cannot inquire into the
propriety of the choice made by the President in the exercise of her constitutional
power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on
her part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a
long-standing practice. Former President Corazon Aquino issued an ad
interimappointment to Commissioner Alfredo E. Abueg. Former President Fidel V.
Ramos extended ad interimappointments to Commissioners Julio F. Desamito, Japal
M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe. Former President
Joseph Estrada also extended ad interim appointments to Commissioners Abdul
Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C.
Lantion.
The President’s power to extend ad interimappointments may indeed briefly put
the appointee at the mercy of both the appointing and confirming powers. This
situation, however, is only for a short period—from the time of issuance of the ad
interim appointment until the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a tradeoff against the evil
of disruptions in vital government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil of granting the
President absolute and sole power to appoint. The Constitution has wisely subjected
the President’s appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the
COMELEC as a constitutional body. The vacancies in the COMELEC are precisely
staggered to insure that the majority of its members hold confirmed appointments,
and not one President will appoint all the COMELEC members. In the instant case,
the Commission on Appointments had long confirmed four of the incumbent
COMELEC members, comprising a majority, who could now be removed from office
only by impeachment. The special constitutional safeguards that insure the
independence of the COMELEC remain in place. The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and promulgates its own rules
on pleadings and practice. Moreover, the salaries of COMELEC members cannot be
decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to
Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting appointments prohibited by
Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also argues that assuming the first ad interimappointments and
the first assumption of office by Benipayo, Borra and Tuason are constitutional, the
renewal of the their ad interim appointments and their subsequent assumption of
office to the same positions violate the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution, which provides as follows:
“The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
 years, two Members for five years, and the last members for three years, without
reappointment. x x x.” (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the
Commission on Appointments, his ad interim appointment can no longer be
renewed because this will violate Section 1 (2), Article IX-C of the Constitution which
prohibits reappointments. Petitioner asserts that this is particularly true to
permanent appointees who have assumed office, which is the situation of Benipayo,
Borra and Tuason if their ad interim appointments are deemed permanent in
character.
There is no dispute that an ad interim appointee disapproved by the Commission
on Appointments can no longer be extended a new appointment. The disapproval is a
final decision of the Commission on Appointments in the exercise of its checking
power on the appointing authority of the President. The disapproval is a decision on
the merits, being a refusal by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee. Since the Constitution does
not provide for any appeal from such decision, the disapproval is final and binding
on the appointee as well as on the appointing power. In this instance, the President
can no longer renew the appointment not because of the constitutional prohibition
on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of
the Commission on Appointments to organize is another matter. A by-passed
appointment is one that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to
the appointment as required by the Constitution. Absent such decision, the President
is free to renew the ad interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the Commission on Appointments, which
provides as follows:
“Section 17. Unacted Nominations or Appointments Returned to the
President. Nominations or appointments submitted by the President of the
Philippines which are not finally acted upon at the close of the session of Congress
shall be returned to the President and, unless new nominations or appointments are
made,shall not again be considered by the Commission.” (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a bypassed
appointment can be considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad
interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr.
lucidly explained in his concurring opinion in Guevara vs. Inocentes why by-
passed ad interim appointees could be extended new appointments, thus:
“In short, an ad interim appointment ceases to be effective upon disapproval by the
Commission, because the incumbent cannot continue holding office over the positive
objection of the Commission. It ceases, also, upon “the next adjournment of the
Congress”, simply because the President may then issue new appointments—not
because of implied disapproval of the Commission deduced from its inaction during
the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the
adjournment of Congress were an implied disapproval of ad interim appointments
made prior thereto, then the President could no longer appoint those so by-passed by
the Commission. But, the fact is that the President may reappoint them, thus clearly
indicating that the reason for said termination of the ad interim appointments is not
the disapproval thereof allegedly inferred from said omission of the Commission, but
the circumstance that upon said adjournment of the Congress, the President is free
to make ad interim appointments or reappointments” (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second
paragraph of Section 16, Article VII of the present Constitution on ad
interim appointments was lifted verbatim. The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless
applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad
interim appointees. This is a continuation of the well-recognized practice under the
1935 Constitution, interrupted only by the 1973 Constitution which did not provide
for a Commission on Appointments but vested sole appointing power in the
President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-passed ad interim appointments.
A disapproved ad interim appointment cannot be revived by another ad
interim appointment because the disapproval is final under Section 16, Article VII of
the Constitution, and not because a reappointment is prohibited under Section 1 (2),
Article IX-C of the Constitution. A by-passed ad interimappointment can be revived
by a new ad interimappointment because there is no final disapproval under Section
16, Article VII of the Constitution, and such new appointment will not result in the
appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that “[t]he Chairman and
the Commissioners shall be appointed x x x for a term of seven years without
reappointment.”(Emphasis supplied) There are four situations where this provision
will apply. The first situation is where an ad interim appointee to the COMELEC,
after confirmation by the Commission on Appointments, serves his full seven-year
term. Such person cannot be reappointed to the COMELEC, whether as a member or
as a chairman, because he will then be actually serving more than seven years. The
second situation is where the appointee, after confirmation, serves a part of his term
and then resigns before his seven-year term of office ends. Such person cannot be
reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven
years. The third situation is where the appointee is confirmed to serve the unexpired
term of someone who died or resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed, whether as a member or chair, to a
vacancy arising from retirement because a reappointment will result in the appointee
also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less
than seven years, and a vacancy arises from death or resignation. Even if it will not
result in his serving more than seven years, a reappointment of such person to serve
an unexpired term is also prohibited because his situation will be similar to those
appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution
whose terms of office are less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations applies to the
case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has
served any term of office as COMELEC member—whether for a full term of seven
years, a truncated term of five or three years, or even for an unexpired term of any
length of time—can no longer be reappointed to the COMELEC. Commissioner Foz
succinctly explained this intent in this manner:
“MR. FOZ. But there is the argument made in the concurring opinion of Justice
Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition
on reappointment applies only when the term or tenure is for seven years. But in
cases where the appointee serves only for less than seven years, he would be entitled
to reappointment. Unless we put the qualifying words “without reappointment” in
the case of those appointed, then it is possible that an interpretation could be made
later on their case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the
case of those first appointed under the Constitution, no reappointment can be
made.” (Emphasis supplied)
In Visarra vs. Miraflor, Justice Angelo Bautista, in his concurring opinion,
quoted Nacionalista vs. De Vera that a “[r]eappointment is not prohibited when a
Commissioner has held, office only for, say, three or six years, provided his term will
not exceed nine years in all.” This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC member “shall hold office for a
term of nine years and may not be reappointed.”
To foreclose this interpretation, the phrase “without reappointment” appears
twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase
prohibits reappointment of any person previously appointed for a term of seven
years. The second phrase prohibits reappointment of any person previously
appointed for a term of five or three years pursuant to the first set of appointees
under the Constitution. In either case, it does not matter if the person previously
appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the
Commission on Appointments does not constitute a term of office. The period from
the time the ad interim appointment is made to the time it lapses is neither a fixed
term nor an unexpired term. To hold otherwise would mean that the President by his
unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase “without reappointment” applies only to one who has been appointed
by the President and confirmed by the Commission on Appointments, whether or not
such person completes his term of office. There must be a confirmation by the
Commission on Appointments of the previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to absurdities and negate the
President’s power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to
act, for lack of time, on the ad interim appointments first issued to appointees. If
such ad interim appointments can no longer be renewed, the President will certainly
hesitate to make ad interimappointments because most of her appointees will
effectively be disapproved by mere inaction of the Commission on Appointments.
This will nullify the constitutional power of the President to make ad
interimappointments, a power intended to avoid disruptions in vital government
services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional
commissions. The framers of the present Constitution prohibited reappointments for
two reasons. The first is to prevent a second appointment for those who have been
previously appointed and confirmed even if they served for less than seven years. The
second is to insure that the members of the three constitutional commissions do not
serve beyond the fixed term of seven years. As reported in the Journal of the
Constitutional Commission, Commissioner Vicente B. Foz, who sponsored the
proposed articles on the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:
“Mr. Foz stated that the Committee had introduced basic changes in the common
provision affecting the three Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be automatically and regularly
released to the Commission in the same manner (as) provided for the Judiciary;
2) fixed term of office without reappointment on a staggered basis to ensure
continuity of functions and to minimize the opportunity of the President to appoint
all the members during his incumbency; 3) prohibition to decrease salaries of the
members of the Commissions during their term of office; and 4) appointments of
members would not require confirmation.”(Emphasis supplied)
There were two important amendments subsequently made by the Constitutional
Commission to these four features. First, as discussed earlier, the framers of the
Constitution decided to require confirmation by the Commission on Appointments of
all appointments to the constitutional commissions. Second, the framers decided
to strengthenfurther the prohibition on serving beyond the fixed seven-year term, in
the light of a former chair of the Commission on Audit remaining in office for 12
years despite his fixed term of seven years. The following exchange in the
deliberations of the Constitutional Commission is instructive:
“MR. SUAREZ: These are only clarificatory questions, Madam President. May I call
the sponsor’s attention, first of all, to Section 2 (2) on the Civil Service
Commission wherein it is stated: “In no case shall any Member be appointed in a
temporary or acting capacity.” I detect in the Committee’s proposed resolutions a
constitutional hangover, if I may use the term, from the past administration. Am
I correct in concluding that the reason the Committee introduced this particular
provision is to avoid an incident similar to the case of the Honorable Francisco
Tantuico who was appointed in an acting capacity as Chairman of the
Commission on Audit for about 5 years from 1975 until 1980, and then in 1980,
was appointed as Chairman with a tenure of another 7 years. So, if we follow that
appointment to (its) logical conclusion, he occupied that position for about 12
years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that
any member who is appointed to any of the commissions does not serve beyond
7 years.” (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition
reappointment in this manner:
“MR. MONSOD. If the (Commissioner) will read the whole Article, she will
notice that there is no reappointment of any kind and, therefore as a
whole there is no way that somebody can serve for more than seven
years. The purpose of the last sentence is to make sure that this does not
happen by including in the appointment both temporary and acting
capacities.” (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be
no reappointment of any kind. On the other hand, the prohibition on temporary or
acting appointments is intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointee’s total term of office exceeding seven
years. The evils sought to be avoided by the twin prohibitions are very specific—
reappointment of any kind and exceeding one’s term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the
Constitution tightened even further the screws on those who might wish to extend
their terms of office. Thus, the word “designated” was inserted to plug any loophole
that might be exploited by violators of the Constitution, as shown in the following
discussion in the Constitutional Commission:
“MR. DE LOS REYES: On line 32, between the words “appointed” and “in”, I propose
to insert the words OR DESIGNATED so that the whole sentence will read: “In no
case shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity.”
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: “In no
case shall any Member be appointed in a temporary or acting capacity.”
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that
some lawyers make a distinction between an appointment and a designation. The
Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think
his term exceeded the constitutional limit but the Minister of Justice opined that
it did not because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between
appointment and designation, we should specifically place the word so that there
will be no more ambiguity. “In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity.”
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The
Chair hears none; the amendment is approved.”
on
The ad interim appointments and subsequent renewals of appointments of
Benipayo, Borra and Tuason do not violate the prohibition on reappointments
because there were no previous appointments that were confirmed by the
Commission on Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of appointments will
also not breach the seven-year term limit because all the appointments and
renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008. Any delay in their confirmation will not extend the
expiry date of their terms of office. Consequently, there is no danger whatsoever that
the renewal of the ad interim appointments of these three respondents will result in
any of the evils intended to be exorcised by the twin prohibitions in the Constitution.
The continuing renewal of the ad interim appointment of these three respondents,
for so long as their terms of office expire on February 2, 2008, does not violate the
prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of
the EID and reassign her to the Law Department. Petitioner further argues that only
the COMELEC, acting as a collegial body, can authorize such reassignment.
Moreover, petitioner maintains that a reassignment without her consent amounts to
removal from office without due process and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any color of
title to the office of Chairman of the COMELEC. We have ruled, however, that
Benipayo is the de jure COMELEC Chairman, and consequently he has full authority
to exercise all the powers of that office for so long as his ad interim appointment
remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following
power:
“Section 7. Chairman as Executive Officer; Powers and Duties.The Chairman, who
shall be the Chief Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnelin accordance
with the provisions of the Civil Service Law.” (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered
on his own authority to transfer or reassign COMELEC personnel in accordance with
the Civil Service Law. In the exercise of this power, the Chairman is not required by
law to secure the approval of the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and
February 15, 2001, attached as Annexes “X”, “Y” and “Z” to her Petition, indisputably
show that she held her Director IV position in the EID only in
an acting or temporary capacity. Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission.
Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, this Court held that:
“As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person who
meets all the requirements for the position to which he is being appointed, including
the appropriate eligibility prescribed.’ Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and ‘at a moment’s notice’,
conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which
in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place, or
as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated x x x.’ ”
Having been appointed merely in a temporary or acting capacity, and not
possessed of the necessary qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her reassignment was contrary to the
Civil Service Law. This time, the vigorous argument of petitioner that a temporary or
acting appointment can be withdrawn or revoked at the pleasure of the appointing
power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period,
as a prohibited act under Section 261 (h) of the Omnibus Election Code, which
provides as follows:
“Section 261. Prohibited Acts.—The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service. Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
 service including public school teachers, within the election period except upon prior
approval of the Commission.”
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en
banc to effect transfers or reassignments of COMELEC personnel during the election
period. Moreover, petitioner insists that the COMELEC en banc must concur to every
transfer or reassignment of COMELEC personnel during the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC
Resolution No. 3300 dated November 6, 2000, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. The resolution states in part:
“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election
Code provides as follows:
xxx
Sec. 261. Prohibited Acts.—The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service—Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon
approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local
elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of
the Commission on Elections during the prohibited period in order that it can carry
out its constitutional duty to conduct free, orderly, honest, peaceful and credible
elections;
“NOW, THEREFORE, the Commission on Elections by virtue of the powers
conferred upon it by the Constitution, the Omnibus Election Code and other election
laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill new positions and transfer or
reassign its personnel, when necessary in the effective performance of its mandated
functions during the prohibited period, provided that the changes in the assignment
of its field personnel within the thirty-day period before election day shall be effected
after due notice and hearing.” (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing
before any transfer or reassignment can be made within thirty days prior to election
day, refers only to COMELEC field personnel and not to head office personnel like
the petitioner. Under the Revised Administrative Code, the COMELEC Chairman is
the sole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer
or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the COMELEC en banc will
have to approve every personnel transfer or reassignment, making the resolution
utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval
to effect transfers and reassignments of personnel, without need of securing a second
approval from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or
reassign COMELEC personnel. The person holding that office, in a de jurecapacity, is
Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the
transfer or reassignment of COMELEC personnel during the election period. Thus,
Benipayo’s order reassigning petitioner from the EID to the Law Department does
not violate Section 261 (h) of the Omnibus Election Code. For the same reason,
Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally
unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-
Charge of the Finance Services Department of the Commission on Elections, did not
act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo,
Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.
Petition dismissed.
Notes.—There can be no de facto officer where there is no de jure office, although
there may be a de facto officer in a de jure office. (Tuanda vs. Sandiganbayan, 249
SCRA 342 [1995])
An official who exercises the duties of an elective office under color of election
thereto cannot be considered a usurper, and it matters not that it was the trial court
and not the COMELEC that declared him as the winner. (Malaluan vs. Commission
on Elections, 254 SCRA 397[1996])

An ad interim appointment is used to denote the manner in which the

appointment is made—it is not descriptive of the nature of the appointment given to
the appointee. (Marohombsar vs. Court of Appeals, 326 SCRA 62 [2000])

——o0o——
 G.R. No. 143366. January 29, 2001.*
LUIS MARIO M. GENERAL, petitioner, vs. RAMON S. ROCO, respondent.
G.R. No. 143524. January 29, 2001.*
THE EXECUTIVE SECRETARY, SECRETARY OF TRANSPORTATION
AND COMMUNICATIONS, UNDERSECRETARY FOR STAFF SERVICES
OF THE DOTC and THE ASSISTANT SECRETARY FOR LAND
TRANSPORTATION, petitioners, vs. RAMON S. ROCO, respondent.
Administrative Law; Civil Service; Career Executive Service; Security of
Tenure; Requisites.—As clearly set forth in the foregoing provisions, two requisites must
concur in order that an employee in the career executive service may attain security of
tenure, to wit: a) CES eligibility; and b) Appointment to the appropriate CES rank.
Same; Same; Same; Same; The security of tenure of employees in the career
executive service (except first and second-level employees in the civil service), pertains
only to rank and not to the office or to the position to which they may be appointed.—It
must be stressed that the security of tenure of employees in the career executive service
(except first and second-level employees in the civil service), pertains only to rank and
not to the office or to the position to which they may be appointed. Thus, a career
executive service officer may be transferred or reassigned from one position to another
without losing his rank which follows him wherever he is transferred or reassigned. In
fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on the basis of the
position or office he occupies.
Same; Same; Same; The law allows appointment of those who are not CES
eligible, subject to the obtention of said eligibility.—Evidently, the law allows
appointment of those who are not CES eligible, subject to the obtention of said eligibility,
in the same manner that the appointment of respondent who does not possess the
required CES rank (CES rank level V) for the position of Regional Director of the LTO, is
permitted in a temporary capacity.
YNARES-SANTIAGO, J.:
Respondent Ramon S. Roco was appointed by then President Fidel V. Ramos on
August 26, 1996 as Regional Director of the Land Transportation Office (LTO) in
Region V, a position equivalent to CES rank level V. He forthwith began to assume
and discharge the duties and responsibilities of the said office. Subsequently, then
President Joseph E. Estrada re-appointed him to the same position on February 8,
1999. At the time of respondent’s appointment in 1996 and 1999, he was not a CES
eligible. However, during his incumbency, or on August 13, 1999, he was conferred
CES eligibility by the Career Executive Service Board.
On September 7, 1999, petitioner Luis Mario General, who is not a CES eligible,
was appointed by President Estrada as Regional Director of the LTO in Region V, the
same position being occupied by respondent. Pursuant thereto, DOTC
Undersecretary Herminio B. Coloma, Jr., as Officer-in-Charge of the Department,
issued a Memorandum directing petitioner General to assume the said office
immediately and for respondent Roco to report to the Office of the Secretary “for
further instructions.” Accordingly, petitioner General assumed office on September
16, 1999.
Aggrieved, respondent Roco filed before the Court of Appeals a petition for quo
warranto with prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order. The Court of Appeals issued a TRO enabling respondent
Roco to reassume the disputed office. After the lapse of 60 days, there being no writ
of preliminary injunction issued, petitioner General again assumed the said office.
On March 10, 2000, the Court of Appeals rendered a decision affirming the
appointment of respondent Roco to the Office of Regional Director of the LTO,
Region V, nullified the appointment of petitioner General and ordered him to vacate
the subject post in favor of respondent Roco. Upon motion of respondent Roco, the
Court of Appeals issued a writ of execution pending appeal.
From the Court of Appeals’ decision, two separate petitions for review under Rule
45 were filed before this Court. The first one, which was filed by General against
Roco, was docketed as G.R. No. 143366; while the second petition was filed by the
Solicitor General on behalf of the Executive Secretary, the Secretary, Undersecretary
and Assistant Secretary of the DOTC, also against Roco, and was docketed as G.R.
No. 143524. On June 26, 2000, the Court issued a Resolution in G.R. No.
143366 directing the parties to maintain the status quo ante. Both petitions were
later consolidated.
The thrust of respondent’s argument is that a career executive service (CES)
eligibility is all that an employee needs to acquire security of tenure in the service;
and that appointment to a CES rank is not necessary for the acquisition of such
security of tenure. On the other hand, petitioners in G.R. No. 143524 and G.R. No.
143366, claim that CES eligibility alone will not suffice. Petitioners contended that
unless and until an employee in the career executive service is appointed to the
appropriate CES rank, he acquires no security of tenure.
The petitions are impressed with merit.
 Section 27 (1), of the Civil Service Law (Subtitle A, Title I, Book V of E.O. No.
292), provides: Levels of Duties and Responsibilities Rank
Equivalent
(1) Permanent status.—A permanent appointment shall be issued to a person who
meets all the requirements for the position to which he is being appointed, including if comparable to that of an Assistant II
the appropriate eligibility prescribed, in accordance with the provisions of law, rules Secretary
and standards promulgated in pursuance thereof. if comparable to that of a Bureau Director, III
or a Department Regional Director
In the career executive service, the acquisition of security of tenure which
if comparable to that of an Assistant Bureau IV
presupposes a permanent appointment is governed by the rules and regulations
promulgated by the CES Board, thus: Director, Department Assistant Regional
Director or Department Service Chief
Career Executive Service Eligibility if comparable to that of Bureau Regional V
Director
Passing the CES examination entitles the examinee to a conferment of a CES
eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of if comparable to that of a Bureau Assistant VI
CES eligibility is done by the Board through a formal Board Resolution after an Regional Director
evaluation is done of the examinee’s performance in the four stages of the CES
eligibility examinations. As a general rule, a CES eligible will be recommended for appointment to the rank
xxx xxx xxx equivalent of the level of his managerial responsibility if his performance rating is
Satisfactory or higher. If the performance rating is Outstanding, he will be
Appointment to CES Rank recommended one rank higher than his level of managerial responsibility. (Emphasis
supplied)
Upon conferment of a CES eligibility and compliance with the other requirements
prescribed by the Board, an incumbent of a CES position may qualify for So also, pertinent provisions of the Integrated Reorganization Plan, read:
appointment to a CES rank. Appointment to a CES rank is made by the President
upon the recommendation of the Board. This process completes the official’s c. Appointment. Appointment to appropriate classes in the Career Executive
membership in the CES and most importantly, confers on him security of tenure in Service shall be made by the President from a list of career executive eligibles
the CES. recommended by the Board. Such appointments shall be made on the basis of rank;
provided that appointments to higher ranks which qualify the incumbents to
There are six (6) ranks in the CES ranking structure. The highest rank is that of a assignments as undersecretary and heads of bureaus and offices and equivalent
Career Executive Service Officer I (CESO I), while the lowest is that of CESO VI. positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a Career
The appropriate CESO rank to which a CES eligible may be appointed depends on Executive Service eligible; provided that such appointee shall subsequently take the
two major qualification criteria, namely: (1) level of managerial responsibility; and, required Career Executive Service examination and that he shall not be promoted to a
(2) performance. higher class until he qualifies in such examination.
xxx xxx xxx
Performance is determined by the official’s performance rating obtained in the e. Assignments, Reassignments and Transfers. Depending upon their ranks,
annual CESPES. On the other hand, managerial responsibility is based on the level of members of the Service shall be assigned to occupy positions of Undersecretary,
the general duties and responsibilities which an eligible is performing, as follows: Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Board on the basis of the members’
Levels of Duties and Responsibilities Rank functional expertise.
Equivalent
if level of managerial responsibilities are I
comparable to that of an Undersecretary
 As clearly set forth in the foregoing provisions, two requisites must concur in
order that an employee in the career executive service may attain security of tenure,
to wit:
1. CES eligibility; and
2. Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of employees in the
career executive service (except first and second-level employees in the civil service),
pertains only to rank and not to the office or to the position to which they may be
appointed. Thus, a career executive service officer may be transferred or reassigned
from one position to another without losing his rank which follows him wherever he
is transferred or reassigned. In fact, a CESO suffers no diminution of salary even if
assigned to a CES position with lower salary grade, as he is compensated according to
his CES rank and not on the basis of the position or office he occupies.
In the case at bar, there is no question that respondent Ramon S. Roco, though a
CES eligible, does not possess the appropriate CES rank, which is—CES rank level V,
for the position of Regional Director of the LTO (Region V). Falling short of one of
the qualifications that would complete his membership in the CES, respondent
cannot successfully interpose violation of security of tenure. Accordingly, he could be
validly reassigned to other positions in the career executive service. Thus,
in Achacoso v. Macaraig, the Court held that:
It is settled that a permanent appointment can be issued only “to a person who
meets all the requirement for the position to which he is being appointed, including
the appropriate eligibility prescribed.” Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and “at a moment’s notice,”
conformably to established jurisprudence.
xxx xxx xxx
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which
in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place or,
as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated.
Moreover, under the mobility and flexibility principles of the Integrated
Reorganization Plan, CES personnel may be reassigned or transferred from one
position to another, thus:
e. Assignments, Reassignments and Transferees . . .
Any provision of law to the contrary notwithstanding, members of the Career
Executive Service may be reassigned or transferred from one position to another and
from one department, bureau or office to another; provided that such reassignment
or transfer is made in the interest of public service and involves no reduction in rank
or salary; provided, further, that no member shall be reassigned or transferred
oftener than every two years; and provided, furthermore, that if the officer concerned
believes that his reassignment or transfer is not justified, he may appeal his case to
the President.
One last point. Respondent capitalizes on the fact that petitioner Luis Mario M.
General is not a CES eligible. The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated
Reorganization Plan—
“. . . the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the
required Career Executive Service examination and that he shall not be promoted to a
higher class until he qualified in such examination.”
Evidently, the law allows appointment of those who are not CES eligible, subject
to the obtention of said eligibility, in the same manner that the appointment of
respondent who does not possess the required CES rank (CES rank level V) for the
position of Regional Director of the LTO, is permitted in a temporary capacity.
WHEREFORE, the petition is GRANTED, and the March 10, 2000 Decision and
the June 9, 2000 Resolution of the Court of Appeals in CA-G.R. SP No. 55000, is SET
ASIDE. The petition for quo warranto and prohibition filed by respondent is hereby
DISMISSED. SO ORDERED.
Petition granted, judgment and resolution set aside. Petition for quo warranto
and prohibition dismissed.
Notes.—Every department and office in the Republic must know its place in the
scheme of the Constitution. The Civil Service Commission should recognize that its
acts are subject to reversal by the Supreme Court, which expects full compliance with
its decisions even if the Commission may not agree with them. (Lapinid vs. Civil
Service Commission, 197 SCRA 106 [1991])
The CSC is an agency within the purview of Sec. 37 of PD 807. (Enrique vs. Court
of Appeals, 229 SCRA 180[1994])
 The Merit System Protection Board was intended to be an office of the CSC, a part
of the internal structure and organization of the CSC, and thus a proper subject of
organizational change which the CSC is authorized to undertake under Sec. 17 of the
present Civil Service Law. (Rubenecia vs. Civil Service Commission, 244 SCRA
640[1995])

Security of tenure in the career executive service is thus acquired with respect to
rank and not to position. The guarantee of security of tenure to members of the CES
does not extend to the particular position to which they may be appointed—a concept
which is applicable only to first and second-level employees in the civil service—but
to the rank to which they are appointed by the President. (Cuevas vs. Bacal, 347
SCRA 338 [2000])

——o0o——
 A.M. No. 14155-Ret. November 19, 2013. *
RE: APPLICATION FOR SURVIVORSHIP PENSION BENEFITS UNDER
REPUBLIC ACT NO. 9946 OF MRS. PACITA A. GRUBA, SURVIVING SPOUSE OF
THE LATE MANUEL K. GRUBA, FORMER CTA ASSOCIATE JUDGE.
Retirement; Social Legislation; In general, retirement laws provide security to the
elderly who have given their prime years in employment whether in the private sector
or in government.―Retirement laws are social legislation. In general, retirement laws
provide security to the elderly who have given their prime years in employment whether
in the private sector or in government. These laws ensure the welfare of individuals who
are approaching their twilight years and have limited opportunities for productive
employment that give them a steady income stream. In the private sector, retirement
packages are usually crafted as “forced savings” on the part of the employee.
Same; In government, lucrative retirement benefits are used as an incentive
mechanism to encourage competent individuals to have careers in government.―In
government, lucrative retirement benefits are used as an incentive mechanism to
encourage competent individuals to have careers in government. This Court often states:
[R]etirement benefits receivable by public employees are valuable parts of the
consideration for entrance into and continuation in public office or employment. They
serve a public purpose and a primary objective in establishing them is to induce
competent persons to enter and remain in public employment and render
faithful and efficient service while so employed. (Emphasis supplied) Due to this
extraordinary purpose, the Constitution provides guidelines on periodically increasing
retirement benefits. On several occasions, this Court has liberally interpreted retirement
laws in keeping with its purpose. In Government Service Insurance System v. De Leon,
635 SCRA 321 (2010): Retirement laws, in particular, are liberally construed in favor of
the retiree because their objective is to provide for the retiree’s sustenance and,
hopefully, even comfort, when he no longer has the capability to earn a livelihood. The
liberal approach aims to achieve the humanitarian purposes of the law in order that
efficiency, security, and well-being of government employees may be enhanced. Indeed,
retirement laws are liberally construed and administered in favor of the persons intended
to be benefited, and all doubts are resolved in favor of the retiree to achieve their
humanitarian purpose.
Death Benefits; In order to minimize the adverse effects of unexpected deaths
while in service, the law extends benefits to the deceased employee’s loved ones. It is
also the law’s way of sympathizing with the loss of these families.―The law usually
takes into account the nature of the employment and the vulnerability of the individual to
risks that might lead to an early demise. Therefore, military personnel, by virtue of
Republic Acts No. 3056, 5976, and 541, and justices and judges, by virtue of Republic Act
No. 910 as amended by Republic Act No. 9946, are given generous death benefits. The
law recognizes the threats these kinds of government employees face because of their
positions. In order to minimize the adverse effects of unexpected deaths while in service,
the law extends benefits to the deceased employee’s loved ones. It is also the law’s way of
sympathizing with the loss of these families. Death benefits remind the heirs that despite
their loss, their departed love one had valuable contributions to society, and the State is
grateful for these contributions. These benefits also provide more incentive for the
independence of those who serve in the Judiciary. They allow peace of mind since
members of the Judiciary know that they could provide for their spouse and their
children even beyond their death.
Retirement; Disability Retirement; Retirement benefits are usually conditioned on
compliance with certain requirements. Common requirements include age and years in
service; An exception to compliance with age and service requirements is disability
retirement.―Retirement benefits are usually conditioned on compliance with certain
requirements. Common requirements include age and years in service. Upon reaching a
certain age and compliance with the years of service, an employee becomes entitled to
benefits by operation of law. An exception to compliance with age and service
requirements is disability retirement. It is still considered a form of retirement, but the
condition for compliance is not usually age or years in service. Disability retirement is
conditioned on the incapacity of the employee to continue his or her employment due to
involuntary causes such as illness or accident. The social justice principle behind
retirement benefits also applies to those who are forced to cease from service due to
disabilities beyond their control.
Same; Same; In line with the doctrine of liberal interpretation of retirement laws,
this Court has often construed death as disability retirement.―In line with the doctrine
of liberal interpretation of retirement laws, this Court has often construed death as
disability retirement. “[T]here is no more permanent or total physical disability than
death.” The term “retirement,” when used in a strict legal sense, refers to mandatory or
optional retirement. However, when used in a more general sense, “retire” may
encompass the concepts of both disability retirement and death. All of these concepts
involve events that happen to an employee beyond his or her control. In
case of mandatory or optional retirement, reaching a certain age due to
mere passage of time is beyond the control of the individual. In the case of
disability retirement and death, acquiring an illness or accident is beyond
the control of the individual.
Same; Same; Judges; Retiring due to physical disabilities is not far removed from
the situation involving death of a judge or justice.―Retiring due to physical disabilities
is not far removed from the situation involving death of a judge or justice. This explains
why retirement laws necessarily include death benefits. The gaps in the old law prompted
Congress to improve death benefits given to the heirs of deceased judges and justices.
Same; Same; Same; In 2010, Congress enacted Republic Act No. 9946, otherwise
known as An Act Granting Additional Retirement, Survivorship, and Other Benefits to
Members of the Judiciary, Amending for the Purpose Republic Act No. 910. Republic
Act No. 9946 introduced major innovations for retirement of the members of the
Judiciary.―In 2010, Congress enacted Republic Act No. 9946, otherwise known as An
Act Granting Additional Retirement, Survivorship, and Other Benefits to Members of
the Judiciary, Amending for the Purpose Republic Act No. 910. Republic Act No. 9946
introduced major innovations for retirement of the members of the Judiciary. The first
change made was the inclusion of additional allowances in the computation for monthly
pensions and gratuity payments. Second, the service requirement for compulsory and
optional retirement was modified. Under Republic Act No. 9946, only 15 years in the
Judiciary and any other branch of government are required. For optional retirement, the
last three (3) years must be rendered continuously in the Judiciary. The third major
innovation of the law is that noncompliance with the service requirement will entitle the
retiree to a monthly pension pro-rated to the number of years rendered in government.
The fourth major innovation is the benefits given to justices or judges who contracted
permanent disability or partial permanent disability during incumbency.
Same; Judges; Providing retroactivity to judges and justices who died while in
service conforms with the doctrine that retirement laws should be liberally construed
and administered in favor of persons intended to be benefited.―Providing retroactivity
to judges and justices who died while in service conforms with the doctrine that
retirement laws should be liberally construed and administered in favor of persons
intended to be benefited. “[T]he liberal approach aims to achieve the humanitarian
purposes of the law in order that the efficiency, security, and well-being of government
employees may be enhanced.” Ensuring the welfare of families dependent on government
employees is achieved in the changes made in Republic Act No. 9946. It will be
consistent with the humanitarian purposes of the law if the law is made retroactive to
benefit the heirs of judges and justices who passed away prior to the effectivity of
Republic Act No. 9946.
Same; Same; The first proviso of Section 3-B (“Provided, That the benefits shall be
applicable only to the members of the Judiciary”) should be interpreted to mean
individuals who were members of the Judiciary immediately prior to retirement,
disability retirement or death. This proviso is meant to exclude individuals who were
former members of the Judiciary but accepted positions in other branches of
government.―The first proviso of Section 3-B (“Provided, That the benefits shall be
applicable only to the members of the Judiciary”) should be interpreted to mean
individuals who were members of the Judiciary immediately prior to retirement,
disability retirement or death. This proviso is meant to exclude individuals who were
former members of the Judiciary but accepted positions in other branches of
government. In other words, former judges or justices who retire from non-judicial
positions are excluded. If this provisois interpreted to exclude benefits provided by the
law to heirs and surviving members, it will be contrary to the purpose of the law.
Same; Same; Survivorship Pensions; The last proviso of Section 3-B (“Provided,
further, That the benefits to be granted shall be prospective) refers to pensions given to
justices or judges or survivorship pension benefits given to the surviving spouses. It
means that those who have been continuously receiving pension benefits before
Republic Act No. 9946 may not demand the differential of the previously paid pension
benefits.―The last proviso of Section 3-B (“Provided, further, That the benefits to be
granted shall be prospective) might likewise cause some confusion. To clarify, when the
law states “benefits to be granted shall be prospective,” it refers to pensions given to
justices or judges or survivorship pension benefits given to the surviving spouses. It
means that those who have been continuously receiving pension benefits before Republic
Act No. 9946 may not demand the differential of the previously paid pension benefits.
This “prospectivity” provision does not apply to lump sum payments or one-time gratuity
benefits given by reasons of death.
Death Benefits; Judges; Republic Act No. 9946, Section 2 provides for death
benefits to justices or judges who died while in service as well as those who suffered
work-related deaths.―Under Republic Act No. 9946, Section 2 provides for death
benefits under varying circumstances: x x x This provision provides death benefits to
justices or judges who died while in service as well as those who suffered work-related
deaths. The presumption is that if a justice or judge was killed intentionally, the death is
considered work-related. The provision contemplates three scenarios. First, if a justice or
judge dies while in service, regardless of his or her age and length of service, his or her
heirs are entitled to a five (5)-year lump sum of gratuity. Second, if a justice or judge
dies of natural causes while in service, regardless of his or her age, but has rendered at
least 15 years in government service, his or her heirs are entitled to a 10-year lump sum
of gratuity. Finally, if a justice or judge is killed intentionallyand the death is considered
work-related, regardless of his or her age, but has rendered at least five (5) years in
government service, his or her heirs are entitled to a 10-year lump sum of gratuity.
Survivorship Pensions; Judges; Administrative Circular 81-2010 qualified that
“[t]he legitimate surviving spouse of a Justice or Judge who (1) has retired or was
eligible to retire optionally at the time of death; and (2) was receiving or would have
been entitled to receive a monthly pension” is the individual qualified to receive
survivorship benefits.―It was unfortunate that Judge Gruba died five years short of the
optional retirement age. However, survivorship benefits are an offshoot of retirement
benefits. Administrative Circular 81-2010 qualified that “[t]he legitimate surviving
spouse of a Justice or Judge who (1) has retired or was eligible to retire optionally at the
time of death; and (2) was receiving or would have been entitled to receive a monthly
pension” is the individual qualified to receive survivorship benefits. This suggests that
survivorship pension benefits are extensions of retirement benefits given to judges and
justices, and retirement benefits in government service are governed by law.
Noncompliance with the clear text of the law means that the benefit cannot be granted.
RESOLUTION
LEONEN, J.:
We stand in awe of death’s inevitability and tragic immutability, but we can
temper the effects of the law on those it leaves behind.
 This case involves a judge of the Court of Tax Appeals who died while in service.
He died at the age of 55 years, two (2) months, and six (6) days. He died prior to the
enactment of Republic Act No. 9946, which substantially amended the benefits
provided in Republic Act No. 910.
We are asked to decide whether the death gratuity benefits and the survivorship
pension benefits under Republic Act No. 9946 apply to this case.
We rule to grant death gratuity benefits.
Manuel K. Gruba (Judge Gruba) was born on April 19, 1941. He began his
government service on December 3, 1979 as Senior Revenue Executive Assistant I at
the Bureau of Internal Revenue. He rose from the ranks at the Bureau of Internal
Revenue until he was appointed as an Associate Judge of the Court of Tax Appeals on
September 17, 1992.
On June 25, 1996, Judge Gruba passed away. The cause of his death was natural
and was reported as brain stem/midbrain stroke, basilar artery thrombosis, embolic
event. He was 55 years old when he died. He was in government service for a total of
16 years, six (6) months, and 21 days. In those years, he rendered service for three (3)
years, nine (9) months, and eight (8) days in the Judiciary.
The surviving spouse of Judge Gruba, Mrs. Pacita A. Gruba (Mrs. Gruba), applied
for retirement/gratuity benefits under Republic Act No. 910.
In a Resolution dated September 24, 1996, this Court approved the application
filed by Mrs. Gruba. Per certification dated October 25, 2012 by the Court of Tax
Appeals’ Office of Administrative and Finance Services, the five-year lump sum
retirement benefit under Republic Act No. 910 was remitted to the Government
Service Insurance System effective June 26, 1996. A total of P1,486,500.00,
representing the five-year lump sum gratuity due to Judge Gruba, was paid to his
heirs.
On January 13, 2010, Congress amended Republic Act No. 910 and passed
Republic Act No. 9946. Republic Act No. 9946 provided for more benefits, including
survivorship pension benefits, among others. The law also provides a retroactivity
provision which states:
SEC. 3-B. The benefits under this Act shall be granted to all those who have
retired prior to the effectivity of this Act: Provided, That the benefits shall be
applicable only to the members of the Judiciary: Provided, further, That the
benefits to be granted shall be prospective.
On January 11, 2012, Mrs. Gruba applied for survivorship pension benefits under
Republic Act No. 9946. In a Resolution dated January 17, 2012, this Court approved
the application of Mrs. Gruba. She received P1,026,748.00 for survivorship pension
benefits from January 1, 2011 to April 2012.
In a Resolution dated November 27, 2012, this Court revoked the Resolution
dated January 17, 2012 and directed the Court of Tax Appeals to discontinue the
payment of the survivorship pension benefits to Mrs. Gruba. However, this Court
stated that Mrs. Gruba was not required to refund the survivorship pension benefits
received pursuant to the Resolution dated January 17, 2012.
This Court required the Office of the Chief Attorney to report on the matter. In a
Comment dated May 14, 2013, the Office of the Chief Attorney recommended that
the heirs of Judge Gruba be entitled to the 10-year lump sum death benefit under
Section 2 of Republic Act No. 910, as amended by Republic Act No. 9946.
This Resolution adopts in part the recommendation of the Office of the Chief
Attorney.
The issues for our resolution are the following: (1) whether Republic Act No. 9946
applies to Judge Gruba; (2) whether the heirs of Judge Gruba are entitled to the 10-
year lump sum gratuity benefits under Republic Act No. 9946; and (3) whether Mrs.
Gruba is entitled to survivorship pension benefits under the same law.
We decide the first two issues in favor of the heirs of Judge Gruba. However, we
deny the application for survivorship pension benefits of Mrs. Gruba.
The rationale for retirement benefits
Retirement laws are social legislation. In general, retirement laws provide security
to the elderly who have given their prime years in employment whether in the private
sector or in government. These laws ensure the welfare of individuals who are
approaching their twilight years and have limited opportunities for productive
employment that give them a steady income stream. In the private sector, retirement
packages are usually crafted as “forced savings” on the part of the employee.
In government, lucrative retirement benefits are used as an incentive mechanism
to encourage competent individuals to have careers in government. This Court often
states:
Retirement benefits receivable by public employees are valuable parts of the
consideration for entrance into and continuation in public office or employment.
They serve a public purpose and a primary objective in establishing them is to
 induce competent persons to enter and remain in public employment and
render faithful and efficient service while so employed. (Emphasis supplied)
Due to this extraordinary purpose, the Constitution provides guidelines on
periodically increasing retirement benefits. On several occasions, this Court has
liberally interpreted retirement laws in keeping with its purpose. In Government
Service Insurance System v. De Leon:
Retirement laws, in particular, are liberally construed in favor of the retiree
because their objective is to provide for the retiree’s sustenance and, hopefully, even
comfort, when he no longer has the capability to earn a livelihood. The liberal
approach aims to achieve the humanitarian purposes of the law in order that
efficiency, security, and well-being of government employees may be enhanced.
Indeed, retirement laws are liberally construed and administered in favor of the
persons intended to be benefited, and all doubts are resolved in favor of the retiree to
achieve their humanitarian purpose.
This general principle for retirement benefits applies to members of the Judiciary.
However, Congress made a special law specifically for retiring justices and judges.
This law on “retirement pensions of Justices arise from the package of protections
given by the Constitution to guarantee and preserve the independence of the
Judiciary.” Aside from guaranteeing judicial independence, a separate retirement law
for justices and judges is designed to attract intelligent members of the Bar to join
the Judiciary. It compensates for the opportunity cost of having profitable private
practices.
The rationale for death benefits
Aside from considering old age retirement benefits, the law also protects the
welfare of the heirs and surviving spouses of employees who die before or after
retirement. “The law extends survivorship benefits to the surviving and qualified
beneficiaries of the deceased member or pensioner to cushion the beneficiaries
against the adverse economic effects resulting from the death of the wage earner or
pensioner.”
The law usually takes into account the nature of the employment and the
vulnerability of the individual to risks that might lead to an early demise. Therefore,
military personnel, by virtue of Republic Acts No. 3056, 5976, and 541, and justices
and judges, by virtue of Republic Act No. 910 as amended by Republic Act No. 9946,
are given generous death benefits. The law recognizes the threats these kinds of
government employees face because of their positions. In order to minimize the
adverse effects of unexpected deaths while in service, the law extends benefits to the
deceased employee’s loved ones. It is also the law’s way of sympathizing with the loss
of these families. Death benefits remind the heirs that despite their loss, their
departed love one had valuable contributions to society, and the State is grateful for
these contributions. These benefits also provide more incentive for the independence
of those who serve in the Judiciary. They allow peace of mind since members of the
Judiciary know that they could provide for their spouse and their children even
beyond their death.
Retirement, disability retirement, and death as modes of terminating employment
Retirement benefits are usually conditioned on compliance with certain
requirements. Common requirements include age and years in service. Upon
reaching a certain age and compliance with the years of service, an employee
becomes entitled to benefits by operation of law.
An exception to compliance with age and service requirements is disability
retirement. It is still considered a form of retirement, but the condition for
compliance is not usually age or years in service. Disability retirement is conditioned
on the incapacity of the employee to continue his or her employment due to
involuntary causes such as illness or accident. The social justice principle behind
retirement benefits also applies to those who are forced to cease from service due to
disabilities beyond their control.
In line with the doctrine of liberal interpretation of retirement laws, this Court has
often construed death as disability retirement. “[T]here is no more permanent or
total physical disability than death.” The term “retirement,” when used in a strict
legal sense, refers to mandatory or optional retirement. However, when used in a
more general sense, “retire” may encompass the concepts of both disability
retirement and death. All of these concepts involve events that happen to
an employee beyond his or her control. In case of mandatory or
optional retirement, reaching a certain age due to mere passage of time
is beyond the control of the individual. In the case of disability
retirement and death, acquiring an illness or accident is beyond the
control of the individual.
In Re: Resolution Granting Automatic Permanent Total Disability Benefits to
Heirs of Justices and Judges, this Court rejected the Department of Budget and
Management’s insistence that “death while in actual service” and “retirement due to
permanent physical disability” are distinct and separate circumstances. In this case,
the Department of Budget and Management refused to release additional gratuity
benefits to judges on account that they died while in actual service without being able
to apply for permanent physical disability benefits. Since this case occurred prior to
the issuance of Republic Act No. 9946, there were gaps in the law. Gratuity payments
due to permanent physical disability were twice as much as gratuity payments caused
by death while in active service. This Court, in order to maximize the benefits given
to the heirs, treated death as retirement due to permanent physical disability. Hence,
we stated:
In Re: Retirement Benefits of the late City Judge Alejandro Galang, Jr., this
Court has had the occasion to construe Republic Act No. 910, particularly the phrase
“permanent physical disability” found in Section 2 thereof. There, this Court
considered death “while in actual service” to be encompassed by the phrase
“permanent physical disability.” For, as aptly pointed out by then Associate Justice
Claudio Teehankee in his concurring opinion in that case, “there is no more
permanent or total physical disability than death.”
When the law has gaps which tend to get in the way of achieving its purpose, thus
resulting in injustice, this Court is allowed to fill the open spaces therein.
Retiring due to physical disabilities is not far removed from the situation
involving death of a judge or justice. This explains why retirement laws necessarily
include death benefits. The gaps in the old law prompted Congress to improve death
benefits given to the heirs of deceased judges and justices.
Republic Act No. 9946 applies retroactively to those who died or were killed while
they were in government service
Republic Act No. 910 was enacted in 1954 to provide for retirement benefits of
justices of the Supreme Court and the Court of Appeals. Through various
amendments, the coverage of Republic Act No. 910 now includes justices of the
Sandiganbayan and the Court of Tax Appeals, as well as judges of the Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial
Court, Shari’a District Court, Shari’a Circuit Court, and any other court hereafter
established.
Republic Act No. 910 provides for two basic benefits: retirement and death
benefits.
The retirement benefits under Republic Act No. 910 may be availed in two ways.
One way is through compulsory retirement of a judge or justice by attaining the age
of 70 years old and complying with the service requirement of 20 years in the
Judiciary or any other government branch. The other way is through optional
retirement of a judge or justice by attaining the age of 57 years old and complying
with the service requirement of 20 years in government, the last 10 of which must be
continuously rendered in the Judiciary.
The optional retirement requirements were modified in Republic Act No. 5095.
To qualify for optional retirement under that law, a judge or justice must serve at
least 20 years in government, and the last five (5) years of service must be
continuously rendered in the Judiciary.
The death benefits under Republic Act No. 910 entitle the heirs of a deceased
justice or judge to a five-year lump sum of the salary the justice or judge was
receiving during the period of death. The five-year lump sum is conditioned on the
compliance with the service requirement of 20 years. Noncompliance with the
service requirement entitles the heirs only to a two-year lump sum.
In 2010, Congress enacted Republic Act No. 9946, otherwise known as An Act
Granting Additional Retirement, Survivorship, and Other Benefits to Members of
the Judiciary, Amending for the Purpose Republic Act No. 910. Republic Act No.
9946 introduced major innovations for retirement of the members of the Judiciary.
The first change made was the inclusion of additional allowances in the computation
for monthly pensions and gratuity payments. Second, the service requirement for
compulsory and optional retirement was modified. Under Republic Act No. 9946,
only 15 years in the Judiciary and any other branch of government are required. For
optional retirement, the last three (3) years must be rendered continuously in the
Judiciary. The third major innovation of the law is that noncompliance with the
service requirement will entitle the retiree to a monthly pension prorated to the
number of years rendered in government. The fourth major innovation is the benefits
given to justices or judges who contracted permanent disability or partial permanent
disability during incumbency.
The last two innovations of Republic Act No. 9946 are more relevant to this case
at bar. The fifth major innovation of Republic Act No. 9946 is the expansion of death
benefits given to the heirs of a deceased justice or judge. Finally, the law specifies
that pension benefits given under this law will be received by the surviving spouse of
the retired justice or judge upon the justice’s or judge’s demise. This last innovation
is the most important and the reason why the law was amended in the first place.
Republic Act No. 9946 provides for a retroactivity clause in Section 4, adding
Section 3-B to Republic Act No. 910:
SEC. 3-B. The benefits under this Act shall be granted to all those who
have retired prior to the effectivity of this Act: Provided, That the benefits shall be
applicable only to the members of the Judiciary: Provided, further, That the benefits
to be granted shall be prospective. (Emphasis supplied)
An initial look at the law might suggest that the retroactivity of Republic Act No.
9946 is limited to those who retired prior to the effectivity of the law. However, a
holistic treatment of the law will show that the set of amendments provided by
Republic Act No. 9946 is not limited to justices or judges who retired after reaching a
certain age and a certain number of years in service. The changes in the law also refer
to justices or judges who “retired” due to permanent disability or partial permanent
disability as well as justices or judges who died while in active service.
 In light of these innovations provided in the law, the word “retired” in Section 3-B
should be construed to include not only those who already retired under Republic Act
No. 910 but also those who retired due to permanent disability. It also includes
judges and justices who died or were killed while in service.
Providing retroactivity to judges and justices who died while in service conforms
with the doctrine that retirement laws should be liberally construed and
administered in favor of persons intended to be benefited. “[T]he liberal approach
aims to achieve the humanitarian purposes of the law in order that the efficiency,
security, and well-being of government employees may be enhanced.” Ensuring the
welfare of families dependent on government employees is achieved in the changes
made in Republic Act No. 9946. It will be consistent with the humanitarian purposes
of the law if the law is made retroactive to benefit the heirs of judges and justices who
passed away prior to the effectivity of Republic Act No. 9946.
Judge Gruba who passed away prior to the effectivity of Republic Act No. 9946 is
still covered by the law by virtue of Section 3-B. “Retired” here is not construed
in the strict dictionary definition but in its more rational sense of
discontinuance of service due to causes beyond one’s control. It should
include the cessation of work due to natural causes such as
death. Therefore, the death of Judge Gruba produces effects under Republic Act No.
9946 for his family.
In the past, this Court has liberally granted benefits to surviving heirs of deceased
members of the Judiciary despite incomplete compliance with the requisites of
Republic Act No. 910. Since there was a gap in the law, this Court’s Resolution dated
September 30, 2003 in Re: Resolution Granting Permanent Total Disability
Benefits to Heirs of Justices and Judges Who Die In Actual Service provided for
benefits of judges and justices who died in actual service but were not able to comply
with the age and service requirements stated in Republic Act No. 910. This
Resolution was incorporated in Republic Act No. 9946.
This Court also applied the survivorship pension benefits to surviving spouses of
justices and judges who died prior to the enactment of Republic Act No. 9946 in
2010. For example, Chief Justice Enrique M. Fernando passed away in 2004, but his
widow, Mrs. Emma Q. Fernando, was given survivorship pension benefits despite the
fact that Chief Justice Fernando’s death occurred prior to the enactment of Republic
Act No. 9946.
Congress has been liberal in according retirement and death benefits to justices
and judges. These benefits are incentives for talented individuals to join the
Judiciary. For current members, these benefits assure them that the government will
continue to ensure their welfare even in their twilight years. These benefits allow the
best and the brightest lawyers to remain in the Judiciary despite its risks because
they know that their family’s welfare will be addressed even in their passing.
The first proviso of Section 3-B (“Provided, That the benefits shall be applicable
only to the members of the Judiciary”) should be interpreted to mean individuals
who were members of the Judiciary immediately prior to retirement, disability
retirement or death. This proviso is meant to exclude individuals who were former
members of the Judiciary but accepted positions in other branches of government. In
other words, former judges or justices who retire from non-judicial positions are
excluded. If this proviso is interpreted to exclude benefits provided by the law to
heirs and surviving members, it will be contrary to the purpose of the law.
Representative Fredenil H. Castro, one of the sponsors of House Bill No. 1238, the
precursor of Republic Act No. 9946, “explained that the bill was aimed to assure
justices and judges ‘that their surviving spouse[s] are given adequate and substantial
benefits through survivorship pension.’ ” In addition, it will also be contrary to
jurisprudence stating “retirement laws should be liberally construed and
administered in favor of the persons intended to be benefited and all doubts as to the
intent of the law should be resolved in favor of the retiree to achieve its humanitarian
purposes.” Note that this Court referred to “persons intended to be benefited” and
not merely “retirees.” There is recognition that the retired or deceased judge is not
the only beneficiary of retirement and death benefit laws but also his or her family.
The last proviso of Section 3-B (“Provided, further, That the benefits to be
granted shall be prospective) might likewise cause some confusion. To clarify, when
the law states “benefits to be granted shall be prospective,” it refers to pensions given
to justices or judges or survivorship pension benefits given to the surviving spouses.
It means that those who have been continuously receiving pension benefits before
Republic Act No. 9946 may not demand the differential of the previously paid
pension benefits. This “prospectivity” provision does not apply to lump sum
payments or one-time gratuity benefits given by reasons of death.
The heirs of Judge Gruba are entitled to death gratuity benefits under Republic Act
No. 9946, Section 2
Under Republic Act No. 9946, Section 2 provides for death benefits under varying
circumstances:
SEC. 2. In case a Justice of the x x x Court of Tax Appeals, x x x dies while in
actual service, regardless of his/her age and length of service as required in Section 1
hereof, his/her heirs shall receive a lump sum of five (5) years’ gratuity computed on
the basis of the highest monthly salary plus the highest monthly aggregate of
transportation, representation and other allowances such as personal economic relief
allowance (PERA) and additional compensation allowance received by him/her as
 such Justice or Judge: Provided, however, That where the deceased Justice or
Judge has rendered at least fifteen (15) years either in the Judiciary or
any other branch of Government, or both, his/her heirs shall instead be
entitled to a lump sum of ten (10) years gratuity computed on the same
basis as indicated in this provision: Provided, further, That the lump sum of ten
(10) years gratuity shall be received by the heirs of the Justice or the Judge who was
killed because of his/her work as such: Provided, That the Justice or Judge has
served in Government for at least five (5) years regardless of age at the time of death.
When a Justice or Judge is killed intentionally while in service, the presumption is
that the death is work-related. (Emphasis supplied)
This provision provides death benefits to justices or judges who died while in
service as well as those who suffered work-related deaths. The presumption is that if
a justice or judge was killed intentionally, the death is considered work-related. The
provision contemplates three scenarios. First, if a justice or judge dies while in
service, regardless of his or her age and length of service, his or her heirs are entitled
to a five (5)-year lump sum of gratuity. Second, if a justice or judge dies of natural
causes while in service, regardless of his or her age, but has rendered at least 15 years
in government service, his or her heirs are entitled to a 10-year lump sum of
gratuity. Finally, if a justice or judge is killed intentionally and the death is
considered work-related, regardless of his or her age, but has rendered at least five
(5) years in government service, his or her heirs are entitled to a 10-year lump
sum of gratuity.
In all these scenarios, the law dispenses with the requirement of the judge’s or
justice’s retirement for the surviving heirs to receive benefits upon the judge’s or
justice’s demise. This is an improvement from the benefits given under Republic Act
No. 910. The law became more attuned to the reality that death can occur anytime
during the tenure of a judge or justice. It recognized the risks judges and justices face
in dispensing their duties and responsibilities, risks similar to those experienced by
members of law enforcement or the military. The law provides for contingencies for
judges and justices who unexpectedly left their loved ones who depended on them for
support and sustenance.
Judge Gruba’s death follows the second scenario under Section 2 of Republic Act
No. 9946. He died due to natural causes while serving the Judiciary. He rendered 16
years, six (6) months, and 21 days in government service, thereby complying with the
15-year service requirement under the law. His heirs became entitled to a lump sum
of 10 years gratuity computed on the basis of the highest monthly salary, plus the
highest monthly aggregate of transportation, representation, and other allowances
such as personal economic relief allowance (PERA) and additional compensation
allowance.
The fact that the heirs of Judge Gruba received death benefits under
Republic Act No. 910 prior to amendments in Republic Act No. 9946
does not preclude the heirs from receiving the 10-year lump sum in full.
This is the effect of the retroactivity mentioned in Section 3-B of
Republic Act No. 9946. This is also in keeping with a policy declaration
under Article XVI, Section 8 of the Constitution stating that “[the] State
shall, from time to time, review to upgrade the pensions and other
benefits due to retirees of both the government and the private sectors.”
However, Mrs. Gruba is not qualified for survivorship pension benefits under
Section 3 of Republic Act No. 9946
When Mrs. Gruba applied for benefits under Republic Act No. 9946, she was not
claiming additional gratuity benefits. She was invoking the second paragraph of
Section 3 of Republic Act No. 910 as amended by Republic Act No. 9946, thus:
Upon the death of a Justice or Judge of any court in the Judiciary, if such Justice
or Judge has retired, or was eligible to retire optionally at the time of death, the
surviving legitimate spouse shall be entitled to receive all the retirement benefits that
the deceased Justice or Judge would have received had the Justice or Judge not died.
The surviving spouse shall continue to receive such retirement benefits until the
surviving spouse’s death or remarriage.
According to Section 3 of Republic Act No. 9946, survivorship pension benefits
are given to surviving spouses of retired judges or justices or surviving spouses of
judges or justices who are eligible to retire optionally. This means that for the spouse
to qualify for survivorship pension, the deceased judge or justice must (1) be at least
60 years old, (2) have rendered at least fifteen years in the Judiciary or in any other
branch of government, and in the case of eligibility for optional retirement, (3) have
served the last three years continuously in the Judiciary.
When the judge or justice is neither retired nor eligible to retire, his or her
surviving spouse is not entitled to those benefits. This was the reason behind our
Resolution dated November 27, 2012, wherein we revoked the approval of Mrs.
Gruba’s application for survivorship pension benefits. The Resolution discontinued
the payment of Mrs. Gruba’s survivorship pension benefits. We no longer required
Mrs. Gruba to reimburse survivorship pension benefits received by virtue of the
earlier Resolution dated January 17, 2012 considering that she received those
payments in good faith.
Mrs. Gruba could have been entitled to survivorship pension benefits if her late
husband were eligible to optionally retire at the time of his death. However, we are
faced with a situation where the justice complied only with two of three requirements
for optional retirement. He served government for a total of 16 years, six (6) months,
and 21 days. In those years, he rendered service for three (3) years, nine (9) months,
and eight (8) days in the Judiciary.
Judge Gruba neither retired compulsorily prior to his death nor was he eligible for
optional retirement at the time of his death. He would have qualified for the
government service requirements. However, his age at the time of his death did not
make him qualified for optional retirement. He was only 55 years old, and the law
required the age of 60 for eligibility for optional retirement.
It was unfortunate that Judge Gruba died five years short of the optional
retirement age. However, survivorship benefits are an offshoot of retirement
benefits. Administrative Circular 81-2010 qualified that “[t]he legitimate surviving
spouse of a Justice or Judge who (1) has retired or was eligible to retire optionally at
the time of death; and (2) was receiving or would have been entitled to receive a
monthly pension” is the individual qualified to receive survivorship benefits. This
suggests that survivorship pension benefits are extensions of retirement benefits
given to judges and justices, and retirement benefits in government service are
governed by law. Noncompliance with the clear text of the law means that the benefit
cannot be granted.
We note, however, that if Judge Gruba were eligible to optionally retire under
Republic Act No. 9946 at the time of his death and despite the fact that he passed
away prior to the amendatory law’s passage, his widow would have been entitled to
the survivorship pension. The law was passed on January 13, 2010, and any surviving
spouse of a judge or justice who died prior to this date but was retired or eligible to
retire optionally should be covered by Republic Act No. 9946 by virtue of its
retroactivity clause.
Republic Act No. 9946 has recognized the risks and contingencies of being
involved in public service in the Judiciary. Death gratuity benefits have been
improved to take into account the various circumstances that might surround a
judge’s or justice’s death. However, the application of the law is not without limits.
The law accommodates the heirs of Judge Gruba by entitling them to receive the
improved gratuity benefits under Republic Act No. 9946, but it is clear that Mrs.
Gruba is not entitled to the survivorship pension benefits.
Despite the fact that Mrs. Gruba is not entitled to receive survivorship pension,
she no longer needs to return the survivorship pension benefits she received from
January 2011 to April 2012 amounting to P1,026,748.00. This Court, in the past,
have decided pro hac vice that a surviving spouse who received survivorship pension
benefits in good faith no longer needs to refund such pensions. In Re: Application
for Survivorship Pension Benefits of Hon. Juanito C. Ranjo, Former Deputy Court
Administrator (DCA), we initially resolved to award survivorship pension benefits to
DCA Ranjo’s surviving spouse, Mrs. Ranjo. In a latter Resolution, we ruled that DCA
Ranjo was not entitled to receive benefits under Republic Act No. 9946; hence, it was
erroneous to award survivorship pension benefits to his widow. However, this Court
ruled that the application of the resolution revoking survivorship pension benefits
“appl[ies] prospectively, not retroactively and adversely to [Mrs. Ranjo].” This Court
found that Mrs. Ranjo accepted this amount in good faith, and the same could be
said about Mrs. Gruba.
This Court has made similar pronouncements on other benefits erroneously
received by government employees. This Court agreed that employees who have
erroneously received rice allowances, productivity incentive bonuses, representation
and transportation allowances (RATA), anniversary bonuses, year-end bonuses, and
cash gifts no longer need to refund the same. The reasoning was that:
Considering, however, that all the parties here acted in good faith, we cannot
countenance the refund of x x x benefits x x x, which amounts the petitioners have
already received. Indeed, no indicia of bad faith can be detected under the attendant
facts and circumstances. The officials and chiefs of offices concerned disbursed such
incentive benefits in the honest belief that the amounts given were due to the
recipients and the latter accepted the same with gratitude, confident that they richly
deserve such benefits.
Analogously, when Mrs. Gruba received the survivorship pension benefits, she
accepted them in good faith, knowing that this Court positively pronounced that she
was entitled to them in the Resolution dated January 17, 2012. When we revoked this
Resolution, such revocation should only apply prospectively in the interest of equity
and fairness.
IN VIEW OF THE FOREGOING, WE RESOLVE TO GRANT a lump sum of 10
years gratuity benefits under Section 2 of Republic Act No. 9946 to the heirs of Judge
Gruba, subject to the availability of funds, and DENY the prayer of Mrs. Gruba to
receive survivorship pension benefits. SO ORDERED.
Notes.―In case of retirement, a justice or judge must show compliance with the
age and service requirements as provided in RA No. 910, as amended; Strict
compliance with the age and service requirements under the law is the rule and the
grant of exception remains to be on a case to case basis. (Re: Application for
Retirement of Judge Moslemen T. Macarambon Under Republic Act No. 910, as
amended by Republic Act No. 9946, 673 SCRA 602 [2012])
The payees who acquired the retirement benefits under the Government Service
Insurance System (GSIS) RFP, are considered as trustees of the disallowed amounts,
as although they committed no fraud in obtaining these benefits, it is against equity
and good conscience for them to continue holding on to them. (Government Service
Insurance System vs. Commission on Audit, 680 SCRA 376 [2012])
 A.C. No. 5688. June 4, 2009.*
FELIPE E. ABELLA, complainant, vs. ATTY. ASTERIA E. CRUZABRA,
respondent.
Legal Ethics; Attorneys; Notarial Law; Public Officers; The Register of Deeds
cannot issue to a subordinate any authorization for her to engage in the private
practice of a profession, such as getting commissioned as a notary public—the
employee must obtain the same from the Secretary of Justice who is the head of the
Department.—It is clear that when respondent filed her petition for commission as a
notary public, she did not obtain a written permission from the Secretary of the DOJ.
Respondent’s superior, the Register of Deeds, cannot issue any authorization because he
is not the head of the Department. And even assuming that the Register of Deeds
authorized her, respondent failed to present any proof of that written permission.
Respondent cannot feign ignorance or good faith because respondent filed her petition
for commission as a notary public after Memorandum Circular No. 17 was issued in 1986.
RESOLUTION
CARPIO, J.:
Felipe E. Abella (complainant) filed a complaint for violation of Canon 1 of the
Code of Professional Responsibility and Section 7(b)(2) of Republic Act No. 6713 (RA
6713) or the Code of Conduct and Ethical Standards for Public Officials and
Employees against Atty. Asteria E. Cruzabra (respondent). In his affidavit-
complaint dated 8 May 2002, complainant charged respondent with engaging in
private practice while employed in the government service.
Complainant alleged that respondent was admitted to the Philippine Bar on 30
May 1986 and was appointed as Deputy Register of Deeds of General Santos City on
11 August 1987. Complainant asserted that as Deputy Register of Deeds, respondent
filed a petition for commission as a notary public and was commissioned on 29
February 1988 without obtaining prior authority from the Secretary of the
Department of Justice (DOJ). Complainant claimed that respondent has notarized
some 3,000 documents. Complainant pointed out that respondent only stopped
notarizing documents when she was reprimanded by the Chief of the Investigation
Division of the Land Registration Authority.
Complainant contended that respondent could not justify her act by pretending to
be in good faith because even non-lawyers are not excused from ignorance of the law.
Complainant branded as incredible respondent’s claim that she was merely
motivated by public service in notarizing 3,000 documents. Complainant pointed out
that respondent spent money to buy the Notarial Register Books and spent hours
going over the documents subscribed before her, thereby prejudicing her efficiency
and performance as Deputy Register of Deeds. Complainant believed that even if
respondent had obtained authority from the DOJ, respondent would still be guilty of
violating Section 7(b)(2) of RA 6713 because her practice as a notary public conflicts
with her official functions.
In her Comment, respondent admitted that she was a notary public from 29
February 1988 to 31 December 1989. Respondent stated that she was authorized by
her superior, the Register of Deeds, to act as a notary public. Respondent pointed out
that the Register of Deeds, Atty. Pelagio T. Tolosa, also subscribed petitions and
documents that were required to be registered. Respondent explained that the
Register of Deeds imposed the following conditions for her application as a notary
public:
“4. That the application for commission was on the condition that respondent
cannot charge fees for documents required by the Office to be presented and under
oath.”
Respondent contended that when she filed her petition for commission as a
notary public, the requirement of approval from the DOJ Secretary was still the
subject of a pending query by one of the Registrars and this fact was not known to
respondent. Respondent maintained that she had no intention to violate any rule of
law. Respondent, as a new lawyer relying on the competence of her superior,
admitted that an honest mistake may have been committed but such mistake was
committed without willfulness, malice or corruption.
Respondent argued that she was not engaged in illegal practice as a notary public
because she was duly commissioned by the court. Respondent denied that she
violated Section 7(b)(2) of RA 6713 because she was authorized by her superior to act
as a notary public. Respondent reasoned that her being a notary public
complemented her functions as Deputy Register of Deeds because respondent could
immediately have documents notarized instead of the registrants going out of the
office to look for a notary public. Respondent added that she did not charge fees for
the documents required by the office to be presented under oath.
Respondent insisted that contrary to complainant’s claims, she only notarized 135
documents as certified by the Clerk of Court of the 11th Judicial Region, General
Santos City. In her Report and Recommendation (Report) dated 25 January 2005,
Investigating Commissioner Lydia A. Navarro recommended to the IBP Board of
Governors the dismissal of the complaint against respondent for lack of merit. The
Report reads in part:
“However, the fact that she applied for commission as Notary Public without
securing the approval of the proper authority although she was allowed to do so by
 her superior officer, was not her own undoing for having relied on the ample
authority of her superior officer, respondent being a neophyte in the law profession
for having newly passed the bar a year after at that time.
Records further showed that after having been reprimanded by Atty. Flestado for
said mistake which was done in good faith respondent ceased and desisted to
perform notarial work since then up to the present as could be gleaned from the
Certification issued by Clerk of Court VI Atty. Elmer D. Lastimosa of the 11th
Judicial Region, General Santos City; dated December 23, 2004 that 135 documents
have been notarized by the respondent from February 29, 1988 to December 31 1989
and there was no record of any notarized documents from January 19, 1990 to
December 21, 1991.”
In a Resolution dated 12 March 2005, the IBP Board of Governors, in adopting
and approving the Report, dismissed the case for lack of merit.
Complainant claims that in dismissing the complaint for “lack of merit” despite
respondent’s admission that she acted as a notary public for two years, the IBP Board
of Governors committed a serious error amounting to lack of jurisdiction or
authority.
Section 7(b)(2) of RA 6713 provides:
“Section 7. Prohibited Acts and Transactions.—In addition to acts and
omissions of public officials and employees now prescribed in the Constitution and
existing laws, the following shall constitute prohibited acts and transactions of any
public official and employee and are hereby declared to be unlawful:
xxx
(b)Outside employment and other activities related thereto.—Public officials and
employees during their incumbency shall not:
xxx
(2)  Engage in the private practice of their profession unless authorized by
the Constitution or law, provided, that such practice will not conflict or tend to
conflict with their official functions;”
Memorandum Circular No. 17 of the Executive Department allows government
employees to engage directly in the private practice of their profession provided there
is a written permission from the Department head. It provides:
“The authority to grant permission to any official or employee shall be granted by
the head of the ministry or agency in accordance with Section 12, Rule XVIII of the
Revised Civil Service Rules, which provides:
“Sec. 12. No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial, credit,
agricultural, or industrial undertaking without a written permission from
the head of Department; Provided, That this prohibition will be absolute in
the case of those officers and employees whose duties and responsibilities require
that their entire time be at the disposal of the Government: Provided, further,
That if an employee is granted permission to engage in outside activities, the time
so devoted outside of office hours should be fixed by the chief of the agency to the
end that it will not impair in any way the efficiency of the other officer or
employee: And provided, finally, That no permission is necessary in the case of
investments, made by an officer or employee, which do not involve any real or
apparent conflict between his private interests and public duties, or in any way
influence him in the discharge of his duties, and he shall not take part in the
management of the enterprise or become an officer or member of the board of
directors”,
Subject to any additional conditions which the head of the office deems
necessary in each particular case in the interest of the service, as expressed in the
various issuances of the Civil Service Commission.” (Boldfacing supplied)
It is clear that when respondent filed her petition for commission as a notary
public, she did not obtain a written permission from the Secretary of the DOJ.
Respondent’s superior, the Register of Deeds, cannot issue any authorization because
he is not the head of the Department. And even assuming that the Register of Deeds
authorized her, respondent failed to present any proof of that written permission.
Respondent cannot feign ignorance or good faith because respondent filed her
petition for commission as a notary public after Memorandum Circular No. 17 was
issued in 1986.
In Yumol, Jr. v. Ferrer, Sr., we suspended a lawyer employed in the Commission
on Human Rights (CHR) for failing to obtain a written authority and approval with a
duly approved leave of absence from the CHR. We explained:
“Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is
not a matter of right. Although the Commission allows CHR lawyers to engage in private
practice, a written request and approval thereof, with a duly approved leave of absence for
that matter are indispensable. In the case at bar, the record is bereft of any such written
request or duly approved leave of absence. No written authority nor approval of the practice
and approved leave of absence by the CHR was ever presented by respondent. Thus, he
cannot engage in private practice.
As to respondent’s act of notarizing documents, records show that he applied for
commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of
San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M.
Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary
public only on 29 October 2001. Considering the acts of notarization are within the ambit of
the term “practice of law,” for which a prior written request and approval by the CHR to
engage into it are required, the crucial period to be considered is the approval of the CHR on
29 October 2001 and not the approval of the RTC on 04 December 2000.”
 In Muring, Jr. v. Gatcho, we suspended a lawyer for having filed petitions for
commission as a notary public while employed as a court attorney. We held:

“Atty. Gatcho should have known that as a government lawyer, he was prohibited
from engaging in notarial practice, or in any form of private legal practice for that
matter. Atty. Gatcho cannot now feign ignorance or good faith, as he did not seek to
exculpate himself by providing an explanation for his error. Atty. Gatcho’s filing of
the petition for commission, while not an actual engagement in the practice of law,
appears as a furtive attempt to evade the prohibition.”

Under the Uniform Rules on Administrative Cases in the Civil Service, engaging
in the private practice of profession, when unauthorized, is classified as a light
offense punishable by reprimand.
Wherefore, we find Atty. Asteria E. Cruzabra guilty of engaging in notarial
practice without the written authority from the Secretary of the Department of
Justice, and accordingly we REPRIMAND her. She is warned that a repetition of the
same or similar act in the future shall merit a more severe sanction. SO ORDERED.

Note.—A punong barangay who is also a lawyer should obtain the prior written
permission of the Secretary of Interior and Local Government before he enters his
appearance as counsel for any party, and his failure to comply with Section 12, Rule
XVIII of the Revised Civil Service Rules constitutes a violation of his oath as a lawyer
—to obey the laws. (Catu vs. Rellosa, 546 SCRA 209 [2008])
——o0o——

A.C. No. 5738. February 19, 2008.*
WILFREDO M. CATU, complainant, vs. ATTY. VICENTE G. RELLOSA,
respondent.
Legal Ethics; Attorneys; Rule 6.03 of the Code of Professional Responsibility
applies only to a lawyer who has left government service and in connection “with any
matter in which he intervened while in said service.”—Respondent cannot be found
liable for violation of Rule 6.03 of the Code of Professional Responsibility. As worded,
that Rule applies only to a lawyer who has left government service and in connection
“with any matter in which he intervened while in said service.” In PCGG v.
Sandiganbayan, 455 SCRA 526 (2005) we ruled that Rule 6.03 prohibits former
government lawyers from accepting “engagement or employment in connection with
any matter in which [they] had intervened while in said service.” Respondent was an
incumbent punong barangay at the time he committed the act complained of. Therefore,
he was not covered by that provision.
Same; Same; Local Government Code (R.A. No. 7160); The Code of Conduct and
Ethical Standards for Public Officials and Employees (R.A. 6713); Section 90 of R.A.
7160, not Section 7(B)(2) of R.A. 6713, governs the practice of profession of elective local
officials.—Section 7(b)(2) of RA 6713 prohibits public officials and employees, during
their incumbency, from engaging in the private practice of their profession “unless
authorized by the Constitution or law, provided that such practice will not conflict or
tend to conflict with their official functions.” This is the general law which applies to all
public officials and employees. For elective local government officials, Section 90 of RA
7160 governs: x x x This is a special provision that applies specifically to the practice of
profession by elective local officials. As a special law with a definite scope (that is, the
practice of profession by elective local officials), it constitutes an exception to Section
7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by
public officials and employees. Lex specialibus derogate generalibus.
Same; Same; Same; Unlike governors, city mayors and municipal mayors,
members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang
bayan are required to hold regular sessions only at least once a week, and since the law
itself grants them the authority to practice their professions, engage in any occupation
or teach in schools outside session hours, there is no longer any need for them to secure
prior permission or authorization from any other person or office for any of these
purposes.—Of these elective local officials, governors, city mayors and municipal mayors
are prohibited from practicing their profession or engaging in any occupation other than
the exercise of their functions as local chief executives. This is because they are required
to render full time service. They should therefore devote all their time and attention to
the performance of their official duties. On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang bayanmay practice their
professions, engage in any occupation, or teach in schools except during session hours. In
other words, they may practice their professions, engage in any occupation, or teach in
schools outside their session hours. Unlike governors, city mayors and municipal mayors,
members of the sangguniang panlalawigan, sangguniang panlungsod or sangguniang
bayanare required to hold regular sessions only at least once a week. Since the law itself
grants them the authority to practice their professions, engage in any occupation or teach
in schools outside session hours, there is no longer any need for them to secure prior
permission or authorization from any other person or office for any of these purposes.
Same; Same; Same; Civil Service; Public Officers; A punong barangay is not
forbidden to practice his profession but he should procure prior permission or
authorization from the head of his Department, as required by civil service regulations.
—Certain local elective officials (like governors, mayors, provincial board members and
councilors) are expressly subjected to a total or partial proscription to practice their
profession or engage in any occupation, no such interdiction is made on the punong
barangayand the members of the sangguniang barangay. Expressio unius est exclusio
alterius. Since they are excluded from any prohibition, the presumption is that they are
allowed to practice their profession. And this stands to reason because they are not
mandated to serve full time. In fact, the sangguniang barangay is supposed to hold
regular sessions only twice a month. Accordingly, as punong barangay, respondent was
not forbidden to practice his profession. However, he should have procured prior
permission or authorization from the head of his Department, as required by civil service
regulations.
Same; Same; Same; Same; Same; A punong barangay who is also a lawyer
should obtain the prior written permission of the Secretary of Interior and Local
Government before he enters his appearance as counsel for any party, and his failure to
comply with Section 12, Rule XVIII of the Revised Civil Service Rules constitutes a
violation of his oath as a lawyer—to obey the laws; Lawyers are servants of the law,
vires legis, men of the law.—As punong barangay, respondent should have therefore
obtained the prior written permission of the Secretary of Interior and Local Government
before he entered his appearance as counsel for Elizabeth and Pastor. This he failed to
do. The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil
Service Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are
servants of the law, vires legis, men of the law. Their paramount duty to society is to obey
the law and promote respect for it. To underscore the primacy and importance of this
duty, it is enshrined as the first canon of the Code of Professional Responsibility. In
acting as counsel for a party without first securing the required written permission,
respondent not only engaged in the unauthorized practice of law but also violated civil
service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:
Rule 1.01—A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct. (emphasis supplied)
Same; Same; Same; Same; Same; A lawyer who disobeys the law disrespects it.—
For not living up to his oath as well as for not complying with the exacting ethical
standards of the legal profession, respondent failed to comply with Canon 7 of the Code
of Professional Responsibility: CANON 7. A LAWYER SHALL AT ALL TIMES
UPHOLD THE INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
(emphasis supplied) Indeed, a lawyer who disobeys the law disrespects it. In so doing, he
disregards legal ethics and disgraces the dignity of the legal profession.
RESOLUTION
CORONA, J.:
Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected
thereon located at 959 San Andres Street, Malate, Manila. His mother and brother,
Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-
Catu and Antonio Pastor of one of the units in the building. The latter ignored
demands for them to vacate the premises. Thus, a complaint was initiated against
them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of
Manila where the parties reside.
Respondent, as punong barangay of Barangay 723, summoned the parties to
conciliation meetings. When the parties failed to arrive at an amicable settlement,
respondent issued a certification for the filing of the appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth
and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent entered
his appearance as counsel for the defendants in that case. Because of this,
complainant filed the instant administrative complaint, claiming that respondent
committed an act of impropriety as a lawyer and as a public officer when he stood as
counsel for the defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay.
In his defense, respondent claimed that one of his duties as punong
barangay was to hear complaints referred to the barangay’s Lupong
Tagapamayapa. As such, he heard the complaint of Regina and Antonio against
Elizabeth and Pastor. As head of the Lupon, he performed his task with utmost
objectivity, without bias or partiality towards any of the parties. The parties,
however, were not able to amicably settle their dispute and Regina and Antonio filed
the ejectment case. It was then that Elizabeth sought his legal assistance. He acceded
to her request. He handled her case for free because she was financially distressed
and he wanted to prevent the commission of a patent injustice against her.
The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. As there was no factual issue to thresh
out, the IBP’s Commission on Bar Discipline (CBD) required the parties to submit
their respective position papers. After evaluating the contentions of the parties, the
IBP-CBD found sufficient ground to discipline respondent.
According to the IBP-CBD, respondent admitted that, as punong barangay, he
presided over the conciliation proceedings and heard the complaint of Regina and
Antonio against Elizabeth and Pastor. Subsequently, however, he represented
Elizabeth and Pastor in the ejectment case filed against them by Regina and Antonio.
In the course thereof, he prepared and signed pleadings including the answer with
counterclaim, pre-trial brief, position paper and notice of appeal. By so doing,
respondent violated Rule 6.03 of the Code of Professional Responsibility:
“Rule 6.03—A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he intervened
while in said service.”
Furthermore, as an elective official, respondent contravened the prohibition
under Section 7(b)(2) of RA 6713:
“SEC. 7. Prohibited Acts and Transactions.—In addition to acts and omissions
of public officials and employees now prescribed in the Constitution and existing
laws, the following shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be unlawful:
x x x   x x x   x x x
(b) Outside employment and other activities related thereto.—Public
officials and employees during their incumbency shall not:
x x x  x x x  x x x
(2) Engage in the private practice of profession unless authorized by
the Constitution or law, provided that such practice will not conflict or tend to
conflict with their official functions;” (emphasis supplied)
According to the IBP-CBD, respondent’s violation of this prohibition constituted a
breach of Canon 1 of the Code of Professional Responsibility:
CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE
LAWS OF THE LAND,PROMOTE RESPECT FOR LAW AND LEGAL
PROCESSES. (emphasis supplied)
For these infractions, the IBP-CBD recommended the respondent’s suspension
from the practice of law for one month with a stern warning that the commission of
the same or similar act will be dealt with more severely. This was adopted and
approved by the IBP Board of Governors.
We modify the foregoing findings regarding the transgression of respondent as
well as the recommendation on the imposable penalty.
RULE 6.03 OF THE CODE OF PROFESSIONAL RESPONSIBILITY APPLIES ONLY
TO FORMER GOVERNMENT LAWYERS
Respondent cannot be found liable for violation of Rule 6.03 of the Code of
Professional Responsibility. As worded, that Rule applies only to a lawyer who
has left government service and in connection “with any matter in which he
intervened while in said service.” In PCGG v. Sandiganbayan, we ruled that Rule
6.03 prohibits former government lawyersfrom accepting “engagement or
employment in connection with any matter in which [they] had intervened while in
said service.”
Respondent was an incumbent punong barangay at the time he committed the
act complained of. Therefore, he was not covered by that provision.
SECTION 90 OF RA 7160, NOT SECTION 7(b)(2) OF RA 6713, GOVERNS THE
PRACTICE OF PROFESSION OF ELECTIVE LOCAL GOVERNMENT OFFICIALS
Section 7(b)(2) of RA 6713 prohibits public officials and employees, during their
incumbency, from engaging in the private practice of their profession “unless
authorized by the Constitution or law, provided that such practice will not conflict or
tend to conflict with their official functions.” This is the general law which applies to
all public officials and employees.
For elective local government officials, Section 90 of RA 7160 governs:
“SEC. 90. Practice of Profession.—(a) All governors, city and municipal
mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours: Provided,
That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a local government
unit or any office, agency, or instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or employee of the
national or local government is accused of an offense committed in relation to his
office;
(3) Collect any fee for their appearance in administrative proceedings involving the
local government unit of which he is an official; and
(4) Use property and personnel of the Government except when
the sanggunian member concerned is defending the interest of the Government.
(c) Doctors of medicine may practice their profession even during official hours
of work only on occasions of emergency: Provided, That the officials concerned do
not derive monetary compensation therefrom.”
This is a special provision that applies specifically to the practice of profession by
elective local officials. As a special law with a definite scope (that is, the practice of
profession by elective local officials), it constitutes an exception to Section 7(b)(2) of
RA 6713, the general law on engaging in the private practice of profession by public
officials and employees. Lex specialibus derogat generalibus.
Under RA 7160, elective local officials of provinces, cities, municipalities
and barangays are the following: the governor, the vice governor and members of
the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor
and the members of the sangguniang panlungsod for cities; the municipal mayor,
the municipal vice mayor and the members of the sangguniang bayan for
municipalities and the punong barangay, the members of the sangguniang
barangay and the members of the sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors and municipal mayors are
prohibited from practicing their profession or engaging in any occupation other than
the exercise of their functions as local chief executives. This is because they are
required to render full time service. They should therefore devote all their time and
attention to the performance of their official duties.
On the other hand, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours. In other words, they may
practice their professions, engage in any occupation, or teach in schools outside their
session hours. Unlike governors, city mayors and municipal mayors, members of
the sangguniang panlalawigan, sangguniang panlungsod or sangguniang
bayan are required to hold regular sessions only at least once a week. Since the law
itself grants them the authority to practice their professions, engage in any
occupation or teach in schools outside session hours, there is no longer any need for
them to secure prior permission or authorization from any other person or office for
any of these purposes.
While, as already discussed, certain local elective officials (like governors, mayors,
provincial board members and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any occupation, no such
interdiction is made on the punong barangay and the members of the sangguniang
barangay. Expressio unius est exclusio alterius. Since they are excluded from any
prohibition, the presumption is that they are allowed to practice their profession.
And this stands to reason because they are not mandated to serve full time. In fact,
the sangguniang barangay is supposed to hold regular sessions only twice a month.
 Accordingly, as punong barangay, respondent was not forbidden to practice his
profession. However, he should have procured prior permission or authorization
from the head of his Department, as required by civil service regulations.
A Lawyer In Government Service Who Is Not Prohibited To Practice
Law Must Secure Prior Authority From The Head Of His Department
A civil service officer or employee whose responsibilities do not require his time to
be fully at the disposal of the government can engage in the private practice of law
only with the written permission of the head of the department concerned. Section
12, Rule XVIII of the Revised Civil Service Rules provides:
“Sec. 12. No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial, credit,
agricultural, or industrial undertaking without a written permission from the
head of the Department: Provided, That this prohibition will be absolute in the
case of those officers and employees whose duties and responsibilities require that
their entire time be at the disposal of the Government; Provided, further, That if an
employee is granted permission to engage in outside activities, time so devoted
outside of office hours should be fixed by the agency to the end that it will not impair
in any way the efficiency of the officer or employee: And provided, finally, that no
permission is necessary in the case of investments, made by an officer or employee,
which do not involve real or apparent conflict between his private interests and
public duties, or in any way influence him in the discharge of his duties, and he shall
not take part in the management of the enterprise or become an officer of the board
of directors.” (emphasis supplied)
As punong barangay, respondent should have therefore obtained the prior
written permission of the Secretary of Interior and Local Government before he
entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.
The failure of respondent to comply with Section 12, Rule XVIII of the Revised
Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws.
Lawyers are servants of the law, vires legis, men of the law. Their paramount duty to
society is to obey the law and promote respect for it. To underscore the primacy and
importance of this duty, it is enshrined as the first canon of the Code of Professional
Responsibility.
In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of law but also
violated civil service rules which is a breach of Rule 1.01 of the Code of Professional
Responsibility:
“Rule 1.01—A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.” (emphasis supplied)
For not living up to his oath as well as for not complying with the exacting ethical
standards of the legal profession, respondent failed to comply with Canon 7 of the
Code of Professional Responsibility:
CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY
AND THE DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES
OF THE INTEGRATED BAR.” (emphasis supplied)
Indeed, a lawyer who disobeys the law disrespects it. In so doing, he disregards
legal ethics and disgraces the dignity of the legal profession.
Public confidence in the law and in lawyers may be eroded by the irresponsible
and improper conduct of a member of the bar. Every lawyer should act and comport
himself in a manner that promotes public confidence in the integrity of the legal
profession.
A member of the bar may be disbarred or suspended from his office as an attorney
for violation of the lawyer’s oath and/or for breach of the ethics of the legal
profession as embodied in the Code of Professional Responsibility.
WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of
professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and
Rule 1.01 of the Code of Professional Responsibility. He is therefore SUSPENDED
from the practice of law for a period of six months effective from his receipt of this
resolution. He is sternly WARNED that any repetition of similar acts shall be dealt
with more severely.
Respondent is strongly advised to look up and take to heart the meaning of the
word delicadeza.
Let a copy of this resolution be furnished the Office of the Bar Confidant and
entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the
Court Administrator shall furnish copies to all the courts of the land for their
information and guidance. SO ORDERED.
Atty. Vicente G. Rellosa suspended from practice of law for six (6) months for
professional misconduct for violating his oath as a lawyer and canons 1 and 7 and
Rule 1.01 of Code of Professional Responsibility.
 G.R. No. 196231. September 4, 2012.*
EMILIO A. GONZALES III, petitioner, vs. OFFICE OF THE PRESIDENT OF THE
PHILIPPINES, acting through and represented by EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE SECRETARY JOSE
AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, and ATTY. CARLITO D. CATAYONG, respondents.
G.R. No. 196232. September 4, 2012.*
WENDELL BARRERAS-SULIT, petitioner, vs. ATTY. PAQUITO N. OCHOA, JR.,
in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT,
ATTY. DENNIS F. ORTIZ, ATTY. CARLO D. SULAY and ATTY. FROILAN D.
MONTALBAN, JR., in their capacities as CHAIRMAN and MEMBERS of the
OFFICE OF MALACAÑANG LEGAL AFFAIRS, respondents.
Ombudsman; Administrative Law; While Section 21 of the Ombudsman Act of
1989 (R.A. No. 6770) declares the Ombudsman’s disciplinary authority over all
government officials, Section 8(2), on the other hand, grants the President express
power of removal over a Deputy Ombudsman and a Special Prosecutor.—While the
Ombudsman’s authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those
officials removable by impeachment, the members of congress and the judiciary, such
authority is by no means exclusive. Petitioners cannot insist that they should be solely
and directly subject to the disciplinary authority of the Ombudsman. For, while Section
21 declares the Ombudsman’s disciplinary authority over all government officials,
Section 8(2), on the other hand, grants the President express power of removal over a
Deputy Ombudsman and a Special Prosecutor.
Statutory Construction; A construction that would render a provision inoperative
should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.—It is a basic canon
of statutory construction that in interpreting a statute, care should be taken that every
part thereof be given effect, on the theory that it was enacted as an integrated measure
and not as a hodge-podge of conflicting provisions. A construction that would render a
provision inoperative should be avoided; instead, apparently inconsistent provisions
should be reconciled whenever possible as parts of a coordinated and harmonious whole.
Otherwise stated, the law must not be read in truncated parts. Every part thereof must be
considered together with the other parts, and kept subservient to the general intent of the
whole enactment.
Ombudsman; Administrative Law; The Ombudsman is possessed of jurisdiction to
discipline his own people and mete out administrative sanctions upon them, including
the extreme penalty of dismissal from the service. However, it is equally without
question that the President has concurrent authority with respect to removal from
office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions.—Unquestionably, the Ombudsman is possessed of jurisdiction to discipline
his own people and mete out administrative sanctions upon them, including the extreme
penalty of dismissal from the service. However, it is equally without question that the
President has concurrent authority with respect to removal from office of the Deputy
Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the
principles attending concurrence of jurisdiction where the Office of the President was the
first to initiate a case against petitioner Gonzales, prudence should have prompted the
Ombudsman to desist from proceeding separately against petitioner through its Internal
Affairs Board, and to defer instead to the President’s assumption of authority, especially
when the administrative charge involved “demanding and soliciting a sum of money”
which constitutes either graft and corruption or bribery, both of which are grounds
reserved for the President’s exercise of his authority to remove a Deputy Ombudsman.
Presidency; Power to Remove; As a general rule, all officers appointed by the
President are also removable by him except when the law expressly provides otherwise
—that is, when the power to remove is expressly vested in an office or authority other
than the appointing power.—Under the doctrine of implication, the power to appoint
carries with it the power to remove. As a general rule, therefore, all officers appointed by
the President are also removable by him. The exception to this is when the law expressly
provides otherwise—that is, when the power to remove is expressly vested in an office or
authority other than the appointing power. In some cases, the Constitution expressly
separates the power to remove from the President’s power to appoint. Under Section 9,
Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme
Court may be removed after impeachment proceedings initiated by Congress (Section 2,
Article XI), while judges of lower courts may be removed only by the Supreme Court by
virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article
VIII). The Chairpersons and Commissioners of the Civil Service Commission [Section
1(2), Article IX(B)], the Commission on Elections [Section 1(2), Article IX(C)], and the
Commission on Audit [Section 1(2), Article IX(D)] shall likewise be appointed by the
President, but they may be removed only by impeachment (Section 2, Article XI). As
priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).
Constitutional Law; Deputy Ombudsman; Ombudsman Act of 1989 (R.A. No.
6770); Impeachment; Paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy
Ombudsman may be removed from office for the same grounds that the Ombudsman
may be removed through impeachment, namely, “culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. ”—
Being aware of the constitutional imperative of shielding the Office of the Ombudsman
from political influences and the discretionary acts of the executive, Congress laid down
two restrictions on the President’s exercise of such power of removal over a Deputy
Ombudsman, namely: (1) that the removal of the Deputy Ombudsman must be for any of
the grounds provided for the removal of the Ombudsman and (2) that there must be
observance of due process. Reiterating the grounds for impeachment laid down in
Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of R.A. No. 6770
states that the Deputy Ombudsman may be removed from office for the same grounds
that the Ombudsman may be removed through impeachment, namely, “culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes,
or betrayal of public trust.” Thus, it cannot be rightly said that giving the President the
power to remove a Deputy Ombudsman, or a Special Prosecutor for that matter, would
diminish or compromise the constitutional independence of the Office of the
Ombudsman. It is, precisely, a measure of protection of the independence of the
Ombudsman’s Deputies and Special Prosecutor in the discharge of their duties that their
removal can only be had on grounds provided by law.
Remedial Law; Civil Procedure; Appeals; Administrative decisions in matters
within the executive jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud, or error of law.—The invariable rule is that administrative decisions in
matters within the executive jurisdiction can only be set aside on proof of gross abuse of
discretion, fraud, or error of law. In the instant case, while the evidence may show some
amount of wrongdoing on the part of petitioner, the Court seriously doubts the
correctness of the OP’s conclusion that the imputed acts amount to gross neglect of duty
and grave misconduct constitutive of betrayal of public trust. To say that petitioner’s
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public
trust would be to ignore the significance of the legislature’s intent in prescribing the
removal of the Deputy Ombudsman or the Special Prosecutor for causes that,
theretofore, had been reserved only for the most serious violations that justify the
removal by impeachment of the highest officials of the land.618
Constitutional Law; Impeachment; Betrayal of Public Trust; Words and Phrases;
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution
added to the existing grounds of culpable violation of the Constitution, treason, bribery,
graft and corruption and other high crimes.—Betrayal of public trust is a new ground for
impeachment under the 1987 Constitution added to the existing grounds of culpable
violation of the Constitution, treason, bribery, graft and corruption and other high
crimes. While it was deemed broad enough to cover any violation of the oath of office, the
impreciseness of its definition also created apprehension that “such an overarching
standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature.” Indeed, the catch-all phrase betrayal of public trust that referred to “all acts
not punishable by statutes as penal offenses but, nonetheless, render the officer unfit to
continue in office” could be easily utilized for every conceivable misconduct or negligence
in office.
Same; Same; Deputy Ombudsman; Special Prosecutors; A Deputy Ombudsman
and a Special Prosecutor are not impeachable officers.—A Deputy Ombudsman and a
Special Prosecutor are not impeachable officers. However, by providing for their removal
from office on the same grounds as removal by impeachment, the legislature could not
have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as
betrayal of public trust, and apply them less stringently. Hence, where betrayal of public
trust, for purposes of impeachment, was not intended to cover all kinds of official
wrongdoing and plain errors of judgment, this should remain true even for purposes of
removing a Deputy Ombudsman and Special Prosecutor from office. Hence, the fact that
the grounds for impeachment have been made statutory grounds for the removal by the
President of a Deputy Ombudsman and Special Prosecutor cannot diminish the
seriousness of their nature nor the acuity of their scope. Betrayal of public trust could not
suddenly “overreach” to cover acts that are not vicious or malevolent on the same level as
the other grounds for impeachment.
Administrative Law; Ineptitude; Neglect of Duty; The disciplining authority’s
finding of ineptitude, neglect or willfulness on the part of the prosecution in failing to
pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds “grossly disadvantageous,” could result in
administrative liability, notwithstanding court approval of the plea bargaining
agreement entered into.—While the court’s determination of the propriety of a plea
bargain is on the basis of the existing prosecution evidence on record, the disciplinary
authority’s determination of the prosecutor’s administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government’s
best interest and the diligent and efficient performance by the prosecution of its public
duty to prosecute crimes against the State. Consequently, the disciplining authority’s
finding of ineptitude, neglect or willfulness on the part of the prosecution, more
particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or build a
strong case for the government or, in this case, entering into an agreement which the
government finds “grossly disadvantageous,” could result in administrative liability,
notwithstanding court approval of the plea bargaining agreement entered into.
Criminal Procedure; Plea Bargaining; Plea bargaining is allowable when the
prosecution does not have sufficient evidence to establish the guilt of the accused of the
crime charged.—Plea bargaining is allowable when the prosecution does not have
sufficient evidence to establish the guilt of the accused of the crime charged. However, if
the basis for the allowance of a plea bargain in this case is the evidence on record, then it
is significant to state that in its earlier Resolution promulgated on January 7, 2010, the
Sandiganbayan had evaluated the testimonies of twenty (20) prosecution witnesses and
declared that “the conglomeration of evidence presented by the prosecution is viewed by
the Court to be of strong character that militates against the grant of bail.”
Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose
to plea bargain with the accused Major General Garcia as if its evidence were suddenly
insufficient to secure a conviction. At this juncture, it is not amiss to emphasize that the
“standard of strong evidence of guilt which is sufficient to deny bail to an accused is
markedly higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case.” Hence, in light of the apparently strong case against accused
Major General Garcia, the disciplining authority would be hardpressed not to look into
the whys and wherefores of the prosecution’s turnabout in the case.620
CARPIO, J., Concurring Opinion:

Constitutional Law; Ombudsman; View that the Supreme Court cannot assume
that the independence of the Ombudsman is the same as the independence of the
Judiciary. Neither is the independence of the Constitutional Commissions the same as
that of the National Economic and Development Authority, the Bangko Sentral ng
Pilipinas or the Commission on Human Rights.—Our Constitution does not impart a
fixed and rigid concept of independence among the offices that it creates. While it
declares certain bodies as “‘independent”, we cannot assume that the independence of
the Ombudsman is the same as the independence of the Judiciary. Neither is the
independence of the Constitutional Commissions the same as that of the National
Economic and Development Authority, the Bangko Sentral ng Pilipinas or the
Commission on Human Rights. This Court cannot make a “one size fits all” concept of
independence because the Constitution itself differentiates the degree of independence of
these bodies.
Same; Ombudsman Act of 1989 (R.A. No. 6770); View that Section 8(2) of the
Ombudsman Act does not violate the Constitution; One of the constitutive principles of
our constitutional structure is the system of checks and balances — a check that is not
within a body, but outside of it.—I agree with the ponencia that Section 8(2) of the
Ombudsman Act does not violate the Constitution. The constitutional principle of
independence does not obviate the possibility of a check from another body. After all, one
of the constitutive principles of our constitutional structure is the system of checks and
balances—a check that is not within a body, but outside of it. This is how our democracy
operates—on the basis of distrust.
Same; Removal of Public Officers; View that Section 2, Article XI of the 1987
Constitution prescribes how all public officers and employees, both impeachable and
non-impeachable, may be removed.—Section 2, Article XI of the 1987 Constitution
prescribes how all public officers and employees, both impeachable and non-
impeachable, may be removed. Section 2 provides: The President, the Vice President,
the Members of the Supreme Court, the Members of the Constitutional Commissions,
and the Ombudsman may be removed from office, on impeachment for, and conviction
of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees
may be removed from office as provided by law, but not by impeachment.
(Boldfacing and underscoring supplied)
Same; Same; View that Congress, pursuant to Section 2, Article XI of the 1987
Constitution and in the exercise of its plenary power, enacted the Ombudsman Act,
conferring on the President the power to remove the Deputy Ombudsman and the
Special Prosecutor as provided in Section 8(2) of the Ombudsman Act.—The Deputy
Ombudsman and the Special Prosecutor are not among the impeachable officers under
the 1987 Constitution. Thus, as expressly provided in Section 2, Article XI of the
Constitution, they “may be removed from office as provided by law.” Congress,
pursuant to this constitutional provision and in the exercise of its plenary power, enacted
the Ombudsman Act, conferring on the President the power to remove the Deputy
Ombudsman and the Special Prosecutor as provided in Section 8(2) of the Ombudsman
Act.
Same; Same; View that pursuant to Section 8(2) and Section 21 of the
Ombudsman Act, the legislative intent is to grant concurrent jurisdiction to the
President and the Ombudsman in the removal of the Deputy Ombudsman and the
Special Prosecutor.—In view of Section 8(2) and Section 21 of the Ombudsman Act, the
legislative intent is to grant concurrent jurisdiction to the President and the Ombudsman
in the removal of the Deputy Ombudsman and the Special Prosecutor. An “endeavor
should be made to harmonize the provisions of a law x x x so that each shall be effective.”
This is not a hollow precept of statutory construction. This is based not only on
democratic principle but also on the separation of powers, that this Court should not be
so casual in voiding the acts of the popularly elected legislature unless there is a clear
violation of the Constitution.
Same; Same; View that any reading of the 1987 Constitution does not warrant the
conclusion that all bodies declared by the Constitution as “independent” have exclusive
disciplinary authority over all their respective officials and employees. Unlike the
Judiciary where such exclusivity is expressly provided for in the Constitution, there is
no reason to read such provision in the Ombudsman where the Constitution is silent.—
Any reading of the 1987 Constitution does not warrant the conclusion that all bodies
declared by the Constitution as “independent” have exclusive disciplinary authority over
all their respective officials and employees. Unlike the Judiciary where such exclusivity is
expressly provided for in the Constitution, there is no reason to read such provision in
the Ombudsman where the Constitution is silent. On the contrary, the constitutional
provision that non-impeachable officers and employees “may be removed from
office as provided by law” removes any doubt that Congress can determine the mode
of removal of non-impeachable officers and employees of “independent” bodies other
than the Judiciary. An “independent” body does not have exclusive disciplinary authority
over its officials and employees unless the Constitution expressly so provides, as in the
case of the Judiciary.
Same; Same; Checks and Balances; View that there is no office that is insulated
from a possible correction from another office. The executive, legislative and judicial
branches of government operate through the system of checks and balances.—A
completely “independent” body is alien to our constitutional system. There is no office
that is insulated from a possible correction from another office. The executive, legislative
and judicial branches of government operate through the system of checks and balances.
All independent constitutional bodies are subject to review by the courts. A fiscally
autonomous body is subject to audit by the Commission on Audit, and Congress cannot
be compelled to appropriate a bigger budget than that of the previous fiscal year.
Same; Same; Same; View that the Ombudsman is not constitutionally empowered
to act alone. Congress can even authorize the Department of Justice or the Office of the
President to investigate cases within the jurisdiction of the Ombudsman.—Clearly, the
Ombudsman is not constitutionally empowered to act alone. Congress can even authorize
the Department of Justice or the Office of the President to investigate cases within the
jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate public
officers and employees ho are under the disciplinary authority of heads of other bodies or
agencies. The cases cited in the ponencia, i.e. Hagad v. Gozo-Dadole, 251 SCRA 242
(1995), and Office the Ombudsman v. Delijero, Jr., 634 SCRA 135 (2010)—illustrate that
concurrent jurisdiction does not impair the independence of the Ombudsman.
Duplication of functions may not at all times promote efficiency, but it is not proscribed y
the Constitution.
BRION, J., Concurring and Dissenting Opinion:
Constitutional Law; Ombudsman; View that the Ombudsman’s duty to protect the
people from unjust, illegal and inefficient acts of all public officials emanates from
Section 12, Article XI of the Constitution.—The Ombudsman’s duty to protect the people
from unjust, illegal and inefficient acts of all public officials emanates from Section 12,
Article XI of the Constitution. These broad powers include all acts of malfeasance,
misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure.
Same; Checks and Balances; View that as a checks and balance mechanism, the
Constitution, the Rules of Court, and their implementing laws provide measures to
check on the “independence” granted to the Constitutional Commissions and the Office
of the Ombudsman; the Supreme Court, as the final arbiter of all legal questions, may
review the decisions of the Constitutional Commissions and the Office of the
Ombudsman, especially when there is grave abuse of discretion.—The independence
enjoyed by the Office of the Ombudsman, by the Constitutional Commissions, and by the
Judiciary shares certain characteristics—they do not owe their existence to any act of
Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal
autonomy. For most, if not for all of these “independent” bodies, the framers of the
Constitution intended that they be insulated from political pressure. As a checks and
balance mechanism, the Constitution, the Rules of Court, and their implementing laws
provide measures to check on the “independence” granted to the Constitutional
Commissions and the Office of the Ombudsman; the Supreme Court, as the final arbiter
of all legal questions, may review the decisions of the Constitutional Commissions and
the Office of the Ombudsman, especially when there is grave abuse of discretion. Of
course, foisted over the Members of the Supreme Court is the power of impeachment that
Congress has the authority to initiate, and carry into its logical end a meritorious
impeachment case. Such is the symmetry that our Constitution provides for the
harmonious balance of all its component and “independent” parts.
Same; Removal of Public Officers; View that the absence of a constitutional
provision providing for the removal of the Commissioners and Deputy Ombudsmen
does not mean that Congress can empower the President to discipline or remove them
in violation of the independence that the Constitution textually and expressly provides.
—The President can appoint Chairmen and Commissioners of the Constitutional
Commissions, and the Ombudsman and her Deputies, but the Constitution categorically
provides that the Chairmen of the Constitutional Commissions and the Ombudsman can
only be removed by impeachment. The absence of a constitutional provision
providing for the removal of the Commissioners and Deputy Ombudsmen
does not mean that Congress can empower the President to discipline or
remove them in violation of the independence that the Constitution textually
and expressly provides. As members of independent constitutional bodies, they
should be similarly treated as lower court judges, subject to discipline only by the head of
their respective offices and subject to the general power of the Ombudsman to dismiss
officials and employees within the government for cause. No reason exists to treat
them differently.
Same; Same; View that the Supreme Court cannot simply construe Section 2,
Article XI of the Constitution to be a blanket authority for Congress to empower the
President to remove all other public officers and employees, including those under the
independent constitutional bodies.—While I agree with Justice Carpio’s opinion that the
Constitution empowered Congress to determine the manner and causes for the removal
of non-impeachable officers, we cannot simply construe Section 2, Article XI of the
Constitution to be a blanket authority for Congress to empower the President to remove
all other public officers and employees, including those under the independent
constitutional bodies. When the Constitution states that Congress may provide for the
removal of public officers and employees by law, it does not mean that the law can violate
the provisions and principles laid out in the Constitution.
ABAD, J., Dissenting Opinion:
Constitutional Law; Removal of Public Officers; Ombudsman; View that with the
exception of those who are removable only by impeachment, the Office of the
Ombudsman can investigate and take action against any appointive or elected official
for corruption in office, be they Congressmen, Senators, Department Secretaries,
Governors, Mayors, or Barangay Captains.—The Constitution has reasons for making
the Office of the Ombudsman “independent.” Its primordial duty is to investigate and
discipline all elective and appointive government officials. Specifically, Section 13, Article
XI of the Constitution vests in that Office the absolute power to investigate any
malfeasance, misfeasance, or non-feasance of public officers or employees. This function
places it a notch higher than other grievance-handling, investigating bodies. With the
exception of those who are removable only by impeachment, the Office of the
Ombudsman can investigate and take action against any appointive or elected official for
corruption in office, be they Congressmen, Senators, Department Secretaries, Governors,
Mayors, or Barangay Captains.
Same; Same; Checks and Balances; Impeachment; View that the power to
impeach is a function of check and balance under the Constitution. But the power to
remove “public officers and employees” from office, in the realm of administrative law,
is a function of supervision, if not control.—The power to impeach is a function of check
and balance under the Constitution. But the power to remove “public officers and
employees” from office, in the realm of administrative law, is a function of supervision, if
not control. Keeping the Deputies in the Office of the Ombudsman and the Special
Prosecutor independent as the Constitution commands and subjecting them to the
President’s control or supervision are incompatible ideas.
PERLAS-BERNABE, J.:
The Cases
These two petitions have been consolidated not because they stem from the same
factual milieu but because they raise a common thread of issues relating to the
President’s exercise of the power to remove from office herein petitioners who claim
the protective cloak of independence of the constitutionally-created office to which
they belong the Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with
application for issuance of temporary restraining order or status quo order) which
assails on jurisdictional grounds the Decision dated March 31, 2011 rendered by the
Office of the President in OP Case No. 10-J-460 dismissing petitioner Emilio A.
Gonzales III, Deputy Ombudsman for the Military and Other Law Enforcement
Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The
petition primarily seeks to declare as unconstitutional Section 8(2) of Republic
Act (R.A.) No. 6770, otherwise known as the Ombudsman Act of 1989, which gives
the President the power to dismiss a Deputy Ombudsman of the Office of the
Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and
Prohibition (with application for issuance of a temporary restraining order or status
quo order) seeking to annul, reverse and set aside (1) the undated Order requiring
petitioner Wendell Barreras-Sulit to submit a written explanation with respect to
alleged acts or omissions constituting serious/grave offenses in relation to the Plea
Bargaining Agreement (PLEBARA) entered into with Major General Carlos F. Garcia;
and (2) the April 7, 2011 Notice of Preliminary Investigation, both issued by the
Office of the President in OP-DC-Case No. 11-B-003, the administrative case initiated
against petitioner as a Special Prosecutor of the Office of the Ombudsman. The
petition likewise seeks to declare as unconstitutional Section 8(2) of R.A. No. 6770
giving the President the power to dismiss a Special Prosecutor of the Office of the
Ombudsman.
The facts from which these two cases separately took root are neither complicated
nor unfamiliar.
In the morning of August 23, 2010, news media scampered for a minute-by-
minute coverage of a hostage drama that had slowly unfolded right at the very heart
of the City of Manila. While initial news accounts were fragmented it was not difficult
to piece together the story on the hostage-taker, Police Senior Inspector Rolando
Mendoza. He was a disgruntled former police officer attempting to secure his
reinstatement in the police force and to restore the benefits of a life-long, and
erstwhile bemedaled, service. The following day, broadsheets and tabloids were
replete with stories not just of the deceased hostage-taker but also of the hostage
victims, eight of whom died during the bungled police operation to rescue the hapless
innocents. Their tragic deaths triggered word wars of foreign relation proportions.
One newspaper headline ran the story in detail, as follows:
MANILA, Philippines—A dismissed policeman armed with an assault rifle
hijacked a bus packed with tourists, and killed most of its passengers in a 10 hour-
hostage drama shown live on national television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at
past 9 p.m.
Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his
reinstatement to the police force.
The hostage drama dragged on even after the driver of the bus managed to escape
and told police that all the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but
a pair of dead hostages handcuffed to the door made it difficult for them. Police said
they fired at the wheels of the bus to immobilize it.
Police used hammers to smash windows, door and windshield but were met with
intermittent fire from the hostage taker.
Police also used tear gas in an effort to confirm if the remaining hostages were all
dead or alive. When the standoff ended at nearly 9 p.m., some four hostages were
rescued alive while Mendoza was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out,
sending bystanders scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire
reportedly rang out from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially
released nine of the hostages during the drama that began at 10 a.m. and played out
live on national television.
Live television footage showed Mendoza asking for food for those remaining in
the bus, which was delivered, and fuel to keep the air-conditioning going.
The disgruntled former police officer was reportedly armed with an M-16 rifle, a
9 mm pistol and two hand grenades.
 Mendoza posted a handwritten note on the windows of the bus, saying “big deal
will start after 3 p.m. today.” Another sign stuck to another window said “3 p.m.
today deadlock.”
Stressing his demand, Mendoza stuck a piece of paper with a handwritten
message: “Big mistake to correct a big wrong decision.” A larger piece of paper on the
front windshield was headed, “Release final decision,” apparently referring to the
case that led to his dismissal from the police force.
Negotiations dragged on even after Mendoza’s self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his
dismissal from the police force. “His problem was he was unjustly removed from
service. There was no due process, no hearing, no complaint,” Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of being an
accessory to his brother’s action. Tensions rose as relatives tried to prevent lawmen
from arresting Gregorio in front of national television. This triggered the crisis that
eventually forced Mendoza to carry out his threat and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo
Salvador tried to talk Mendoza into surrendering and releasing the 21 hostages,
mostly children and three Filipinos, including the driver, the tourist guide and a
photographer. Yebra reportedly lent a cellphone to allow communications with
Mendoza inside the bus, which was parked in front of the Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the bus while police
negotiators hovered near the scene.
Manila Police District (MPD) director Chief Superintendent Rodolfo Magtibay
ordered the deployment of crack police teams and snipers near the scene. A crisis
management committee had been activated with Manila Vice Mayor Isko Moreno
coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno
to discuss Mendoza’s case that led to his dismissal from the service. Ombudsman
spokesman Jose de Jesus said Gutierrez gave a “sealed letter” to Moreno to be
delivered to Mendoza. De Jesus did not elaborate on the contents of the letter but
said Moreno was tasked to personally deliver the letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently
distraught by the slow process of the Ombudsman in deciding his motion for
reconsideration. He said the PNP-Internal Affairs Service and the Manila Regional
Trial Court had already dismissed criminal cases against him.
The hostage drama began when Mendoza flagged down the Hong Thai Travel
Tourist bus (TVU-799), pretending to hitch a ride. Margarejo said the bus had just
left Fort Santiago in Intramuros when Mendoza asked the driver to let him get on and
ride to Quirino Grandstand. Upon reaching the Quirino Grandstand, Mendoza
announced to the passengers that they would be taken hostage. “Having worn his
(police) uniform, of course there is no doubt that he already planned the hostage
taking,” Margarejo said.—Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda
Fisher, Cecille Suerte Felipe, Christina Mendez, AP [Grandstand Carnage, The
Philippine Star, Updated August 24, 2010 12:00 AM, Val Rodriguez].
In a completely separate incident much earlier in time, more particularly in
December of 2003, 28-year-old Juan Paolo Garcia and 23- year-old Ian Carl Garcia
were caught in the United States smuggling $100,000 from Manila by concealing the
cash in their luggage and making false statements to US Customs Officers. The
Garcia brothers pleaded guilty to bulk cash smuggling and agreed to forfeit the
amount in favor of the US Government in exchange for the dismissal of the rest of the
charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal
Agents and the Philippine Government unraveled a scandal of military corruption
and amassed wealth—the boys’ father, Retired Major General Carlos F. Garcia,
former Chief Procurement Officer of the Armed Forces, had accumulated more than
P300 Million during his active military service. Plunder and Anti-Money Laundering
cases were eventually filed against Major General Garcia, his wife and their two sons
before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge for Grave Misconduct (robbery, grave threats,
robbery extortion and physical injuries) was filed before the Philippine National
Police-National Capital Region (PNP-NCR) against Manila Police District Senior
Inspector (P/S Insp.) Rolando Mendoza, and four others, namely, Police Inspector
Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III Wilson
Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the
private complainant, Christian M. Kalaw, before the Office of the City Prosecutor,
Manila, docketed as I.S. No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office of the Regional
Director of the National Police Commission (NPC) turned over, upon the request of
petitioner Emilio A. Gonzales III, all relevant documents and evidence in relation to
said case to the Office of the Deputy Ombudsman for appropriate administrative
adjudication. Subsequently, Case No. OMBP-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police
officers, who filed their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed upon a
finding that the material allegations made by the complainant had not been
substantiated “by any evidence at all to warrant the indictment of respondents of the
offenses charged.” Similarly, the Internal Affairs Service of the PNP issued a
Resolution dated October 17, 2008 recommending the dismissal without prejudice of
the administrative case against the same police officers, for failure of the
complainant to appear in three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of petitioner Emilio
Gonzales III, a Decision in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando
Mendoza and his fellow police officers guilty of Grave Misconductwas approved by
the Ombudsman. The dispositive portion of said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S Insp.
ROLANDO DEL ROSARIO MENDOZA and PO3 WILSON MATIC
GAVINO of PRO-ARMM, Camp Brig. Gen. Salipada K. Pendatun, Parang, Shariff
Kabunsuan;P/INSP. NELSON URBANO LAGASCA, SPO1 NESTOR REYES
DAVID and PO2 RODERICK SALVA LOPEÑA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty
of DISMISSAL from the Service, pursuant to Section 52 (A), Rule IV, Uniform
Rules on Administrative Cases in the Civil Service, with the accessory penalties of
forfeiture of retirement benefits and perpetual disqualification from reemployment
in the government service pursuant to Section 58, Rule IV of the same Uniform
Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration of the foregoing
Decision, followed by a Supplement to the Motion for Reconsideration on November
19, 2009. On December 14, 2009, the pleadings mentioned and the records of the
case were assigned for review and recommendation to Graft Investigation and
Prosecutor Officer Dennis L. Garcia, who released a draft Order 12 on April 5, 2010 for
appropriate action by his immediate superior, Director Eulogio S. Cecilio, who, in
turn, signed and forwarded said Order to petitioner Gonzalez’s office on April 27,
2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner
endorsed the Order, together with the case records, for final approval by
Ombudsman Merceditas N. Gutierrez, in whose office it remained pending for final
review and action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists on
that fateful day of August 23, 2010 in a desperate attempt to have himself reinstated
in the police service.
In the aftermath of the hostage-taking incident, which ended in the tragic murder
of eight HongKong Chinese nationals, the injury of seven others and the death of P/S
Insp. Rolando Mendoza, a public outcry against the blundering of government
officials prompted the creation of the Incident Investigation and Review Committee
(IIRC), chaired by Justice Secretary Leila de Lima and vice-chaired by Interior and
Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive
sessions. However, petitioner, as well as the Ombudsman herself, refused to
participate in the IIRC proceedings on the assertion that the Office of the
Ombudsman is an independent constitutional body.
Sifting through testimonial and documentary evidence, the IIRC eventually
identified petitioner Gonzales to be among those in whom culpability must lie. In its
Report, the IIRC made the following findings:
Deputy Ombudsman Gonzales committed serious and inexcusable negligence
and gross violation of their own rules of procedure by allowing Mendoza’s motion
for reconsideration to languish for more than nine (9) months without any
justification, in violation of the Ombudsman prescribed rules to resolve motions for
reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition [t]hereto. The
prolonged inaction precipitated the desperate resort to hostage-taking.
More so, Mendoza’s demand for immediate resolution of his motion for
reconsideration is not without legal and compelling bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving
a case for alleged robbery (extortion), grave threats and physical injuries
amounting to grave misconduct allegedly committed against a certain Christian
Kalaw. The same case, however, was previously dismissed by the Manila City
Prosecutors Office for lack of probable cause and by the PNP-NCR Internal Affairs
Service for failure of the complainant (Christian Kalaw) to submit evidence and
prosecute the case. On the other hand, the case which was filed much ahead by
Mendoza et al. against Christian Kalaw involving the same incident, was given due
course by the City Prosecutors Office.
(b) The Ombudsman exercised jurisdiction over the case based on a letter
issued motu proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the
PNP-NCR—without citing any reason—to endorse the case against Mendoza and
the arresting policemen to his office for administrative adjudication, thereby
showing undue interest on the case. He also caused the docketing of the case and
named Atty. Clarence V. Guinto of the PNP-CIDG-NCR, who indorsed the case
records, as the nominal complainant, in lieu of Christian Kalaw. During the
proceedings, Christian Kalaw did not also affirm his complaint-affidavit with the
Ombudsman or submit any position paper as required.
(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable
for grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21,
2009) based on the sole and uncorroborated complaint-affidavit of Christian
Kalaw, which was not previously sustained by the City Prosecutor’s Office and the
PNP Internal Affairs Service. From the said Resolution, Mendoza interposed a
timely motion for reconsideration (dated and filed November 5, 2009) as well as a
supplement thereto. No opposition or comment was filed thereto.635
(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza’s 30 years of service in
the PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief
by sending several hand-written letter-requests to the Ombudsman for immediate
resolution of his motion for reconsideration. But his requests fell on deaf ears.
By allowing Mendoza’s motion for reconsideration to languish for nine long (9)
months without any justification, Ombudsman Gutierrez and Deputy Ombudsman
Gonzales committed complete and wanton violation of the Ombudsman prescribed
rule to resolve motions for reconsideration in administrative disciplinary cases
within five (5) days from submission (Sec. 8, Ombudsman Rules of Procedure). The
inaction is gross, there being no opposition to the motion for reconsideration.
Besides, the Ombudsman, without first resolving the motion for reconsideration,
arbitrarily enforced the judgment of dismissal and ignored the intervening requests
for immediate resolution, thereby rendering the inaction even more inexcusable and
unjust as to amount to gross negligence and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed
serious disregard of due process, manifest injustice and oppression in failing to
provisionally suspend the further implementation of the judgment of dismissal
against Mendoza pending disposition of his unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for
reconsideration for over nine months, the two Ombudsman officials acted with
arbitrariness and without regard to due process and the constitutional right of an
accused to the speedy disposition of his case. As long as his motion for
reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge
the judgment of dismissal before the higher courts and seek a temporary restraining
order to prevent the further execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for
reconsideration, it should have provisionally suspended the further enforcement of
the judgment of dismissal without prejudice to its reimplementation if the
reconsideration is eventually denied. Otherwise, the Ombudsman will benefit from
its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is
denied, the adjudication process before the Ombudsman cannot be considered as
completely finished and, hence, the judgment is not yet ripe for execution.
When the two Ombudsman officials received Mendoza’s demand for the release of
the final order resolving his motion for reconsideration, they should have performed
their duty by resolving the reconsideration that same day since it was already
pending for nine months and the prescribed period for its resolution is only five days.
Or if they cannot resolve it that same day, then they should have acted decisively by
issuing an order provisionally suspending the further enforcement of the judgment of
dismissal subject to revocation once the reconsideration is denied and without
prejudice to the arrest and prosecution of Mendoza for the hostage-taking. Had they
done so, the crisis may have ended peacefully, without necessarily compromising the
integrity of the institution. After all, as relayed to the negotiators, Mendoza did
express willingness to take full responsibility for the hostage-taking if his demand for
release of the final decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely offered to
review a pending motion for review of the case, thereby prolonging their inaction and
aggravating the situation. As expected, Mendoza—who previously berated Deputy
Gonzales for allegedly demanding Php150,000 in exchange for favorably resolving
the motion for reconsideration—rejected and branded as trash (“basura”) the
Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the
alternative option of securing before the PNP-NCRPO an order for Mendoza’s
provisional reinstatement pending resolution of the motion for reconsideration.
Unfortunately, it was already too late. But had the Ombudsman officials performed
their duty under the law and acted decisively, the entire crisis may have ended
differently.
The RRC recommended that its findings with respect to petitioner Gonzales be
referred to the Office of the President (OP) for further determination of possible
administrative offenses and for the initiation of the proper administrative
proceedings.
On October 15, 2010, the OP instituted a Formal Charge against petitioner
Gonzales for Gross Neglect of Duty and/or Inefficiency in the Performance of
Official Duty under Rule XIV, Section 22 of the Omnibus Rules Implementing Book
V of E.O. No. 292 and other pertinent Civil Service Laws, rules and regulations, and
for Misconduct in Office under Section 3 of the Anti-Graft and Corrupt Practices Act.
Petitioner filed his Answer thereto in due time.
Shortly after the filing by the OP of the administrative case against petitioner, a
complaint dated October 29, 2010 was filed by Acting Assistant Ombudsman Joselito
P. Fangon before the Internal Affairs Board of the Office of the Ombudsman charging
petitioner with “directly or indirectly requesting or receiving any gift, present,
share, percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law”
under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also,
with solicitation or acceptance of gifts under Section 7(d) of the Code of Conduct and
Ethical Standards. In a Joint Resolution dated February 17, 2011, which was
approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to indict
respondent Emilio A. Gonzales III for violations of Section 3(b) of R.A. No. 3019 and
Section 7(d) of R.A. No. 6713, the complaint is hereby be [sic] DISMISSED.
 Further, finding no sufficient evidence to hold respondent administratively liable
for Misconduct, the same is likewise DISMISSED.
Meanwhile, the OP notified petitioner that a Preliminary Clarificatory Conference
relative to the administrative charge against him was to be conducted at the Office of
the Deputy Executive Secretary for Legal Affairs (ODESLA) on February 8, 2011.
Petitioner Gonzales alleged, however, that on February 4, 2011, he heard the news
that the OP had announced his suspension for one year due to his delay in the
disposition of P/S Insp. Mendoza’s motion for reconsideration. Hence, believing that
the OP had already prejudged his case and that any proceeding before it would
simply be a charade, petitioner no longer attended the scheduled clarificatory
conference. Instead, he filed an Objection to Proceedings on February 7, 2011.
Despite petitioner’s absence, however, the OP pushed through with the proceedings
and, on March 31, 2011, rendered the assailed Decision, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman
Emilio A. Gonzales III guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust, and hereby meted out the penalty
of DISMISSALfrom service. SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of the
Ombudsman charged Major General Carlos F. Garcia, his wife Clarita D. Garcia, their
sons Ian Carl Garcia, Juan Paulo Garcia and Timothy Mark Garcia and several
unknown persons with Plunder (Criminal Case No. 28107) and Money
Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General Garcia’s urgent
petition for bail holding that strong prosecution evidence militated against the grant
of bail. On March 16, 2010, however, the government, represented by petitioner,
Special Prosecutor Wendell Barreras-Sulit (“Barreras-Sulit”) and her prosecutorial
staff sought the Sandiganbayan’s approval of a Plea Bargaining Agreement
(hereinafter referred to as “PLEBARA”) entered into with the accused. On May 4,
2010, the Sandiganbayan issued a Resolution finding the change of plea warranted
and the PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia to get off
the hook with nothing but a slap on the hand notwithstanding the prosecution’s
apparently strong evidence of his culpability for serious public offenses, the House of
Representatives’ Committee on Justice conducted public hearings on the PLEBARA.
At the conclusion of these public hearings, the Committee on Justice passed and
adopted Committee Resolution No. 3, recommending to the President the dismissal
of petitioner Barreras-Sulit from the service and the filing of appropriate charges
against her Deputies and Assistants before the appropriate government office for
having committed acts and/or omissions tantamount to culpable violations of the
Constitution and betrayal of public trust, which are violations under the Anti-Graft
and Corrupt Practices Act and grounds for removal from office under the
Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner
Barreras-Sulit. In her written explanation, petitioner raised the defenses of
prematurity and the lack of jurisdiction of the OP with respect to the administrative
disciplinary proceeding against her. The OP, however, still proceeded with the case,
setting it for preliminary investigation on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER
INDIVIDUAL RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY
AUTHORITY TO SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION
AND TO THEREAFTER ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER
INDIVIDUAL RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND
RENDERED ITS DECISION IN VIOLATION OF PETITIONER’S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN
THE DISPOSITION OF MENDOZA’S MOTION FOR RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST
IN MENDOZA’S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE
RESOLUTION ON MENDOZA’S MOTION FOR RECONSIDERATION OR FOR NOT
SUSPENDING MENDOZA’S DISMISSAL FROM SERVICE DURING THE HOSTAGE
CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE
TO SHOW THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA.
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the
Court the question—
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO
TAKE ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST
PETITIONER BE LAWFUL AND JUSTIFIABLE?
Re-stated, the primordial question in these two petitions is whether the Office of
the President has jurisdiction to exercise administrative disciplinary power over a
Deputy Ombudsman and a Special Prosecutor who belong to the constitutionally-
created Office of the Ombudsman.
The Court’s Ruling
Short of claiming themselves immune from the ordinary means of removal,
petitioners asseverate that the President has no disciplinary jurisdiction over them
considering that the Office of the Ombudsman to which they belong is clothed with
constitutional independence and that they, as Deputy Ombudsman and Special
Prosecutor therein, necessarily bear the constitutional attributes of said office.
The Court is not convinced.
The Ombudsman’s administrative disciplinary power over a Deputy
Ombudsman and Special Prosecutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct
administrative investigations proceeds from its constitutional mandate to be an
effective protector of the people against inept and corrupt government officers and
employees, and is subsumed under the broad powers “explicitly conferred” upon it by
the 1987 Constitution and R.A. No. 6770.
The ombudsman traces its origins to the primitive legal order of Germanic tribes.
The Swedish term, which literally means “agent” or “representative,” communicates
the concept that has been carried on into the creation of the modern-day
ombudsman, that is, someone who acts as a neutral representative of ordinary
citizens against government abuses. This idea of a people’s protector was first
institutionalized in the Philippines under the 1973 Constitution with the creation of
the Tanodbayan, which wielded the twin powers of investigation and prosecution.
Section 6, Article XIII of the 1973 Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be
known as Tanodbayan, which shall receive and investigate complaints relative to
public office, including those in government-owned or controlled corporations,
make appropriate recommendations, and in case of failure of justice as defined by
law, file and prosecute the corresponding criminal, civil, or administrative case
before the proper court or body.
The framers of the 1987 Constitution later envisioned a more effective
ombudsman vested with authority to “act in a quick, inexpensive and effective
manner on complaints against administrative officials”, and to function purely with
the “prestige and persuasive powers of his office” in correcting improprieties,
inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties. Accordingly, Section 13, Article XI of the 1987 Constitution
enumerates the following powers, functions, and duties of the Office of the
Ombudsman, viz.:
(1) Investigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to be
illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of
the Government, or any subdivision, agency or instrumentality thereof, as well as of
any government-owned or controlled corporation with original charter, to perform
and expedite any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such
limitations as may be provided by law, to furnish it with copies of documents relating
to contracts or transactions entered into by his office involving the disbursement or
use of public funds or properties, and report any irregularity to the Commission on
Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and
with due prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government and make recommendations for their elimination and
the observance of high standards of ethics and efficiency.
 (8) Promulgate its rules of procedure and exercise such other powers or perform
such functions or duties as may be provided by law.
Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the
Ombudsman Act of 1989, to shore up the Ombudsman’s institutional strength by
granting it “full administrative disciplinary power over public officials and
employees,” as follows:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions.—The Office
of the Ombudsman shall have disciplinary authority over all elective and
appointive officials of the Government and its subdivisions, instrumentalities
and agencies, including Members of the Cabinet, local government, government-
owned or controlled corporations and their subsidiaries, except over officials
who may be removed only by impeachment or over Members of
Congress, and the Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary authority, the Office of the
Ombudsman was explicitly conferred the statutory power to conduct administrative
investigations under Section 19 of the same law, thus:
Sec. 19. Administrative complaints.—The Ombudsman shall act on all
complaints relating, but not limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency’s functions, though in
accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman’s authority to discipline administratively is extensive and
covers all government officials, whether appointive or elective, with the exception
only of those officials removable by impeachment, the members of congress and the
judiciary, such authority is by no means exclusive. Petitioners cannot insist that they
should be solely and directly subject to the disciplinary authority of the Ombudsman.
For, while Section 21 declares the Ombudsman’s disciplinary authority over all
government officials, Section 8(2), on the other hand, grants the President express
power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.—
xxxx
(2) A Deputy or the Special Prosecutor, may be removed from office by the
President for any of the grounds provided for the removal of the Ombudsman, and
after due process.
It is a basic canon of statutory construction that in interpreting a statute, care
should be taken that every part thereof be given effect, on the theory that it was
enacted as an integrated measure and not as a hodge-podge of conflicting provisions.
A construction that would render a provision inoperative should be avoided; instead,
apparently inconsistent provisions should be reconciled whenever possible as parts
of a coordinated and harmonious whole. Otherwise stated, the law must not be read
in truncated parts. Every part thereof must be considered together with the other
parts, and kept subservient to the general intent of the whole enactment.
A harmonious construction of these two apparently conflicting provisions in R.A.
No. 6770 leads to the inevitable conclusion that Congress had intended the
Ombudsman and the President to exercise concurrent disciplinary jurisdiction over
petitioners as Deputy Ombudsman and Special Prosecutor, respectively. This sharing
of authority goes into the wisdom of the legislature, which prerogative falls beyond
the pale of judicial inquiry. The Congressional deliberations on this matter are quite
insightful, viz.:
x x x Senator Angara explained that the phrase was added to highlight the fact
that the Deputy Tanodbayan may only be removed for cause and after due process.
He added that the President alone has the power to remove the Deputy
Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair the
independence of the Tanodbayan and suggested that the procedural removal of the
Deputy Tanodbayan...; and that he can be removed not by the President but by the
Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and the
Deputy Ombudsman may try to protect one another. The Chair suggested the
substitution of the phrase “after due process” with the words after due notice and
hearing with the President as the ultimate authority.
Senator Guingona contended, however, that the Constitution provides for an
independent Office of the [T]anodbayan[,] and to allow the Executive to have
disciplinary powers over the Tanodbayan Deputies would be an encroachment on
the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not averse to the
proposal, however, considering the Chair’s observation that vesting such
authority upon the Tanodbayan itself could result in mutual protection,
it is necessary that an outside official should be vested with such
authority to effect a check and balance.
Indubitably, the manifest intent of Congress in enacting both provisions—Section
8(2) and Section 21—in the same Organic Act was to provide for an external
authority, through the person of the President, that would exercise the power of
administrative discipline over the Deputy Ombudsman and Special Prosecutor
without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is
simply a measure of “check and balance” intended to address the lawmakers’ real and
valid concern that the Ombudsman and his Deputy may try to protect one another
from administrative liabilities.
This would not be the first instance that the Office of the President has locked
horns with the Ombudsman on the matter of disciplinary jurisdiction. An earlier
conflict had been settled in favor of shared authority in Hagad v. Gozo Dadole. In
said case, the Mayor and Vice-Mayor of Mandaue City, and a member of
the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the
Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman
had been divested of his authority to conduct administrative investigations over said
local elective officials by virtue of the subsequent enactment of the Local Government
Code of 1991 (R.A. No. 7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.—A verified complaint
against any erring local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the
President.
The Court resolved said issue in the negative, upholding the ratiocination of the
Solicitor General that R.A. No. 7160 should be viewed as having conferred on the
Office of the President, but not on an exclusive basis, disciplinary authority over local
elective officials. Despite the fact that R.A. No. 7160 was the more recent expression
of legislative will, no repeal of pertinent provisions in the Ombudsman Act was
inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike
down the other. Well settled is the rule that repeals of laws by implication are not
favored, and that courts must generally assume their congruent application. The two
laws must be absolutely incompatible, and a clear finding thereof must surface,
before the inference of implied repeal may be drawn. The rule is expressed in the
maxim, interpretare et concordare legibus est optimus interpretendi, i.e., every
statute must be so interpreted and brought into accord with other laws as to form a
uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted
conflicting statutes. Hence, all doubts must be resolved against any implied repeal,
and all efforts should be exerted in order to harmonize and give effect to all laws on
the subject.
While Hagad v. Gozo Dadole upheld the plenary power of the Office of the
Ombudsman to discipline elective officials over the same disciplinary authority of the
President under R.A. No. 7160, the more recent case of the Office of the Ombudsman
v. Delijero39 tempered the exercise by the Ombudsman of such plenary power
invoking Section 23(2) of R.A. No. 6770, which gives the Ombudsman the option to
“refer certain complaints to the proper disciplinary authority for the institution of
appropriate administrative proceedings against erring public officers or employees.”
The Court underscored therein the clear legislative intent of imposing “a standard
and a separate set of procedural requirements in connection with administrative
proceedings involving public school teachers” with the enactment of R.A. No. 4670,
otherwise known as “The Magna Carta for Public School Teachers.” It thus declared
that, while the Ombudsman’s administrative disciplinary authority over a public
school teacher is concurrent with the proper investigating committee of the
Department of Education, it would have been more prudent under the circumstances
for the Ombudsman to have referred to the DECS the complaint against the public
school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his
own people and mete out administrative sanctions upon them, including the extreme
penalty of dismissal from the service. However, it is equally without question that the
President has concurrent authority with respect to removal from office of the Deputy
Ombudsman and Special Prosecutor, albeit under specified conditions. Considering
the principles attending concurrence of jurisdiction where the Office of the President
was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner
through its Internal Affairs Board, and to defer instead to the President’s assumption
of authority, especially when the administrative charge involved “demanding and
soliciting a sum of money” which constitutes either graft and corruption or bribery,
both of which are grounds reserved for the President’s exercise of his authority to
remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman’s Internal Affairs Board properly
conducted a subsequent and parallel administrative action against petitioner, its
earlier dismissal of the charge of graft and corruption against petitioner could not
have the effect of preventing the Office of the President from proceeding against
petitioner upon the same ground of graft and corruption. After all, the doctrine of res
judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers. In Montemayor v. Bundalian, the Court sustained the
President’s dismissal from service of a Regional Director of the Department of Public
Works and Highways (DPWH) who was found liable for unexplained wealth upon
investigation by the now defunct Philippine Commission Against Graft and
Corruption (PCAGC). The Court categorically ruled therein that the prior dismissal
by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.
By granting express statutory power to the President to remove a
Deputy Ombudsman and a Special Prosecutor, Congress merely filled
an obvious gap in the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the
power to appoint the Ombudsman and his Deputies, viz.:
Section 9. The Ombudsman and his Deputies shall be appointed by the
President from a list of at least six nominees prepared by the Judicial and Bar
Council, and from a list of three nominees for every vacancy thereafter. Such
appointments shall require no confirmation. All vacancies shall be filled within three
months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the
Constitution, which is by impeachment under Section 2 of the same Article, there is,
however, no constitutional provision similarly dealing with the removal from office of
a Deputy Ombudsman, or a Special Prosecutor, for that matter. By enacting Section
8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of
any provision in the Constitution or existing statutes. In fact, the Constitution itself,
under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not
subject to impeachment.
That the Deputies of the Ombudsman were intentionally excluded from the
enumeration of impeachable officials is clear from the following deliberations 45 of the
Constitutional Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman,
there has been concern aired by Commissioner Rodrigo about who will see to it that
the Ombudsman will perform his duties because he is something like a guardian
of the government. This recalls the statement of Juvenal that while the Ombudsman
is the guardian of the people, “Quis custodiet ipsos custodies”, who will guard the
guardians? I understand here that the Ombudsman who has the rank of
a chairman of a constitutional commission is also removable only by
impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the
phrase “have the rank of”. We know, for instance, that the City Fiscal of Manila has
the rank of a justice of the Intermediate Appellate Court, and yet he is not a part of
the judiciary. So I think we should clarify that also and read our discussions into the
Record for purposes of the Commission and the Committee.
xxx
THE PRESIDENT. The purpose of the amendment of
Commissioner Davide is not just to include the Ombudsman among
those officials who have to be removed from office only
on impeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No. (Emphasis supplied)
The Power of the President to Remove a Deputy Ombudsman and a
Special Prosecutor is Implied from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with it the power
to remove. As a general rule, therefore, all officers appointed by the President are
also removable by him. The exception to this is when the law expressly provides
otherwise—that is, when the power to remove is expressly vested in an office or
authority other than the appointing power. In some cases, the Constitution expressly
separates the power to remove from the President’s power to appoint. Under Section
9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and
judges of lower courts shall be appointed by the President. However, Members of the
Supreme Court may be removed after impeachment proceedings initiated by
Congress (Section 2, Article XI), while judges of lower courts may be removed only
by the Supreme Court by virtue of its administrative supervision over all its
personnel (Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of
the Civil Service Commission [Section 1(2), Article IX(B)], the Commission on
Elections [Section 1(2), Article IX(C)], and the Commission on Audit [Section 1(2),
Article IX(D)] shall likewise be appointed by the President, but they may be removed
only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman
himself shall be appointed by the President (Section 9, Article XI) but may also be
removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special
Prosecutor, Congress simply laid down in express terms an authority that is already
implied from the President’s constitutional authority to appoint the aforesaid
officials in the Office of the Ombudsman.

The Office of the Ombudsman is charged with monumental tasks that have been
generally categorized into investigatory power, prosecutorial power, public
assistance, authority to inquire and obtain information and the function to adopt,
institute and implement preventive measures. In order to ensure the effectiveness of
his constitutional role, the Ombudsman was provided with an over-all deputy as well
as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of
a separate deputy for the military establishment was necessitated by Commissioner
Ople’s lament against the rise within the armed forces of “fraternal associations
outside the chain of command” which have become the common soldiers’ “informal
grievance machinery” against injustice, corruption and neglect in the uniformed
service, thus:
In our own Philippine Armed Forces, there has arisen in recent years a type of
fraternal association outside the chain of command proposing reformist objectives.
They constitute, in fact, an informal grievance machinery against injustices to the
rank and file soldiery and perceive graft in higher rank and neglect of the needs of
troops in combat zones. The Reform the Armed Forces Movement of RAM has kept
precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The
Guardians, the El Diablo and other organizations dominated by enlisted men
function, more or less, as grievance collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the Ombudsman
to the military establishment, just as it champions the common people against
bureaucratic indifference. The Ombudsman can designate a deputy to help the
ordinary foot soldier get through with his grievance to higher authorities. This
deputy will, of course work in close cooperation with the Minister of National
Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their
complaints, may not have to fall back on their own informal devices to obtain
redress for their grievances. The Ombudsman will help raise troop morale in
accordance with a major professed goal of the President and the military authorities
themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:
Section 5. There is hereby created the independent Office of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one over-all Deputy and
at least one Deputy each for Luzon, Visayas and Mindanao. A separate deputy
for the military establishment shall likewise be appointed. (Emphasis
supplied)
The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a
military watchdog looking into abuses and irregularities that affect the general
morale and professionalism in the military is certainly of primordial importance in
relation to the President’s own role as Commander-in-Chief of the Armed Forces. It
would not be incongruous for Congress, therefore, to grant the President concurrent
disciplinary authority over the Deputy Ombudsman for the military and other law
enforcement offices.
Granting the President the Power to Remove a Deputy Ombudsman
does not Diminish the Independence of the Office of the Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to
remove a Deputy Ombudsman from office totally frustrates, if not resultantly negates
the independence of the Office of the Ombudsman is tenuous. The independence
which the Office of the Ombudsman is vested with was intended to free it from
political considerations in pursuing its constitutional mandate to be a protector of
the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that “the terms of
office, the salary, the appointments and discipline of all persons under the office” are
“reasonably insulated from the whims of politicians.” And so it was that Section 5,
Article XI of the 1987 Constitution had declared the creation of the independent
Office of the Ombudsman, composed of the Ombudsman and his Deputies, who are
described as “protectors of the people” and constitutionally mandated to act
promptly on complaints filed in any form or manner against public officials or
employees of the Government [Section 12, Article XI]. Pertinent provisions under
Article XI prescribes a term of office of seven years without reappointment [Section
11], prohibits a decrease in salaries during the term of office [Section 10], provides
strict qualifications for the office [Section 8], grants fiscal autonomy [Section 14] and
ensures the exercise of constitutional functions [Sections 12 and 13]. The cloak of
independence is meant to build up the Office of the Ombudsman’s institutional
strength to effectively function as official critic, mobilizer of government,
constitutional watchdog and protector of the people. It certainly cannot be made to
extend to wrongdoings and permit the unbridled acts of its officials to escape
administrative discipline.
Being aware of the constitutional imperative of shielding the Office of the
Ombudsman from political influences and the discretionary acts of the executive,
Congress laid down two restrictions on the President’s exercise of such power of
removal over a Deputy Ombudsman, namely: (1) that the removal of the Deputy
Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the
grounds for impeachment laid down in Section 2, Article XI of the 1987 Constitution,
paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may be
removed from office for the same grounds that the Ombudsman may be removed
through impeachment, namely, “culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust.” Thus,
it cannot be rightly said that giving the President the power to remove a Deputy
Ombudsman, or a Special Prosecutor for that matter, would diminish or compromise
the constitutional independence of the Office of the Ombudsman. It is, precisely, a
measure of protection of the independence of the Ombudsman’s Deputies and
Special Prosecutor in the discharge of their duties that their removal can only be had
on grounds provided by law.
In Espinosa v. Office of the Ombudsman, the Court elucidated on the nature of
the Ombudsman’s independence in this wise—
The prosecution of offenses committed by public officers is vested in the Office of
the Ombudsman. To insulate the Office from outside pressure and improper
influence, the Constitution as well as RA 6770 has endowed it with a wide latitude of
investigatory and prosecutory powers virtually free from legislative, executive or
judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the
Ombudsman who, ‘beholden to no one, acts as the champion of the people and the
preserver of the integrity of public service.
Petitioner Gonzales may not be removed from office where the
questioned acts, falling short of constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the President’s power
to remove the Deputy Ombudsman and Special Prosecutor, we now go to the
substance of the administrative findings in OP Case No. 10-J-460 which led to the
dismissal of herein petitioner, Deputy Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to complain simply
because the OP proceeded with the administrative case against him despite his non-
attendance thereat. Petitioner was admittedly able to file an Answer in which he had
interposed his defenses to the formal charge against him. Due process is satisfied
when a person is notified of the charge against him and given an opportunity to
explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations
against him constitute the minimum requirements of due process. Due process is
simply having the opportunity to explain one’s side, or an opportunity to seek a
reconsideration of the action or ruling complained of.
The essence of due process is that a party is afforded reasonable opportunity to be
heard and to submit any evidence he may have in support of his defense. Mere
opportunity to be heard is sufficient. As long as petitioner was given the opportunity
to explain his side and present evidence, the requirements of due process are
satisfactorily complied with because what the law abhors is an absolute lack of
opportunity to be heard. Besides, petitioner only has himself to blame for limiting his
defense through the filing of an Answer. He had squandered a subsequent
opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend
the scheduled Clarificatory Conference despite notice. The OP recounted as follows—
It bears noting that respondent Deputy Ombudsman Gonzalez was given two
separate opportunities to explain his side and answer the Formal Charge against
him.
In the first instance, respondent was given the opportunity to submit his answer
together with his documentary evidence, which opportunity respondent actually
availed of. In the second instance, this Office called a Clarificatory Conference on 8
February 2011 pursuant to respondent’s express election of a formal investigation.
Despite due notice, however, respondent Deputy Ombudsman refused to appear for
said conference, interposing an objection based on the unfounded notion that this
Office has prejudged the instant case. Respondent having been given actual and
reasonable opportunity to explain or defend himself in due course, the requirement
of due process has been satisfied.
In administrative proceedings, the quantum of proof necessary for a finding of
guilt is substantial evidence, which is more than a mere scintilla and means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. The fact, therefore, that petitioner later refused to participate in the
hearings before the OP is not a hindrance to a finding of his culpability based on
substantial evidence, which only requires that a decision must “have something upon
which it is based.”
Factual findings of administrative bodies are controlling when supported by
substantial evidence. The OP’s pronouncement of administrative accountability
against petitioner and the imposition upon him of the corresponding penalty of
removal from office was based on the finding of gross neglect of duty and grave
misconduct in office amounting to a betrayal of public trust, which is a
constitutional ground for the removal by impeachment of the Ombudsman (Section
2, Article XI, 1987 Constitution), and a statutory ground for the President to remove
from office a Deputy Ombudsman and a Special Prosecutor [Section 8(2) of the
Ombudsman Act].
The OP held that petitioner’s want of care and wrongful conduct consisted of his
unexplained action in directing the PNP-NCR to elevate P/S Insp. Mendoza’s case
records to his office; his failure to verify the basis for requesting the Ombudsman to
take over the case; his pronouncement of administrative liability and imposition of
the extreme penalty of dismissal on P/S Insp. Mendoza based upon an unverified
complaint-affidavit; his inordinate haste in implementing P/S Insp. Mendoza’s
dismissal notwithstanding the latter’s non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that
the pendency of the motion for reconsideration for more than five months had
deprived P/S Insp. Mendoza of available remedies against the immediate
implementation of the Decision dismissing him from the service.
Thus, taking into consideration the factual determinations of the IIRC, the
allegations and evidence of petitioner in his Answer as well as other documentary
evidence, the OP concluded that: (1) petitioner failed to supervise his subordinates to
act with dispatch on the draft resolution of P/S Insp. Mendoza’s motion for
reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts
and prevent its immediate execution, and (2) petitioner showed undue interest by
having P/S Insp. Mendoza’s case endorsed to the Office of the Ombudsman and
resolving the same against P/S Insp. Mendoza on the basis of the unverified
complaint affidavit of the alleged victim Christian Kalaw.
The invariable rule is that administrative decisions in matters within the executive
jurisdiction can only be set aside on proof of gross abuse of discretion, fraud, or error
of law. In the instant case, while the evidence may show some amount of wrongdoing
on the part of petitioner, the Court seriously doubts the correctness of the OP’s
conclusion that the imputed acts amount to gross neglect of duty and grave
misconduct constitutive of betrayal of public trust. To say that petitioner’s offenses,
as they factually appear, weigh heavily enough to constitute betrayal of public
trust would be to ignore the significance of the legislature’s intent in prescribing the
removal of the Deputy Ombudsman or the Special Prosecutor for causes that,
theretofore, had been reserved only for the most serious violations that justify the
removal by impeachment of the highest officials of the land.
Would every negligent act or misconduct in the performance of a Deputy
Ombudsman’s duties constitute betrayal of public trust warranting immediate
removal from office? The question calls for a deeper, circumspective look at the
nature of the grounds for the removal of a Deputy Ombudsman and a Special
Prosecutor vis-à-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the 1987
Constitution added to the existing grounds of culpable violation of the Constitution,
treason, bribery, graft and corruption and other high crimes. While it was deemed
broad enough to cover any violation of the oath of office, the impreciseness of its
definition also created apprehension that “such an overarching standard may be too
broad and may be subject to abuse and arbitrary exercise by the legislature.” Indeed,
the catch-all phrase betrayal of public trust that referred to “all acts not punishable
by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office” could be easily utilized for every conceivable misconduct or negligence in
office. However, deliberating on some workable standard by which the ground could
be reasonably interpreted, the Constitutional Commission recognized that human
error and good faith precluded an adverse conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use of the words
“betrayal of public trust” as embodying a ground for impeachment that has been
raised by the Honorable Regalado. I am not a lawyer so I can anticipate the
difficulties that a layman may encounter in understanding this provision and also the
possible abuses that the legislature can commit in interpreting this phrase. It is to be
noted that this ground was also suggested in the 1971 Constitutional Convention. A
review of the Journals of that Convention will show that it was not included; it was
construed as encompassing acts which are just short of being criminal but constitute
gross faithlessness against public trust, tyrannical abuse of power, inexcusable
negligence of duty, favoritism, and gross exercise of discretionary powers. I
understand from the earlier discussions that these constitute violations of the oath of
office, and also I heard the Honorable Davide say that even the criminal acts that
were enumerated in the earlier 1973 provision on this matter constitute betrayal of
public trust as well. In order to avoid confusion, would it not be clearer to stick to the
wording of Section 2 which reads: “may be removed from office on impeachment for
and conviction of, culpable violation of the Constitution, treason, bribery, and other
high crimes, graft and corruption or VIOLATION OF HIS OATH OF OFFICE”,
because if betrayal of public trust encompasses the earlier acts that were enumerated,
then it would behoove us to be equally clear about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to
adopt the words “betrayal of public trust” in the 1986 Constitution. But I would like
him to know that we are amenable to any possible amendment. Besides, I think plain
error of judgment, where circumstances may indicate that there is good
faith, to my mind, will not constitute betrayal of public trust if that
statement will allay the fears of difficulty in interpreting the term.” (Emphasis
supplied)
The Constitutional Commission eventually found it reasonably acceptable for the
phrase betrayal of public trust to refer to “[a]cts which are just short of being
criminal but constitute gross faithlessness against public trust, tyrannical abuse of
power, inexcusable negligence of duty, favoritism, and gross exercise of discretionary
powers.” In other words, acts that should constitute betrayal of public trust as to
warrant removal from office may be less than criminal but must be attended by bad
faith and of such gravity and seriousness as the other grounds for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers.
However, by providing for their removal from office on the same grounds as removal
by impeachment, the legislature could not have intended to redefine constitutional
standards of culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, as well as betrayal of public trust, and apply them
less stringently. Hence, where betrayal of public trust, for purposes of impeachment,
was not intended to cover all kinds of official wrongdoing and plain errors of
judgment, this should remain true even for purposes of removing a Deputy
Ombudsman and Special Prosecutor from office. Hence, the fact that the grounds for
impeachment have been made statutory grounds for the removal by the President of
a Deputy Ombudsman and Special Prosecutor cannot diminish the seriousness of
their nature nor the acuity of their scope. Betrayal of public trust could not suddenly
“overreach” to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several
unfortunate events including system failure of government response. It cannot be
solely attributed then to what petitioner Gonzales may have negligently failed to do
for the quick, fair and complete resolution of the case, or to his error of judgment in
the disposition thereof. Neither should petitioner’s official acts in the resolution of
P/S Insp. Mendoza’s case be judged based upon the resulting deaths at the Quirino
Grandstand. The failure to immediately act upon a party’s requests for an early
resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of
public trust. Records show that petitioner took considerably less time to act upon the
draft resolution after the same was submitted for his appropriate action compared to
the length of time that said draft remained pending and unacted upon in the Office of
Ombudsman Merceditas N. Gutierrez. He reviewed and denied P/S Insp. Mendoza’s
motion for reconsideration within nine (9) calendar days reckoned from the time the
draft resolution was submitted to him on April 27, 2010 until he forwarded his
recommendation to the Office of Ombudsman Gutierrez on May 6, 2010 for the
latter’s final action. Clearly, the release of any final order on the case was no longer in
his hands.
Even if there was inordinate delay in the resolution of P/S Insp. Mendoza’s
motion and an unexplained failure on petitioner’s part to supervise his subordinates
in its prompt disposition, the same cannot be considered a vicious and malevolent
act warranting his removal for betrayal of public trust. More so because the neglect
imputed upon petitioner appears to be an isolated case.
Similarly, petitioner’s act of directing the PNP-IAS to endorse P/S Insp.
Mendoza’s case to the Ombudsman without citing any reason therefor cannot, by
itself, be considered a manifestation of his undue interest in the case that would
amount to wrongful or unlawful conduct. After all, taking cognizance of cases upon
the request of concerned agencies or private parties is part and parcel of the
constitutional mandate of the Office of the Ombudsman to be the “champion of the
people.” The factual circumstances that the case was turned over to the Office of the
Ombudsman upon petitioner’s request; that administrative liability was pronounced
against P/S Insp. Mendoza even without the private complainant verifying the truth
of his statements; that the decision was immediately implemented; or that the
motion for reconsideration thereof remained pending for more than nine months
cannot be simply taken as evidence of petitioner’s undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business
affiliation with any of the parties to the case that could have impelled him to act as he
did. There was likewise no evidence at all of any bribery that took place, or of any
corrupt intention or questionable motivation.
Accordingly, the OP’s pronouncement of administrative accountability against
petitioner and the imposition upon him of the corresponding penalty of dismissal
must be reversed and set aside, as the findings of neglect of duty or misconduct in
office do not amount to a betrayal of public trust. Hence, the President, while he may
be vested with authority, cannot order the removal of petitioner as Deputy
Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for his acts
showing less than diligent performance of official duties. Although the administrative
acts imputed to petitioner fall short of the constitutional standard of betrayal of
public trust, considering the OP’s factual findings of negligence and misconduct
against petitioner, the Court deems it appropriate to refer the case to the Office of the
Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and
the imposition of the corresponding administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal from office,
petitioner is entitled to reinstatement to his former position as Deputy Ombudsman
and to the payment of backwages and benefits corresponding to the period of his
suspension.
The Office of the President is vested with statutory authority to proceed
administratively against petitioner Barreras-Sulit to determine the
existence of any of the grounds for her removal from office as provided
for under the Constitution and the Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the President’s
authority to remove her from office upon the averment that without the
Sandiganbayan’s final approval and judgment on the basis of the PLEBARA, it would
be premature to charge her with acts and/or omissions “tantamount to culpable
violations of the Constitution and betrayal of public trust,” which are grounds for
removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989;
and which also constitute a violation of Section 3, paragraph (e) of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act)—causing undue injury to the
Government or giving any private party any unwarranted benefits, advantage or
preference through manifest partiality, evident bad faith or gross inexcusable
negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take
administrative disciplinary proceeding against her must depend on the final
disposition by the Sandiganbayan of the PLEBARA, explaining that if the
Sandiganbayan would uphold the PLEBARA, there would no longer be any cause of
complaint against her; if not, then the situation becomes ripe for the determination
of her failings.
The argument will not hold water. The incidents that have taken place subsequent
to the submission in court of the PLEBARA shows that the PLEBARA has been
practically approved, and that the only thing which remains to be done by the
Sandiganbayan is to promulgate a judgment imposing the proper sentence on the
accused Major General Garcia based on his new pleas to lesser offenses. On May 4,
2010, the Sandiganbayan issued a resolution declaring that the change of plea under
the PLEBARA was warranted and that it complied with jurisprudential guidelines.
The Sandiganbayan, thereafter, directed the accused Major General Garcia to
immediately convey in favor of the State all the properties, both real and personal,
enumerated therein. On August 11, 2010, the Sandiganbayan issued a resolution,
which, in order to put into effect the reversion of Major General Garcia’s ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of
ownership of said properties to the Republic of the Philippines. In the meantime, the
Office of the Special Prosecutor (OSP) informed the Sandiganbayan that an
Order had been issued by the Regional Trial Court of Manila, Branch 21 on
November 5, 2010 allowing the transfer of the accused’s frozen accounts to the
Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its
May 4, 2010 Resolution had been substantially complied with, Major General Garcia
manifested to the Sandiganbayan on November 19, 2010 his readiness for sentencing
and for the withdrawal of the criminal information against his wife and two sons.
Major General Garcia’s Motion to Dismiss, dated December 16, 2010 and filed with
the Sandiganbayan, reads:
1.0 The Co-Accused were impleaded under the theory of conspiracy with the
Principal Accused MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the
allegation that the act of one is the act of the others. Therefore, with the approval by
the Honorable Court of the Plea Bargaining Agreement executed by the Principal
Accused, the charges against the Co-Accused should likewise be dismissed since the
charges against them are anchored on the same charges against the Principal
Accused.
On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia
to plead guilty to the lesser offenses of direct bribery and violation of Section 4(b),
R.A. No. 9160, as amended. Upon Major General Garcia’s motion, and with the
express conformity of the OSP, the Sandiganbayan allowed him to post bail in both
cases, each at a measly amount of P30,000.00.
The approval or disapproval of the PLEBARA by the Sandiganbayan is of no
consequence to an administrative finding of liability against petitioner Barreras-
Sulit. While the court’s determination of the propriety of a plea bargain is on the
basis of the existing prosecution evidence on record, the disciplinary authority’s
determination of the prosecutor’s administrative liability is based on whether the
plea bargain is consistent with the conscientious consideration of the government’s
best interest and the diligent and efficient performance by the prosecution of its
public duty to prosecute crimes against the State. Consequently, the disciplining
authority’s finding of ineptitude, neglect or willfulness on the part of the prosecution,
more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or
build a strong case for the government or, in this case, entering into an agreement
which the government finds “grossly disadvantageous,” could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered
into.
Plea bargaining is a process in criminal cases whereby the accused and the
prosecution work out a mutually satisfactory disposition of the case subject to court
approval. The essence of a plea bargaining agreement is the allowance of an accused
to plead guilty to a lesser offense than that charged against him. Section 2, Rule 116
of the Revised Rules of Criminal Procedure provides the procedure therefor, to wit:
SEC. 2. Plea of guilty to a lesser offense.—At arraignment, the accused, with
the consent of the offended party and the prosecutor, may be allowed by the trial
court to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of
the complaint or information is necessary. (Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not have sufficient
evidence to establish the guilt of the accused of the crime charged. However, if the
basis for the allowance of a plea bargain in this case is the evidence on record, then it
is significant to state that in its earlier Resolution promulgated on January 7, 2010,
the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution
witnesses and declared that “the conglomeration of evidence presented by the
prosecution is viewed by the Court to be of strong character that militates against the
grant of bail.”
 Notwithstanding this earlier ruling by the Sandiganbayan, the OSP,
unexplainably, chose to plea bargain with the accused Major General Garcia as if its
evidence were suddenly insufficient to secure a conviction. At this juncture, it is not
amiss to emphasize that the “standard of strong evidence of guilt which is sufficient
to deny bail to an accused is markedly higher than the standard of judicial probable
cause which is sufficient to initiate a criminal case.” Hence, in light of the apparently
strong case against accused Major General Garcia, the disciplining authority would
be hardpressed not to look into the whys and wherefores of the prosecution’s
turnabout in the case.
The Court need not touch further upon the substantial matters that are the
subject of the pending administrative proceeding against petitioner Barreras-Sulit
and are, thus, better left to the complete and effective resolution of the
administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has,
nonetheless, failed to obtain the necessary votes to invalidate the law, thus, keeping
said provision part of the law of the land. To recall, these cases involve two distinct
issues: (a) the constitutionality of Section 8(2) of the Ombudsman Act; and (b) the
validity of the administrative action of removal taken against petitioner Gonzales.
While the Court voted unanimously to reverse the decision of the OP removing
petitioner Gonzales from office, it was equally divided in its opinion on the
constitutionality of the assailed statutory provision in its two deliberations held on
April 17, 2012 and September 4, 2012. There being no majority vote to invalidate the
law, the Court, therefore, dismisses the challenge to the constitutionality of Section
8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of the Internal
Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the
majority of the Members of the Court actually taking part in the deliberations to
sustain any challenge to the constitutionality or validity of a statute or any of its
provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in
OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales
III is ordered REINSTATED with payment of backwages corresponding to the period
of suspension effective immediately even as the Office of the Ombudsman is directed
to proceed with the investigation in connection with the above case against
petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-
B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and
omissions tantamount to culpable violation of the Constitution and a betrayal of
public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is
hereby DENIED. SO ORDERED.
CONCURRING OPINION
CARPIO, J.:
Our Constitution does not impart a fixed and rigid concept of independence
among the offices that it creates. While it declares certain bodies as “‘independent”,
we cannot assume that the independence of the Ombudsman is the same as the
independence of the Judiciary. Neither is the independence of the Constitutional
Commissions the same as that of the National Economic and Development
Authority, the Bangko Sentral ng Pilipinas or the Commission on Human
Rights. This Court cannot make a “one size fits all” concept of independence because
the Constitution itself differentiates the degree of independence of these bodies.
In this case, the petitions seek to strike down Section 8(2) of Republic Act No.
6170 or the Ombudsman Act of 1989 which delegates to the President the power to
remove a Deputy Ombudsman or the Special Prosecutor “for any of the grounds
provided for the removal of the Ombudsman, and after due process.” The provision
allegedly compromises the independence of the Ombudsman by imposing an
external disciplinary authority, namely the President.
I agree with the ponencia that Section 8(2) of the Ombudsman Act does not
violate the Constitution. The constitutional principle of independence does not
obviate the possibility of a check from another body. After all, one of the constitutive
principles of our constitutional structure is the system of checks and balances—a
check that is not within a body, but outside of it. This is how our democracy operates
—on the basis of distrust.
I.
Section 2, Article XI of the 1987 Constitution prescribes how all public officers
and employees, both impeachable and non-impeachable, may be removed.
Section 2 provides:
The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. (Boldfacing and
underscoring supplied)
 Section 2 of Article XI consists of two parts. The first sentence identifies the
public officials who are subject to removal only by impeachment. The second
sentence explicitly leaves to the discretion of Congress, through an
implementing law, the removal of all other public officers and
employees. In other words, by stating that all other non-impeachable
officers and employees “may be removed from office as provided by
law”—the Constitution expressly grants to Congress the power to
determine the manner and cause of removal, including who will be the
disciplinary authority, of non-impeachable officers and
employees. Clearly, Section 8(2) of the Ombudsman Act is valid and constitutional
since Congress is expressly empowered to legislate such law pursuant to Section 2,
Article XI of the Constitution.
The original text of Section 2 of Article XI did not include the second sentence. Its
subsequent inclusion was only meant to exclude “all other public officers and
employees” from removal through impeachment. Otherwise, Congress would have
the plenary power to remove public officers and employees through impeachment or
through any other mode of removal. Thus, at the outset, the framers of the 1987
Constitution saw no need to textualize this power—for it was already taken for
granted as part of the plenary power of Congress. However, to limit this plenary
power of Congress, the framers expressly excluded impeachment as a mode of
removing “all other public officers and employees.”
This Court has repeatedly declared that the Constitution “confer[s] plenary
legislative x x x powers subject only to limitations provided in the Constitution.”
Thus, in inserting the second sentence in Section 8(2), Article XI of the 1987
Constitution, the framers intended to limit impeachment only to public officers
enumerated in the first sentence of Section 2:
MR. REGALADO. I propose to add in Section 2 as a last sentence thereof as
already amended the following: ALL OTHER PUBLIC OFFICERS AND EMPLOYEES
MAY BE REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY
IMPEACHMENT. The reason for the amendment is this: While Section 2
enumerates the impeachable officers, there is nothing that will prevent
the legislature as it stands now from providing also that other officers not
enumerated therein shall also be removable only by impeachment, and
that has already happened.
Under Section 1 of P.D. No. 1606, the Sandiganbayan Decree, justices of the
Sandiganbayan may be removed only by impeachment, unlike their counterparts in
the then Court of Appeals. They are, therefore, a privileged class on the level of the
Supreme Court. In the Committee on Constitutional Commissions and Agencies,
there are many commissions which are sought to be constitutionalized–if I may use
the phrase—and the end result would be that if they are constitutional commissions,
the commissioners there could also be removed only by impeachment. What is
there to prevent the Congress later—because of the lack of this sentence
that I am seeking to add—from providing that officials of certain offices,
although nonconstitutional, cannot also be removed except by
impeachment?
THE PRESIDING OFFICER (Mr. Treñas). What does the Committee say on the
proposed amendment of Commissioner Regalado?
MR. MONSOD. May we ask Commissioner Regalado a few questions?
Does this mean that with this provision, the other officers in the case of the
Sandiganbayan would not be removable by impeachment?
MR. REGALADO. For the present and during the interim and until the new
Congress amends P.D. No. 1606, that provision still stands. But the proposed
amendment will not prevent the legislature from subsequently repealing or amending
that portion of the law. Also, it will prevent the legislature from providing for
favoured public officials as not removable except by impeachment.
MR. MONSOD. Mr. Presiding Officer, the Committee is willing to accept the
amendment of Commissioner Regalado.
THE PRESIDING OFFICER (Mr. Treñas). The proposed amendment of
Commissioner Regalado has been accepted by the Committee. (Emphasis supplied)
Clearly, Congress has the power and discretion to delegate to the President the
power to remove a Deputy Ombudsman or the Special Prosecutor under Section 8(2)
of the Ombudsman Act. While the 1987 Constitution already empowers the
Ombudsman to investigate and to recommend to remove a Deputy Ombudsman and
the Special Prosecutor, this does not preclude Congress from providing other modes
of removal.
The Deputy Ombudsman and the Special Prosecutor are not among the
impeachable officers under the 1987 Constitution. Thus, as expressly provided in
Section 2, Article XI of the Constitution, they “may be removed from office as
provided by law.” Congress, pursuant to this constitutional provision and in the
exercise of its plenary power, enacted the Ombudsman Act, conferring on the
President the power to remove the Deputy Ombudsman and the Special Prosecutor
as provided in Section 8(2) of the Ombudsman Act.
However, the Ombudsman Act also grants the Ombudsman the authority to
remove a Deputy Ombudsman and the Special Prosecutor through the general grant
of disciplinary authority over all elective and appointive officials, in reiteration of
Sections 13(1) and (2), Article XI of the Constitution:
Section 21. Officials Subject to Disciplinary Authority; Exceptions .—The
Office of the Ombudsman shall have disciplinary authority over all elective and
appointive officials of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government, government-owned
or controlled corporations and their subsidiaries, except over officials who may be
removed only by impeachment or over Members of Congress, and the Judiciary.

In view of Section 8(2) and Section 21 of the Ombudsman Act, the legislative
intent is to grant concurrent jurisdiction to the President and the Ombudsman in the
removal of the Deputy Ombudsman and the Special Prosecutor. An “endeavor should
be made to harmonize the provisions of a law x x x so that each shall be effective.”
This is not a hollow precept of statutory construction. This is based not only on
democratic principle but also on the separation of powers, that this Court should not
be so casual in voiding the acts of the popularly elected legislature unless there is a
clear violation of the Constitution.
II.
When the 1987 Constitution speaks of “independent” bodies, it does not mean
complete insulation from other offices. The text, history and structure of the
Constitution contemplate checks and balances that result in the expansion,
contraction or concurrence of powers, a coordinate functioning among different
bodies of government that is not limited to the executive, legislative and judicial
branches, but includes the “independent” constitutional bodies. The very structure of
our government belies the claim that “independent” bodies necessarily have
exclusive authority to discipline its officers.
Not all constitutional declarations are enforceable by courts. We declared some of
them as not self-executing such as the Declaration of Principles and State Policies
under Article II. However, the independence of constitutional bodies is a judicially
enforceable norm. Textually, the Constitution does not define the term
“independent” and thus, the contours of this principle may not be immediately clear.
The question therefore arises: to what extent can this Court enforce the
independence of bodies like the Ombudsman? Can we impose a particular notion of
independence, amidst the silence of the constitutional text, to the extent of nullifying
an act of Congress?
The answer lies in the Constitution itself which circumscribes the exercise of
judicial power. The Constitution clearly intended different degrees of independence
among the “independent” bodies that it created. For some, such as the National
Economic and Development Authority, Bangko Sentral ng Pilipinas and
Commission on Human Rights, the operationalization of independence is
constitutionally committed to the discretion of Congress. For the others, like the Civil
Service Commission, the Commission on Audit and the Commission on Elections,
legislative power is decidedly more limited, with express guarantees like fiscal
autonomy and rule-making power on pleadings and practice.
The Constitution does not enumerate in detail all the possible legislative powers.
The Constitution has vested Congress with plenary powers—as the general repository
of the police power of the State—to fill-in gaps in the Constitution for the governance
of this country. However, when the Constitution expressly empowers Congress to do
a specific act—like expressly empowering Congress to provide the mode of removal of
all non-impeachable government officers and employees, there can be no doubt
whatsoever that Congress can enact such a law.
Any reading of the 1987 Constitution does not warrant the conclusion that all
bodies declared by the Constitution as “independent” have exclusive disciplinary
authority over all their respective officials and employees. Unlike the Judiciary where
such exclusivity is expressly provided for in the Constitution, there is no reason to
read such provision in the Ombudsman where the Constitution is silent. On the
contrary, the constitutional provision that non-impeachable officers and employees
“may be removed from office as provided by law” removes any doubt that
Congress can determine the mode of removal of non-impeachable officers and
employees of “independent” bodies other than the Judiciary. An “independent” body
does not have exclusive disciplinary authority over its officials and employees unless
the Constitution expressly so provides, as in the case of the Judiciary.
There are other constitutional bodies declared “independent,” but disciplinary
authority is statutorily lodged somewhere else. Under the New Central Bank Act
(Republic Act No. 7653), the President also has the power to remove a member of the
Monetary Board on specified grounds. Ther is nothing anomalous in this mode of
removal because the Constitution expressly authorizes the legislature to provide for
such mode of removal. This Court cannot enforce a speculative notion of
independence—that an “independent” body has exclusive disciplinary authority—for
doing so would be a species of judicial legislation or a disguised constitutional
amendment.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. Madam President, may I ask a question for clarification? The
section says, “The Congress shall establish an independent central monetary
authority.” My question has reference to the word “independent.” How is
independence of this authority supported by the Constitution?
In the case of the judiciary, the Members are independent because they have a
fixed term and they may not be removed except by impeachment or some very
difficult process. This applies to the different constitutional commissions. But in the
case of this central monetary authority which we call “independent”, how is this
independence maintained?
MR. VILLEGAS. The thinking is: Congress, in establishing that independent
central monetary authority, should provide a fixed term. Actually that was contained
in the original Davide amendment but we thought of leaving it up to Congress to
determine that term—a fixed term of probably five years or seven years serving in the
monetary board.
 MR. RODRIGO. Does this include that they may not be removed except by
impeachment by the Congress?
MR. VILLEGAS. Exactly.
MR. RODRIGO. Just like the members of the other constitutional commissions?
MR. VILLEGAS. Yes. That is why we say that they shall be subject to the same
disabilities or disqualifications as the members of the constitutional commissions.
MR. RODRIGO. Are we leaving that to Congress?
MR. VILLEGAS. That is right.
MR. RODRIGO: Thank you.
III.
This Court has no business limiting the plenary power of Congress unless the
Constitution expressly so limits it. The fact that different constitutional bodies are
treated differently under the Constitution shows that independence is a broadly
delineated norm. With this level of generality, the constitutional meaning of
independence is only that of independent decision-making that is free from
partisanship and political pressures. It does not even mean fiscal autonomy unless
the Constitution says so. Thus, it is generally left to Congress to particularize the
meaning of independence, subject only to specific constitutional limitations. Nothing
in the Constitution tells us that an “independent” body necessarily has exclusive
disciplinary authority over its officials and employees.
A completely “independent” body is alien to our constitutional system. There is no
office that is insulated from a possible correction from another office. The executive,
legislative and judicial branches of government operate through the system of checks
and balances. All independent constitutional bodies are subject to review by the
courts. A fiscally autonomous body is subject to audit by the Commission on Audit,
and Congress cannot be compelled to appropriate a bigger budget than that of the
previous fiscal year.
Section 8(2) of the Ombudsman Act is consistent with our system of checks and
balances. The provision is a narrow form of delegation which empowers the
President to remove only two officers in the Office of the Ombudsman, i.e. the
Deputy Ombudsman and the Special Prosecutor. The proposition that an external
disciplinary authority compromises the Ombudsman’s independence fails to
recognize that the Constitution expressly authorizes Congress to determine the mode
of removal of all nonimpeachable officers and employees. It also fails to recognize
that under a system of checks and balances, an external disciplinary authority is
desirable and is often the norm.
In disciplinary cases, the 1987 Constitution empowers the Ombudsman to direct
the proper disciplinary authority “to take appropriate action against a public official
or employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith.” This is further
implemented by the Ombudsman Act which provides that “[a]t its option, the Office
of the Ombudsman may refer certain complaints to the proper
disciplinary authority for the institution of appropriate administrative
proceedings against erring public officers or employees, which shall be determined
within the period prescribed the civil service law.”
Clearly, the Ombudsman is not constitutionally empowered to act alone. Congress
can even authorize the Department of Justice or the Office of the President to
investigate cases within the jurisdiction of the Ombudsman. Similarly, the
Ombudsman can investigate public officers and employees who are under the
disciplinary authority of heads of other bodies or agencies. The cases cited in the
ponencia, i.e. Hagad v. Gozo-Dadole and Office the Ombudsman v. Delijero, Jr.—
illustrate that concurrent jurisdiction does not impair the independence of the
Ombudsman. Duplication of functions may not at all times promote efficiency, but it
is not proscribed by the Constitution.
Accordingly, I vote to DENY the petition in G.R. No. 196232, and to GRANT in
part the petition in G.R. No. 196231, in accordance with the ponencia of Justice
Estela M. Perlas-Bernabe.
CONCURRING AND DISSENTING OPINION
BRION, J.:
The present case consists of two consolidated petitions, G.R. No. 196231 and G.R.
No. 196232.
I concur with the ponencia’s main conclusion that petitioner Emilio Gonzales III
(in G.R. No. 196231, referred to as Gonzales or petitioner Gonzales) is not guilty of
the charges leveled against him. But with due respect, I disagree with the
conclusion that Section 8(2) of Republic Act (RA) No. 6770 (which
empowers the President to remove a Deputy Ombudsman or a Special
Prosecutor) is constitutionally valid.
The petition of Wendell Barreras-Sulit (in G.R. No. 196232, referred to as Sulit or
petitioner Sulit) commonly shares with G.R. No. 196231 the issue of the
constitutionality of Section 8(2) of RA No. 6770. For the same reasons of
unconstitutionality discussed below, the administrative proceedings against Sulit
should be halted and nullified as she prays for in her petition.
 G.R. No. 196231 is a petition questioning the validity of the administrative
proceedings conducted by the Office of the President against Gonzales who was the
Deputy Ombudsman for Military and Other Law Enforcement Offices.
The action against him before the Office of the President consists of an
administrative charge for Gross Neglect of Duty and/or Inefficiency in the
Performance of Official Duty (under Section 22, Rule XIV of the Omnibus Rules
Implementing Book V of Executive Order No. 292 and other pertinent Civil Service
laws, rules and regulations), and of Misconduct in Office (under Section 3 of the
Anti-Graft and Corrupt Practices Act [RA No. 3019]). The administrative case against
Gonzales was recommended by the Incident Investigation and Review Committee
(IIRC) in connection with the hijacking of a tourist bus resulting in the death of the
hijacker and of some passengers; the hijacker then accused Gonzales of illegal
exactions and of delaying the disposition of his Ombudsman case.
On March 31, 2011, the Office of the President found Gonzales guilty of Gross
Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
penalized him with dismissal from office.
In G.R. No. 196232, petitioner Sulit, a Special Prosecutor in the Office of the
Ombudsman, seeks to halt and nullify the ongoing administrative proceedings
conducted by the Office of the President against her. Sulit was charged with violating
Section 3(e) of RA No. 3019 and for having committed acts and/or omissions
tantamount to culpable violations of the Constitution, and betrayal of public trust.
In behalf of the Office of the Ombudsman, Sulit entered into a plea bargain with
Major General Carlos F. Garcia who had been charged with Plunder and Money
Laundering. Because of the plea bargain, Sulit was required to show cause why an
administrative case should not be filed against her. She raised in her Written
Explanation of March 24, 2011 the impermissibility and impropriety of
administrative disciplinary proceedings against her because the Office of the
President has no jurisdiction to discipline and penalize her.
The two petitions—G.R. No. 196231 and G.R. No. 196232—share a common issue:
whether the President has the power to discipline or remove a Deputy Ombudsman
or a Special Prosecutor in the Office of the Ombudsman from office. While
the ponencia resolves this issue in favor of the President, it is my considered view
that the power to discipline or remove an official of the Office of the
Ombudsman should be lodged only with the Ombudsman and not with
the Office of the President, in light of the independence the Constitution
guarantees the Office of the Ombudsman.
The Office of the Ombudsman is a very powerful government constitutional
agency tasked to enforce the accountability of public officers. Section 21 of The
Ombudsman Act of 1989 (RA No. 6770) concretizes this constitutional mandate by
providing that:
Section 21. Official Subject to Disciplinary Authority; Exceptions.—The Office
of the Ombudsman shall have disciplinary authority over all elective and
appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over officials who may be removed only by impeachment or
over Members of Congress, and the Judiciary. (Emphasis ours.)
The Ombudsman’s duty to protect the people from unjust, illegal and inefficient
acts of all public officials emanates from Section 12, Article XI of the Constitution.
These broad powers include all acts of malfeasance, misfeasance, and nonfeasance of
all public officials, including Members of the Cabinet and key Executive
officers, during their tenure.
To support these broad powers, the Constitution saw it fit to insulate
the Office of the Ombudsman from the pressures and influence of
officialdom and partisan politics and from fear of external reprisal by
making it an “independent” office. Section 5, Article XI of the Constitution
expressed this intent, as follows:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed.
(Emphasis ours.)
It is in this light that the general authority of the Office of the President to
discipline all officials and employees the President has the authority to appoint, 5
should be considered.
In more concrete terms, subjecting the officials of the Office of the
Ombudsman to discipline and removal by the President, whose own
alter egos and officials in the Executive Department are subject to the
Ombudsman’s disciplinary authority, cannot but seriously place at risk
the independence of the Ombudsman and her officials, and must
consequently run counter to the independence that the Constitution
guarantees the Office of the Ombudsman. What is true for the
Ombudsman must be equally true, not only for her Deputies but for
other lesser officials of that Office who act as delegates and agents of the
Ombudsman in the performance of her duties. The Ombudsman can hardly
be expected to place her complete trust in subordinate officials who are not as
independent as she is, if only because they are subject to pressures and controls
external to her Office. This need for complete trust is true in an ideal setting and
truer still in a young democracy like the Philippines where graft and corruption is
still a major problem for the government. For these reasons, Section 8(2) of RA
No. 6770 (providing that the President may remove a Deputy
Ombudsman) clearly runs against the constitutional intent and should, thus, be
declared void.
Significantly, the possible unconstitutional effects of Section 8(2) of RA No. 6770
were not unknown to the framers of this law. These possibilities were brought by
then Senator Teofisto Guingona to the framers’ attention as early as the
congressional deliberations:
Reacting thereto, Senator Guingona observed that this might impair the
independence of the Tanodbayan and suggested that the procedural removal of the
Deputy Tanodbayan xxx be not by the President but by the Ombudsman.
xxxx
Senator Guingona contended, however, that the Constitution provides for an
independent Office of the Tanodbayan, and to allow the Executive to have
disciplinary powers over the Tanodbayan Deputies would be an encroachment on the
independence of the Tanodbayan.
Despite Senator Guingona’s objections, Congress passed RA No. 6770 and the
objected Section 8(2) into law. While it may be claimed that the congressional intent
is clear after the Guingona objection was considered and rejected by Congress, such
clarity and the overriding congressional action are not enough to insulate the assailed
provision from constitutional infirmity if one, in fact, exists. This is particularly true
if the infirmity relates to a core constitutional principle—the independence of the
Ombudsman—that belongs to the same classification as the constitutionally
guaranteed independence that the Judiciary enjoys. To be sure, neither the Executive
nor the Legislative can create the power that Section 8(2) grants where the
Constitution confers none. When exercised authority is drawn from a vacuum, more
so when the authority runs counter to constitutional intents, this Court is obligated
to intervene under the powers and duties granted and imposed on it by Article VIII of
the Constitution. The alternative for the Court is to be remiss in the performance of
its own constitutional duties.
More compelling and more persuasive than the reason expressed in the
congressional deliberations in discerning constitutional intent should be the
deliberations of the Constitutional Commission itself on the independence of the
Ombudsman. Commissioner Florenz Regalado of the Constitutional Commission
openly expressed his concerns on the matter, fearing that any form of presidential
control over the Office of the Ombudsman would diminish its independence:
In other words, Madam President, what actually spawned or caused the failure of
the justices of the Tanodbayan insofar as monitoring and fiscalizing the government
offices are concerned was due to two reasons: First, almost all their time was taken
up by criminal cases; and second, since they were under the Office of the President,
their funds came from that office. I have a sneaking suspicion that they were
prevented from making administrative monitoring because of the sensitivity of the
then head of that office, because if the Tanodbayan would make the
corresponding reports about failures, malfunctions or omissions of the
different ministries, then that would reflect upon the President who
wanted to claim the alleged confidence of the people.
xxxx
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a
paper tiger. That is not necessarily so. If he is toothless, then let us give him a little
more teeth by making him independent of the Office of the President because
it is now a constitutional creation, so that the insidious tentacles of politics, as has
always been our problem, even with PARGO, PCAPE and so forth, will not deprive
him of the opportunity to render service to Juan de la Cruz. x x x. There is supposed
to be created a constitutional office—constitutionalized to free it from those
tentacles of politics—and we give it more teeth and have the corresponding
legislative provisions for its budget, not a budget under the Office of the President.
xxxx
x x x. For that reason, Madam President, I support this committee report on a
constitutionally created Ombudsman and I further ask that to avoid having a
toothless tiger, there should be further provisions for statistical and logistical
support.(Emphases ours.)
The intention of the Constitutional Commission to keep the Office of the
Ombudsman independent from the President could not have been made any clearer
than when Commissioner Christian Monsod vehemently rejected the
recommendation of Commissioner Blas Ople who had suggested to the Committee
that the Office of the Ombudsman be placed under the Executive:
MR. OPLE. x x x
May I direct a question to the Committee? xxx [W]ill the Committee consider later
an amendment xxx, by way of designating the office of the Ombudsman as a
constitutional arm for good government, efficiency of the public service and the
integrity of the President of the Philippines, instead of creating another agency in a
kind of administrative limbo which would be accountable to no one on the pretext
that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee
deliberations and when we prepared the report, it was the opinion of the Committee
—and I believe it still is that it may not contribute to the effectiveness of this office of
the Ombudsman precisely because many of the culprits in inefficiency, injustice and
 impropriety are in the executive department. Therefore, as we saw the wrong
implementation of the Tanodbayan which was under the tremendous influence of the I find it significant that the Office of the Ombudsman is not the only
President, it was an ineffectual body and was reduced to the function of a special governmental body labeled as “independent” in our Constitution. The list includes
fiscal. the Judiciary, the Constitutional Commissions (Commission on Elections,
Commission on Audit, and the Civil Service Commission), the Commission on
The whole purpose of our proposal is precisely to separate those functions and to
Human Rights, a central monetary authority, and, to a certain extent, the National
produce a vehicle that will give true meaning to the concept of Ombudsman.
Economic Development Authority. These bodies, however, are granted various
Therefore, we regret that we cannot accept the proposition.
degrees of “independence” and these variations must be clarified to fully understand
the context and meaning of the “independent” status conferred on the office of the
The statements made by Commissioner Monsod emphasized a very logical
Ombudsman.
principle: the Executive power to remove and discipline members of the
Office of the Ombudsman, or to exercise any power over them, would
The independence enjoyed by the Office of the Ombudsman, by the Constitutional
result in an absurd situation wherein the Office of the Ombudsman is
Commissions, and by the Judiciary shares certain characteristics—they do not owe
given the duty to adjudicate on the integrity and competence of the very
their existence to any act of Congress, but are created by the Constitution itself;
persons who can remove or suspend its members. Equally relevant is the
additionally, they all enjoy fiscal autonomy.
impression that would be given to the public if the rule were otherwise. A
complainant with a grievance against a high-ranking official of the Executive, who
For most, if not for all of these “independent” bodies, the framers of the
appears to enjoy the President’s favor, would be discouraged from approaching the
Constitution intended that they be insulated from political pressure. As a checks and
Ombudsman with his complaint; the complainant’s impression (even if misplaced),
balance mechanism, the Constitution, the Rules of Court, and their implementing
that the Ombudsman would be susceptible to political pressure, cannot be avoided.
laws provide measures to check on the “independence” granted to the Constitutional
To be sure, such an impression would erode the constitutional intent of creating an
Commissions and the Office of the Ombudsman; the Supreme Court, as the final
Office of the Ombudsman as champion of the people against corruption and
arbiter of all legal questions, may review the decisions of the Constitutional
bureaucracy.
Commissions and the Office of the Ombudsman, especially when there is grave abuse
of discretion. Of course, foisted over the Members of the Supreme Court is the power
These views, to my mind, demolish the concern raised in Congress to justify
of impeachment that Congress has the authority to initiate, and carry into its logical
Section 8(2) of RA No. 6770—i.e., that vesting the authority to remove the
end a meritorious impeachment case.24 Such is the symmetry that our Constitution
Tanodbayan on the Ombudsman would result in mutual protection. 13 This
provides for the harmonious balance of all its component and “independent” parts.
congressional concern, too, is a needless one as it is inconsistent with the system of
checks and balance that our legal structure establishes.
In Bengzon v. Drilon, we ruled on the fiscal autonomy of the Judiciary, and ruled
against the interference that the President may bring. In doing so, we maintained
At the practical constitutional level, the Tanodbayan (now the Office of the Special
that the independence, and the flexibility of the Judiciary, the Constitutional
Prosecutor) cannot protect the Ombudsman who is an impeachable officer, as the
Commissions and the Office of the Ombudsman are crucial to our legal system:
power to remove the Ombudsman rests with Congress as the representative of the
people. On the other hand, should the Ombudsman attempt to shield the The Judiciary, the Constitutional Commissions, and the Ombudsman must have
Tanodbayan from answering for any violation, the matter may be raised with the the independence and flexibility needed in the discharge of their constitutional
Supreme Court on appeal or by Special Civil Action for Certiorari, whichever may be duties. The imposition of restrictions and constraints on the manner the
applicable, in addition to the impeachment proceedings to which the Ombudsman independent constitutional offices allocate and utilize the funds appropriated for
may be subjected. For its part, the Supreme Court is a non-political independent their operations is anathema to fiscal autonomy and violative not only the express
body mandated by the Constitution to settle judicial and quasi-judicial disputes, mandate of the Constitution but especially as regards the Supreme Court, of the
whose judges and employees are not subject to the disciplinary authority of the independence and separation of powers upon which the entire fabric of our
Ombudsman and whose neutrality would be less questionable. In these lights, the constitutional system is based.
checks and balance principle that underlies the Constitution can be appreciated to be
fully operational. As in the case of the Office of the Ombudsman, the constitutional deliberations
explain the Constitutional Commissions’ need for independence.

In the deliberations for the 1973 Constitution, the delegates amended the 1935
Constitution by providing for a constitutionally-created Civil Service Commission,
instead of one created by law, based on the precept that the effectivity of this body is
dependent on its freedom from the tentacles of politics:
DELEGATE GUNIGUNDO x x x
[b] because we believe that the Civil Service created by law has not been able to
eradicate the ills and evils envisioned by the framers of the 1935 Constitution;
because we believe that the Civil Service created by law is beholden to the creators of
that law and is therefore not politics-free, not graft-free and not corruption-free;
because we believe that as long as the law is the reflection of the will of the ruling
class, the Civil Service that will be created and recreated by law will not serve the
interest of the people but only the personal interest of the few and the enhancement
of family power, advancement and prestige.
The deliberations of the 1987 Constitution on the Commission on Audit, on the
other hand, highlighted the developments in the past Constitutions geared towards
insulating the Commission on Audit from political pressure:
MR. JAMIR. x x x
When the 1935 Constitution was enacted, the auditing office was
constitutionalized because of the increasing necessity of empowering the auditing
office to withstand political pressure. Finding a single Auditor to be quite insufficient
to withstand political pressure, the 1973 Constitution established the Commission
consisting of three members—a chairman and two commissioners.
In Brillantes, Jr. v. Yorac,28 we pointedly emphasized that the Constitutional
Commissions, which have been characterized under the Constitution as
“independent,” are not under the control of the President, even if they discharge
functions that are executive in nature. Faced with a temporary presidential
appointment in the Commission on Elections, this Court vigorously denied the
President the authority to interfere in these constitutional bodies:
The lack of a statutory rule covering the situation at bar is no justification for the
President of the Philippines to fill the void by extending the temporary designation
in favor of the respondent. This is still a government of laws and not of men. The
problem allegedly sought to be corrected, if it existed at all, did not call for
presidential action. The situation could have been handled by the members of the
Commission on Elections themselves without the participation of the President,
however well-meaning.
x x x. But while conceding her goodwill, we cannot sustain her act because it
conflicts with the Constitution.
The Commission on Human Rights, also created by the Constitution as an
“independent” office, enjoys lesser independence since it was not granted fiscal
autonomy, in the manner fiscal autonomy was granted to the offices above-discussed.
The lack of fiscal autonomy notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the Commission independent from the
executive branch and other political leaders:
MR. MONSOD. We see the merits of the arguments of Commissioner Rodrigo.
If we explain to him our concept, he can advise us on how to reconcile his position
with ours. The position of the committee is that we need a body that would be able to
work and cooperate with the executive because the Commissioner is right. Many of
the services needed by this commission would need not only the cooperation of the
executive branch of the government but also of the judicial branch of government.
This is going to be a permanent constitutional commission over time. We also want
a commission to function even under the worst circumstance when the
executive may not be very cooperative. However, the question in our mind is:
Can it still function during that time? Hence, we are willing to accept suggestions
from Commissioner Rodrigo on how to reconcile this. We realize the need for
coordination and cooperation. We also would like to build in some safeguards
that it will not be rendered useless by an uncooperative executive.
xxxx
MR. GARCIA. Thank you very much, Madame President.
Before we address the procedural question which Commissioner Rodrigo
requested, I would like to touch on a very important question which I think is at the
very heart of what we are trying to propose—the independence of this Commission on
Human Rights. xxx
When I was working as a researcher for Amnesty International, one of my areas
of concern was Latin America. I headed a mission to Colombia in 1980. I remember
the conversation with President Julio Cesar Turbay Ayala and he told me that in
Colombia, there were no political prisoners. This is a very common experience when
one goes to governments to investigate human rights. From there, we proceeded to
the Procuraduria General to the Attorney-General, to the Ministry of Justice, to the
Ministry of Defense, and normally the answers that one will get are: “There are no
political prisoners in our country”; “Torture is not committed in this country.” Very
often, when international commissions or organizations on human rights go to a
country, the most credible organizations are independent human rights bodies. Very
often these are private organizations, many of which are prosecuted, such as those we
find in many countries in Latin America. In fact, what we are proposing is an
independent body on human rights, which would provide governments
with credibility precisely because it is independent of the present
administration. Whatever it says on the human rights situation will be credible
because it is not subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in
power yesterday are in opposition today and those who are in power today may be in
the opposition tomorrow. Therefore, if we have a Commission on Human
Rights that would investigate and make sure that the rights of each one is
protected, then we shall have a body that could stand up to any power, to
defend the rights of individuals against arrest, unfair trial, and so
on. (Emphases ours.)

Similarly, the Constitution grants Congress the authority to establish an
independent central monetary authority. Under these terms, this office is not
constitutionally-created nor does it possess fiscal autonomy. When asked what
“independence” means in this provision, Commissioner Bernardo Villegas again
reiterated the intention of various framers for it to be independent of the executive
branch:
MR. VILLEGAS. No, this is a formula intended to prevent what happened in the
last regime when the fiscal authorities sided with the executive branch and were
systematically in control of monetary policy. This can lead to disastrous
consequences. When the fiscal and the monetary authorities of a specific economy are
combined, then there can be a lot of irresponsibility. So, this word “independent”
refers to the executive branch.
The National Economic Development Authority, nominally designated
“independent,” differs from the other similarly-described agencies because
constitutional provision that provides for its creation immediately puts it under
control of the executive. This differing shade of “independence” is supported by
statements made during the constitutional deliberations:
MR. MONSOD. I believe that the word “independent” here, as we answered
Commissioner Azcuna, was meant to be independent of the legislature because the
NEDA under the present law is under the Office of the President.
MR. COLAYCO. Yes. In other words, the members of that agency are appointed by
the President?
MR. VILLEGAS. That is right.
MR. MONSOD. Yes.
MR. VILLEGAS. The President heads the NEDA.
Commissioner Monsod continues by explaining that they did not constitutionalize
the National Economic Development Authority, and, in accordance with the second
paragraph of Section 9, Article XII of the 1987 Constitution, even left to Congress the
discretion to abolish the office:
MR. MONSOD. During the Committee hearings, there were proposals to
change the composition of the governing body not only of the Monetary Board but
also of the NEDA. That is why if we notice in this Article, we did not constitutionalize
the NEDA anymore unlike in the 1973 Constitution. We are leaving it up to Congress
to determine whether or not the NEDA is needed later on. The idea of the Committee
is that if we are going for less government and more private sector initiative, later on
it may not be necessary to have a planning agency. Thus, it may not be necessary to
constitutionalize a planning agency anymore.
So this provision leaves room for the legislature not only to revise the
composition of the governing body, but also to remove the NEDA once it is no longer
needed in its judgment.
These deliberative considerations make it abundantly clear that with the
exception of the National Economic Development Authority, the independent
constitutional bodies were consistently intended by the framers to be independent
from executive control or supervision or any form of political influence.
This perspective abundantly clarifies that the cases cited in the ponencia—Hon.
Hagad v. Hon. Gozo-Dadole and Office of the Ombudsman v. Delijero, Jr.—are not
in point. These cases refer to the disciplinary authority of the Executive over a public
school teacher and a local elective official. Neither of these officials belongs to
independent constitutional bodies whose actions should not even be tainted with any
appearance of political influence.
as
the
In my view, the closest and most appropriate case to cite as exemplar of
the
independence from executive control is Bautista v. Senator Salonga, where this
the
Court categorically stated, with respect to the independent Commission on Human
Rights, that the tenure of its Commissioners could not be placed under the
discretionary power of the President:
Indeed, the Court finds it extremely difficult to conceptualize how an office
conceived and created by the Constitution to be independent—as the Commission on
Human Rights—and vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and recommending sanctions
as well as remedial measures therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chairman and Members is made
dependent on the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission on
Human Rights has to be declared unconstitutional.
Also in point as another “independence” case is Atty. Macalintal v. Comelec,40
this time involving the Commission on Elections, which gave the Court the
opportunity to consider even the mere review of the rules of the
Commission on Elections by Congress a “trampling” of the
constitutional mandate of independence of these bodies. Obviously, the mere
review of rules places considerably less pressure on these bodies than the Executive’s
power to discipline and remove key officials of the Office of the Ombudsman. The
caution of, and the strong words used by, this Court in protecting the Commission on
Elections’ independence should—in addition to those expressed before the
Constitutional Commissions and in Congress in the course of framing RA No. 6770—
speak for themselves as reasons to invalidate the more pervasive authority granted by
Section 8(2) of RA No. 6770.

Thus, in the case of independent constitutional bodies, with the exception of the
National Economic Development Authority, the principle that the President should
be allowed to remove those whom he is empowered to appoint (because of the
implied power to dismiss those he is empowered to appoint 41 should find no
application. Note that the withholding of the power to remove is not a
stranger to the Philippine constitutional structure.
For example, while the President is empowered to appoint the Members of the
Supreme Court and the judges of the lower courts, he cannot remove any of them;
the Members of the Supreme Court can be removed only by impeachment and the
lower court judges can be removed only by the Members of the Supreme Court en
banc. This is one of the modes by which the independence of the Judiciary is ensured
and is an express edge of the Judiciary over the other “independent” constitutional
bodies.
Similarly, the President can appoint Chairmen and Commissioners of the
Constitutional Commissions, and the Ombudsman and her Deputies, but the
Constitution categorically provides that the Chairmen of the Constitutional
Commissions and the Ombudsman can only be removed by impeachment. The
absence of a constitutional provision providing for the removal of the
Commissioners and Deputy Ombudsmen does not mean that Congress
can empower the President to discipline or remove them in violation of
the independence that the Constitution textually and expressly provides.
As members of independent constitutional bodies, they should be similarly treated as
lower court judges, subject to discipline only by the head of their respective offices
and subject to the general power of the Ombudsman to dismiss officials and
employees within the government for cause. No reason exists to treat them
differently.
While I agree with Justice Carpio’s opinion that the Constitution empowered
Congress to determine the manner and causes for the removal of non-impeachable
officers, we cannot simply construe Section 2, Article XI of the Constitution to be a
blanket authority for Congress to empower the President to remove all other public
officers and employees, including those under the independent constitutional bodies.
When the Constitution states that Congress may provide for the removal of public
officers and employees by law, it does not mean that the law can violate the
provisions and principles laid out in the Constitution. The provision reads:
The President, the Vice President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. [emphasis and
underscoring ours]
The deliberations of the Constitutional Commissions, as quoted by Justice Carpio,
explain an important aspect of the second sentence of Section 2, Article XI of
the Constitution—that it was not the intent to widen the discretion of
Congress in providing for the removal of a public officer; the intent was
to limit its powers. The second sentence of Section 2, Article XI was
provided to limit the public officers who can only be removed by
impeachment. This limitation is one made necessary by past experiences. In an
earlier law, Presidential Decree No. 1606, Congress provided, by law, that justices of
the Sandiganbayan (who are not included in the enumeration) may only be removed
by impeachment. Commissioner Regalado insisted on adding the second
sentence of Section 2, Article XI of the Constitution to prevent Congress
from extending the more stringent rule of “removal only by
impeachment” to favored public officers.
Ultimately, the question now before this Court goes back to whether the
Constitution intended to allow political entities, such as the Executive, to discipline
public officers and employees of independent constitutional bodies. If this is the
intent, then Congress cannot have the authority to place the power to remove officers
of these “independent constitutional bodies” under executive disciplinary authority
unless otherwise expressly authorized by the Constitution itself. I firmly take this
position because the drafters repeatedly and painstakingly drafted the constitutional
provisions on the independent constitutional bodies to separate them from executive
control. Even after the other delegates made it clear that the easier path would be to
place these bodies under the control of the President, the majority nevertheless voted
against these moves and emphatically expressed its refusal to have these offices be
made in any way under the disciplinary authority of the Executive.
This constitutional intent rendered it necessary for the Constitution to provide the
instances when executive interference may be allowed. In the case of the
National Economic Development Authority, the Constitution explicitly provided that
the President may exert control over this body. The Constitution was also explicit
when it empowered the President to appoint the officers of the other “independent”
bodies, and even then, this power was qualified: (1) in the cases of the Constitutional
Commissions, by giving the chairmen and the members staggered terms of seven
years to lessen the opportunity of the same President to appoint the majority of the
body; and (2) in the case of the Ombudsman and his Deputies, by limiting the
President’s choice from a list prepared by the Judicial and Bar Council.
 Thus, we cannot maintain a light and cavalier attitude in our constitutional
interpretation and merely say that the “independence” of the constitutional bodies is
whatever Congress would define it at any given time. In the cases I have cited—
Bautista v. Senator Salonga, Atty. Macalintal v. Comelec, and Brillantes, Jr. v.
Yorac—this Court did not merely leave it to the Legislature or the Executive to freely
interpret what “independence” means. We recognized in the term a meaning fully in
accord with the intent of the Constitution.
This intent was the same guiding light that drove this Court to rule that the
President cannot determine the tenure of the Commission on Human Rights
Chairman and Members; that Congress cannot enact a law that empowers it to
review the rules of the Commission on Elections; and that the President cannot even
make interim appointments in the Commission on Elections.
After halting these lesser infractions based on the constitutional concept of
“independence,” it would be strange—in fact, it would be inconsistent and illogical
for us—to rule at this point that Congress can actually allow the President to exercise
the power of removal that can produce a chilling effect in the performance of the
duties of a Special Prosecutor or of the Deputy Ombudsman.
I draw attention to the fact that Sections 9, 10, 11 and 12, Article XI of the
Constitution do not only refer to the Ombudsman, but also to the Ombudsman’s
Deputies. Section 9 provides for their appointment process. While the President
can appoint them, the appointment should be made from the nominations of the
Judicial and Bar Council and the appointments do not require
confirmation. Section 10 gives the Ombudsman and the Deputies the same rank
and salary as the Chairmen and Members of the Constitutional Commission. The
salary may not be diminished during their term. Section 11 disqualifies them from
reappointment and participation in the immediately succeeding elections, in order to
insulate them further from politics. Section 12 designates the Ombudsman and the
Deputies as “protectors of the people” and directs them to act promptly on all
complaints against public officials or employees.
Under this structure providing for terms and conditions fully supportive of
“independence,” it makes no sense to insulate their appointments and their salaries
from politics, but not their tenure. One cannot simply argue that the President’s
power to discipline them is limited to specified grounds, since the mere filing of a
case against them can result in their suspension and can interrupt the performance
of their functions, in violation of Section 12, Article XI of the Constitution. With only
one term allowed under Section 11, a Deputy OMbudsman or Special Prosecutor
removable by the President can be reduced to the very same ineffective Office of the
Ombudsman that the framers had foreseen and carefully tried to avoid by making
these offices independent constitutional bodies.
At the more practical level, we cannot simply turn a blind eye or forget that the
work of the Office of the Ombudsman, like the Constitutional Commissions, can
place the officers of the Executive branch and their superior in a bad light. We cannot
insist that the Ombudsman and his Deputies look into all complaints, even against
those against Executive officials, and thereafter empower the President to stifle the
effectiveness of the Ombudsman and his or her Deputies through the grant of
disciplinary authority and the power of removal over these officers. Common and
past experiences tell us that the President is only human and, like any other, can be
displeased. At the very least, granting the President the power of removal can be
counterproductive, especially when other less political officers, such as the
Ombudsman and the Judiciary, already have the jurisdiction to resolve
administrative cases against public officers under the Office of the Ombudsman.
Given the support of the Constitution, of the Records of the Constitutional
Commission, and of previously established jurisprudence, we cannot uphold the
validity of Section 8(2) of RA No. 6770 merely because a similar constitutionally-
unsupported provision exists under RA No. 7653. Under our legal system, statutes
give way to the Constitution, to the intent of its framers and to the corresponding
interpretations made by the Court. It is not, and should not be, the other way around.
I join the ponente in declaring that the Deputy Ombudsmen and Special
Prosecutors should not escape accountability for their wrongdoing or inefficiency. I
differ only in allowing the President, an elective official whose position is primarily
political, to discipline or remove members of independent constitutional bodies such
as the Office of the Ombudsman. Thus, the administrative proceedings conducted by
the Office of the President against petitioner Gonzales should be voided and those
against petitioner Sulit discontinued.
Lastly, while I find the proceedings before the Office of the President
constitutionally infirm, nothing in this opinion should prevent the Ombudsman from
conducting the proper investigations and, when called for, from filing the proper
administrative proceedings against petitioners Gonzales and Sulit. In the case of
Gonzales, further investigation may be made by the Ombudsman, but only for
aspects of his case not otherwise covered by the Court’s Decision.
DISSENTING OPINION
ABAD, J.:
This case is not too complicated. Section 8(2) of Republic Act (R.A.) 6770 gave the
Office of the President (OP) the power to investigate and remove from office the
Deputies Ombudsman and the Special Prosecutor who work directly under the
supervision and control of the Ombudsman. Using this power, the OP investigated
and found petitioner Emilio Gonzales III, Deputy Ombudsman for the Military and
Other Law Enforcement Offices, guilty of gross neglect in handling the pending case
against a police officer who subsequently hijacked a tourist bus. Using the same
power, the OP initiated a similar investigation of a case against petitioner Wendell
Barreras-Sulit, the Special Prosecutor, for alleged corruption, she having allowed her
office to enter into a plea-bargaining agreement with Major General Carlos F. Garcia
who had been charged with plunder.
Gonzales and Sulit filed separate petitions, the first in G.R. 196231 and the second
in G.R. 196232. Gonzales assails the correctness of the OP decision that dismissed
him from the service. Both challenges the constitutionality of Section 8(2) of R.A.
6770 which gave the President the power to investigate and remove them.
The ponencia would have the Court uphold the constitutionality of Section 8(2),
R.A. 6770 that empowers the President to investigate and remove Deputy
Ombudsman Gonzales and Special Prosecutor Sulit from office. It argues that,
although the Constitution expressly provides for the removal of the Ombudsman
himself, which is by impeachment, it fails to provide a procedure for the removal
from office of a Deputy Ombudsman or Special Prosecutor. By enacting Section 8(2)
of R.A. 6770, Congress simply filled in a void that the Constitution itself authorizes.
The ponencia relies on Section 2, Article XI of the Constitution for support:
Section 2. The President, the Vice President, the Members of the Supreme
Court, the Members of the Constitutional Commissions, and the Ombudsman may
be removed from office on impeachment for, and conviction of, culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. All other public officers and employees may be
removed from office as provided by law, but not by impeachment. (Emphasis
ours)
The removal from office of a Deputy Ombudsman or a Special Prosecutor, says
the ponencia, falls in the category of public officers and employees that “may be
removed from office as provided by law.”
True enough, the above Section 2 above provides that only the President, the Vice
President, the Members of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed by impeachment and that other
public officers and employees may be removed by law. But this cannot literally be
taken to mean that Congress may authorize the President to investigate and remove
all non-impeachable public officers and employees.
Surely, Congress may not authorize the President to exercise this power against
those that the Constitution expressly or implicitly shields from his influence or
intervention. For instance, Congress cannot authorize the President to remove lower
court judges, although they are not subject to impeachment, since such authority is
reserved by the Constitution to the Supreme Court. Further, as the Court held
in Bautista v. Salonga, although the Chairman and Members of the Commission on
Human Rights are not impeachable public officials, their terms cannot be made to
depend on the pleasure of the President since the Constitution perceives them as
exercising functions independent of him.
Actually, there was no existing “void” in the matter of the removal of the Deputy
Ombudsman and the Special Prosecutor when Congress enacted R.A. 6770.
Administrative Code of 1987, then in force, already vested in heads of offices,
including the Ombudsman, the power to investigate and take disciplinary action
against all officers and employees under him, the Deputy Ombudsman and the
Special Prosecutor included.
In subsequently enacting R.A. 6770, Congress in effect removed such power of
investigation and removal, insofar as the Deputy Ombudsman and the Special
Prosecutor were concerned, from the Ombudsman and transferred the same to the
President. As will shortly be shown below, such wresting of power from the
Ombudsman is an appalling blow to his constitutionally mandated independence
from the influence and threats of the other departments and agencies of government.
Section 5, Article XI of the 1987 Constitution provides:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy, and at least one Deputy each for Luzon, Visayas and Mindanao. A
separate Deputy for the military establishment may likewise be appointed.
(Emphasis supplied)
The Constitution has reasons for making the Office of the Ombudsman
“independent.” Its primordial duty is to investigate and discipline all elective and
appointive government officials. Specifically, Section 13, Article XI of the
Constitution vests in that Office the absolute power to investigate any malfeasance,
misfeasance, or non-feasance of public officers or employees. This function places it a
notch higher than other grievance-handling, investigating bodies. With the exception
of those who are removable only by impeachment, the Office of the Ombudsman can
investigate and take action against any appointive or elected official for corruption in
office, be they Congressmen, Senators, Department Secretaries, Governors, Mayors,
or Barangay Captains.
 Thus, the Office of the Ombudsman needs to be insulated from the pressures,
interventions, or vindictive acts of partisan politics. The Court has itself refrained
from interfering with the Office of the Ombudsman’s exercise of its powers. It is not
the Court but the Ombudsman who is the champion of the people and the preserver
of the integrity of public service. The Office of the Ombudsman, which includes the
Deputy Ombudsman and the Special Prosecutor, cannot be beholden to or fearful of
any one, the President included.
I, therefore, vote to grant the petitions, declare Section 8(2) of Republic Act 6770
that empowers the President to remove the Deputy Ombudsman and the Special
Prosecutor unconstitutional and void, annul the decision of the Office of the
President against Deputy Ombudsman Emilio Gonzales III dated March 31, 2011,
and permanently enjoin that Office from further proceeding with the administrative
case against Special Prosecutor Wendell Barreras-Sulit.

The power to impeach is a function of check and balance under the Constitution.
But the power to remove “public officers and employees” from office, in the realm of
administrative law, is a function of supervision, if not control. Keeping the Deputies
in the Office of the Ombudsman and the Special Prosecutor independent as the
Constitution commands and subjecting them to the President’s control or
supervision are incompatible ideas.
Notes.—An impeachable officer who is a member of the Bar cannot be disbarred
without first being impeached. (Marcoleta vs. Borra, 582 SCRA 474 [2009])
No rule of procedure or provision of law is transgressed where all the proceedings
in a plea bargain, i.e., arraignment, plea bargaining and conviction, occurred on a
single day. (Bug-atan vs. People, 630 SCRA 537 [2010])

To say that the Deputy Ombudsman and the Special Prosecutor will remain An impeachment is not a judicial proceeding but rather a political exercise.
independent of the President notwithstanding that he can investigate and remove (Gutierrez vs. The House of Representatives Committee on Justice, 644 SCRA 804
them from office at any time is the equivalent of saying that monkeys grow out of [2011]
trees. If there is any one that the holder of public office fears, it is that person who ——o0o——
has the power to remove him.

If the Court were to uphold the Constitutionality of Section 8(2) of R.A. 6770,
then the Deputy Ombudsman and the Special Prosecutor will be able to openly defy
the orders of the Ombudsman and disregard his policies without fear of disciplinary
sanction from him. The law makes them subject to investigation and removal only by
the President. It is him they have to obey and will obey. Surely, this is not what the
Constitution contemplates in an “independent” Office of the Ombudsman.

The present cases are precisely in point. The Ombudsman did not herself appear
to regard Gonzales and Sulit’s actuations in the subject matters of the cases against
them worthy of disciplinary action. But, given that the Secretary of Justice, an alter
ego of the President, took an opposite view, the President deigned to investigate
them. In effect, the President is able to substitute his judgment for that of the
Ombudsman in a matter concerning function of the latter’s office. This gives the
President a measure of control over the Ombudsman’s work.

From here on, if the Court chooses to uphold the constitutionality of Section 8(2)
of R.A. 6770, the Deputy Ombudsman and the Special Prosecutor would be
consulting the Office of the President or the Secretary of Justice before they act in
any case in which the latter has an interest. This is the ludicrous and unpalatable
situation that the framers of the Constitution envisaged and sought to avoid when
they granted the Office of the Ombudsman independence from others who wield
governmental powers.
 G.R. No. 85815. May 19, 1989. *
ELENO T. REGIDOR, JR., ANICETO T. SIETE, CAMILO B. ZAPATOS &
RODULFO ENRIQUEZ, petitioners, vs. GOV. WILLIAM CHIONGBIAN, Vice Gov.
FLORENCIO GARCIA, Sangguniang Panlalawigan, Members MARIVIC
SAGRADO, MORPHEUS AGOT, CONSTANCIO BALAIS, ALEGRIA CARIÑ O,
ERNESTO IRA, PACITA YAP, JULIO TIU and Sangguniang Panglunsod, ROBERT
O. TACLOB, respondents.
Local Government; Suspension; Complaints against elective provincial or city
officials should be filed before the Minister of Local Government. ___ Section 61 of the
Local Government Code provides that complaints against elective provincial or city
officials should be verified and should be filed before the Minister of Local Government.
Same; Same; Same; If the respondent is a provincial or city official, preventive
suspension may be imposed by the Minister of Local Government. ___ Section 63
provides that the Minister of Local Government may impose a preventive suspension
against the accused elective provincial or city official, thus: “Sec. 63. Preventive
Suspension. ___ (1) Preventive suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official, by the provincial governor
if the respondent is an elective municipal official, or by the city or municipal mayor if the
respondent is an elective barangay official.
Same; Same; Same; Same; No merit in the contention that the order of preventive
suspension issued by Governor Chiongbian was within the authority granted in Section
7, Rule 18 of the Implementing Rules and Regulations. ___ There is no merit in the
respondents’ contention that the order of preventive suspension issued by Governor
Chiongbian was within the authority granted in Section 7, Rule 18 of the Implementing
Rules and Regulations to “the Minister of Local Government, provincial governor, or
municipal mayor, as the case may be,” to “preventively suspend an elective provincial,
city, municipal or barangay official, respectively.”
Same; Same; Same; Same; Same; Section 7, Rule 18 of the Implementing Rules
and Regulations of the Local Government Code misread and
misconstrued. ___ Respondents misread and misconstrued Section 7, Rule 18 of the
Implementing Rules & Regulations of the Local Government Code. The rule should be
read in juxtaposition with Section 63 of the Code which provides that “preventive
suspension may be imposed by the Minister of Local Government if the respondent is a
provincial or city official, by the provincial governor if the respondent is an elective
municipal official, or by the city or municipal mayor if the respondent is an elective
barangay official.” In light of Section 63 of the Code, Section 7 of the Rule 18 of the
Implementing Rules & Regulations should be interpreted to mean that the Minister of
Local Government may preventively suspend an elective provincial or city official, the
Provincial Governor may preventively suspend an elective municipal official, and the city
or municipal mayor may preventively suspend an elective barangay official. This is as it
should be for complaints against provincial or city officials are supposed to be filed with
the Minister (now Secretary) of Local Government, hence, it is he (not the provincial
governor) who would know whether or not the charges are serious enough to warrant the
suspension of the accused elective provincial or city official.
Same; Same; Same; Same; Same; Same; Rule or regulation issued by the
Secretary of Local Government may not alter, amend or contravene a provision of the
Local Government Code. ___ No rule or regulation issued by the Secretary of Local
Government may alter, amend, or contravene a provision of the Local Government Code.
The implementing rules should conform, not clash, with the law that they implement, for
a regulation which operates to create a rule out of harmony with the statute is a nullity
(Commissioner of Internal Revenue vs. Vda. de Prieto, L-13912, September 30, 1950). A
rule or regulation that was issued to implement a law may not go beyond the terms and
provisions of the law.
GRIÑO-AQUINO, J.:
This petition for prohibition with a prayer for the issuance of temporary
restraining order or writ of preliminary injunction was filed by the petitioners who
are the duly elected city officials of Tangub City of Misamis Occidental. Eleno T.
Regidor was elected City Mayor of Tangub City, the other petitioners, Aniceto T.
Siete, Camilo B. Zapatos and Rodulfo Enriquez, are respectively the Vice-Mayor and
members of the Sangguniang Panglunsod of Tangub City, who were elected in the
January 18, 1988 local elections, were proclaimed in due course, and assumed office.
On November 3, 1988, respondents William Chiongbian and Florencio Garcia,
Marivic Sagrado, Morpheus Agot, Constancio Balais, Alegria Cariñ o, Ernesto Ira,
Pacita Yap, and Julio Tiu, who are respectively the Provincial Governor, the Vice-
Governor, and members of the Sangguniang Panlalawigan, approved Resolution No.
340-88 recommending the suspension of the petitioners who failed to appear on
November 18, 1988 at the hearing of a complaint for unspecified misconduct which
respondent Robert O. Taclob filed against them in the office of the Governor and the
Sangguniang Panlalawigan.
Pursuant to that resolution, Governor William Chiongbian issued on November
24, 1988 an Order of Preventive Suspension, suspending the petitioners “from their
elective positions as City Mayor, City Vice-Mayor and Sangguniang Panglunsod
members of Tangub City for a period of 60 days effective November 25, 1988” and
ordering them to “cease and desist from performing the functions and duties” of their
respective offices (Annex D, p. 10, Rollo).
On the same day, Governor Chiongbian appointed Taclob, a member of the
Sangguniang Panglunsod of Tangub City, as Officer-in-Charge of Tangub City in lieu
of Mayor Eleno T. Regidor (Annex E, p. 11, Rollo). Taclob belongs to the governor’s
political faction while Regidor and the other petitioners belong to the rival faction of
Alfonso Tan, the defeated opponent of respondent Chiongbian for the governorship
of Misamis Occidental.
The petition alleges that respondents Governor Chiongbian and the Sangguniang
Panlalawigan acted without authority, and contrary to law, in issuing the Order of
Preventive Suspension against the petitioners because under Section 63 of the Local
Government Code, a provincial or city official may be preventively suspended by the
Minister of Local Government, not by the Provincial Governor.
Upon receipt of the petition, this Court issued a temporary restraining order
commanding the respondents to “cease and desist from implementing or enforcing
Resolution No. 340-88 dated November 23, 1988 and Preventive Suspension Order
dated November 24, 1988, and enjoining respondent Robert O. Taclob from
assuming the position of OIC Mayor of Tangub City” (pp. 14-16, Rollo).
In their comment on the petition, the respondents justified the suspension of the
petitioners as a valid exercise of the Provincial Governor’s power of general
supervision over a component city (Par. 6.4, Section 1, Rule 4 of the Implementing
Rules & Regulations of the Local Government Code), and that it was done “in
pursuance to (sic) the provisions of the Local Government Code and the Rules &
Regulations implementing said law.” (p. 25, Rollo.)
However, the pertinent provisions of the Local Government Code and the
Implementing Rules and Regulations thereof do not sustain the respondents’
contention in this case. Section 61 of the Local Government Code provides that
complaints against elective provincial or city officials should be verified and should
be filed before the Minister of Local Government.
Section 63 provides that the Minister of Local Government may impose a
preventive suspension against the accused elective provincial or city official, thus:
“Sec. 63. Preventive Suspension. ___ (1) Preventive suspension may be imposed by
the Minister of Local Government if the respondent is a provincial or city official, by
the provincial governor if the respondent is an elective municipal official, or by the
city or municipal mayor if the respondent is an elective barangay official.
“(2) Preventive suspension may be imposed at any time after the issues are joined,
when there is reasonable ground to believe that the respondent has committed the act
or acts complained of, when the evidence of culpability is strong, when the gravity of
the offense so warrants, or when the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records and
other evidence. In all cases, preventive suspension shall not extend beyond sixty days
after the start of said suspension.
“(3) At the expiration of sixty days, the suspended official shall be deemed reinstated
in office without prejudice to the continuation of the proceedings against him until its
termination. However, if the delay in the proceedings of the case is due to his fault,
neglect or request, the time of the delay shall not be counted in computing the time of
suspension.”
Section 7 of the Implementing Rules & Regulations reads as follows:
“Sec. 7 . Preventive Suspension . ___ If from the answer of the respondent, and the
complaint filed, the Minister/Sanggunian concerned find and determine that there is
reasonable ground to believe that he has committed the act or acts complained of,
when the evidence of guilt is strong, when the gravity of the offense so warrants, or
the continuance in office of the respondent could influence the witnesses or pose a
threat to the safety and integrity of the records and other evidences, the Minister of
Local Government, provincial governor, or municipal mayor as the case may be,
may preventively suspend an elective provincial, City, municipal or barangay
official, respectively: Provided, That the preventive suspension shall not exceed sixty
(60) days after the start of said suspension.”
There is no merit in the respondents’ contention that the order of preventive
suspension issued by Governor Chiongbian was within the authority granted in
Section 7, Rule 18 of the Implementing Rules & Regulations to “the Minister of Local
Government, provincial governor, or municipal mayor, as the case may be,” to
“preventively suspend an elective provincial, city, municipal or barangay official,
respectively.”
Respondents misread and misconstrued Section 7, Rule 18 of the Implementing
Rules & Regulations of the Local Government Code. The rule should be read in
juxtaposition with Section 63 of the Code which provides that “preventive suspension
may be imposed by the Minister of Local Government if the respondent is a
provincial or city official, by the provincial governor if the respondent is an elective
municipal official, or by the city or municipal mayor if the respondent is an elective
barangay official.” In light of Section 63 of the Code, Section 7 of Rule 18 of the
Implementing Rules & Regulations should be interpreted to mean that the Minister
of Local Government may preventively suspend an elective provincial or city official,
the Provincial Governor may preventively suspend an elective municipal official, and
the city or municipal mayor may pre-ventively suspend an elective barangay official.
This is as it should be for complaints against provincial or city officials are supposed
to be filed with the Minister (now Secretary) of Local Government, hence, it is he (not
the provincial governor) who would know whether or not the charges are serious
enough to warrant the suspension of the accused elective provincial or city official.
No rule or regulation issued by the Secretary of Local Government may alter,
amend, or contravene a provision of the Local Government Code. The implementing
rules should conform, not clash, with the law that they implement, for a regulation
which operates to create a rule out of harmony with the statute is a nullity
(Commissioner of Internal Revenue vs. Vda. de Prieto, L-13912, September 30,
1950). A rule or regulation that was issued to implement a law may not go beyond the
terms and provisions of the law (People vs. Lim, 108 Phil. 1091). In this case, the
implementing rule (Sec. 7, Rule 18) does not in fact clash with the law (Sec. 63, Local
Government Code) ___ the draftsmanship is not perfect but the use of the phrase “as
the case may be” and the term “respectively” indicates a delineation of the power to
suspend.

As the complaint or complaints against the petitioners were filed with the Office
of the Provincial Governor, not with the Minister of Local Government as required in
Section 61 of the Local Government Code, and, as the preventive suspension of the
petitioners was ordered by the Provincial Governor, not by the Minister of Local
Government, the notice of hearing, subpoena, and order of preventive suspension
issued by the respondents governor and members of the Sangguniang Panlalawigan
against the petitioners are hereby declared null and void. (Local Government Code
[BP 337], Title Two, Chapter 4, Sec. 63[1].) The respondents are without authority to
investigate the petitioners, and the latter may not be compelled to attend the
hearings. Their refusal to answer the charges against them was justified.

WHEREFORE, the petition for certiorari is granted. The Resolution No. 340-88
of the Sangguniang Panglunsod, and the order of preventive suspension issued by
respondent Governor William Chiongbian, the appointment of Robert O. Taclob as
OIC Mayor of Tangub City, the notices of hearing and subpoenas issued to the
petitioners by the respondents are all annulled and set aside. The temporary
restraining order which We issued on December 7, 1988, is hereby made permanent.
SO ORDERED.

Note. ___ The power of investigating and deciding an administrative case filed
against a municipal official is not executive in nature. It is lodged in the Provincial
Board as a body, the performance of which cannot be frustrated by the absence,
fortuitous or deliberate, of the Provincial Governor. ( Castillo vs. Villarama, 15 SCRA
42).

——o0o——
 G.R. No. 154098. July 27, 2005.*
JOSE C. MIRANDA, petitioner, vs. HON. SANDIGANBAYAN, OFFICE OF THE
OMBUDSMAN, SEC. JOSE D. LINA, JR., in his capacity as Secretary of the DILG,
and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela,
respondents.
Public Officers; Anti-Graft and Corrupt Practices Act (R.A. No. 3019); Preventive
Suspension; Words and Phrases; Nothing in R.A. No. 3019 evinces any legislative
intent to limit Section 13 only to acts involving fraud on public funds or property—the
phrase “any offense involving fraud upon government or public funds or property” is
clear and categorical; R.A. No. 3019 should be read to protect the State from fraud by
its own officials.—The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as
covering two types of offenses: (1) any offense involving fraud on the government; and
(2) any offense involving public funds or property. Contrary to the submission of the
petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only
to acts involving fraud on public funds or property. The phrase “any offense involving
fraud upon government or public funds or property” is clear and categorical. To limit the
use of “government” as an adjective that qualifies “funds” is baseless. The word “public”
precedes “funds” and distinguishes the same from private funds. To qualify further
“public funds” as “government” funds, as petitioner claims is the law’s intent, is plainly
superfluous. We are bound by the rule that a statute should be construed reasonably with
reference to its controlling purpose and its provisions should not be given a meaning that
is inconsistent with its scope and object. R.A. No. 3019, commonly known as the Anti-
Graft and Corrupt Practices Act, should be read to protect the State from fraud by its own
officials.
Same; Same; Same; Same; It is obvious to the eyes that the phrase “fraud upon
government” means “any instance or act of trickery or deceit against the government”
and cannot be read restrictively so as to be equivalent to malversation of funds as this
is covered by the preceding phrase “any offense involving . . . public funds or property”;
It ought to follow that “fraud upon the government” was committed when the accused
assumed the duties and performed acts pertaining to the Office of the Mayor under
pretense of official position.—We further hold that the Sandiganbayan did not gravely
abuse its discretion when it ruled that petitioner’s act fell within the catch-all provision “x
x x or for any offense involving fraud upon government. The term “fraud” is defined, viz.:
An instance or an act of trickery or deceit esp. when involving misrepresentation: an act
of deluding. It is obvious to the eyes that the phrase “fraud upon government” means
“any instance or act of trickery or deceit against the government.” It cannot be read
restrictively so as to be equivalent to malversation of funds as this is covered by the
preceding phrase “any offense involving . . . public funds or property.” It ought to follow
that “fraud upon government” was committed when the petitioner allegedly assumed the
duties and performed acts pertaining to the Office of the Mayor under pretense of official
position.
Same; Same; Same; Rule of Law; If petitioner and his counsel had an iota of
respect for the rule of law, they should have assailed the validity of the order of
suspension in court instead of taking the law into their own hands.—Petitioner’s excuse
for violating the order of preventive suspension is too flimsy to merit even a side-glance.
He alleged that he merely followed the advice of his lawyer. If petitioner and his counsel
had an iota of respect for the rule of law, they should have assailed the validity of the
order of suspension in court instead of taking the law into their own hands.
Same; Same; Same; Criminal Procedure; Arraignment; It is basic that entering a
plea waives any objection the accused may have to the validity of the information
except on the following grounds: (1) the information charges no offense; (2) the trial
court has no jurisdiction over the offense charged; (3) the penalty or the offense has
been extinguished; and (4) double jeopardy has attached.—With due respect, the dissent
is way off-line. The records will show that petitioner did not file a motion to quash the
information or a motion for bill of particulars before pleading to the information. It is
basic that entering a plea waives any objection the petitioner may have to the validity of
the information except on the following grounds: (1) the information charges no offense;
(2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the
offense has been extinguished; and (4) double jeopardy has attached. Objections to the
sufficiency of the allegations in the Amended Information do not fall among the
exceptions to the rule. They fall under the objection that the information “does not
conform substantially to the prescribed form.”
Same; Same; Same; Same; The irregular procedure followed by the dissent would
encourage the pernicious practice of “sandbagging” where counsel foregoes raising a
pleading defect before trial where it can be easily corrected only to raise the defect later
in the hope of obtaining an arrest of judgment or new trial from a sympathetic
magistrate.—Needless to state, the petitioner has by his acts acquiesced to the validity
and sufficiency of the Amended Information. It is, thus, incorrect for the dissenting
opinion to peddle the proposition that the petitioner has been deprived of his
constitutional right to be apprised of the nature and cause of the accusation against him.
Worse, it is improper for the dissenting opinion to raise this issue motu proprio. Under
our Rules of Court, it is the petitioner who should raise this objection in a motion to
quash or motion for bill of particulars before entering his plea. The irregular procedure
followed by the dissent would encourage the pernicious practice of “sandbagging” where
counsel foregoes raising a pleading defect before trial where it can be easily corrected
only to raise the defect later in the hope of obtaining an arrest of judgment or new trial
from a sympathetic magistrate. It is precisely this evil that is addressed by Rule 117,
Section 9 of our Revised Rules of Criminal Procedure.
Same; Same; Same; Local Government Code; Ombudsman; The provision of
Section 63 of the Local Government Code was only meant as a cap on the discretionary
power of the President, governor, and mayor to impose excessively long preventive
suspensions—the Ombudsman is not mentioned in the said provision and was not
meant to be governed thereby.—It is plain that the provision was only meant as a cap on
the discretionary power of the President, governor and mayor to impose excessively long
preventive suspensions. The Ombudsman is not mentioned in the said provision and was
not meant to be governed thereby. Indeed, the reason is not hard to distill. The President,
governor and mayor are political personages. As such, the possibility of extraneous
factors influencing their decision to impose preventive suspensions is not remote. The
Ombudsman, on the other hand, is not subject to political pressure given the
independence of the office which is protected by no less than the Constitution. This view
was embraced by the Court in Hagad v. Gozo-Dadole and Garcia v. Mojica. In Hagad,
we held: Respondent local officials contend that the 6-month preventive suspension
without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-
day preventive suspension provided by Section 63 of the Local Government Code to even
now maintain its application. The two provisions govern differently. In order to justify
the preventive suspension of a public official under Section 24 of R.A. No. 6770, the
evidence of guilt should be strong, and (a) the charge against the officer or employee
should involve dishonestly, oppression or grave misconduct or neglect in the
performance of duty; (b) that the charges should warrant removal from the service; or (c)
the respondent’s continued stay in office would prejudice the case filed against him. The
Ombudsman can impose the 6-month preventive suspension to all public officials,
whether elective or appointive, who are under investigation. Upon the other hand, in
imposing the shorter period of sixty (60) days of preventive suspension prescribed in the
Local Government Code of 1991 on an elective local official (at any time after the issues
are joined), it would be enough that (a) there is reasonable ground to believe that the
respondent has committed the act or acts complained of, (b) the evidence of culpability is
strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence.
Same; Same; Same; Same; Same; Verily, Section 63 of the Local Government
Code does not govern preventive suspensions imposed by the Ombudsman, which is a
constitutionally created office and independent from the Executive branch of
government.—Verily, Section 63 of the Local Government Code does not govern
preventive suspensions imposed by the Ombudsman, which is a constitutionally created
office and independent from the Executive branch of government. The Ombudsman’s
power of preventive suspension is governed by Republic Act No. 6770, otherwise known
as “The Ombudsman Act of 1989,” which provides: SECTION 24. Preventive Suspension.
—The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or employee involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the respondent’s continued stay in office
may prejudice the case filed against him. The preventive suspension shall continue until
the case is terminated by the Office of the Ombudsman but not more than six months,
without pay, except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which case
the period of such delay shall not be counted in computing the period of suspension
herein provided.
Same; Same; Same; Same; Same; There is a world of difference between
preventive suspensions handed down by the Ombudsman and those imposed by
executive officials.—The dissenting opinion submits that providing for a six-month limit
for the Ombudsman while keeping the limit for executive officials at sixty days violates
the constitutional proscription against equal protection of the law. In essence, it avers
that there is no substantial distinction between preventive suspensions handed down by
the Ombudsman and those imposed by executive officials. On the contrary, there is a
world of difference between them. The Constitution has endowed the Ombudsman with
unique safeguards to ensure immunity from political pressure. Among these statutory
protections are fiscal autonomy, fixed term of office and classification as an impeachable
officer. This much was recognized by this Court in the earlier cited case of Garcia v.
Mojica. Moreover, there are stricter safeguards for imposition of preventive suspension
by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman
determine: (1) that the evidence of guilt is strong; and (2) that any of the following
circumstances are present: (a) the charge against such officer or employee involves
dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service; or (c) the respondent’s continued
stay in office may prejudice the case filed against him.
Certiorari; The proper remedies against abuse in the exercise of power are a
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment
of the Ombudsman’s enabling law by the legislature, not a contortionist statutory
interpretation by the Supreme Court.—The dissenting opinion finally points out the
possibility of abuse by the Ombudsman in imposing preventive suspensions. The short
reply is that all powers are susceptible of abuse but that is no reason to strike down the
grant of power. Suffice it to say that the proper remedies against abuse in the exercise of
power are a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or
amendment of the Ombudsman’s enabling law by the legislature, not a contortionist
statutory interpretation by this Court.
CARPIO, J., Dissenting Opinion:
Public Officers; Anti-Graft and Corrupt Practices Act; Statutory
Construction; Nothing in R.A. 3019 evinces any legislative intent to limit Section 13
only to acts involving fraud on public funds or property—to limit the applicability of
Section 13 of R.A. 3019 only to offenses involving public funds or property will exclude
other offenses of fraud against the government not involving public funds or property.
—Miranda’s argument that Section 13 of RA 3019 covers only offenses involving public
funds or property is baseless. Statutes are read and interpreted in their entirety, and their
provisions viewed with reference to the text and not dissected piecemeal. A statute is
construed reasonably with reference to its controlling purpose and its provisions should
not be given a meaning that is inconsistent with its scope and object. The legislative
intent here is clear. RA 3019, commonly known as the Anti-Graft and Corrupt Practices
Act, is meant to punish public officials who abuse their positions through acts which
prejudice the government. The law seeks to protect the State from being defrauded by its
own officials. Nothing in RA 3019 evinces any legislative intent to limit Section 13 only to
acts involving fraud on public funds or property. The phrase “any offense involving fraud
upon government or public funds or property” is clear and categorical. It covers two types
of offenses: (1) any offense involving fraud on the government; and (2) any offense
involving public funds or property. To limit the use of “government” as an adjective that
qualifies “funds” is not merely baseless, it is also superfluous. The word “public” already
precedes “funds,” hence clearly distinguishing the funds from private funds. To qualify
further “public funds” as “government” funds, as Miranda claims is the law’s intent, is
plainly superfluous. In distinguishing in Section 13 between “any offense involving fraud
upon government” and “any offense involving x x x public funds or property,” the law
clearly intends to create two types of offenses. To limit the applicability of Section 13 of
RA 3019 only to offenses involving public funds or property will exclude other offenses of
fraud against the government not involving public funds or property.
Same; Same; Criminal Law; Usurpation of Authority; Words and Phrases; Not all
acts of usurpation of authority or official functions involve ‘‘fraud upon government”;
The essence of usurpation of authority under Article 177 of the Revised Penal Code is
false and malicious representation; The essence of usurpation of official functions
under Article 177 of the RPC is performing, under pretense of official position and
without lawful authority, an official act pertaining to an official.—Not all acts of
usurpation of authority or official functions involve “fraud upon government.” The
essence of usurpation of authority under Article 177 of the RPC is false and
malicious representation. The “gravamen of the offense of usurpation of authority is the
false representation, maliciously made, that one is an officer, agent or representative of
the Philippine Government or any foreign government.” Fraud on the government is not
an essential element of the offense. The mere act of making a false and malicious
representation that one is a government officer is sufficient to constitute the
offense, whether or not the act defrauds the government. The essence
of usurpation of official functions under Article 177 of the RPC is performing, under
pretense of official position and without lawful authority, an official act pertaining to an
official. Fraud on the government is also not an essential element of the
offense. The offense usually results in injury to private parties who are victimized by
pretenders to public office.
Same; Same; Same; The gravamen of “fraud upon government” in Section 13 of
R.A. 3019 is the public officer’s act of defrauding the government.—On the other hand,
the gravamen of “fraud upon government” in Section 13 of RA 3019 is the public officer’s
act of defrauding the government. It is necessary that the act should defraud the
government. Usurpation of authority, while involving fraudulent means, does not
necessarily involve fraud on the government. The fraud may be committed only against
private parties and not against the government.
Same; Same; Preventive Suspension; Oddly, while the Sandiganbayan and the
majority opinion recognize the doctrine that the power of the Sandiganbayan to
suspend preventively a public officer rests on the sufficiency and validity of the
information, the Sandiganbayan and the majority opinion still considered the
complaint-affidavit of the complainant.—The power of the Sandiganbayan to suspend
preventively a public officer rests on the sufficiency and validity of the information.
Oddly, while the Sandiganbayan and the majority opinion recognize this doctrine, the
Sandiganbayan and the majority opinion still considered Navarro’s complaint-affidavit.
The Sandiganbayan and the majority opinion cite this portion of Navarro’s complaint-
affidavit: x x x, he (Miranda) proceeded to his office and started giving directives to the
various heads of office and other employees, the unexpected acts of respondents had
caused serious disruptions in the day to day affairs of the city government. The majority
opinion agrees with the Sandiganbayan’s conclusion that the foregoing allegations
amount to fraud on the government “resulting in chaos or confusion albeit temporary, as
the employees would be in a quandary whom to follow or obey.”
Same; Same; Same; Whether the Sandiganbayan correctly appreciated the
sufficiency of the Amended Information is not a question of fact but a question of law,
which the Supreme Court can review.—The majority opinion insists that “the factual
findings of the Sandiganbayan are binding unless they are capricious or whimsical.” Lest
we forget, this case has not yet gone to trial. The Sandiganbayan was only called
upon to rule on the motion to suspend Miranda pendente lite. No factual findings should
have been made by the Sandiganbayan as to Miranda’s alleged commission of fraud on
the government. The Sandiganbayan’s “factual findings,” based solely on the affidavit of
private complainant Amelita S. Navarro, constitute grave abuse of discretion. The
Sandiganbayan’s inquiry should have been limited to the determination of
the sufficiency of the Amended Information. Whether the Sandiganbayan
correctly appreciated the sufficiency of the Amended Information is not a
question of fact but a question of law, which this Court can review.
Same; Same; Same; Usurpation of Authority; A person accused of usurpation of
authority could invoke good faith in assuming a public office.—The majority opinion
confuses the issues. In People v. Hilvano, the accused was indicted for usurpation of
authority. After trial, the accused was found guilty of the crime charged. The courts
in People v. Hilvano passed upon the accused’s defense of good faith and found that the
accused did not act in good faith because “after he had been shown the letter of the
Executive Secretary and the opinion of the provincial fiscal, he had no right
thereafter stubbornly to stick to his position.” In the present case, Miranda
did notstubbornly stick to his position after he was shown Undersecretary Sanchez’s
memorandum. Miranda in fact vacated his office upon receipt of Undersecretary
Sanchez’s memorandum. Under Hilvano, good faith remains a valid defense. Thus, in the
present case, good faith in re-assuming office is relevant to the charge of usurpation of
authority. In short, a person accused of usurpation of authority could invoke
good faith in assuming a public office.
 Same; Same; Same; Local Government Code; Section 63(b) of the Local
Government Code governs specifically the duration of a single preventive suspension of
local elective officials.—True, the Ombudsman has the power to investigate and
immediately preventively suspend public officials, whether appointive or elective, under
Section 24 of Republic Act No. 6770 (“RA 6770”). However, the Ombudsman must
exercise such power in conformity with Section 63(b) of the Local Government Code, a
later law. Section 63(b) of the Local Government Code governs specifically the
duration of a single preventive suspension of local elective public officials. In
contrast, Section 24 of RA 6770, imposing a maximum suspension of six months, governs
all other public officials, whether appointive or elective.
Same; Same; Same; Same; The period of preventive suspension cannot exceed 60
days regardless of who is imposing the preventive suspension.—I agree with the
majority opinion only on one point: the Local Government Code puts a cap on the power
to impose preventive suspension on elective officials as this power is susceptible to abuse.
However, the period of preventive suspension cannot exceed 60 days regardless of who is
imposing the preventive suspension. There is no language in the Local Government Code
exempting the Ombudsman from the 60-day preventive suspension cap. Where the law
does not distinguish, we should also not distinguish.
Same; Same; Same; Same; The Ombudsman’s power to suspend preventively a
local elective official for six months is repugnant to the Local Government Code, which
limits the preventive suspension to only 60 days; By upholding the power of the
Ombudsman to impose a preventive suspension of six months on a local elective official,
the Ombudsman is in effect already penalizing the local elective official even before the
Ombudsman’s investigation has begun.—Indeed, the power to suspend preventively a
local elective official could be prone to abuse, frustrating the will of the electorate. The
Ombudsman’s power to suspend preventively a local elective official for six months is
repugnant to the Local Government Code, which limits the preventive suspension to
only 60 days. Under Section 66(b) of the Local Government Code, the maximum
suspension of six months is already a penalty. The power given by RA 6770 to the
Ombudsman is limited to the imposition of a preventive suspension while the
Ombudsman investigates the case of an elective official. A preventive suspension is not a
penalty. A person under preventive suspension, especially in a criminal action, is still
entitled to the presumption of innocence. By upholding the power of the Ombudsman to
impose a preventive suspension of six months on a local elective official, the Ombudsman
is in effect already penalizing the local elective official even before the Ombudsman’s
investigation has begun.
Same; Same; Same; Same; If an executive official wants a local elective official
subjected to a 6-month preventive suspension, he will simply endorse the
administrative investigation to the Ombudsman.—To apply the 60-day cap in Section
63(b) of the Local Government Code only to preventive suspensions imposed by
executive officials will result in anomalous situations. In administrative investigations,
executive officials have concurrent jurisdiction with the Ombudsman over local elective
officials. Executive officials may refer to the Ombudsman administrative cases against
local elective officials. This will give executive officials the choice whether to subject a
local elective official to a maximum 60-day or a maximum 6-month preventive
suspension. If an executive official wants a local elective official subjected to a 6-month
preventive suspension, he will simply endorse the administrative investigation to the
Ombudsman. This will deny local elective officials equal protection of the law.
This could not have been the intention of the legislature in putting the 60-day cap in
Section 63(b) of the Local Government Code.
Same; Same; Same; Same; Applying the 60-day cap in Section 63(b) of the Local
Government Code only to preventive suspensions imposed by executive officials will
practically deprive executive officials of their disciplinary authority over local elective
officials—every complainant will now file administrative cases against local elective
officials only before the Ombudsman to secure longer preventive suspensions.—
Applying the 60-day cap in Section 63(b) of the Local Government Code only to
preventive suspensions imposed by executive officials will practically deprive executive
officials of their disciplinary authority over local elective officials. Every complainant will
now file administrative cases against local elective officials only before the Ombudsman
to secure longer preventive suspensions. Worse, this will insure that all
administrative cases against local elective officials will be subjected to a
maximum 6-month preventive suspension. This will defeat the avowed purpose of
Section 63(b) of the Local Government Code, which is precisely to limit preventive
suspensions of local elective officials to not more than 60 days.
PUNO, J.:
First, the facts.
The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the
mayor of Santiago City, Isabela, under preventive suspension for six months from 25
July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713,
otherwise known as the Code of Conduct and Ethical Standards for Public Officials
and Employees. Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor
Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1
December 1997 which was docketed as OMB-1-97-2312. In the said Complaint, Vice
Mayor Navarro alleged that Mayor Miranda committed the following acts on 24
November 1997 despite the continuing effectivity of the Ombudsman’s preventive
suspension order: (a) issued a memorandum addressed to Navarro advising her that
he was assuming his position as City Mayor; (b) gave directives to the heads of offices
and other employees; (c) issued Office Order No. 11-021 which authorized certain
persons to start work; and (d) insisted on performing the functions and duties of
Mayor despite Navarrro’s requests to desist from doing so without a valid court order
and in spite of the order of Department of Interior and Local Government (DILG)
Undersecretary Manuel Sanchez directing him to cease from reassuming the
position. Vice Mayor Navarro contended that Mayor Miranda committed the felony
of usurpation of authority or official functions under Article 177 of the Revised Penal
Code (RPC).
In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the
advice of his lawyer and in good faith. He contended that under Section 63(b) of the
Local Government Code, local elective officials could not be preventively suspended
for a period beyond 60 days. He also averred that, on the day he reassumed office, he
received a memorandum from DILG Undersecretary Manuel Sanchez instructing
him to vacate his office and he immediately complied with the same. Notably, Mayor
Miranda’s counter-affidavit also stated that he left the mayoralty post after
“coercion” by the Philippine National Police.
On 28 October 1998, the Ombudsman filed with the Sandiganbayan an
Information against Mayor Miranda for violation of Article 177 of the RPC, penalizing
usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the
Office of Special Prosecutor to conduct a reinvestigation of the case in light of the
manifestations made by prosecution and defense counsel. After reinvestigation,
Special Prosecution Officer Rodrigo V. Coquia (Coquia) recommended the dismissal
of the case in a Resolution dated 14 September 2000. Coquia held that Miranda
reassumed his office in “good faith” and on “mistake of fact” due to the “difficult
questions of law” involved.
Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s
resolution to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal
Counsel disagreed with Coquia’s findings and recommended the filing of the case
against Mayor Miranda. He pointed out that Mayor Miranda’s invocation of good
faith was belied by the fact that he received a memorandum from the DILG
informing him that his view of the preventive suspension period was untenable and
that he should serve out its remaining period. He further noted that Miranda violated
the orders of both the Ombudsman and the DILG. Ombudsman Desierto adopted the
Chief Legal Counsel’s recommendation, and the case was re-raffled to Special
Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed an
amended Information with the Sandiganbayan, to which the petitioner interposed
a negative plea.
On 28 November 2001, the prosecution filed before the Sandiganbayan a motion
to suspend Mayor Miranda pendente lite based on Section 13 of Republic Act No.
3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.
Miranda opposed the motion on the ground that the offense of usurpation of
authority or official functions under Article 177 of the RPC is not embraced by
Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A.
No. 3019, Title VII, Book II of the RPC or which involve “fraud upon government or
public funds or property.”
In a Resolution dated 4 February 2002, the Sandiganbayan preventively
suspended Mayor Miranda from office for 90 days. The anti-graft court held that a
violation of Article 177 of the RPC involves fraud “which in a general sense is deemed
to comprise anything calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust or confidence justly
reposed, resulting in damage to another or by which an undue and unconscious
advantage is taken of another.” It further ruled that Miranda’s act fell within the
catch-all provision “x x x or for any offense involving fraud upon government.”
Miranda’s motion for reconsideration was denied in the Sandiganbayan’s Resolution
dated 17 June 2002. Hence, the present petition assailing the Sandiganbayan’s
orders of preventive suspension. The petitioner contends that the Sandiganbayan
gravely abused its discretion when it preventively suspended him on a ground not
authorized by law and raises the following issues: (1) whether Section 13 of R.A. No.
3019 applies only to fraudulent acts involving public funds or property; and (2)
whether the crime of usurpation of authority or official functions involves “fraud
upon government or public funds or property” found in Section 13 of R.A. No. 3019.
We rule in the negative.
First. Section 13 of R.A. No. 3019, as amended, provides:
Section 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. Should he be convicted by final judgment, he
shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he
shall be entitled to reinstatement and to the salaries and benefits which he failed to
receive during suspension, unless in the meantime administrative proceedings have
been filed against him.
In the event that such convicted officer, who may have already been separated
from the service, has already received such benefits he shall be liable to restitute the
same to the Government.
The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering
two types of offenses: (1) any offense involving fraud on the government; and (2) any
offense involving public funds or property. Contrary to the submission of the
petitioner, nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13
only to acts involving fraud on public funds or property. The phrase “any offense
involving fraud upon government or public funds or property” is clear and
categorical. To limit the use of “government” as an adjective that qualifies “funds” is
baseless. The word “public” precedes “funds” and distinguishes the same from
private funds. To qualify further “public funds” as “government” funds, as petitioner
claims is the law’s intent, is plainly superfluous. We are bound by the rule that a
statute should be construed reasonably with reference to its controlling purpose and
its provisions should not be given a meaning that is inconsistent with its scope and
object. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act,
should be read to protect the State from fraud by its own officials.
Second. We further hold that the Sandiganbayan did not gravely abuse its
discretion when it ruled that petitioner’s act fell within the catch-all provision “x x x
or for any offense involving fraud upon government. The term “fraud” is
defined, viz.:
An instance or an act of trickery or deceit esp. when involving misrepresentation:
an act of deluding
It is obvious to the eyes that the phrase “fraud upon government” means “any
instance or act of trickery or deceit against the government.” It cannot be read
restrictively so as to be equivalent to malversation of funds as this is covered by the
preceding phrase “any offense involving . . . public funds or property.” It ought to
follow that “fraud upon government” was committed when the petitioner allegedly
assumed the duties and performed acts pertaining to the Office of the Mayor under
pretense of official position.
The dissent opines that fraud upon government is not necessarily an essential
element of the crime of usurpation of authority. The submission may be correct as a
general proposition but general propositions hardly decide a case. In the case at bar,
the issue is whether the alleged acts of usurpation of authority committed by the
petitioner involve “fraud upon government or public funds or property” as the term is
understood under Section 13 of R.A. No. 3019. In ruling in the affirmative, the
Sandiganbayan held:
“Let us take a look at the acts complained of as alleged in the Amended
Information dated July 27, 2001:
x x x the above-named accused, a public officer, being then the elected City
Mayor of Santiago City, while under preventive suspension did then and there,
willfully, unlawfully and knowingly and under pretense of official position, assume
the duties and functions of the Office of the Mayor, issue directives and memoranda,
and appoint certain persons to various positions in the City Government and perform
acts pertaining to an office to which he knowingly was deprived of.
Moreover, in private complainant Amelita S. Navarro’s Affidavit of Complaint
dated November 26, 1997, she said: “x x x, he proceeded to his office and started
giving directives to the various heads of office and other employees, the unexpected
acts of respondents had caused serious disruptions in the day to day affairs of the city
government.”
Accused’s acts therefore in assuming the duties and function of the Office of the
Mayor despite his suspension from said office resulted to a clear disruption of office
and worst, a chaotic situation in the affairs of the government as the employees, as
well as the public, suffered confusion as to who is the head of the Office. This
actuation of herein accused constitutes fraud which in general sense is deemed to
comprise anything calculated to deceive, including all acts, omissions, and
concealment involving a breach of legal or equitable duty, trust or confidence justly
reposed, resulting in damage to another or by which an undue and unconscious
advantage is taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act
complained of against accused herein falls in the catch all provision “x x x or for any
offense involving fraud upon government x x x.”
Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal
in a long line of cases is that “x x x under Section 13 of the Anti-Graft and Corrupt
Practices Law, the suspension of a public officer is mandatory after a determination
has been made of the validity of the Information x x x.” In fact, as early as 1984 in the
case of Bayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Court
speaking thru Justice Relova said:
Once the information is found to be sufficient in form and substance, then the
Court must issue the order of suspension as a matter of course. There are no ifs and
buts about it. x x x
After a perusal of the amended information herein, it clearly appeared that the
same was apparently valid for it conforms to the requirements laid down under
Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a
negative plea thereto thereby tacitly acquiescing to the validity of the said
Information.
There being no valid ground raised by the accused sufficient enough to warrant
denial of the prayer of the prosecution in its Motion to Suspend Accused Pende[n]te
Lite (sic) and in consonance with the imperious mandate of the law, the said prayer
should be accorded affirmative relief.” (Citations omitted)
In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further
held:
 “Accused in his motion substantially alleged that Article 177 (Usurpation of
Authority and Official Function) of the Revised Penal Code, which is the charge
against herein accused, does not fall under the catch all provision of Section 13 of
Republic Act No. 3019 “x x x or for any offense involving fraud upon government or
public funds or property x x x.” He said that the acts complained of as alleged in the
Information do not constitute fraud upon government or public fund or property.
Though the argument by the accused seems plausible, this Court is still inclined
to uphold its ruling suspending accused pendente lite. The accused argued that the
fraud contemplated in the law is one involving (1) government funds or property; and
(2) public funds or property. This is precisely availing in the case at bar. The
Information in herein case, says: “x x x accused x x x assume the duties and functions
of the Office of the Mayor, issue directives and memoranda and appoint certain
persons to various positions in the city government, and perform acts pertaining to
an office to which he knowingly was deprived of.” When accused-mayor appointed
persons in various positions, he indirectly dealt with the city’s funds as those persons
appointed will be given their respective salaries, benefits and other monetary
consideration which will be paid wholly or mainly out of the city’s funds.
Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.
[,]approval of vouchers, and payment of other expenses which is subject to proof, he
likewise indirectly dealt with the funds of the city.
Moreover, as the prosecution said, “when accused Miranda, willfully and
knowingly, during the effectivity of his suspension barged into the City Hall, issued
orders and directives and performed functions as City Mayor, he was sending the
unwritten yet visible message that he was authorized to do and function as such. x x
x.” We hold this as a fraud upon government resulting in the chaos or confusion
albeit temporary, as the employees would be in a quandary whom to follow or obey.
Hence, considering that the charge herein evidently falls within the compass of
the suspension provision invoked by the prosecution, there is no cogent reason for
this Court to depart from its previous ruling. Further, considering the mandatory
tenor of Section 13[,] Republic Act No. 3019, the motion for reconsideration is hereby
denied.
Accordingly, the Motion for Reconsideration is denied for lack of merit.”
This Court finds no reason to disagree with the Sandiganbayan. Its conclusions
are amply supported by the record. Additionally, the issue of whether petitioner
committed fraud upon the government or public funds or property is essentially
factual. In a special civil action for certiorari, the only question that may be raised is
whether or not the respondent acted without or in excess of jurisdiction or with grave
abuse of discretion. The Court cannot correct errors of fact or law which do not
amount to grave abuse of discretion.
The dissenting opinion, however, says there was no fraud. It holds that “it would
be fraud of public funds if these public officials just collected their salaries without
rendering service to the government.” It further asserts that “fraud upon
government” must be read so as to require that malversation of funds was
committed. This is a complete volte face from its claim that Section 13 of R.A. No.
3019 covers two types of offenses: (1) any offense involving fraud upon the
government; and (2) any offense involving public funds or property. What is more,
adopting the dissenting opinion’s line of reasoning would render superfluous the
phrase “fraud upon government” as malversation is subsumed by “any offense
involving public funds or property.”
Third. We are not a bit persuaded by the posture of the petitioner that he
reassumed office under an honest beliefthat he was no longer under preventive
suspension. Petitioner’s pretense cannot stand scrutiny. Petitioner’s own affidavit
states:
8. That on November 24, 1997, at that time, (sic) I had already served my single
preventive suspension for a total number of ONE HUNDRED TWENTY (120) days
more or less counted from July 24, 1997, which far exceeds the allowable period of 60
days as maximum preventive suspension, for a single suspension for a local elective
official like me as provided for under the Local Government Code of 1991 ( sic) on the
same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers,
I notified both the Ombudsman and DILG of my intention to assume my office as the
duly elected City Mayor of Santiago City;
9. That earlier on November 24, 1997 I started to reassume my office and
functions as City Mayor of Santiago City; surprisingly on the same date, November
24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of
DILG instructing me to cease and desist from my plan to reassume the functions and
duties of my office;
10. For less than a week, after November 24, 1997ViceMayor AMELITA
NAVARRO relentlessly harassed and threatened me and my constituents with bodily
harm using the strong arm of the law thru the brute force of the PNP courteousy ( sic)
of Undersecretary Manuel R. Sanchez I was constrained to ceased (sic) from
performing my duties and functions to avoid any possible unfortunate
incident that may happen to me and any constituents; x x x. (Emphases
supplied)
By petitioner’s own admission, he refused to leave his position despite the
memorandum of Undersecretary Sanchez and left only a few days after receipt
thereof due to the coercion of the Philippine National Police. This contradicts his
assertion that he immediately complied with the memorandum of Undersecretary
Sanchez. Petitioner cannot escape from his own admission.
To be sure, petitioner’s honest belief defense is old hat. In the 1956 case of People
v. Hilvano, the facts are:
 When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official
business early in the morning of September 22, 1952, he designated the herein
defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later,
during office hours on that same day, Vice-Mayor Juan Latorre went to the municipal
building; and having found Hilvano acting in the place of the Mayor, he served
written notices to the corresponding municipal officers, including Hilvano, that he
(Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However,
Hilvano refused to yield, arguing that he had been designated by the Mayor.
Whereupon the Vice-Mayor sent a telegram to the Executive Secretary informing the
latter of the controversy. And the said Secretary replied by letter, that under sec. 2195
of the Revised Administrative Code it was the Vice-Mayor who should discharge the
duties of the Mayor during the latter’s temporary absence. Shown this official
pronouncement, Hilvano still refused to surrender the position. Again the Vice-
Mayor sought the opinion of the Provincial Fiscal, who by letter (Exhibit “D”), replied
that the Vice-Mayor had the right to the office. Notwithstanding such opinion which
was exhibited to him—Hilvano declined to vacate the post, which he held for about a
month, appointing some policemen, solemnizing marriages and collecting the
corresponding salary for mayor.
Wherefore Francisco Hilvano was prosecuted—and after trial—was convicted of
usurpation of public authority under Republic Act No. 10. He appealed in due time.
In rejecting the defense of the accused Hilvano, we ruled:
There is no excuse for defendant-appellant. In the beginning he might have
pleaded good faith, invoking the designation by the Mayor; but after he had been
shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he
had no right thereafter stubbornly to stick to the position. He was rightfully
convicted.
Petitioner’s excuse for violating the order of preventive suspension is too flimsy
to merit even a side-glance. He alleged that he merely followed the advice of his
lawyer. If petitioner and his counsel had an iota of respect for the rule of law , they
should have assailed the validity of the order of suspension in court instead of taking
the law into their own hands.
Fourth. It should be stressed that petitioner was suspended by the
Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is mandatory if
the information is sufficient. Understandably, the dissent argues that the Amended
Information is insufficient in form as it should have “expressly and clearly stated that
Miranda re-assumed office to defraud the government or that in re-assuming office
Miranda committed acts that defrauded the government” and that it is improper to
take into account the petitioner’s admissions in his affidavit for this purpose.
With due respect, the dissent is way off-line. The records will show that petitioner
did not file a motion to quash the information or a motion for bill of particulars
before pleading to the information. It is basic that entering a plea waives any
objection the petitioner may have to the validity of the information except on the
following grounds: (1) the information charges no offense; (2) the trial court has no
jurisdiction over the offense charged; (3) the penalty or the offense has been
extinguished; and (4) double jeopardy has attached. Objections to the sufficiency of
the allegations in the Amended Information do not fall among the exceptions to the
rule. They fall under the objection that the information “does not conform
substantially to the prescribed form.” Needless to state, the petitioner has by his acts
acquiesced to the validity and sufficiency of the Amended Information. It is, thus,
incorrect for the dissenting opinion to peddle the proposition that the petitioner has
been deprived of his constitutional right to be apprised of the nature and cause of the
accusation against him. Worse, it is improper for the dissenting opinion to raise this
issue motu proprio. Under our Rules of Court, it is the petitioner who should raise
this objection in a motion to quash or motion for bill of particulars before entering
his plea. The irregular procedure followed by the dissent would encourage the
pernicious practice of “sandbagging” where counsel foregoes raising a pleading defect
before trial where it can be easily corrected only to raise the defect later in the hope
of obtaining an arrest of judgment or new trial from a sympathetic magistrate. It is
precisely this evil that is addressed by Rule 117, Section 9 of our Revised Rules of
Criminal Procedure.
Even assuming for the nonce, that the objection to the sufficiency of the
information was raised in a timely fashion by the petitioner, the dissenting opinion’s
arguments still do not convince. The validity or sufficiency of allegations in an
information is determined according to the provisions of Section 9 of the Revised
Rules of Criminal Procedure, viz.:
SECTION 9. Cause of the Accusation.—The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must be
stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to
know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.
The test is whether the crime is described in intelligible terms with such
particularity as to apprise the accused, with reasonable certainty, of the offense
charged. The raison d’etre of the rule is to enable the accused to suitably prepare his
defense. A perusal of the Amended Information will bear out that it has hurdled this
legal bar. We quote its contents:
“That on or about 24 November 1997, in the City of Santiago, Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then the elected City Mayor of Santiago City, while
under preventive suspension, did, then and there, willfully, unlawfully, and
knowingly and under pretense of official position, assume the duties and function of
 the Office of the Mayor, issue directives and memoranda, and appoint certain persons
to various positions in the city government, and perform acts pertaining to an office
to which he knowingly was deprived of.”
Using this test, it cannot be said that the Amended Information failed to properly
apprise the petitioner of the charge against him. The information charged the
petitioner with assuming the duties and performing acts pertaining to the office of
Mayor willfully, unlawfully and knowingly under the pretense of official position.
Moreover, it states some of the specific acts which constitute usurpation of official
functions, namely, issuing directives and memoranda and appointing certain persons
to various positions in the city government. These allegations are clear enough for a
layman to understand. Indeed, even the petitioner does not complain about their
ambiguity. Only the dissent does.
Fifth. The dissenting opinion also contends that the Ombudsman’s authority to
preventively suspend local elective officials for 6 months is limited by Section 63(b)
of the Local Government Code. Under the latter law, petitioner can only be
suspended for a maximum period of 60 days. It then jumps to the conclusion that
petitioner could not have usurped authority because he reassumed office after 60
days.
With due respect, the dissent fails to focus on the proper issue. The issue before
this Court is whether the Sandiganbayan committed a grave abuse of discretion in
suspending the petitioner for 90 days. The validity of the Ombudsman’s order of
preventive suspension of the petitioner for 6 months is not the one assailed in the
case at bar. The irrelevance of the suspension order of the Ombudsman
notwithstanding, the reliance of the dissenting opinion on Garcia v.
Mojica is inapropos. In Garcia, we held:
Given these findings, we cannot say now that there is no evidence sufficiently
strong to justify the imposition of preventive suspension against petitioner. But
considering its purpose and the circumstances in the case brought before
us, it does appear to us that the imposition of the maximum period of six
months is unwarranted.
On behalf of respondents, the Solicitor General stated during his oral argument
at the hearing that the documents mentioned in respondents’ comment (such as
purchase orders, purchase requests, and disbursement vouchers), documents that
show petitioner’s guilt, were obtained after petitioner had been suspended. Even if an
afterthought, he claimed they strengthen the evidence of respondents against
petitioner. If the purpose of the preventive suspension was to enable the
investigating authority to gather documents without intervention from
petitioner, then, from respondents’ submission, we can only conclude
that this purpose was already achieved, during the nearly month-long
suspension of petitioner from June 25 to July 19, 1999. Granting that now
the evidence against petitioner is already strong, even without conceding
that initially it was weak, it is clear to us that the maximum six-month
period is excessive and definitely longer than necessary for the
Ombudsman to make its legitimate case against petitioner. We must
conclude that the period during which petitioner was already preventively suspended,
has been sufficient for the lawful purpose of preventing petitioner from hiding and
destroying needed documents, or harassing and preventing witnesses who wish to
appear against him.
We reach the foregoing conclusion, however, without necessarily
subscribing to petitioner’s claim that the Local Government Code, which
he averred should apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension may only be imposed after
the issues are joined, and only for a maximum period of sixty days. Here, petitioner
was suspended without having had the chance to refute first the charges against him,
and for the maximum period of six months provided by the Ombudsman Law. But as
respondents argue, administrative complaints commenced under the
Ombudsman Law are distinct from those initiated under the Local
Government Code.Respondents point out that the shorter period of suspension
under the Local Government Code is intended to limit the period of suspension that
may be imposed by a mayor, a governor, or the President, who may be motivated by
partisan political considerations. In contrast the Ombudsman, who can impose
a longer period of preventive suspension, is not likely to be similarly
motivated because it is a constitutional body. The distinction is valid but not
decisive, in our view, of whether there has been grave abuse of discretion in a specific
case of preventive suspension. (Emphases supplied)
Nowhere in Garcia is it stated that the limits provided in the Local Government
Code apply to the Ombudsman. In fact, the Court expressly stated that its decision
was rendered without subscribing to the petitioner’s claim that the Local
Government Code had been violated. In fine, the Court only ruled that the
Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive
suspension since it was admitted that the documents required were already obtained
by 19 July 1999 or 24 days after the imposition of the preventive suspension.
Therefore, the purpose for which the suspension was imposed was already served.
The dissenting opinion also cites the case of Rios v. Sandiganbayan as basis for
assailing the Ombudsman’s order of preventive suspension. Rios is neither here nor
there since the powers of the Sandiganbayan were at issue in that case, not those of
the Ombudsman. It is also worth noting that Rios cited Section 63 of the Local
Government Code as its legal basis. This provision provides:
SECTION 63. Preventive Suspension.—
a) Preventive suspension may be imposed:
 (1)By the President, if the respondent is an elective official of a province, a
highly urbanized or an independent component city;
(2)By the governor, if the respondent is an elective official of a component city
or municipality; or
(3)By the mayor, if the respondent is an elective official of the barangay.
(b)Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the offense,
there is great probability that the continuance in office of the respondent could
influence the witnesses or pose a threat to the safety and integrity of the records
and other evidence: Provided, That, any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days: Provided, further, That
in the event that several administrative cases are filed against an elective
official, he cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and known at the
time of the first suspension.
(c)Upon expiration of the preventive suspension, the suspended elective official
shall be deemed reinstated in office without prejudice to the continuation of the
proceedings against him, which shall be terminated within one hundred twenty
(120) days from the time he was formally notified of the case against him.
However, if the delay in the proceedings of the case is due to his fault, neglect,
or request, other than the appeal duly filed, the duration of such delay shall not
be counted in computing the time of termination of the case.
It is plain that the provision was only meant as a cap on the discretionary power
of the President, governor and mayor to impose excessively long preventive
suspensions. The Ombudsman is not mentioned in the said provision and was not
meant to be governed thereby. Indeed, the reason is not hard to distill. The
President, governor and mayor are political personages. As such, the possibility of
extraneous factors influencing their decision to impose preventive suspensions is not
remote. The Ombudsman, on the other hand, is not subject to political pressure given
the independence of the office which is protected by no less than the Constitution.
This view was embraced by the Court in Hagad v. Gozo-Dadole and Garcia v.
Mojica. In Hagad, we held:
Respondent local officials contend that the 6-month preventive
suspension without pay under Section 24 of the Ombudsman Act is much
too repugnant to the 60-day preventive suspension provided by Section
63 of the Local Government Code to even now maintain its application.
The two provisions govern differently. In order to justify the preventive
suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt
should be strong, and (a) the charge against the officer or employee should involve
dishonestly, oppression or grave misconduct or neglect in the performance of duty;
(b) that the charges should warrant removal from the service; or (c) the respondent’s
continued stay in office would prejudice the case filed against him. The Ombudsman
can impose the 6-month preventive suspension to all public officials, whether elective
or appointive, who are under investigation. Upon the other hand, in imposing the
shorter period of sixty (60) days of preventive suspension prescribed in the Local
Government Code of 1991 on an elective local official (at any time after the issues are
joined), it would be enough that (a) there is reasonable ground to believe that the
respondent has committed the act or acts complained of, (b) the evidence of
culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance
in office of the respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence.
In the same vein, we made the following observations in Garcia, viz.:
Respondents may be correct in pointing out the reason for the shorter period of
preventive suspension imposable under the Local Government Code. Political color
could taint the exercise of the power to suspend local officials by the mayor, governor,
or President’s office. In contrast the Ombudsman, considering the
constitutional origin of his Office, always ought to be insulated from the
vagaries of politics, as respondents would have us believe. x x x
It was also argued in Hagad, that the six-month preventive
suspension under the Ombudsman Law is “much too repugnant” to the
60-day period that may be imposed under the Local Government Code.
But per J. Vitug, “the two provisions govern differently.” (Emphases
supplied)
There is no reason to reverse this ruling. Our above ruling is in accord with the
intent of the law. It bears emphasis that Senator Pimentelexplained during the
Senate deliberations that the purpose of Section 63 of the Code is to prevent the
abuse of the power of preventive suspension by members of the executive branch , to
wit:
The President. I recall that in the case of Iloilo City Mayor Ganzon, he challenged the
right of the President, acting through the Secretary of Local Government, I think, Luis Santos,
to suspend him—
Senator Pimentel. That is true, Mr. President.
The President.—contending that under the new Constitution, even the
President does not have that right.
Senator Pimentel. Now, as far as we are concerned, the Senate
Committee is ready to adopt a more stringent rule regarding the power of
 removal and suspension by the Office of the President over local
government officials, Mr. President. We would only wish to point out that in a
subsequent section, we have provided for the power of suspension of local
government officials to be limited only to 60 days and not more than 90 days in any
one year, regardless of the number of administrative charges that may be filed against
a local government official. We, in fact, had in mind the case of Mayor
Ganzon of Iloilo where the Secretary of Local Government sort of
serialized the filing of charges against him so that he can be continuously
suspended when one case is filed right after the other, Mr. President.
The President. Can that be done under this new Code?
Senator Pimentel. Under our proposal, that can no longer be done, Mr.
President.
Verily, Section 63 of the Local Government Code does not govern preventive
suspensions imposed by the Ombudsman, which is a constitutionally created office
and independent from the Executive branch of government. The Ombudsman’s
power of preventive suspension is governed by Republic Act No. 6770, otherwise
known as “The Ombudsman Act of 1989,” which provides:
SECTION 24. Preventive Suspension.—The Ombudsman or his Deputy may
preventively suspend any officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would warrant removal from
the service; or (c) the respondent’s continued stay in office may prejudice the case
filed against him.
The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six months, without pay, except when
the delay in the disposition of the case by the Office of the Ombudsman is due to the
fault, negligence or petition of the respondent, in which case the period of such delay
shall not be counted in computing the period of suspension herein
provided. (Emphasis supplied)
The six-month period of preventive suspension imposed by the Ombudsman was
indubitably within the limit provided by its enabling law. This enabling law has not
been modified by the legislature.
The dissenting opinion submits that providing for a sixmonth limit for the
Ombudsman while keeping the limit for executive officials at sixty days violates the
constitutional proscription against equal protection of the law. In essence, it avers
that there is no substantial distinction between preventive suspensions handed down
by the Ombudsman and those imposed by executive officials. On the contrary, there
is a world of difference between them. The Constitution has endowed the
Ombudsman with unique safeguards to ensure immunity from political pressure.
Among these statutory protections are fiscal autonomy, fixed term of office and
classification as an impeachable officer. This much was recognized by this Court in
the earlier cited case of Garcia v. Mojica. Moreover, there are stricter safeguards for
imposition of preventive suspension by the Ombudsman. The Ombudsman Act of
1989 requires that the Ombudsman determine: (1) that the evidence of guilt is
strong; and (2) that any of the following circumstances are present: (a) the charge
against such officer or employee involves dishonesty, oppression, or grave
misconduct or neglect in the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondent’s continued stay in office may
prejudice the case filed against him.
The dissenting opinion finally points out the possibility of abuse by the
Ombudsman in imposing preventive suspensions. The short reply is that all powers
are susceptible of abuse but that is no reason to strike down the grant of power.
Suffice it to say that the proper remedies against abuse in the exercise of power are a
petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or
amendment of the Ombudsman’s enabling law by the legislature, not a contortionist
statutory interpretation by this Court.
IN VIEW WHEREOF, the instant petition is DISMISSED there being no showing
that the Sandiganbayan gravely abused its discretion in issuing its Resolution of 4
February 2002, preventively suspending the petitioner for 90 days. SO ORDERED.
DISSENTING OPINION
CARPIO, J.:
I dissent from the majority opinion.
This case arose from a Complaint filed by Amelita S. Navarro (“Navarro”) on 1
December 1997 with the Office of the Ombudsman (“Ombudsman”) docketed
as OMB-1-97-2312. Navarro alleged that petitioner Jose C. Miranda (“Miranda”)
committed the crime of usurpation of authority or official functions under Article 177
of the Revised Penal Code (“RPC”) when he re-assumed his position as Mayor of
Santiago City, Isabela on 24 November 1997 during his preventive suspension. The
Ombudsman had placed Miranda under preventive suspension for six months from
25 July 1997 to 25 January 1998, under a charge of violating Republic Act No. 6713.
In his counter-affidavit, Miranda asserted that he reassumed office on the advice
of his lawyer and in good faith. Miranda maintained that under Section 63(b) of the
Local Government Code, local elective officials could not be preventively suspended
for a period beyond 60 days. Miranda added that when he received—on the day he
re-assumed office—a memorandum from DILG Undersecretary Manuel Sanchez
instructing him to vacate his office, he immediately complied with the memorandum.
On 28 October 1998, the Ombudsman filed with the Sandiganbayan an
Information against Miranda for violation of Article 177 of the RPC. On 20 November
1998, the Sandiganbayan ordered the Office of the Special Prosecutor to conduct a
reinvestigation of the case. Special Prosecution Officer Rodrigo V. Coquia (“Coquia”)
recommended the dismissal of the case in a Resolution dated 14 September 2000, as
Miranda reassumed his office in good faith and on mistake of fact.
However, Ombudsman Aniano A. Desierto (“Ombudsman Desierto”) referred
Coquia’s Resolution to the Office of the Ombudsman’s Chief Legal Counsel for
review. The Chief Legal Counsel disagreed with Coquia’s findings and recommended
the filing of the case against Miranda. Ombudsman Desierto adopted the Chief Legal
Counsel’s recommendation. The case was re-raffled to Special Prosecution Officer
Evelyn T. Lucero. Subsequently, the prosecution filed an Amended Information with
the approval of the Sandiganbayan. The Information reads:
“That on or about 24 November 1997, in the City of Santiago, Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then the elected City Mayor of Santiago City, while
under preventive suspension, did, then and there, wil[l]fully, unlawfully, and
knowingly and under pretense of official position, assume the duties and functions of
the Office of the Mayor, issue directives and memoranda, and appoint certain persons
to various positions in the city government, and perform acts pertaining to an office
to which he knowingly was deprived of. CONTRARY TO LAW.”
On 28 November 2001, the prosecution filed a motion to suspend
Miranda pendente lite based on Section 13 of Republic Act No. 3019 (“RA 3019”).
Miranda opposed the motion, asserting that the offense of usurpation of authority or
official functions is not embraced in RA 3019 or Title VII, Book II of the RPC. Neither
does it involve “fraud upon government or public funds or property.”
In a Resolution dated 4 February 2002, the Sandiganbayan granted the
prosecution’s motion and preventively suspended Miranda from office for 90 days.
The dispositive portion of the Resolution reads:
“WHEREFORE, the Court hereby orders the suspension pendente lite of JOSE C.
MIRANDA from his position as City Mayor of Santiago City, Isabela and from any
other position he may now or hereafter be holding for a period of ninety (90) days.
Once this Order shall have become final and executory, the Hon. Secretary of the
Department of Interior and Local Government as well as the Honorable Governor of
Isabela shall be ordered to implement this order. They shall be informed accordingly
when the Order is already executory. SO ORDERED.”
The Sandiganbayan denied Miranda’s motion for reconsideration on 17 June
2002. Hence, Miranda filed this petition.
The Sandiganbayan rejected Miranda’s argument that the charge against him
does not fall within Section 13 of RA 3019. The Sandiganbayan reasoned in this
manner:
Accused’s acts therefore in assuming the duties and function of the Office of the
Mayor despite his suspension from said office resulted to a clear disruption of office
and worst, a chaotic situation in the affairs of the government as the employees, as
well as the public, suffered confusion as to who is the head of the Office. This
actuation of herein accused constitutes fraud which in general sense is deemed to
comprise anything calculated to deceive, including acts, omissions, and concealment
involving a breach of legal or equitable duty, trust or confidence justly reposed,
resulting in damage to another or by which an undue and unconscious advantage is
taken of another (37 Am. Jur. 2d 19 at Sec. 19). Hence, the act complained of against
accused herein falls in the catch-all provision “x x x or for any offense involving fraud
upon government x x x”.
The Sandiganbayan subscribed to the Ombudsman’s argument that Miranda
indirectly committed “fraud upon government or public funds or property” when he
re-assumed his office and appointed several persons to various public positions.
Miranda contends that the Sandiganbayan gravely abused its discretion,
amounting to lack of jurisdiction, when it preventively suspended him for a reason
not authorized by law. Miranda raises the following issues for resolution:
1. WHETHER SECTION 13 OF RA 3019 APPLIES ONLY TO FRAUDULENT
ACTS INVOLVING PUBLIC FUNDS OR PROPERTY; and
2. WHETHER THE CRIME OF USURPATION OF AUTHORITY OR OFFICIAL
FUNCTIONS FALLS WITHIN THE PHRASE “FRAUD UPON
GOVERNMENT OR PUBLIC FUNDS OR PROPERTY” FOUND IN SECTION
13 OF RA 3019.
Whether Section 13 of RA 3019 Applies Only to Fraud Involving Public Funds or
Property
The Ombudsman maintains that the catch-all phrase in Section 13 of RA 3019
is not limited to fraudulent acts involving government funds or property. The
Ombudsman argues that the word “or” between “government” and “public” creates
two types of offenses, one involving public funds or property and the other involving
all forms of “fraud upon government.”
Miranda counters that Section 13 of RA 3019 applies only if a fraudulent act
involves public funds or property. Miranda contends that the word “government” in
Section 13 of RA 3019 simply qualifies or describes the nature of funds or property to
distinguish it from “private” funds or property.
Section 13 of RA 3019 mandates the Sandiganbayan to impose a preventive
suspension on a finding that the information filed against the public official is
sufficient in form and substance. The mandatory nature of the suspension requires a
strict compliance with the conditions for its imposition. As the provision clearly
shows, the existence of a valid information is not enough. The crime charged must be
for:
a) a violation of RA 3019; or
b) an offense contained in Title 7, Book II of the RPC; or
c)“any offense involving fraud upon government or public funds or property.”
The charge of usurpation of authority or official functions is not a violation of RA
3019. Neither is it a violation of any offense in Title 7, Book II of the RPC. Thus, the
Sandiganbayan can impose the mandatory preventive suspension on Miranda under
Section 13 of RA 3019 only if the charge of usurpation of authority or official
functions against Miranda involves “fraud upon government or public funds or
property.”
Previously, Section 13 only covered violations of RA 3019 or Bribery, which is one
of the many crimes under Title 7 of the RPC. The amendment introduced by Batas
Pambansa Blg. 195 expanded this scope to include all the crimes in Title 7 of the RPC
as well as any crime that may fall under the new catch-all phrase “any offense
involving fraud upon government or public funds or property.” The common
characteristic of the crimes covered in the enumeration remains the same: fraud
committed against the government by public officials.
Miranda’s argument that Section 13 of RA 3019 covers only offenses involving
public funds or property is baseless. Statutes are read and interpreted in their
entirety, and their provisions viewed with reference to the text and not dissected
piecemeal. A statute is construed reasonably with reference to its controlling purpose
and its provisions should not be given a meaning that is inconsistent with its scope
and object. The legislative intent here is clear. RA 3019, commonly known as the
Anti-Graft and Corrupt Practices Act, is meant to punish public officials who abuse
their positions through acts which prejudice the government. The law seeks to
protect the State from being defrauded by its own officials.
Nothing in RA 3019 evinces any legislative intent to limit Section 13 only to acts
involving fraud on public funds or property. The phrase “any offense involving fraud
upon government or public funds or property” is clear and categorical. It covers two
types of offenses: (1) any offense involving fraud on the government; and (2) any
offense involving public funds or property. To limit the use of “government” as an
adjective that qualifies “funds” is not merely baseless, it is also superfluous. The word
“public” already precedes “funds,” hence clearly distinguishing the funds from
private funds. To qualify further “public funds” as “government” funds, as Miranda
claims is the law’s intent, is plainly superfluous.
In distinguishing in Section 13 between “any offense involving fraud upon
government” and “any offense involving xxx public funds or property,” the law clearly
intends to create two types of offenses. To limit the applicability of Section 13 of RA
3019 only to offenses involving public funds or property will exclude other offenses of
fraud against the government not involving public funds or property.
To illustrate, Mr. X, a BIR official is in charge of issuing tax credit certificates. A
garments exporter, a co-conspirator of Mr. X, fakes a P1 million tax credit
purportedly issued to his garments company. The garments exporter sells the tax
credit certificate to an unsuspecting oil company, which on the assurance of Mr. X of
the authenticity of the tax credit certificate, pays P800,000 for the certificate. The oil
company pays its P1 million tax liability with the government using the tax credit
certificate. Here, no public fund or property is involved. To adopt Miranda’s position
will place Mr. X, a public employee, beyond the reach of Section 13 of RA 3019. Yet
clearly, Mr. X is a co-conspirator in defrauding the government and the oil
company.11 The oil company will not pay its P1 million-tax liability to the government
unless the government proves that the tax certificate is a forgery, which may take
some time. Thus, the government suffers actual injury.
Whether Usurpation of Authority Automatically Triggers Application of Section 13
of RA 3019
The Ombudsman claims that a charge for usurpation of authority or official
functions under Article 177 of the RPC automatically qualifies as a ground for
preventive suspension under Section 13 of RA 3019. The Ombudsman asserts that
usurpation of authority or official functions falls under “fraud upon government.”
Not all acts of usurpation of authority or official functions involve “fraud upon
government.” The essence of usurpation of authority under Article 177 of the RPC is
false and malicious representation. The “gravamen of the offense of usurpation of
authority is the false representation, maliciously made, that one is an officer, agent or
representative of the Philippine Government or any foreign government.” Fraud on
the government is not an essential element of the offense. The mere act of making a
false and malicious representation that one is a government officer is sufficient to
constitute the of-fense, whether or not the act defrauds the government.
The essence of usurpation of official functions under Article 177 of the RPC is
performing, under pretense of official position and without lawful authority, an
official act pertaining to an official. Fraud on the government is also not an essential
element of the offense. The offense usually results in injury to private parties who are
victimized by pretenders to public office.
On the other hand, the gravamen of “fraud upon government” in Section 13 of RA
3019 is the public officer’s act of defrauding the government. It is necessary that the
act should defraud the government. Usurpation of authority, while involving
fraudulent means, does not necessarily involve fraud on the government. The fraud
may be committed only against private parties and not against the government.
For example, Mr. Y, a private individual, represents himself as a traffic policeman.
He directs traffic at a busy intersection and because of his incompetence causes two
private vehicles to collide. Mr. Y is liable for usurpation of official functions but he
did not defraud the government.
Thus, one may be liable for usurpation of authority or of official functions without
defrauding the government. Miranda’s case is an example. Miranda re-assumed
office on advice of his lawyer that his suspension had ended pursuant to Section
63(b) of the Local Government Code of 1991, which states that “[A]ny single
preventive suspension of local elective officials shall not extend beyond sixty (60)
days.” Miranda claims good faith in re-assuming office since he acted on the advice of
his lawyer under circumstances showing an honest intention.
We must bear in mind that Miranda was the duly elected Mayor. Miranda was
merely restrained from discharging his duties as Mayor because of the preventive
suspension. Under normal circumstances, Miranda as a duly elected official would
have the powers to issue directives and appoint individuals to local positions.
Without the preventive suspension, Miranda’s directives and appointments would
have enjoyed the presumption of regularity.
Certainly, Miranda did not re-assume office to defraud the government. Before re-
assuming office, Miranda wrote the Ombudsman and all concerned local and
national DILG officials informing them of his stand and the legal basis for his re-
assumption of office. When the DILG informed him that he remained suspended,
Miranda immediately vacated his office. Miranda’s actions do not show any attempt
to defraud the government. Miranda’s acts of re-assuming office and performing his
official functions reveal an honest intention to perform his duties as the duly elected
Mayor.
The Ombudsman argues that Miranda indirectly defrauded the government of
funds or property when he appointed certain individuals during the period of his
challenged reassumption of office. The implication is that the payment of salaries to
these public officials amounts to fraud of public funds. It would be fraud of public
funds if these public officials just collected their salaries without rendering service to
the government. If these public officials performed vital services necessary to keep
government offices functioning, there would be no fraud on the government or of
public funds. Since these public officials used government property or incurred
expenses in good faith while rendering vital services to the public, their acts cannot
constitute fraud of public funds or property.
At any rate, the Ombudsman’s argument is all for naught. Ultimately, the
sufficiency of the Amended Information in accusing Miranda of defrauding the
government determines if the Sandiganbayan committed grave abuse of discretion in
placing Miranda on preventive suspension for 90 days. A perusal of the Amended
Information reveals its patent insufficiency. The Amended Information merely
alleged that:
the above-named accused, a public officer, being then the elected City Mayor of
Santiago City, while under preventive suspension, did, then and there, wil[l]fully,
unlawfully, and knowingly and under pretense of official position, assume the duties
and functions of the Office of the Mayor, issue directives and memoranda, and
appoint certain persons to various positions in the city government, and perform acts
pertaining to an office to which he knowingly was deprived of.
What is clear from the Amended Information is that Miranda was accused of
usurpation of authority, not of committing acts to defraud the government. The
information must have a complete allegation on the particulars as to how Miranda
defrauded the government when he re-assumed office. The accused has the
constitutional right to be informed of the extent of the accusation against him. In this
case, the right to be fully informed is not solely to give the accused adequate
preparation for his defense. A sufficient information in this case would have also
forewarned Miranda of the Sandiganbayan’s power to impose on him pendente
lite the mandatory preventive suspension.
Moreover, fraud is never presumed. The Amended Information should have
stated expressly and clearly that Miranda re-assumed office to defraud the
government or that in reassuming office Miranda committed acts that defrauded the
government.
The Amended Information does not even state that the public officials Miranda
appointed when he re-assumed office received the salaries without rendering the
corresponding services to the government. There is also no allegation that these
public officials malversed public funds. If the Ombudsman really believed that
Miranda, alone or in conspiracy with the public officials he appointed, had defrauded
the government of public funds or property, then the Ombudsman should have
charged him with violation of RA 3019, or an offense under Title VII of the RPC, and
not usurpation of authority or official functions.
The power of the Sandiganbayan to suspend preventively a public officer rests on
the sufficiency and validity of the information. Oddly, while the Sandiganbayan and
the majority opinion recognize this doctrine, the Sandiganbayan and the majority
opinion still considered Navarro’s complaint-affidavit. The Sandiganbayan and the
majority opinion cite this portion of Navarro’s complaint-affidavit:
x x x, he (Miranda) proceeded to his office and started giving directives to the
various heads of office and other employees, the unexpected acts of respondents had
caused serious disruptions in the day to day affairs of the city government.
The majority opinion agrees with the Sandiganbayan’s conclusion that the
foregoing allegations amount to fraud on the government “resulting in chaos or
confusion albeit temporary, as the employees would be in a quandary whom to follow
or obey.”
Assuming that the Sandiganbayan could consider Navarro’s complaint-affidavit in
imposing the mandatory preventive suspension on Miranda, the allegations in the
affidavit fall short of accusing Miranda of defrauding the government. The
Sandiganbayan defined fraud as that “which in general sense is deemed to comprise
anything calculated to deceive, including acts, omissions, and concealment involving
a breach of legal or equitable duty, trust or confidence justly reposed, resulting in
damage to another or by which an undue and unconscious advantage is taken of
another.”
Based on the Sandiganbayan’s definition of fraud, by no stretch of the
imagination is the bare allegation of “unexpected acts of respondents” tantamount to
an allegation of fraud. Miranda’s “unexpected acts” were not described with
particularity to show that the “unexpected acts” were committed with the end view of
defrauding the government.
The “serious disruptions in the day to day affairs of the city government” is not an
allegation that the government itself was defrauded. As interpreted by the
Sandiganbayan and the majority opinion, the “serious disruptions in the day to day
affairs of the city government” meant that there was chaos or confusion because the
employees did not know whom to obey. True, the ones who were inconvenienced by
the confusion caused by Miranda’s re-assumption of office were the employees, and
to a certain extent, the public, but such confusion does not amount to fraud on the
government.
The majority opinion insists that “the factual findings of the Sandiganbayan are
binding unless they are capricious or whimsical.” Lest we forget, this case has not
yet gone to trial. The Sandiganbayan was only called upon to rule on the motion to
suspend Miranda pendente lite. No factual findings should have been made by the
Sandiganbayan as to Miranda’s alleged commission of fraud on the government. The
Sandiganbayan’s “factual findings,” based solely on the affidavit of private
complainant Amelita S. Navarro, constitute grave abuse of discretion. The
Sandiganbayan’s inquiry should have been limited to the determination of the
sufficiency of the Amended Information. Whether the Sandiganbayan correctly
appreciated the sufficiency of the Amended Information is not a question of fact but
a question of law, which this Court can review.
The majority opinion asserts that the issue is not whether the officials appointed
by Miranda rendered service to the local government unit. The real issue, according
to the majority opinion, is whether Miranda misrepresented himself as having lawful
authority to make appointments when he was still under suspension by the
Ombudsman.
The charge of fraud on the government will stand or fall on the sufficiency of the
Amended Information. The Amended Information miserably fails to recite the facts
constituting the accusation of fraud on the government. The Amended Information
should have at least alleged that the officials appointed by Miranda did not render
service to the public or malversed public funds in conspiracy with Miranda. Since
there was no allegation of such acts or any other fraudulent acts, at most, the
Amended Information accused Miranda of usurpation of authority. The absence of
the lawful authority to appoint does not ipso facto mean that the government is
defrauded by such appointment. Thus, it was incumbent on the Ombudsman to craft
the Amended Information with precision.
The majority opinion concludes that Miranda’s “honest belief defense is old hat,”
as this type of defense was long ago rejected by the Court in the 1956 case of People
v. Hilvano. The majority opinion points out that Miranda’s own admission in his
affidavit shows that he could not have in good faith reassumed office because he
openly defied the memorandum of Undersecretary Sanchez.
The majority opinion confuses the issues. In People v. Hilvano, the accused was
indicted for usurpation of authority. After trial, the accused was found guilty of the
crime charged. The courts in People v. Hilvano passed upon the accused’s defense of
good faith and found that the accused did not act in good faith because “after he had
been shown the letter of the Executive Secretary and the opinion of the provincial
fiscal, he had no right thereafter stubbornly to stick to his position.” In the present
case, Miranda did not stubbornly stick to his position after he was shown
Undersecretary Sanchez’s memorandum. Miranda in fact vacated his office upon
receipt of Undersecretary Sanchez’s memorandum. Under Hilvano, good faith
remains a valid defense. Thus, in the present case, good faith in re-assuming office is
relevant to the charge of usurpation of authority. In short, a person accused of
usurpation of authority could invoke good faith in assuming a public office.
I find it difficult to see how the government could have been defrauded in the
course of Miranda’s re-assumption of office when his defiance of the preventive
suspension order was not at all subtle. Miranda’s insubordination was so open and
blatant, as the majority opinion describes it, that the acting Mayor, DILG and the
Philippine National Police were put on guard. To repeat, if the Ombudsman truly
believed that aside from usurpation of authority, Miranda also committed acts that
defrauded the government during his reassumption of office, then the Ombudsman
should have carefully worded the Amended Information to convey clearly this charge.
Finally, Section 63(b) of the Local Government Code prohibits any single
preventive suspension of a local elective public official to last for more than 60
days. When Miranda reassumed office on 24 November 1997, he had already served
60 days of preventive suspension. Hence, there was no longer any legal impediment
to his resumption of office.
True, the Ombudsman has the power to investigate and immediately preventively
suspend public officials, whether appointive or elective, under Section 24 of Republic
Act No. 6770 (“RA 6770”). However, the Ombudsman must exercise such power in
conformity with Section 63(b) of the Local Government Code, a later law. Section
63(b) of the Local Government Code governs specifically the duration of a single
preventive suspension of local elective public officials.In contrast, Section 24 of RA
6770, imposing a maximum suspension of six months, governs all other public
officials, whether appointive or elective.
In Rios v. Sandiganbayan, this Court ruled that Section 63(b) of the Local
Government Code even limits the power of the Sandiganbayan to suspend
preventively local elective officials:
On the other hand, we find merit in petitioner’s second assigned
error. The Sandiganbayan erred in imposing a 90 day suspension upon
petitioner for the single case filed against him. Under Section 63 (b) of
the Local Government Code, “any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days.” (Emphasis
supplied)
In Garcia v. Mojica, the Court held that a preventive suspension of six months
imposed by the Ombudsman on local elective officials constitutes grave abuse of
discretion. The Court further held at a preventive suspension of 24 days on such local
elective officials should suffice.
In the present case, Miranda re-assumed office after serving 60 days of preventive
suspension, the maximum preventive suspension period allowed by law. Thus,
Miranda reassumed office not as a usurper or a pretender but as the duly elected
Mayor of Santiago City, free from the legal impediment of preventive suspension.
However, Miranda immediately vacated his office on the day he re-assumed it in
obeisance to the DILG memorandum informing him that his preventive suspension
remained in effect. Thus, Miranda remained suspended until 25 January 1998, or a
single preventive suspension period of one day short of 6 months. Miranda’s
preventive suspension for more than 60 days is clearly contrary to law.
The majority opinion argues that Section 63(b) of the Local Government Code is a
cap on the discretionary power of the President but does not apply to the
Ombudsman. The majority opinion cites the Senate deliberations where Senator
Aquilino Pimentel (“Senator Pimentel”) explained that the purpose behind Section
63(b) of the Local Government Code was to prevent the abuse of the power of
preventive suspension by the members of the executive department. Invoking Hagad
v. Gozo-Dadole and Garcia v. Mojica, the majority opinion points out that the
President, governor and mayor hold political positions. The possibility that
extraneous factors may influence their decision to impose preventive suspension is
not remote. The majority opinion asserts that the Ombudsman is not subject to
political pressure due to the nature of his office.
I agree with the majority opinion only on one point: the Local Government Code
puts a cap on the power to impose preventive suspension on elective officials as this
power is susceptible to abuse. However, the period of preventive suspension cannot
exceed 60 days regardless of who is imposing the preventive suspension. There is no
language in the Local Government Code exempting the Ombudsman from the 60-day
preventive suspension cap. Where the law does not distinguish, we should also not
distinguish.
Prior to the enactment of the Local Government Code, the abuse of the power to
impose preventive suspensions was rife. Preventive suspensions were imposed in a
serialized manner to prevent an elective official from actually assuming office.
During the Senate deliberations, as an illustrative example, Senator Pimentel
recounted how then former President Ferdinand E. Marcos abused this power. The
deliberations in the Senate proceeded in the following manner:
 The President. I recall that in the case of Iloilo City Mayor Ganzon, he
challenged the right of the President, acting through the Secretary of Local
Government, I think, Luis Santos, to suspend him—
Senator Pimentel. That is true, Mr. President.
The President.—contending that under the new Constitution, even
the President does not have that right.
Senator Pimentel. Now, as far as we are concerned, the Senate Committee is
ready to adopt a more stringent rule regarding the power of removal and suspension
by the Office of the President over local government officials, Mr. President. We
would only wish to point out that in a subsequent section, we have provided for the
power of suspension of local government officials to be limited only to 60 days and
not more than 90 days in any one year, regardless of the number of administrative
charges that may be filed against a local government official. We, in fact, had in mind
the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of
serialized the filing of charges against him so that he can be continuously suspended
when one case is filed right after the other, Mr. President.
The President. Can that be done under this new Code?
Senator Pimentel. Under our proposal, that can no longer be done, Mr.
President. (Emphasis ours)
Indeed, the power to suspend preventively a local elective official could be prone
to abuse, frustrating the will of the electorate. The Ombudsman’s power to suspend
preventively a local elective official for six months is repugnant to the Local
Government Code, which limits the preventive suspension to only 60 days. Under
Section 66(b) of the Local Government Code, the maximum suspension of six
months is already a penalty. The power given by RA 6770 to the Ombudsman is
limited to the imposition of a preventive suspension while the Ombudsman
investigates the case of an elective official. A preventive suspension is not a penalty. A
person under preventive suspension, especially in a criminal action, is still entitled to
the presumption of innocence. By upholding the power of the Ombudsman to impose
a preventive suspension of six months on a local elective official, the Ombudsman is
in effect already penalizing the local elective official even before the Ombudsman’s
investigation has begun.
We quote the Senate’s deliberations on Section 66(b) of the Local Government
Code, to wit:
Senator Pimentel. Can we proceed to page 44, Mr. President?
Now, one of the innovations that we have induced here, Mr. President, is that
the penalty of suspension, which is found on line 8, paragraph 2, shall not exceed
the unexpired term of the respondent, or a total of six months for his entire term, nor
shall said penalty be a bar to his candidacy, etcetera. But we are putting a limitation
to the total period of suspension, which shall not exceed six months of his entire
term.
It must be remembered, Mr. President, that local
government officials now only have a three-year term. So that, if we
allow suspension to last longer than six months, we will have
a governor or a mayor serving for only a few months of his given term.
(Emphasis ours)
A preventive suspension of six months by the Ombudsman and the mandatory
90-day preventive suspension imposed by the Sandiganbayan pendente lite cut the
term of an elective official by almost a third. This is the very problem that the Local
Government Code seeks to prevent.
Theoretically, public officers in political positions could be influenced to use the
preventive suspensions as a means to oppress a political opponent. The Ombudsman
as a constitutional creation is supposed to be shielded from the vagaries of politics,
but the reality is the Ombudsman is not immune from committing grave abuse of
discretion. As we have seen in Garcia v. Mojica, the Ombudsman imposed the
maximum period of six months when a suspension of only 24 days would have
sufficed. Whether the motive for imposing an unnecessarily prolonged preventive
suspension is political or is just a result of grave abuse of discretion, the net effect is
the same: the elective official’s term is unlawfully shortened.
In Rios v. Sandiganbayan, this Court applied the 60-day cap in Section 63(b) of
the Local Government Code to a 90-day preventive suspension imposed by the
Sandiganbayan. In Garcia v. Mojica, this Court cut short to 24 days a 6-month
preventive suspension imposed by the Ombudsman. Certainly, existing
jurisprudence does not limit the 60-day cap in Section 63(b) of the Local
Government Code only to preventive suspensions imposed by executive officials.
To apply the 60-day cap in Section 63(b) of the Local Government Code only to
preventive suspensions imposed by executive officials will result in anomalous
situations. In administrative investigations, executive officials have concurrent
jurisdiction with the Ombudsman over local elective officials. Executive officials may
refer to the Ombudsman administrative cases against local elective officials. This will
give executive officials the choice whether to subject a local elective official to a
maximum 60-day or a maximum 6-month preventive suspension. If an executive
official wants a local elective official subjected to a 6-month preventive suspension,
he will simply endorse the administrative investigation to the Ombudsman. This will
deny local elective officials equal protection of the law. This could not have been the
intention of the legislature in putting the 60-day cap in Section 63(b) of the Local
Government Code.
Applying the 60-day cap in Section 63(b) of the Local Government Code only to
preventive suspensions imposed by executive officials will practically deprive
executive officials of their disciplinary authority over local elective officials. Every
complainant will now file administrative cases against local elective officials only
before the Ombudsman to secure longer preventive suspensions. Worse, this will
insure that all administrative cases against local elective officials will be subjected
to a maximum 6-month preventive suspension. This will defeat the avowed purpose
of Section 63(b) of the Local Government Code, which is precisely to limit preventive
suspensions of local elective officials to not more than 60 days.
This is the anomalous result of a selective interpretation of Section 63(b) of the
Local Government Code, applying it to preventive suspensions imposed by executive
officials and not applying it to preventive suspensions imposed by the Ombudsman.
This Court should not interpret the law to defeat its purpose. Neither should this
Court sanction interpretation that so obviously fosters the very evil that the law seeks
to eradicate.
Civil Service Law, and cannot therefore be considered “unjustified”—it is one of those
sacrifices which holding a public office requires for the public good. (Gloria vs. Court
of Appeals, 306 SCRA 287 [1999])
Section 13 of R.A. No. 3019 does not state that the public officer concerned must
be suspended only in the office where he is alleged to have committed the acts with
which he has been charged—the use of the word “office” would indicate that it applies
to any office which the officer charged may be holding, and not only the particular
office under which he stands accused. (Santiago vs. Sandiganbayan, 356 SCRA
636 [2001])
——o0o——

In the present case, the DILG could have administratively investigated Miranda
and preventively suspended him for 60 days in accordance with Section 63(b) of the
Local Government Code of 1991. The DILG did not. A certain Amelita S. Navarro
subsequently filed a complaint with the Ombudsman on 1 December 1997, allowing
the Ombudsman to suspend preventively Miranda for 6 months, beyond the 60-day
maximum period allowed in Section 63(b) of the Local Government Code. This is a
stark illustration of the oppressive and anomalous operation of Section 63(b) if it is
not made to apply to preventive suspensions imposed by the Ombudsman. Miranda
is clearly a victim here of the oppressive and anomalous selective application of
Section 63(b) of the Local Government Code. This Court should not countenance
such patent anomaly.

In sum, the offense of usurpation of authority or official functions under Article

177 of the Revised Penal Code filed against Miranda in the present case does not
involve “fraud upon government or public funds or property” under Section 13 of RA
3019. Thus, the Sandiganbayan committed grave abuse of discretion when it ruled
that the charge against Miranda falls within Section 13 of RA 3019 requiring the
mandatory preventive suspension of Miranda by the Sandiganbayan. In addition, the
maximum period of a single preventive suspension of local elective public officials
like Miranda cannot exceed 60 days in accordance with Section 63(b) of the Local
Government Code.

ACCORDINGLY, I vote to GRANT the instant petition and to SET ASIDE the
Resolutions of the Sandiganbayan dated 4 February 2002 and 17 June 2002 in SB
Criminal Case No. 24984.

Notes.—The preventive suspension of civil service employees charged with

dishonesty, oppression or grave misconduct, or neglect of duty is authorized by the
 G.R. No. 176702. November 13, 2013.*
OFFICE OF THE OMBUDSMAN, petitioner, vs. MARCELINO A.
DECHAVEZ, respondent.
Remedial Law; Appeals; The rule that the Supreme Court will not disturb the
Court of Appeals’ findings of fact is not an absolute rule that admits of no exceptions. A
notable exception is the presence of conflict of findings of fact between or among the
tribunals’ rulings on questions of fact.—The rule that the Court will not disturb the CA’s
findings of fact is not an absolute rule that admits of no exceptions. A notable exception
is the presence of conflict of findings of fact between or among the tribunals’ rulings on
questions of fact. The case before us squarely falls under this exception as the tribunals
below made two critical conflicting factual findings. We are thus compelled to undertake
our own factual examination of the evidence presented.
Same; Evidence; Substantial Evidence; In administrative cases, substantial
evidence is required to support any findings.—This Court cannot be any clearer in
laying down the rule on the quantum of evidence to support an administrative ruling: “In
administrative cases, substantial evidence is required to support any findings.
Substantial evidence is such relevant evidence as a reasonable mind may accept as
adequate to support a conclusion. The requirement is satisfied where there is reasonable
ground to believe that the petitioner is guilty of the act or omission complained of, even if
the evidence might not be overwhelming.”
Same; Same; The settled evidentiary rule is that “as between a positive and
categorical testimony which has a ring of truth, on one hand, and a bare denial, on the
other, the former is generally held to prevail.”—After examining the testimonies, too, we
lean in favor of the view that there were available drivers on May 5, 2002, contrary to
what Dechavez claimed. As between the assertion of the security guards that they had
seen available drivers on the day of the trip, and the drivers’ denial (and assertion that
they had serviced other faculty members at that time), the settled evidentiary rule is that
“as between a positive and categorical testimony which has a ring oftruth, on one hand[,]
and a bare denial[,] on the other, the former is generally held to prevail.” Furthermore,
while Dechavez insists that the allegations of the drivers were corroborated by the
teachers they had driven for, the attestations of these teachers remained to be hearsay:
Dechavez failed to present their attestations in evidence.
Same; Jurisdiction; As early as 1975, the Supreme Court has upheld the rule that
“the jurisdiction that was Ours at the time of the filing of the administrative complaint
was not lost by the mere fact that the respondent public official had ceased to be in
office during the pendency of his case.—As early as 1975, we have upheld the rule that
“the jurisdiction that was Ours at the time of the filing of the administrative complaint
was not lost by the mere fact that the respondent public official had ceased to be in office
during the pendency of his case. The Court retains its jurisdiction either to pronounce the
respondent official innocent of the charges or declare him guilty thereof. A contrary rule
would be fraught with injustices and pregnant with dreadful and dangerous
implications.”
Same; Same; Jurisdiction, once it attaches, cannot be defeated by the acts of the
respondent, save only where death intervenes and the action does not survive.—
In Baquerfo v. Sanchez, 455 SCRA 13 (2005), we held: Cessation from office of
respondent by resignation or retirement neither warrants the dismissal of
the administrative complaint filed against him while he was still in the
service nor does it render said administrative case moot and academic. The
jurisdiction that was this Court’s at the time of the filing of the administrative complaint
was not lost by the mere fact that the respondent public official had ceased in office
during the pendency of his case. Respondent’s resignation does not preclude the finding
of any administrative liability to which he shall still be answerable. [Emphases ours;
citations omitted] Thus, from the strictly legal point of view and as we have held in a long
line of cases, jurisdiction, once it attaches, cannot be defeated by the acts of the
respondent, save only where death intervenes and the action does not survive.
BRION, J.:
The petitioner, Office of the Ombudsman (Ombudsman), seeks in this Rule 45
petition for review on certiorari the reversal of the Court of Appeals’ (CA’s)
decision and resolution reversing the Ombudsman’s rulings4 that dismissed
respondent Marcelino A. Dechavez (Dechavez) from the service for dishonesty.
The Facts
The attendant facts are not complicated and, in fact, involve the oft-repeated
scenario in the public service workplace — a complaint by subordinate employees
against their superior officer for misconduct in office. In a twist of fortune (or
misfortune), an accident triggered the whole train of events that led to the present
case.
Dechavez was the president of the Negros State College of Agriculture (NSCA)
from 2001 until his retirement on April 9, 2006. On May 5, 2002, a Sunday,
Dechavez and his wife, Amelia M. Dechavez (Mrs. Dechavez), used the college service
Suzuki Vitara to go to Pontevedra, Negros Occidental. Dechavez drove the vehicle
himself. On their way back to the NSCA, they figured in a vehicular accident in
Himamaylan City, resulting in minor injuries to the occupants and damage to the
vehicle.
To support his claim for insurance, Dechavez executed an affidavit before the
Government Service Insurance System (GSIS). The GSIS subsequently granted
Dechavez’s claims amounting to P308,000.00, while the NSCA shouldered
P71,000.00 as its share in the vehicle’s depreciation expense. The GSIS released
P6,000.00 for Mrs. Dechavez’s third-party liability claim for bodily injuries.
On November 11, 2002, twenty (20) faculty and staff members of the NSCA
(complainants) asked the Commission on Audit (COA) to conduct an audit
investigation of NSCA’s expenditures in the May 5, 2002 vehicular accident. The
COA dismissed the complaint for lack of merit.
The complainants then sought recourse with the Ombudsman, Visayas, through a
verified complaint7charging Dechavez with Dishonesty under Section 46(b)(1),
Chapter 6, Tile I of the Administrative Code of 1987.
The Ombudsman’s Ruling
The Ombudsman dismissed Dechavez from the service with all accessory
penalties after finding him guilty. The Ombudsman ruled that the complainants
sufficiently established their allegations, while Dechavez’s defenses had been
successfully rebutted. The motion for reconsideration that Dechavez filed was
subsequently denied.
The CA’s Ruling
The CA examined the same pieces of evidence that the Ombudsman considered
and reversed the Ombudsman’s findings.
In complete contrast with the Ombudsman’s rulings, the CA found that the
complainants failed to sufficiently show that Dechavez had deliberately lied in his
May 10, 2002 affidavit. Dechavez sufficiently proved that he went on an official trip,
based on the reasons outlined below and its reading of the evidence:
First, there was nothing wrong if Dechavez worked on a Sunday; he must, in fact,
be commended for his dedication.
Second, the Ombudsman should have accorded greater belief on the NSCA
drivers’ positive assertion that they were not available to drive for Mr. and Mrs.
Dechavez (as they had serviced other faculty members at that time), as against the
NSCA security guards’ allegation that these drivers were available then (because they
allegedly saw the drivers within the college premises on that Sunday); speculations
on the nature of the trip should not arise simply because Dechavez personally drove
the vehicle.
Third, the certifications of Mr. Larry Parroco (Pontevedra Sanggunian Bayan
Member) and Mr. Cornelio Geanga (Chair of the Education Committee and Head
Teacher of the M.H. Del Pilar Elementary School) should have persuaded the
Ombudsman that the affiants are public officials who would not lightly issue a
certification or falsely execute affidavits as they know the implications and
consequences of any falsity.
Fourth and lastly, the two lists of teaching instructors had been prepared by the
same person, and if the second list had indeed been questionable, Mr. Pablito Cuizon
(NSCA’s Chairman for Instructions) would have not attached the second list to his
affidavit.
On February 7, 2007, the CA denied the motion for reconsideration filed by the
Ombudsman.
The Parties’ Arguments
The Ombudsman argues that the guilt of Dechavez has been proven by substantial
evidence — the quantum of evidence required in administrative proceedings. It
likewise invokes its findings and posits that because they are supported by
substantial evidence, they deserve great weight and must be accorded full respect and
credit.
Dechavez counters that the present petition raises factual issues that are improper
for a petition for review on certiorari under Rule 45. He adds that the present case
has been mooted by his retirement from the service on April 9, 2006, and should
properly be dismissed.
The Court’s Ruling
The Court finds the petition meritorious.
The CA’s factual findings are conclusive; exceptions
The rule that the Court will not disturb the CA’s findings of fact is not an absolute
rule that admits of no exceptions. A notable exception is the presence of conflict of
findings of fact between or among the tribunals’ rulings on questions of fact. The case
before us squarely falls under this exception as the tribunals below made two critical
conflicting factual findings. We are thus compelled to undertake our own factual
examination of the evidence presented.
This Court cannot be any clearer in laying down the rule on the quantum of
evidence to support an administrative ruling: “In administrative cases, substantial
evidence is required to support any findings. Substantial evidence is such relevant
evidence as a reasonable mind may accept as adequate to support a conclusion. The
requirement is satisfied where there is reasonable ground to believe that the
petitioner is guilty of the act or omission complained of, even if the evidence
might not be overwhelming.”
Our own examination of the records tells us that the Ombudsman’s findings and
appreciation of the presented evidence are more in accord with reason and common
experience so that it successfully proved, by the required quantum of evidence,
Dechavez’s dishonesty, at the same time that we find the respondent’s reading of the
evidence to be stretched to the point of breaking, as our analysis below shows.
 We start with our agreement with the CA’s view that the Ombudsman’s finding —
that Dechavez was not on official business on May 5, 2002 because it was a Sunday (a
non-working day) — by itself, is not sufficient basis for the conclusion that
Dechavez’s business on that day was not official. We, nevertheless, examined the
other surrounding facts and are convinced that the spouses Dechavez’s trip was a
personal one; thus, Dechavez had been dishonest when he made the claim that he
went on official business. The dishonesty, of course, did not arise simply from the
nature of the trip, but from the claim for insurance that brought the spouses a
substantial sum.
First. Dechavez alleged that the trip was urgent, and there were no drivers
available; hence, he drove the vehicle himself. He added that the fact that the trip
ticket was accomplished on May 5, 2002, a Sunday, and that it was typewritten, are
not material as he was not prohibited from driving the car himself.
We do not agree with Dechavez’s claim about the immateriality of the trip ticket;
it was presented as evidence and, as such, carries implications far beyond what
Dechavez claims. The fact alone that the ticket, for a trip that was allegedly urgent,
was typewritten already speaks volumes about the integrity of this piece of evidence.
We agree with the Ombudsman, based on common experience and probability, that
had the trip really been urgent and had the trip ticket been accomplished on the date
of the trip, May 5, 2002, it would have been handwritten. The trip ticket, however,
was typewritten, indicating that it had been prepared ahead of time, or thereafter,
not on that Sunday immediately before leaving on an urgent trip. In fact, if it had
been prepared ahead of time, then the trip could not have been urgent as there was
advance planning involved.
In other words, if the trip ticket had been prepared ahead of time, the trip should
have been scheduled ahead of time, and necessary arrangements should have been
made for the availability of a driver. Therefore, it was unlikely that Dechavez would
have known that no driver would be available for him on the date of the trip.
On another note, if the trip ticket had been prepared after the trip, the
Ombudsman was correct in observing that Dechavez had no authority to drive the
vehicle in the absence of the requisite trip ticket. Worse, if it had been prepared after
the trip after an accident had intervened, then there had been a conscious attempt to
“sanitize” the incidents of the trip. It is at this point where the claim for insurance
becomes material; the trip ticket removed all questions about the regularity and
official character of the trip.
After examining the testimonies, too, we lean in favor of the view that there were
available drivers on May 5, 2002, contrary to what Dechavez claimed. As between the
assertion of the security guards that they had seen available drivers on the day of the
trip, and the drivers’ denial (and assertion that they had serviced other faculty
members at that time), the settled evidentiary rule is that “as between a positive and
categorical testimony which has a ring of truth, on one hand[,] and a bare denial[,]
on the other, the former is generally held to prevail.” Furthermore, while Dechavez
insists that the allegations of the drivers were corroborated by the teachers they had
driven for, the attestations of these teachers remained to be hearsay: Dechavez failed
to present their attestations in evidence.
Dechavez additionally argues that the way the trip ticket was accomplished bears
no significance in these circumstances, insisting further that it is of no moment that
he drove the vehicle himself, as he was not prohibited from doing so. Read in
isolation, the Court might just have found these positions convincing. Read with the
other attendant circumstances, however, the argument becomes shaky.
If Dechavez thought that there was nothing wrong in driving the vehicle himself,
why would he indicate that the reason he drove the vehicle himself was that there
were no available drivers, and that it was urgent? Finally, if indeed it was true that
Dechavez used to perform his extension service or confer with the NSCA’s linkages
during weekends, how come the trip became urgent and the driver had not been
assigned beforehand?
Second. We cannot give weight to the certification of Mr. Parroco that Dechavez
used to visit the Pontevedra District to coordinate with his office, and that Dechavez
also visited his office on May 5, 2002. We likewise disregard the statement of Mr.
Geanga that Dechavez appeared before his office on May 5, 2002. The certifications
of these two witnesses were submitted only in October 2004 or two (2) years after the
case was filed with the Ombudsman. The time lag alone already renders the
certifications suspect and this inconsistency has not been satisfactorily explained.
The late use of the certifications also deprived the complainants of the opportunity to
refute them and the Ombudsman the chance to examine the affiants. As the
Ombudsman observed, too, it is hard to believe that all four (4) of them — Mr. and
Mrs. Dechavez, Mr. Parroco, and Mr. Geanga — happened to agree to work on a
Sunday, a non-working day; this story simply stretches matters beyond the point of
believability in the absence of supporting proof that this kind ofarrangement has
been usual among them.
Finally, we find that Mrs. Dechavez was not on official business on May 5, 2002;
in fact, she was not teaching at that time. We note in this regard that the parties
presented two (2) conflicting instructor’s summer teaching loads for 2002: the first
one, dated April 1, 2002, which did not include Mrs. Dechavez, while the other,
an undated one, included Mrs. Dechavez’s name. Curiously, the same person who
prepared both documents, Mr. Cuizon, failed to explain why there were two (2)
versions of the same document. Considering the highly irregular and undated nature
of the list that contained the name of Mrs. Dechavez, we again concur with the
Ombudsman’s reading that while we can presume that the undated list had been
prepared before the start of the summer classes, we can also presume that the other
list had been prepared subsequently to conveniently suit the defense of the
respondent.
Likewise, Ms. Fe Ulpiana, a teacher at the NSCA, whose name appears in the
second document, attested that she had never been assigned to register and assess
the students’ school fees, contrary to what appeared thereon. We find it worth
mentioning that Dechavez’s witness, Mr. Cuizon, despite being subpoenaed by the
Ombudsman, failed to furnish the Schedule of Classes for Summer 2002 and the
Actual Teaching Load for Summer 2002. Dechavez also failed to provide the
Ombudsman with the subpoenaed daily time record (DTR) of Mrs. Dechavez for
summer 2002 as the DTR supposedly could not be located.
All told, too many gaps simply existed in Dechavez’s tale and supporting evidence
for his case to be convincing.
Retirement from the service during the pendency of an administrative
case does not render the case moot and academic.
As early as 1975, we have upheld the rule that “the jurisdiction that was Ours at
the time of the filing of the administrative complaint was not lost by the mere fact
that the respondent public official had ceased to be in office during the pendency of
his case. The Court retains its jurisdiction either to pronounce the respondent official
innocent of the charges or declare him guilty thereof. A contrary rule would be
fraught with injustices and pregnant with dreadful and dangerous implications.”
Arguably, the cited case above is not applicable as it involved a judge who retired
four (4) days after a charge of grave misconduct, gross dishonesty and serious
inefficiency was filed against him. The wisdom of citing this authority in the present
case can be found, however, in its ruling that: “If innocent, respondent official merits
vindication of his name and integrity as he leaves the government which he served
well and faithfully; if guilty, he deserves to receive the corresponding censure and a
penalty proper and imposable under the situation.”
Recently, we emphasized that in a case that a public official’s cessation from
service does not render moot an administrative case that was filed prior to the
official’s resignation. In the 2011 case of Office of the Ombudsman v. Andutan, Jr.,
we reiterated the doctrine and laid down the line of cases supporting this principle
when we ruled:
To recall, we have held in the past that a public official’s resignation does not
render moot an administrative case that was filed prior to the official’s
resignation. In Pagano v. Nazarro, Jr., we held that:
In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July
2004, 434 SCRA 654, 658], this Court categorically ruled that the precipitate
resignation of a government employee charged with an offense punishable by
dismissal from the service does not render moot the administrative case against
him. Resignation is not a way out to evade administrative liability when facing
administrative sanction. The resignation of a public servant does not preclude the
finding of any administrative liability to which he or she shall still be answerable
— [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13, 19-20].
[Italics supplied, citation omitted]
Likewise, in Baquerfo v. Sanchez, we held:
Cessation from office of respondent by resignation or
retirement neither warrants the dismissal of the administrative
complaint filed against him while he was still in the service nor does it
render said administrative case moot and academic. The jurisdiction that
was this Court’s at the time of the filing of the administrative complaint was not lost
by the mere fact that the respondent public official had ceased in office during the
pendency of his case. Respondent’s resignation does not preclude the finding of any
administrative liability to which he shall still be answerable. [Emphases ours;
citations omitted]
Thus, from the strictly legal point of view and as we have held in a long line of
cases, jurisdiction, once it attaches, cannot be defeated by the acts of the respondent,
save only where death intervenes and the action does not survive.
WHEREFORE, under these premises, we hereby GRANT the petition for
review on certiorari. Accordingly, we REVERSE AND SET ASIDE the decision
dated March 31, 2006 and the resolution dated February 7, 2007 of the Court of
Appeals in CA-G.R. SP. No. 00673, and REINSTATE the decision dated October 29,
2004 and the order dated April 6, 2005 of the Office of the Ombudsman. Costs
against respondent Marcelino A. Dechavez. SO ORDERED.
Notes.—While administrative findings of fact are accorded great respect, and
even finality when supported by substantial evidence, nevertheless, when it can be
shown that administrative bodies grossly misappreciated evidence of such nature as
to compel a contrary conclusion, this court had not hesitated to reverse their factual
findings. (Functional, Inc. vs. Granfil, 660 SCRA 279 [2011])
The Supreme Court has consistently upheld the doctrine that while jurisdiction
may be assailed at any stage, a litigant who participated in the court proceedings by
filing pleadings and presenting his evidence cannot later on question the trial court’s
jurisdiction when judgment unfavorable to him is rendered. (Heirs of Jose Fernando
vs. De Belen, 700 SCRA 556 [2013])
 G.R. No. 164679. July 27, 2011.*
OFFICE OF THE OMBUDSMAN, petitioner, vs. ULDARICO P. ANDUTAN,
JR., respondent.
Ombudsman; Administrative Investigations; Prescription; Section 20 of R.A. 6770
does not prohibit the Ombudsman from conducting an administrative investigation
after the lapse of one year reckoned from the time the alleged act was committed.—
Section 20 of R.A. 6770 does not prohibit the Ombudsman from conducting an
administrative investigation after the lapse of one year, reckoned from the time the
alleged act was committed. Without doubt, even if the administrative case was filed
beyond the one (1) year period stated in Section 20(5), the Ombudsman was well within
its discretion to conduct the administrative investigation.
Same; Same; Same; The Ombudsman can no longer institute an administrative
case against Andutan because the latter was not a public servant at the time the case
was filed.—Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770
from conducting the investigation, the Ombudsman can no longer institute an
administrative case against Andutan because the latter was not a public servant at the
time the case was filed.
Same; Same; Same; A public official’s resignation does not render moot an
administrative case that was filed prior to the official’s resignation.—To recall, we have
held in the past that a public official’s resignation does not render moot an
administrative case that was filed prior to the official’s resignation.
Same; Same; Words and Phrases; Threefold Liability Rule; Under the “threefold
liability rule,” the wrongful acts or omissions of a public officer may give rise to civil,
criminal and administrative liability.—The State is not without remedy against Andutan
or any public official who committed violations while in office, but had already resigned
or retired therefrom. Under the “threefold liability rule,” the wrongful acts or omissions
of a public officer may give rise to civil, criminal and administrative liability. Even if the
Ombudsman may no longer file an administrative case against a public official who has
already resigned or retired, the Ombudsman may still file criminal and civil cases to
vindicate Andutan’s alleged transgressions. In fact, here, the Ombudsman—through the
FFIB—filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the
Anti-Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not
only be meted out the penalty of imprisonment, but also the penalties of perpetual
disqualification from office, and confiscation or forfeiture of any prohibited interest.
BRION, J.:
Through a petition for review on certiorari, the petitioner Office of the
Ombudsman (Ombudsman) seeks the reversal of the decision of the Court of Appeals
(CA), dated July 28, 2004, in “Uldarico P. Andutan, Jr. v. Office of the Ombudsman
and Fact Finding and Intelligence Bureau (FFIB), etc.,” docketed as CA-G.R. SP No.
68893. The assailed decision annulled and set aside the decision of the Ombudsman
dated July 30, 2001, finding Uldarico P. Andutan, Jr. guilty of Gross Neglect of Duty.
The Factual Antecedents
Andutan was formerly the Deputy Director of the One-Stop Shop Tax Credit and
Duty Drawback Center of the Department of Finance (DOF). On June 30, 1998, then
Executive Secretary Ronaldo Zamora issued a Memorandum directing all non-career
officials or those occupying political positions to vacate their positions effective July
1, 1998. On July 1, 1998, pursuant to the Memorandum, Andutan resigned from the
DOF.
On September 1, 1999, Andutan, together with Antonio P. Belicena, former
Undersecretary, DOF; Rowena P. Malonzo, Tax Specialist I, DOF; Benjamin O. Yao,
Chairman and Executive Officer, Steel Asia Manufacturing Corporation (Steel Asia);
Augustus S. Lapid, Vice-President, Steel Asia; Antonio M. Lorenzana, President and
Chief Operating Officer, Steel Asia; and Eulogio L. Reyes, General Manager,
Devmark Textiles Ind. Inc., was criminally charged by the Fact Finding and
Intelligence Bureau (FFIB) of the Ombudsman with Estafa through Falsification of
Public Documents, and violations of Section 3(a), (e) and (j) of Republic Act No.
(R.A.) 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. As
government employees, Andutan, Belicena and Malonzo were likewise
administratively charged of Grave Misconduct, Dishonesty, Falsification of Official
Documents and Conduct Prejudicial to the Best Interest of the Service.
The criminal and administrative charges arose from anomalies in the illegal
transfer of Tax Credit Certificates (TCCs) to Steel Asia, among others.
During the investigation, the FFIB found that Steel Asia fraudulently
obtained TCCs worth Two Hundred Forty-Two Million, Four Hundred Thirty-Three
Thousand, Five Hundred Thirty-Four Pesos (P242,433,534.00). The FFIB concluded
that Belicena, Malonzo and Andutan—in their respective capacities—irregularly
approved the “issuance of the TCCs to several garment/textile companies and
allowing their subsequent illegal transfer” to Steel Asia.
On November 11, 1999, the Ombudsman ordered the respondents therein
(respondents) to submit their counter-affidavits. Only Malonzo complied with the
order, prompting the Ombudsman to set a Preliminary Conference on March 13,
2000.
Upon the respondents’ failure to appear at the March 20, 2000 hearing, the
Ombudsman deemed the case submitted for resolution.
 On July 30, 2001, the Ombudsman found the respondents guilty of Gross Neglect
of Duty. Having been separated from the service, Andutan was imposed the penalty
of forfeiture of all leaves, retirement and other benefits and privileges, and perpetual
disqualification from reinstatement and/or reemployment in any branch or
instrumentality of the government, including government owned and controlled
agencies or corporations.
After failing to obtain a reconsideration of the decision, Andutan filed a petition
for review on certiorari before the CA.
On July 28, 2004, the CA annulled and set aside the decision of the Ombudsman,
ruling that the latter “should not have considered the administrative complaints”
because: first, Section 20 of R.A. 6770 provides that the Ombudsman “may not
conduct the necessary investigation of any administrative act or omission
complained of if it believes that x x x [t]he complaint was filed after one year from the
occurrence of the act or omission complained of”; and second, the administrative
case was filed after Andutan’s forced resignation.
The Petitioner’s Arguments
In this petition for review on certiorari, the Ombudsman asks the Court to
overturn the decision of the CA. It submits, first, that contrary to the CA’s findings,
administrative offenses do not prescribe after one year from their
commission, and second, that in cases of “capital” administrative offenses,
resignation or optional retirement cannot render administrative proceedings moot
and academic, since accessory penalties such as perpetual disqualification and the
forfeiture of retirement benefits may still be imposed.
The Ombudsman argues that Section 20 of R.A. 6770 is not mandatory.
Consistent with existing jurisprudence, the use of the word “may” indicates that
Section 20 is merely directory or permissive. Thus, it is not ministerial upon it to
dismiss the administrative complaint, as long as any of the circumstances under
Section 20 is present. In any case, the Ombudsman urges the Court to examine its
mandate under Section 13, Article XI of the 1987 Constitution, and hold that an
imposition of a one (1) year prescriptive period on the filing of cases
unconstitutionally restricts its mandate.
Further, the Ombudsman submits that Andutan’s resignation from office does not
render moot the administrative proceedings lodged against him, even after his
resignation. Relying on Section VI(1) of Civil Service Commission (CSC)
Memorandum Circular No. 38, the Ombudsman argues that “[a]s long as the breach
of conduct was committed while the public official or employee was still in the service
x x x a public servant’s resignation is not a bar to his administrative investigation,
prosecution and adjudication.” It is irrelevant that Andutan had already resigned
from office when the administrative case was filed since he was charged for “acts
performed in office which are inimical to the service and prejudicial to the interests
of litigants and the general public.” Furthermore, even if Andutan had already
resigned, there is a need to “determine whether or not there remains penalties
capable of imposition, like bar from reentering the (sic) public service and forfeiture
of benefits.” Finally, the Ombudsman reiterates that its findings against Andutan are
supported by substantial evidence.
The Respondent’s Arguments
Andutan raises three (3) counterarguments to the Ombudsman’s petition.
First, Andutan submits that the CA did not consider Section 20(5) of R.A. 6770 as
a prescriptive period; rather, the CA merely held that the Ombudsman should not
have considered the administrative complaint. According to Andutan, Section 20(5)
“does not purport to impose a prescriptive period x x x but simply prohibits the
Office of the Ombudsman from conducting an investigation where the complaint
[was] filed more than one (1) year from the occurrence of the act or omission
complained of.” Andutan believes that the Ombudsman should have referred the
complaint to another government agency. Further, Andutan disagrees with the
Ombudsman’s interpretation of Section 20(5). Andutan suggests that the phrase
“may not conduct the necessary investigation” means that the Ombudsman is
prohibited to act on cases that fall under those enumerated in Section 20(5).
Second, Andutan reiterates that the administrative case against him was moot
because he was no longer in the public service at the time the case was commenced.
According to Andutan, Atty. Perez v. Judge Abiera and similar cases cited by the
Ombudsman do not apply since the administrative investigations against the
respondents in those cases were commenced prior to their resignation. Here,
Andutan urges the Court to rule otherwise since unlike the cases cited, he had already
resigned before the administrative case was initiated. He further notes that his
resignation from office cannot be characterized as “preemptive, i.e. made under an
atmosphere of fear for the imminence of formal charges” because it was done
pursuant to the Memorandum issued by then Executive Secretary Ronaldo Zamora.
Having established the propriety of his resignation, Andutan asks the Court to
uphold the mootness of the administrative case against him since the cardinal issue
in administrative cases is the “officer’s fitness to remain in office, the principal
penalty imposable being either suspension or removal.” The Ombudsman’s opinion—
that accessory penalties may still be imposed—is untenable since it is a fundamental
legal principle that “accessory follows the principal, and the former cannot exist
independently of the latter.”
 Third, the Ombudsman’s findings were void because procedural and substantive
due process were not observed. Likewise, Andutan submits that the Ombudsman’s
findings lacked legal and factual bases.
Issues
Based on the submissions made, we see the following as the issues for our
resolution:
I. Does Section 20(5) of R.A. 6770 prohibit the Ombudsman from
conducting an administrative investigation a year after the act was
committed?
II. Does Andutan’s resignation render moot the administrative case filed
against him?
III. Assuming that the administrative case is not moot, are the Ombudsman’s
findings supported by substantial evidence?
The Court’s Ruling
We rule to deny the petition.
The provisions of Section 20(5) are merely directory; the Ombudsman
is not prohibited from conducting an investigation a year after the
supposed act was committed.
The issue of whether Section 20(5) of R.A. 6770 is mandatory or discretionary has
been settled by jurisprudence. In Office of the Ombudsman v. De Sahagun, the
Court, speaking through Justice Austria-Martinez, held:
“[W]ell-entrenched is the rule that administrative offenses do not prescribe
[Concerned Taxpayer v. Doblada, Jr., A.M. No. P-99-1342, September 20, 2005, 470
SCRA 218; Melchor v. Gironella,G.R. No. 151138, February 16, 2005, 451 SCRA
476; Heck v. Judge Santos, 467 Phil. 798, 824 (2004); Floria v. Sunga, 420 Phil. 637,
648-649 (2001)]. Administrative offenses by their very nature pertain to the
character of public officers and employees. In disciplining public officers and
employees, the object sought is not the punishment of the officer or employee but the
improvement of the public service and the preservation of the public’s faith and
confidence in our government [Melchor v. Gironella, G.R. No. 151138, February 16,
2005, 451 SCRA 476, 481; Remolona v. Civil Service Commission, 414 Phil. 590, 601
(2001)].
Respondents insist that Section 20 (5) of R.A. No. 6770, to wit:
SEC. 20. Exceptions.—The Office of the Ombudsman may not conduct the
necessary investigation of any administrative act or omission complained of if it
believes that:
xxxx
(5) The complaint was filed after one year from the occurrence of the act or
omission complained of. (Emphasis supplied)
proscribes the investigation of any administrative act or omission if the complaint
was filed after one year from the occurrence of the complained act or omission.
In Melchor v. Gironella [G.R. No. 151138, February 16, 2005, 451 SCRA 476], the
Court held that the period stated in Section 20(5) of R.A. No. 6770 does not refer to
the prescription of the offense but to the discretion given to the Ombudsman on
whether it would investigate a particular administrative offense. The use of the word
“may” in the provision is construed as permissive and operating to confer discretion
[Melchor v. Gironella, G.R. No. 151138, February 16, 2005, 451 SCRA 476,
481; Jaramilla v. Comelec, 460 Phil. 507, 514 (2003)]. Where the words of a statute
are clear, plain and free from ambiguity, they must be given their literal meaning and
applied without attempted interpretation [Melchor v. Gironella, G.R. No. 151138,
February 16, 2005, 451 SCRA 476, 481; National Federation of Labor v. National
Labor Relations Commission, 383 Phil. 910, 918 (2000)].
In Filipino v. Macabuhay [G.R. No. 158960, November 24, 2006, 508 SCRA 50],
the Court interpreted Section 20 (5) of R.A. No. 6770 in this manner:
Petitioner argues that based on the abovementioned provision [Section 20(5) of
RA 6770)], respondent’s complaint is barred by prescription considering that it was
filed more than one year after the alleged commission of the acts complained of.
Petitioner’s argument is without merit.
The use of the word “may” clearly shows that it is directory in nature and not
mandatory as petitioner contends. When used in a statute, it is permissive only and
operates to confer discretion; while the word “shall” is imperative, operating to
impose a duty which may be enforced. Applying Section 20(5), therefore, it is
discretionary upon the Ombudsman whether or not to conduct an
investigation on a complaint even if it was filed after one year from the
occurrence of the act or omission complained of. In fine, the complaint
is not barred by prescription. (Emphasis supplied)
The declaration of the CA in its assailed decision that while as a general rule the
word “may” is directory, the negative phrase “may not” is mandatory in tenor; that
a directory word, when qualified by the word “not,” becomes
prohibitory and therefore becomes mandatory in character, is not
 plausible. It is not supported by jurisprudence on statutory
construction.” [emphases and underscoring supplied]
Clearly, Section 20 of R.A. 6770 does not prohibit the Ombudsman from
conducting an administrative investigation after the lapse of one year, reckoned from
the time the alleged act was committed. Without doubt, even if the administrative
case was filed beyond the one (1) year period stated in Section 20(5), the
Ombudsman was well within its discretion to conduct the administrative
investigation.
However, the crux of the present controversy is not on the issue of prescription,
but on the issue of the Ombudsman’s authority to institute an administrative
complaint against a government employee who had already resigned. On this issue,
we rule in Andutan’s favor.
Andutan’s resignation divests the Ombudsman of its right to institute
an administrative complaint against him.
Although the Ombudsman is not precluded by Section 20(5) of R.A. 6770 from
conducting the investigation, the Ombudsman can no longer institute an
administrative case against Andutan because the latter was not a public servant at
the time the case was filed.
The Ombudsman argued—in both the present petition and in the petition it filed
with the CA—that Andutan’s retirement from office does not render moot any
administrative case, as long as he is charged with an offense he committed while in
office. It is irrelevant, according to the Ombudsman, that Andutan had already
resigned prior to the filing of the administrative case since the operative fact that
determines its jurisdiction is the commission of an offense while in the public service.
The Ombudsman relies on Section VI(1) of Civil Service Commission
Memorandum Circular No. 38 for this proposition, viz.:
Section VI.
1. x x x
An officer or employee under administrative investigation may be allowed to resign
pending decision of his case but it shall be without prejudice to the continuation of
the proceeding against him. It shall also be without prejudice to the filing of
any administrative, criminal case against him for any act committed
while still in the service.” (emphasis and underscoring supplied)
The CA refused to give credence to this argument, holding that the provision
“refers to cases where the officers or employees were already charged before they
were allowed to resign or were separated from service.” In this case, the CA noted
that “the administrative cases were filed only after Andutan was retired, hence the
Ombudsman was already divested of jurisdiction and could no longer prosecute the
cases.”
Challenging the CA’s interpretation, the Ombudsman argues that the CA “limited
the scope of the cited Civil Service Memorandum Circular to the first sentence.”
Further, according to the Ombudsman, “the court a quo ignored the second
statement in the said circular that contemplates a situation where previous to the
institution of the administrative investigation or charge, the public official or
employee subject of the investigation has resigned.”
To recall, we have held in the past that a public official’s resignation does not
render moot an administrative case that was filed prior to the official’s resignation.
In Pagano v. Nazarro, Jr., we held that:
“In Office of the Court Administrator v. Juan [A.M. No. P-03-1726, 22 July 2004,
434 SCRA 654, 658], this Court categorically ruled that the precipitate resignation of
a government employee charged with an offense punishable by dismissal from the
service does not render moot the administrative case against him. Resignation is
not a way out to evade administrative liability when facing administrative
sanction. The resignation of a public servant does not preclude the
finding of any administrative liability to which he or she shall still be
answerable [Baquerfo v. Sanchez, A.M. No. P-05-1974, 6 April 2005, 455 SCRA 13,
19-20].” [emphasis and underscoring supplied]
Likewise, in Baquerfo v. Sanchez, we held:
“Cessation from office of respondent by resignation [Reyes v. Cristi, A.M. No. P-04-1801,
2 April 2004, 427 SCRA 8] or retirement [Re: Complaint Filed by Atty. Francis Allan A.
Rubio on the Alleged Falsification of Public Documents and Malversation of Public Funds,
A.M. No. 2004-17-SC, 27 September 2004; Caja v. Nanquil, A.M. No. P-04-1885, 13
September 2004] neither warrants the dismissal of the administrative complaint
filed against him while he was still in the service [Tuliao v. Ramos, A.M. No. MTJ-95-
1065, 348 Phil. 404, 416 (1998), citing Perez v. Abiera, A.C. No. 223-J, 11 June 1975, 64 SCRA
302; Secretary of Justice v. Marcos, A.C. No. 207-J, 22 April 1977, 76 SCRA 301] nor does it
render said administrative case moot and academic [Sy Bang v. Mendez, 350 Phil. 524, 533
(1998)]. The jurisdiction that was this Court’s at the time of the filing of the administrative
complaint was not lost by the mere fact that the respondent public official had ceased in office
during the pendency of his case [Flores v. Sumaljag, 353 Phil. 10, 21 (1998)]. Respondent’s
resignation does not preclude the finding of any administrative liability to which
he shall still be answerable [OCA v. Fernandez, A.M. No. MTJ-03-1511, 20 August
2004].” [emphases and underscoring supplied)
However, the facts of those cases are not entirely applicable to the present case. In
the above-cited cases, the Court found that the public officials—subject of the
administrative cases—resigned, either to prevent the continuation of a case already
filed or to pre-empt the imminent filing of one. Here, neither situation obtains.
The Ombudsman’s general assertion that Andutan pre-empted the filing of a case
against him by resigning, since he “knew for certain that the investigative and
disciplinary arms of the State would eventually reach him” is unfounded. First,
Andutan’s resignation was neither his choice nor of his own doing; he was forced to
resign. Second, Andutan resigned from his DOF post on July 1, 1998, while the
administrative case was filed on September 1, 1999, exactly one (1) year and two (2)
months after his resignation. The Court struggles to find reason in the Ombudsman’s
sweeping assertions in light of these facts.
What is clear from the records is that Andutan was forced to resign more than a
year before the Ombudsman filed the administrative case against him. Additionally,
even if we were to accept the Ombudsman’s position that Andutan foresaw the filing
of the case against him, his forced resignation negates the claim that he tried to
prevent the filing of the administrative case.
Having established the inapplicability of prevailing jurisprudence, we turn our
attention to the provisions of Section VI of CSC Memorandum Circular No. 38. We
disagree with the Ombudsman’s interpretation that “[a]s long as the breach of
conduct was committed while the public official or employee was still in the service x
x x a public servant’s resignation is not a bar to his administrative investigation,
prosecution and adjudication.” If we agree with this interpretation, any official—even
if he has been separated from the service for a long time—may still be subject to the
disciplinary authority of his superiors, ad infinitum. We believe that this
interpretation is inconsistent with the principal motivation of the law—which is to
improve public service and to preserve the public’s faith and confidence in the
government, and not the punishment of the public official concerned. Likewise, if the
act committed by the public official is indeed inimical to the interests of the State,
other legal mechanisms are available to redress the same.
The possibility of imposing accessory penalties does not negate the
Ombudsman’s lack of jurisdiction.
The Ombudsman suggests that although the issue of Andutan’s removal from the
service is moot, there is an “irresistible justification” to “determine whether or not
there remains penalties capable of imposition, like bar from re-entering the public
service and forfeiture of benefits.” Otherwise stated, since accessory penalties may
still be imposed against Andutan, the administrative case itself is not moot and may
proceed despite the inapplicability of the principal penalty of removal from office.
We find several reasons that militate against this position.
First, although we have held that the resignation of an official does not render an
administrative case moot and academic because accessory penalties may still be
imposed, this holding must be read in its proper context. In Pagano v. Nazarro,
Jr., indeed, we held:
“A case becomes moot and academic only when there is no more actual
controversy between the parties or no useful purpose can be served in passing upon
the merits of the case [Tantoy, Sr. v. Abrogar, G.R. No. 156128, 9 May 2005, 458
SCRA 301, 305]. The instant case is not moot and academic, despite the petitioner’s
separation from government service. Even if the most severe of administrative
sanctions—that of separation from service—may no longer be imposed on the
petitioner, there areother penalties which may be imposed on her if she is
later found guilty of administrative offenses charged against her, namely,
the disqualification to hold any government office and the forfeiture of
benefits.” [emphasis and underscoring supplied]
Reading the quoted passage in a vacuum, one could be led to the conclusion that
the mere availability of accessory penalties justifies the continuation of an
administrative case. This is a misplaced reading of the case and its ruling.
Esther S. Pagano—who was serving as Cashier IV at the Office of the Provincial
Treasurer of Benguet—filed her certificate of candidacy for councilor four days after
the Provincial Treasurer directed her to explain why no administrative case should be
filed against her. The directive arose from allegations that her accountabilities
included a cash shortage of P1,424,289.99. She filed her certificate of candidacy
under the pretext that since she was deemed ipso facto resigned from office, she was
no longer under the administrative jurisdiction of her superiors. Thus, according to
Pagano, the administrative complaint had become moot.
We rejected Pagano’s position on the principal ground “that the precipitate
resignation of a government employee charged with an offense punishable by
dismissal from the service does not render moot the administrative case against him.
Resignation is not a way out to evade administrative liability when facing
administrative sanction.” Our position that accessory penalties are still imposable—
thereby negating the mootness of the administrative complaint—merely flows from
the fact that Pagano pre-empted the filing of the administrative case against her. It
was neither intended to be a stand-alone argument nor would it have justified the
continuation of the administrative complaint if Pagano’s filing of
candidacy/resignation did not reek of irregularities. Our factual findings
in Pagano confirm this, viz.:
“At the time petitioner filed her certificate of candidacy, petitioner was already
notified by the Provincial Treasurer that she needed to explain why no administrative
charge should be filed against her, after it discovered the cash shortage of
 P1,424,289.99 in her accountabilities. Moreover, she had already filed her answer. To
all intents and purposes, the administrative proceedings had already been
commenced at the time she was considered separated from service
through her precipitate filing of her certificate of candidacy. Petitioner’s
bad faith was manifest when she filed it, fully knowing that
administrative proceedings were being instituted against her as part of
the procedural due process in laying the foundation for an administrative
case.” (emphasis and underscoring supplied)
Plainly, our justification for the continuation of the administrative case—
notwithstanding Pagano’s resignation—was her “bad faith” in filing the certificate of
candidacy, and not the availability of accessory penalties.
and dismiss the petition. Consistent with our holding that Andutan is no longer the
proper subject of an administrative complaint, we find no reason to delve on the
Ombudsman’s factual findings.
WHEREFORE, we DENY the Office of the Ombudsman’s petition for review
on certiorari, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No.
68893, promulgated on July 28, 2004, which annulled and set aside the July 30,
2001 decision of the Office of the Ombudsman, finding Uldarico P. Andutan, Jr.
guilty of Gross Neglect of Duty.
No pronouncement as to costs. SO ORDERED.

Second, we agree with the Ombudsman that “fitness to serve in public office x x x
is a question of transcendental [importance]” and that “preserving the inviolability of
public office” compels the state to prevent the “re-entry [to] public service of persons
who have x x x demonstrated their absolute lack of fitness to hold public office.”
However, the State must perform this task within the limits set by law, particularly,
the limits of jurisdiction. As earlier stated, under the Ombudsman’s theory, the
administrative authorities may exercise administrative jurisdiction over
subordinates ad infinitum; thus, a public official who has validly severed his ties with
the civil service may still be the subject of an administrative complaint up to his
deathbed. This is contrary to the law and the public policy behind it.
Note.—Unlike private offices which are held largely on the dictates of market
forces, public offices are public trust. Public officers are tasked to serve the public
interest, thus the excessive burden for their retention in the form of numerous
prohibitions. The liberal evidentiary standard of substantial evidence and the
freedom of administrative proceedings from technical niceties effectuate the
fiduciary nature of public office. (Miro vs. Dosono, 619 SCRA 653 [2010])
——o0o——

Lastly, the State is not without remedy against Andutan or any public official who
committed violations while in office, but had already resigned or retired therefrom.
Under the “threefold liability rule,” the wrongful acts or omissions of a public officer
may give rise to civil, criminal and administrative liability. Even if the Ombudsman
may no longer file an administrative case against a public official who has already
resigned or retired, the Ombudsman may still file criminal and civil cases to vindicate
Andutan’s alleged transgressions. In fact, here, the Ombudsman—through the FFIB
—filed a criminal case for Estafa and violations of Section 3(a), (e) and (j) of the Anti-
Graft and Corrupt Practices Act against Andutan. If found guilty, Andutan will not
only be meted out the penalty of imprisonment, but also the penalties of perpetual
disqualification from office, and confiscation or forfeiture of any prohibited interest.

Conclusion

Public office is a public trust. No precept of administrative law is more basic than
this statement of what assumption of public office involves. The stability of our
public institutions relies on the ability of our civil servants to serve their
constituencies well.
While we commend the Ombudsman’s resolve in pursuing the present case for
violations allegedly committed by Andutan, the Court is compelled to uphold the law