SUPREME COURT
Manila
EN BANC
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast
and overwhelming powers of government. His only guarantee against
oppression and tyranny are his fundamental liberties under the Bill of Rights
which shield him in times of need. The Court is now called to decide whether
to uphold a citizen's basic due process rights, or the government's ironclad
duties under a treaty. The bugle sounds and this Court must once again act
as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On June 18, 1999, the Department of Justice received from the Department
of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States.
Attached to the Note Verbale were the Grand Jury Indictment, the warrant of
arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted,
private respondent appears to be charged in the United States with violation
of the following provisions of the United States Code (USC):
On the same day, petitioner issued Department Order No. 249 designating
and authorizing a panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the
panel began with the "technical evaluation and assessment" of the
extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not
attached to the request and that there are some other matters that needed
to be addressed" (p. 15, Rollo).
It is only after the filing of the petition for extradition when the person
sought to be extradited will be furnished by the court with copies of the
petition, request and extradition documents and this Department will
not pose any objection to a request for ample time to evaluate said
documents.
Such was the state of affairs when, on August 6, 1999, private respondent
filed with the Regional Trial Court of the National Capital Judicial Region a
petition against the Secretary of Justice, the Secretary of Foreign Affairs, and
the Director of the National Bureau of Investigation, for mandamus (to
compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate
the request impartially, fairly and objectively); certiorari (to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner
from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the
Director of the NBI from performing any act directed to the extradition of
private respondent to the United States), with an application for the issuance
of a temporary restraining order and a writ of preliminary injunction (pp. 104-
105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila
which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given ample
time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous
day, disposing:
The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set
on August 17, 1999 at 9:00 o'clock in the morning. The respondents
are, likewise, ordered to file their written comment and/or opposition to
the issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
I.
II.
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON
ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining order
(TRO) providing:
The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive
issues are patent. However, a review of these issues as well as the extensive
arguments of both parties, compel us to delineate the focal point raised by
the pleadings: During the evaluation stage of the extradition proceedings, is
private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at
the trial court, moot and academic (the issues of which are substantially the
same as those before us now), while a negative resolution would call for the
immediate lifting of the TRO issued by this Court dated August 24, 1999,
thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the
event that private respondent is adjudged entitled to basic due process
rights at the evaluation stage of the extradition proceedings, would this
entitlement constitute a breach of the legal commitments and obligations of
the Philippine Government under the RP-US Extradition Treaty? And
assuming that the result would indeed be a breach, is there any conflict
between private respondent's basic due process rights and the provisions of
the RP-US Extradition Treaty?
To be sure, the issues call for a review of the extradition procedure. The RP-
US Extradition Treaty which was executed only on November 13, 1994,
ushered into force the implementing provisions of Presidential Decree No.
1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on
him under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves a
charged and not convicted individual, are abstracted as follows:
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary
of Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the
request fails to meet the requirements of this law and the relevant
treaty or convention, he shall forward the request together with the
related documents to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take charge of the
case.
The above provision shows only too clearly that the executive authority given
the task of evaluating the sufficiency of the request and the supporting
documents is the Secretary of Foreign Affairs. What then is the coverage of
this task?
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that
the accompanying documents received in support of the request had been
certified by the principal diplomatic or consular officer of the Requested
State resident in the Requesting State (Embassy Note No. 052 from U. S.
Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
Upon a finding made by the Secretary of Foreign Affairs that the extradition
request and its supporting documents are sufficient and complete in form
and substance, he shall deliver the same to the Secretary of Justice, who
shall immediately designate and authorize an attorney in his office to take
charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial
court of the province or city, with a prayer that the court take the extradition
request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the
prospective extraditee to appear and to answer the petition on the day and
hour fixed in the order. The judge may issue a warrant of arrest if it appears
that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to
prevent the flight of the prospective extraditee.
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph
[1], Section 9 thereof provides that in the hearing of the extradition petition,
the provisions of the Rules of Court, insofar as practicable and not
inconsistent with the summary nature of the proceedings, shall apply. During
the hearing, Section 8 of the Decree provides that the attorney having
charge of the case may, upon application by the Requesting State, represent
the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence
of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision
is appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of
Court governing appeal in criminal cases in the Court of Appeals shall apply
in the aforementioned appeal, except for the required 15-day period to file
brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality rule
and other conditions mentioned in Article 2 of the RP-US Extradition Treaty.
The trial court also determines whether or not the offense for which
extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1wphi1.nt
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all
the supporting papers are forwarded to him by the Secretary of Foreign
Affairs. It is the latter official who is authorized to evaluate the extradition
papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the
Treaty, to determine whether or not the request is politically motivated, or
that the offense is a military offense which is not punishable under non-
military penal legislation. Ipso facto, as expressly provided in Paragraph [1],
Section 5 of the Extradition Law, the Secretary of Justice has the ministerial
duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear
that there was failure to abide by the provisions of Presidential Decree No.
1069. For while it is true that the extradition request was delivered to the
Department of Foreign Affairs on June 17, 1999, the following day or less
than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of
thoroughly evaluating the same and its accompanying documents. The
statement of an assistant secretary at the Department of Foreign Affairs that
his Department, in this regard, is merely acting as a post office, for which
reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it
upon itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid down in
the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates
in this connection that although the Department of Justice had no obligation
to evaluate the extradition documents, the Department also had to go over
them so as to be able to prepare an extradition petition (tsn, August 31,
1999, pp. 24-25). Notably, it was also at this stage where private respondent
insisted on the following; (1) the right to be furnished the request and the
supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the
request.
The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its commission.
The Department of Foreign Affairs, moreover, has, through the Solicitor
General, filed a manifestation that it is adopting the instant petition as its
own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in
the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request
and supporting documents and that it arrived at a well-founded judgment
that the request and its annexed documents satisfy the requirements of law.
The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a
panel of attorneys. How then could the DFA Secretary or his undersecretary,
in less than one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs
to a class by itself. It is sui generis. It is not a criminal investigation, but it is
also erroneous to say that it is purely an exercise of ministerial functions. At
such stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers;
(b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to
make a determination whether or not the request is politically motivated, or
that the offense is a military one which is not punishable under non-military
penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-
judicial power.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had
occasion to rule on the functions of an investigatory body with the sole
power of investigation. It does not exercise judicial functions and its power is
limited to investigating the facts and making findings in respect thereto. The
Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication
signifies the exercise of power and authority to adjudicate upon the rights
and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts
and circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an absence
of judicial discretion and judgment.
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that
the right against self-incrimination under Section 17, Article III of the 1987
Constitution which is ordinarily available only in criminal prosecutions,
extends to administrative proceedings which possess a criminal or penal
aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal
vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's
license as a medical practitioner, is an even greater deprivation than
forfeiture of property.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992])
(p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece
of criminal legislation nor a criminal procedural statute is not well-taken.
Wright is not authority for petitioner's conclusion that his preliminary
processing is not akin to a preliminary investigation. The characterization of
a treaty in Wright was in reference to the applicability of the prohibition
against an ex post facto law. It had nothing to do with the denial of the right
to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or
custom, or newly devised in the discretion of the legislative power, in
furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process
requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the
same time, both States accord common due process protection to their
respective citizens.
The due process clauses in the American and Philippine Constitutions are not
only worded in exactly identical language and terminology, but more
importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and
impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and
their having been designed from earliest time to the present to meet the
exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this
effect and in order to avoid the confines of a legal straitjacket, the courts
instead prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78).
Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila,
20 SCRA 849 [1967]). It relates to certain immutable principles of justice
which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S.
366).
True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any
pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be asked:
Does the evaluation stage of the extradition proceedings fall under any of
the described situations mentioned above?
6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and
conclusions of law and certifies the person's extraditability. The court
then forwards this certification of extraditability to the Department of
State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18
U.S.C. 3186).
From the foregoing, it may be observed that in the United States, extradition
begins and ends with one entity the Department of State which has the
power to evaluate the request and the extradition documents in the
beginning, and, in the person of the Secretary of State, the power to act or
not to act on the court's determination of extraditability. In the Philippine
setting, it is the Department of Foreign Affairs which should make the initial
evaluation of the request, and having satisfied itself on the points earlier
mentioned (see pp. 10-12), then forwards the request to the Department of
Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily
turned over the request to the Department of Justice which has taken over
the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills of
Rights of the Philippines Constitution but of the United States as well, is
sacrificed at the altar of expediency.
One of the basic principles of the democratic system is that where the
rights of the individual are concerned, the end does not justify the
means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or
the most urgent public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is no exaggeration
to say that a person invoking a right guaranteed under Article III of the
Constitution is a majority of one even as against the rest of the nation
who would deny him that right (Association of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-
376 [1989]).
Is there really an urgent need for immediate action at the evaluation stage?
At that point, there is no extraditee yet in the strict sense of the word.
Extradition may or may not occur. In interstate extradition, the governor of
the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of
the extradition papers, he may hold that federal and statutory requirements,
which are significantly jurisdictional, have not been met (31 Am Jur 2d 819).
Similarly, under an extradition treaty, the executive authority of the
requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the
Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to
the Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government
with jurisdiction to effect the extradition.
Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads:
The above provision guarantees political rights which are available to citizens
of the Philippines, namely: (1) the right to information on matters of public
concern, and (2) the corollary right of access to official records documents.
The general right guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of access to
official records is likewise conferred. These cognate or related rights are
"subject to limitations as may be provided by law" (Bernas, The 1987 Phil.
Constitution A Reviewer-Primer, 1997 ed., p. 104) and rely on the premise
that ultimately it is an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondent's entitlement to notice and
hearing during the evaluation stage of the proceedings constitute a breach of
the legal duties of the Philippine Government under the RP-Extradition
Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to
pass upon the constitutionality of the provisions of the RP-US Extradition
Treaty nor the Extradition Law implementing the same. We limit ourselves
only to the effect of the grant of the basic rights of notice and hearing to
private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal duties
under a treaty is also compelled by Section 2, Article II of the Constitution
which provides that "[t]he Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with nations." Under the doctrine of
incorporation, rules of international law form part of the law of the and land
no further legislative action is needed to make such rules applicable in the
domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law of
the land are not pined against each other. There is no occasion to choose
which of the two should be upheld. Instead, we see a void in the provisions of
the RP-US Extradition Treaty, as implemented by Presidential Decree No.
1069, as regards the basic due process rights of a prospective extraditee at
the evaluation stage of extradition proceedings. From the procedures earlier
abstracted, after the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of notice and hearing
are clearly granted to the prospective extraditee. However, prior thereto, the
law is silent as to these rights. Reference to the U.S. extradition procedures
also manifests this silence.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair
play. An application of the basic twin due process rights of notice and hearing
will not go against the treaty or the implementing law. Neither the Treaty nor
the Extradition Law precludes these rights from a prospective extraditee.
Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained
above, the prospective extraditee may even request for copies of the
extradition documents from the governor of the asylum state, and if he does,
his right to be supplied the same becomes a demandable right (35 C.J.S.
410).
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as
well as American jurisprudence and procedures on extradition, for any
prohibition against the conferment of the two basic due process rights of
notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an
application by analogy.
Earlier, we stated that there are similarities between the evaluation process
and a preliminary investigation since both procedures may result in the
arrest of the respondent or the prospective extraditee. In the evaluation
process, a provisional arrest is even allowed by the Treaty and the Extradition
Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No.
1069). Following petitioner's theory, because there is no provision of its
availability, does this imply that for a period of time, the privilege of the writ
of habeas corpus is suspended, despite Section 15, Article III of the
Constitution which states that "[t]he privilege of the writ or habeas corpus
shall not be suspended except in cases of invasion or rebellion when the
public safety requires it"? Petitioner's theory would also infer that bail is not
available during the arrest of the prospective extraditee when the extradition
petition has already been filed in court since Presidential Decree No. 1069
does not provide therefor, notwithstanding Section 13, Article III of the
Constitution which provides that "[a]ll persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is
suspended. . ." Can petitioner validly argue that since these contraventions
are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient
thereto?
(at p. 671)
In the case at bar, private respondent does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which may
eventually lead to his forcible banishment to a foreign land. The convergence
of petitioner's favorable action on the extradition request and the deprivation
of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is
aptly described as "justice outside legality," may be availed of only in the
absence of, and never against, statutory law or judicial pronouncements
(Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-
Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in
the case at bar does not even call for "justice outside legality," since private
respondent's due process rights, although not guaranteed by statute or by
treaty, are protected by constitutional guarantees. We would not be true to
the organic law of the land if we choose strict construction over guarantees
against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
SO ORDERED.
EN BANC
BARREDO, J.:
Gentlemen:
(see above)
Sincerely,
(Sgd.) DIOSDADO
P. MACAPAGAL
DIOSDADO P.
MACAPAGAL
President
(c) Said official ballots and election forms will be delivered to the
Commission in time so that they could be distributed at the same
time that the Commission will distribute its official and sample
ballots to be used in the elections on November 8, 1971.
RECESS RESOLUTION
Upon these facts, the main thrust of the petition is that Organic Resolution
No. 1 and the other implementing resolutions thereof subsequently approved
by the Convention have no force and effect as laws in so far as they provide
for the holding of a plebiscite co-incident with the elections of eight senators
and all city, provincial and municipal officials to be held on November 8,
1971, hence all of Comelec's acts in obedience thereof and tending to carry
out the holding of the plebiscite directed by said resolutions are null and
void, on the ground that the calling and holding of such a plebiscite is, by the
Constitution, a power lodged exclusively in Congress, as a legislative body,
and may not be exercised by the Convention, and that, under Section 1,
Article XV of the Constitution, the proposed amendment in question cannot
be presented to the people for ratification separately from each and all of the
other amendments to be drafted and proposed by the Convention. On the
other hand, respondents and intervenors posit that the power to provide for,
fix the date and lay down the details of the plebiscite for the ratification of
any amendment the Convention may deem proper to propose is within the
authority of the Convention as a necessary consequence and part of its
power to propose amendments and that this power includes that of
submitting such amendments either individually or jointly at such time and
manner as the Convention may direct in discretion. The Court's delicate task
now is to decide which of these two poses is really in accord with the letter
and spirit of the Constitution.
There should be no more doubt as to the position of this Court regarding its
jurisdiction vis-a-vis the constitutionality of the acts of the Congress, acting
as a constituent assembly, and, for that matter, those of a constitutional
convention called for the purpose of proposing amendments to the
Constitution, which concededly is at par with the former. A simple reading of
Our ruling in that very case of Gonzales relied upon by intervenors should
dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus: .
No one can rightly claim that within the domain of its legitimate authority,
the Convention is not supreme. Nowhere in his petition and in his oral
argument and memoranda does petitioner point otherwise. Actually, what
respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same
nature, owes its existence and derives all its authority and power from the
existing Constitution of the Philippines. This Convention has not been called
by the people directly as in the case of a revolutionary convention which
drafts the first Constitution of an entirely new government born of either a
war of liberation from a mother country or of a revolution against an existing
government or of a bloodless seizure of power a la coup d'etat. As to such
kind of conventions, it is absolutely true that the convention is completely
without restrain and omnipotent all wise, and it is as to such conventions
that the remarks of Delegate Manuel Roxas of the Constitutional Convention
of 1934 quoted by Senator Pelaez refer. No amount of rationalization can
belie the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a
constituent assembly by authority of Section 1, Article XV of the present
Constitution which provides:
ARTICLE XV AMENDMENTS
True it is that once convened, this Convention became endowed with extra
ordinary powers generally beyond the control of any department of the
existing government, but the compass of such powers can be co-extensive
only with the purpose for which the convention was called and as it may
propose cannot have any effect as part of the Constitution until the same are
duly ratified by the people, it necessarily follows that the acts of convention,
its officers and members are not immune from attack on constitutional
grounds. The present Constitution is in full force and effect in its entirety and
in everyone of its parts the existence of the Convention notwithstanding, and
operates even within the walls of that assembly. While it is indubitable that in
its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or
control by any other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or members can rightfully
deprive any person of life, liberty or property without due process of law,
deny to anyone in this country the equal protection of the laws or the
freedom of speech and of the press in disregard of the Bill of Rights of the
existing Constitution. Nor, for that matter, can such Convention validly pass
any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, impost or
assessment, or declare war or call the Congress to a special session, suspend
the privilege of the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or between such
individuals and the state, in violation of the distribution of powers in the
Constitution.
It being manifest that there are powers which the Convention may not and
cannot validly assert, much less exercise, in the light of the existing
Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it,
according to the existing Constitution, who can decide whether such a
contention is correct or not? It is of the very essence of the rule of law that
somehow somewhere the Power and duty to resolve such a grave
constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our
founding fathers contains a wide vacuum no intelligent man could ignore,
which is naturally unworthy of their learning, experience and craftsmanship
in constitution-making.
We need not go far in search for the answer to the query We have posed. The
very decision of Chief Justice Concepcion in Gonzales, so much invoked by
intervenors, reiterates and reinforces the irrefutable logic and wealth of
principle in the opinion written for a unanimous Court by Justice Laurel in
Angara vs. Electoral Commission, 63 Phil., 134, reading:
... (I)n the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say
where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine
the proper allocation of powers between the several departments
and among the integral or constituent units thereof.
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in
Angara, these postulates just quoted do not apply only to conflicts of
authority between the three existing regular departments of the government
but to all such conflicts between and among these departments, or, between
any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and
the Constituent assemblies constituted by the House of Congress, on the
other. We see no reason of logic or principle whatsoever, and none has been
convincingly shown to Us by any of the respondents and intervenors, why
the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of
the present Constitution..
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is
it within the powers of the Constitutional Convention of 1971 to order, on its
own fiat, the holding of a plebiscite for the ratification of the proposed
amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's
Organic Resolution No. 1 in the manner and form provided for in said
resolution and the subsequent implementing acts and resolution of the
Convention?
Withal, the Court rests securely in the conviction that the fire and
enthusiasm of the youth have not blinded them to the absolute necessity,
under the fundamental principles of democracy to which the Filipino people
is committed, of adhering always to the rule of law. Surely, their idealism,
sincerity and purity of purpose cannot permit any other line of conduct or
approach in respect of the problem before Us. The Constitutional Convention
of 1971 itself was born, in a great measure, because of the pressure brought
to bear upon the Congress of the Philippines by various elements of the
people, the youth in particular, in their incessant search for a peaceful and
orderly means of bringing about meaningful changes in the structure and
bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic
security of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources and the
national patrimony, as an alternative to violent and chaotic ways of
achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm
which at times have justifiably or unjustifiably marred the demonstrations in
the streets, plazas and campuses, the youth of the Philippines, in general,
like the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness,
even in the pursuit of what they strongly and urgently feel must be done to
change the present order of things in this Republic of ours. It would be tragic
and contrary to the plain compulsion of these perspectives, if the Court were
to allow itself in deciding this case to be carried astray by considerations
other than the imperatives of the rule of law and of the applicable provisions
of the Constitution. Needless to say, in a larger measure than when it binds
other departments of the government or any other official or entity, the
Constitution imposes upon the Court the sacred duty to give meaning and
vigor to the Constitution, by interpreting and construing its provisions in
appropriate cases with the proper parties, and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge
that duty.
During these twice when most anyone feels very strongly the urgent need for
constitutional reforms, to the point of being convinced that meaningful
change is the only alternative to a violent revolution, this Court would be the
last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling
provision, Article XV, from which the Convention itself draws life expressly
speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly
prevailing view is that only the collective judgment of its members as to
what is warranted by the present condition of things, as they see it, can limit
the extent of the constitutional innovations the Convention may propose,
hence the complete substitution of the existing constitution is not beyond
the ambit of the Convention's authority. Desirable as it may be to resolve,
this grave divergence of views, the Court does not consider this case to be
properly the one in which it should discharge its constitutional duty in such
premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them
squarely passed upon by the Court do not necessarily impose upon Us the
imperative obligation to express Our views thereon. The Court considers it to
be of the utmost importance that the Convention should be untrammelled
and unrestrained in the performance of its constitutionally as signed mission
in the manner and form it may conceive best, and so the Court may step in
to clear up doubts as to the boundaries set down by the Constitution only
when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing
Charter. Withal, it is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the Supreme Court only when
there is no alternative but to do it, and this rule is founded precisely on the
principle of respect that the Court must accord to the acts of the other
coordinate departments of the government, and certainly, the Constitutional
Convention stands almost in a unique footing in that regard.
(2) Very little reflection is needed for anyone to realize the wisdom and
appropriateness of this provision. As already stated, amending the
Constitution is as serious and important an undertaking as constitution
making itself. Indeed, any amendment of the Constitution is as important as
the whole of it if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and
reliable as the succinct but comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic policies and aspirations
of the people, on the other. lt is inconceivable how a constitution worthy of
any country or people can have any part which is out of tune with its other
parts..
A constitution is the work of the people thru its drafters assembled by them
for the purpose. Once the original constitution is approved, the part that the
people play in its amendment becomes harder, for when a whole constitution
is submitted to them, more or less they can assumed its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the
very least, they can examine it before casting their vote and determine for
themselves from a study of the whole document the merits and demerits of
all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing
constitution, in like fashion they can study with deliberation the proposed
amendment in relation to the whole existing constitution and or any of its
parts and thereby arrive at an intelligent judgment as to its acceptability.
But the situation actually before Us is even worse. No one knows what
changes in the fundamental principles of the constitution the Convention will
be minded to approve. To be more specific, we do not have any means of
foreseeing whether the right to vote would be of any significant value at all.
Who can say whether or not later on the Convention may decide to provide
for varying types of voters for each level of the political units it may divide
the country into. The root of the difficulty in other words, lies in that the
Convention is precisely on the verge of introducing substantial changes, if
not radical ones, in almost every part and aspect of the existing social and
political order enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the reduction of the
voting age upon the different institutions which the Convention may
establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the
ratification of an amendment to the Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment per se as well as its relation to the
other parts of the Constitution with which it has to form a harmonious whole.
In the context of the present state of things, where the Convention has
hardly started considering the merits of hundreds, if not thousands, of
proposals to amend the existing Constitution, to present to the people any
single proposal or a few of them cannot comply with this requirement. We
are of the opinion that the present Constitution does not contemplate in
Section 1 of Article XV a plebiscite or "election" wherein the people are in the
dark as to frame of reference they can base their judgment on. We reject the
rationalization that the present Constitution is a possible frame of reference,
for the simple reason that intervenors themselves are stating that the sole
purpose of the proposed amendment is to enable the eighteen year olds to
take part in the election for the ratification of the Constitution to be drafted
by the Convention. In brief, under the proposed plebiscite, there can be, in
the language of Justice Sanchez, speaking for the six members of the Court
in Gonzales, supra, "no proper submission".
III
The Court has no desire at all to hamper and hamstring the noble work of the
Constitutional Convention. Much less does the Court want to pass judgment
on the merits of the proposal to allow these eighteen years old to vote. But
like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate cases with appropriate parties
Whether or not the mandates of the fundamental law are being complied
with. In the best light God has given Us, we are of the conviction that in
providing for the questioned plebiscite before it has finished, and separately
from, the whole draft of the constitution it has been called to formulate, the
Convention's Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Section 1, Article
XV that there should only be one "election" or plebiscite for the ratification of
all the amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are only holding
that under Section 1, Article XV of the Constitution, the same should be
submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.
EN BANC
G.R. No. 117565 November 18, 1997
ROMERO, J.:
Does the due process clause encompass the right to be assisted by counsel
during an administrative inquiry?
In his counter-affidavit dated June 23, 1992, 4 Lumiqued alleged, inter alia,
that the cases were filed against him to extort money from innocent public
servants like him, and were initiated by private respondent in connivance
with a certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He
claimed that the apparent weakness of the charge was bolstered by private
respondent's execution of an affidavit of desistance. 5
Lumiqued admitted that his average daily gasoline consumption was 108.45
liters. He submitted, however, that such consumption was warranted as it
was the aggregate consumption of the five service vehicles issued under his
name and intended for the use of the Office of the Regional Director of the
DAR. He added that the receipts which were issued beyond his region were
made in the course of his travels to Ifugao Province, the DAR Central Office in
Diliman, Quezon City, and Laguna, where he attended a seminar. Because
these receipts were merely turned over to him by drivers for reimbursement,
it was not his obligation but that of auditors and accountants to determine
whether they were falsified. He affixed his signature on the receipts only to
signify that the same were validly issued by the establishments concerned in
order that official transactions of the DAR-CAR could be carried out.
On August 12, 1992, Lumiqued filed an urgent motion for additional hearing,
8
alleging that he suffered a stroke on July 10, 1992. The motion was
forwarded to the Office of the State Prosecutor apparently because
the investigation had already been terminated. In an order dated September
7, 1992, 9 State Prosecutor Zoila C. Montero denied the motion, viz:
That the gasoline receipts have been falsified was not rebutted
by the respondent. In fact, he had in effect admitted that he had
been claiming for the payment of an average consumption of
108.45 liters/day by justifying that this was being used by the 4
vehicles issued to his office. Besides he also admitted having
signed the receipts.
That the receipts were merely turned over to him by his drivers
and that the auditor and accountant of the DAR-CAR should be
the ones to be held liable is untenable. The receipts in question
were signed by respondent for the purpose of attesting that
those receipts were validly issued by the commercial
establishments and were properly disbursed and used in the
official business for which it was intended.
This Office is not about to shift the blame for all these to the
drivers employed by the DAR-CAR as respondent would want us
to do.
The OP, however, found that the charges of oppression and harassment, as
well as that of incurring unliquidated cash advances, were not satisfactorily
established.
Treating the "petition for appeal" as a motion for reconsideration of A.O. No.
52, the OP, through Senior Deputy Executive Secretary Leonardo A.
Quisumbing, denied the same on August 31, 1993.
Hence, the instant petition for certiorari and mandamus praying for the
reversal of the Report and Recommendation of the Investigating Committee,
the October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No.
52 issued by President Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the "payment of retirement benefits and other benefits
accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the
backwages from the period he was dismissed from service up to the time of
his death on May 19, 1994." 22
RSP EXEVEA:
DIR. LUMIQUED:
RSP EXEVEA:
So, we will proceed with the hearing even without
your counsel? You are willing to proceed with the
hearing even without your counsel?
DIR. LUMIQUED:
Yes, I am confident. . .
CP BALAJADIA:
DIR. LUMIQUED:
35
That is my concern. (Emphasis supplied)
CP BALAJADIA:
DIRECTOR LUMIQUED:
CP BALAJADIA:
CP BALAJADIA:
RSP EXEVEA:
We cannot wait . . .
CP BALAJADIA:
DIRECTOR LUMIQUED:
CP BALAJADIA:
RSP EXEVEA:
CP BALAJADIA:
FISCAL BALAJADIA:
DIR. LUMIQUED:
FISCAL BALAJADIA:
RSP EXEVEA:
DIR. LUMIQUED:
The hearing was reset to July 17, 1992, the date when Lumiqued was
released from the hospital. Prior to said date, however, Lumiqued did not
inform the committee of his confinement. Consequently because the hearing
could not push through on said date, and Lumiqued had already submitted
his counter-affidavit, the committee decided to wind up the proceedings. This
did not mean, however, that Lumiqued was short-changed in his right to due
process.
SO ORDERED.
EN BANC
This is a petition for a writ of certiorari to annul an order of the Court of First
Instance of Quezon City directing
and of prohibition to enjoin the Secretary for Foreign Affairs from cancelling
the petitioner's passport without previous hearing.
On or about June 21, 1954, the accused took Alicia Nubla from St.
Paul's Colleges in Quezon City with lewd design and took her to
somewhere near the U.P. compound in Diliman, Quezon City and was
then able to have carnal knowledge of her. Alicia Nubla is a minor of 16
years.
On 10 January 1955 the petitioner applied for and was granted a passport by
the Department of Foreign Affairs (No. 5981 [A39184]). On 20 January 1955
the petitioner left the Philippines for San Francisco, California, U.S.A., where
he is at present enrolled in school. On 31 January 1955 the offended girl
subscribed and swore to a complaint charging the petitioner with seduction
which was filed in the Court of First Instance of Quezon City after preliminary
investigation had been conducted (crim. case No. Q-1596, Exhibit B). On 9
February 1955 the private prosecutor filed a motion praying the Court to
issue an order "directing such government agencies as may be concerned,
particularly the National Bureau of Investigation and the Department of
Foreign Affairs, for the purpose of having the accused brought back to the
Philippines so that he may be dealt with in accordance with law." (Exhibit C.)
On 10 February 1955 the Court granted the motion (Exhibit D). On 7 March
1955 the respondent Secretary cabled the Ambassador to the United States
instructing him to order the Consul General in San Francisco to cancel the
passport issued to the petitioner and to compel him to return to the
Philippines to answer the criminal charges against him. "The Embassy was
likewise directed to make representation with the State Department that
Emilio Suntay's presence outside the Philippines is considered detrimental to
the best interest of this Government, that his passport has been withdrawn,
and that he is not considered under the protection of the Philippines while
abroad." (Exhibit E.) However, this order was not implemented or carried out
in view of the commencement of this proceedings in order that the issues
raised may be judicially resolved. On 5 July 1955 counsel for the petitioner
wrote to the respondent Secretary requesting that the action taken by him
be reconsidered (Exhibit F), and filed in the criminal case a motion praying
that the respondent Court reconsider its order of 10 February 1955 (Exhibit
G). On 7 July 1955 the respondent Secretary denied counsel's request
(Exhibit H) and on 15 July 1955 the Court denied the motion for
reconsideration (Exhibit I). Hence this petition.
The petitioner contends that as the order of the respondent Court directing
the Department of Foreign Affairs "to take proper steps in order that the"
petitioner "may be brought back to the Philippines, so that he may be
brought back to the Philippines, so that he may default with in accordance
with law," may be carried out only "through the cancellation of his passport,"
the said order is illegal because "while a Court may review the action of the
Secretary of Foreign Affairs in cancelling a passport and grant relief when the
Secretary's discretion is abused, the court cannot, in the first instance, take
the discretionary power away from the Secretary and itself order a passport
to be cancelled."
The petitioner contends that as the order of the respondent Court directing
the department of Foreign Affairs "to take proper steps in order that the"
petitioner "may be brought back to the Philippines, so that he may be dealt
with in accordance with law," may be carried out only "through the
cancellation of his passport," the said order is illegal because 'while a Court
may review the action of the Secretary of Foreign Affairs in cancelling a
passport and grant relief when the Secretary's discretion is abused, the court
cannot, in the first instance, take the discretionary power away from the
Secretary and itself order a passport to be cancelled." The petitioner further
contends that while the Secretary for Foreign Affairs has discretion in the
cancellation of passports, "such discretion cannot be exercised until after
hearing," because the right to travel or stay abroad is a personal liberty
within the meaning and protection of the Constitution and hence he cannot
be deprived of such liberty without due process of law.
Moreover, the respondent Court did not specify what step the respondent
Secretary must take to compel the petitioner to return to the Philippines to
answer the criminal charge preferred against him.
Section 25, Executive Order No. 1, series of 1946, 42 Off. Gaz, 1400,
prescribing rules and regulations for the grant and issuance of passports,
provides that
True, the discretion granted, to the Secretary for Foreign Affairs to withdraw
or cancel a passport already issued may not be exercised at whim. But here
the petitioner was hailed to Court to answer a criminal charge for seduction
and although at first all Assistant City Attorney recommended the dismissal
of the complaint previously subscribed and sworn to by the father of the
offended girl, yet the petitioner knew that no final action had been taken by
the City Attorney of Quezon City as the case was still under study. And as the
Solicitor General puts it, "His suddenly leaving the country in such a
convenient time, can reasonably be interpreted to mean as a deliberate
attemption his part to flee from justice, and, therefore, he cannot now be
heard to complain if the strong arm of the law should join together to bring
him back to justice." In issuing the order in question, the respondent
Secretary was convinced that a miscarriage of justice would result by his
inaction and as he issued it in the exercise of his sound discretion, he cannot
be enjoined from carrying it out.
Counsel for the petitioner insists that his client should have been granted a
"quasi-judicial hearing" by the respondent Secretary before withdrawing or
cancelling the passport issued to him. Hearing would have been proper and
necessary if the reason for the withdrawal or cancellation of the passport
were not clear but doubtful. But where the holder of a passport is facing a
criminal a charge in our courts and left the country to evade criminal
prosecution, the Secretary for Foreign Affairs, in the exercise of his discretion
to revoke a passport already issued, cannot be held to have acted
whimsically or capriciously in withdrawing and cancelling such passport. Due
process does not necessarily mean or require a hearing. When discretion is
exercised by an officer vested with it upon an undisputed fact, such as the
filing of a serious criminal charge against the passport holder, hearing maybe
dispensed with by such officer as a prerequisite to the cancellation of his
passport; lack of such hearing does not violate the due process of law clause
of the Constitution; and the exercise of the discretion vested in him cannot
be deemed whimsical and capricious of because of the absence of such
hearing. If hearing should always be held in order to comply with the due
process of clause of the Constitution, then a writ of preliminary injunction
issued ex parte would be violative of the said clause.
In the cases of Bauer vs. Acheson, 106 F. Supp. 445; Nathan, vs. Dulles, 129
F. Supp. 951; and Schachtman vs. Dulles No. 12406, 23 June 1955, all
decided by the States Court of Appeals for the district of Columbia, cited by
the petitioner, the revocation of a passport already issued or refusal to issue
a passport applied for, was on the vague reason that the continued
possession or the issuance thereof would be contrary to the best interest of
the United States.
SECOND DIVISION
DECISION
Tinga, J.:
The instant petition seeks the review of the 24 April 2002 Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 66412, affirming the 2 July 2001
Memorandum Order2 and the 1 August 2001 Order3 of the Office of the
Ombudsman in OMB-ADM-00-0350,4 imposing upon petitioner the penalty of
dismissal from office with forfeiture of material benefits pursuant to Sec.
25(2) of Republic Act (R.A.) No. 6770.5
On 13 March 2000, Ursal brought before the Department of Interior and Local
Government (DILG) a complaint-affidavit charging petitioner with grave
misconduct for the alleged attempted rape. However, the DILG referred the
complaint to the Quezon City Council ("City Council")for appropriate action.
Said complaint was docketed as Adm. Case No. 00-13 before the City
Council.7
Thereafter, on 30 March 2000, Ursal filed with the Office of the Ombudsman
a similar complaint-affidavit charging petitioner with grave misconduct,
docketed as OMB ADM Case No. 0-00-0350.8 Petitioner filed his counter-
affidavit and attached thereto the affidavits of two witnesses. On 15 August
2000, the Administrative Adjudication Bureau (AAB) of the Office of the
Ombudsman exonerated petitioner from the charge, dismissing the
complaint for lack of substantial evidence.9 However, on 2 July 2001, upon
review, and with the approval of the Ombudsman, petitioner was found guilty
of grave misconduct and meted the penalty of dismissal, with forfeiture of
material benefits, per its Memorandum Order.10
On 20 August 2001, the AAB issued an order directing Quezon City Mayor
Feliciano R. Belmonte, Jr. to implement the 2 July 2001 Memorandum Order
and to submit a compliance report.14 Mayor Belmonte issued an
implementing order, notifying petitioner of his dismissal from service and
enjoining him to cease and desist from performing his duties as barangay
captain.15
Before this Court, petitioner seeks the dismissal of the administrative charge
against him anchored on the following assignment of errors:
The complaint and other initiatory pleadings referred to and subject of this
Circular are the original civil complaint, counterclaim, cross-claim, third
(fourth, etc.) party complaint, or complaint-in-intervention, petition, or
application wherein a party asserts his claim for relief.
Ursal filed identical complaint-affidavits before the City Council, through the
DILG, and the Office of the Ombudsman. A review of the said complaints-
affidavits shows that far from being the typical initiatory pleadings referred
to in the above-mentioned circulars, they merely contain a recital of the
alleged culpable acts of petitioner. Ursal did not make any claim for relief,
nor pray for any penalty for petitioner.
Petitioner claims that the Ombudsman has no jurisdiction over the case since
the City Council had earlier acquired jurisdiction over the matter. The Court is
not convinced.
The Ombudsman was not aware of the pending case before the Quezon City
Council when the administrative complaint was filed before it. There was no
mention of such complaint either in the complaint-affidavit or in the counter-
affidavit of petitioner. Thus, the Ombudsman, in compliance with its duty to
act on all complaints against officers and employees of the government, took
cognizance of the case, made its investigation, and rendered its decision
accordingly.
There is no basis for believing petitioners claim that the Ombudsman had
refused to consider his evidence. As properly observed by the CA, 51 the
Ombudsman passed upon petitioners evidence which, however, was found
bereft of credibility. In fact, unfortunately for petitioner at that, the
Ombudsman and the CA discovered Ursals allegations more credible,
supported and corroborated as they were by the medical findings, the NBI
reports and the surrounding circumstances.
One final point. The Court notes that the order made by the Ombudsman
requiring Mayor Belmonte to implement the Memorandum Order dated 2 July
2001 dismissing petitioner was made even though the Memorandum Order
had not yet attained finality.52 Under the Ombudsman Act, a motion for
reconsideration may be filed within five (5) days after receipt of the written
notice, while all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from receipt of the
order, directive or decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court. 53
Petitioner received a copy of the Memorandum Order on 23 July 2001, and
filed his motion for reconsideration on 27 July 2001. The motion was denied
in the Order dated 1 August 2001, copy of which was received by petitioner
on 21 August 2001. Petitioner thereafter filed his petition with the CA on 31
August 2001, or within the reglementary period provided by the Rules.54
Thus, it was improper for the Ombudsman to order the implementation of the
Memorandum Order before it could become final and executory. In Lapid v.
Court of Appeals,55 this Court held that the import of Section 27 of the
Ombudsman Act is that all other decisions of the Office of the Ombudsman
which impose penalties that are not enumerated in the said Section 27 are
not final, unappealable and immediately executory. 56 An appeal timely filed,
such as the one filed in the instant case, will therefore stay the immediate
implementation of the decision.57 Thus:
In all these other cases therefore, the judgment imposed therein will become
final after the lapse of the reglementary period of appeal if no appeal is
perfected or, an appeal therefrom having been taken, the judgment in the
appellate tribunal becomes final. It is this final judgment which is then
correctly categorized as a "final and executory judgment" in respect to which
execution shall issue as a matter of right. In other words, the fact that the
Ombudsman Act gives parties the right to appeal from its decisions should
generally carry with it the stay of these decisions pending appeal. Otherwise,
the essential nature of these judgments as being appealable would be
rendered nugatory.58
SO ORDERED.
Republic of the Philippines
SUPREME COURT
THIRD DIVISION
RESOLUTION
GONZAGA-REYES, J.:
Before us are the Motion for Reconsideration filed by the National Bureau of
Investigation and the Department of the Interior and Local Government,
represented by the Office of the Solicitor-General, and the Office of the
Ombudsman of our 5 April 2000 Resolution. 1 In this resolution, we ordered
the immediate reinstatement of petitioner Manuel Lapid to the position of
Governor of Pampanga as the respondents failed to establish the existence
of a law mandating the immediate execution of a decision of the Office of the
Ombudsman in an administrative case where the penalty imposed is
suspension for one year.
On the basis of an unsigned letter dated July 20, 1998, allegedly originating
from the "Mga Mamamayan ng Lalawigan ng Pampanga," addressed to the
National Bureau of Investigation, the latter initiated an "open probe" on the
alleged illegal quarrying in Pampanga & exaction of exorbitant fees
purportedly perpetrated by unscrupulous individuals with the connivance of
high-ranking government officials. The NBI Report was endorsed to the
respondent Ombudsman and was docketed as OMB-1-98-2067.
On Oct. 26, 1998, a complaint was filed charging petitioner Gov. Manuel M.
Lapid, Vice-Governor Clayton Olalia, Provincial Administrator Enrico
Quiambao, Provincial Treasurer Jovito Sabado, Mabalacat Municipal Mayor
Marino Morales and Senior Police Officer 4 Nestor Tadeo with alleged
"Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest
of the Service" for allegedly "having conspired between and among
themselves in demanding and collecting from various quarrying operators in
Pampanga a control fee, control slip, or monitoring fee of P120.00 per
truckload of sand, travel, or other quarry material, without a duly enacted
provincial ordinance authorizing the collection thereof and without issuing
receipts for its collection. They were also accused of giving unwarranted
benefits to Nestor Tadeo, Rodrigo "Rudy" Fernandez & Conrado Pangilinan
who are neither officials/employees of the Provincial Government of
Pampanga nor quarry operators by allowing them to collect the said amount
which was over and above the P40.00 prescribed under the present
provincial ordinance and in allowing Tadeo, Fernandez and Pangilinan to sell
and deliver to various quarry operators booklets of official receipts which
were pre-stamped with "SAND FEE P40.00." 2
The copy of the said decision was received by counsel for the petitioner on
November 25, 1999 and a motion for reconsideration was filed on November
29, 1999. The Office of the Ombudsman, in an Order6 dated 12 January 2000,
denied the motion for reconsideration.
Petitioner then filed a petition for review with the Court of Appeals on January
18, 2000 praying for the issuance of a temporary restraining order to enjoin
the Ombudsman from enforcing the questioned decision. The temporary
restraining order was issued by the appellate court on January 19, 2000. 7
When the 60-day lifetime of the temporary restraining order lapsed on March
19, 2000 without the Court of Appeals resolving the prayer for the issuance
of a writ of preliminary injunction, a petition 8 for certiorari, prohibition and
mandamus was filed with this Court on March 20, 2000. The petition asked
for the issuance of a temporary restraining order to enjoin the respondents
from enforcing the assailed decision of the Ombudsman and prayed that
"after due proceedings, judgment be rendered reversing and setting aside
the questioned decision (of the Ombudsman) dated November 22, 1999 and
the order January 12, 2000.9
On March 22, 2000 the Third Division of this Court issued a Resolution
requiring the respondents to comment on the petition. That same day, the
Court of Appeals issued a resolution 10 denying the petitioner's prayer for
injunctive relief. The following day, or on March 23, 2000, the DILG
implemented the assailed decision of the Ombudsman and the highest
ranking Provincial Board Member of Pampanga, Edna David, took her oath of
office as O.I.C. Governor of the Province of Pampanga.
On March 24, 2000 a Motion for Leave to File Supplement to the Petition for
Certiorari, Prohibition and Mandamus 11 and the Supplement to the Petition 12
itself were filed in view of the resolution of the Court of Appeals denying the
petitioner's prayer for preliminary injunction. In addition to the arguments
raised in the main petition, the petitioner likewise raised in issue the
apparent pre-judgment of the case on the merits by the Court of Appeals in
its resolution denying the prayer for preliminary injunction. In so doing,
petitioner argued that the respondent court exceeded the bounds of its
jurisdiction. Proceeding from the premise that the decision of the
Ombudsman had not yet become final, the petitioner argued that the writs of
prohibition and mandamus may be issued against the respondent DILG for
prematurely implementing the assailed decision. Finally, the petitioner
prayed for the setting aside of the resolution issued by the Court of Appeals
dated March 22, 2000 and for the issuance of a new one enjoining the
respondents from enforcing the said decision or, if it has already been
implemented, to withdraw any action already taken until the issue of
whether or not the said decision of the Ombudsman is immediately
executory has been settled.
The Solicitor-General and the Office of the Ombudsman filed their respective
comments 1 to the petition praying for the dismissal thereof. Regarding the
issue of the immediate enforcement of the decision of the Ombudsman, the
Solicitor-General maintains that the said decision is governed by Section 12,
Rule 43 of the Rules of Court and is therefore, immediately executory. For its
part, the Office of the Ombudsman maintain that the Ombudsman Law and
its implementing rules are silent as to the execution of decisions rendered by
the Ombudsman considering that the portion of the said law cited by petition
pertains to the finality of the decision but not to its enforcement pending
appeal. The Office of the Ombudsman also stated that it has uniformly
adopted the provisions in the Local Government Code and Administrative
Code that decisions in administrative disciplinary cases are immediately
executory.
After oral arguments before the Third Division of this Court on 5 April 2000,
the Resolution 16 subject of the instant Motions for Reconsideration was
issued. The Resolution provides as follows:
From the pleadings filed by the parties and after oral arguments held
on April 5, 2000, the petitioner represented by Atty. Augusto G. Panlilio,
the respondent Ombudsman represented by its Chief Legal Counsel,
and the National Bureau of Investigation and the Department of the
Interior and Local Government represented by the Solicitor General,
and after due deliberation, the Court finds that the respondents failed
to establish the existence of a law mandating the immediate execution
of a decision of the Ombudsman in an administrative case where the
penalty imposed is suspension for one year. The immediate
implementation of the decision of the Ombudsman against petitioner is
thus premature.
From this 5 April 2000 Resolution, the Offices of the Solicitor-General and the
Ombudsman filed the instant motions for reconsideration.
The sole issue addressed by our 5 April 2000 Resolution is whether or not the
decision of the Office of the Ombudsman finding herein petitioner
administratively liable for misconduct and imposing upon him a penalty of
one (1) year suspension without pay is immediately executory pending
appeal.
Petitioner was administratively charged for misconduct under the provisions
of R.A. 6770, the Ombudsman Act of 1989. Section 27 of the said Act
provides as follows:
It is clear from the above provisions that the punishment imposed upon
petitioner, i.e. suspension without pay for one year, is no among those listed
as final and unappealable, hence, immediately executory. Section 27 states
that all provisionary orders of the Office of the Ombudsman are immediately
effective and executory; and that any order, directive or decision of the said
Office imposing the penalty of censure or reprimand or suspension of not
more than one month's salary is final and unappealable. As such the legal
maxim "inclusion unius est exclusio alterus" finds application. The express
mention of the things included excludes those that are not included. The
clear import of these statements taken together is that all other decisions of
the Office of the Ombudsman which impose penalties that are not
enumerated in the said section 27 are not final, unappealable and
immediately executory. An appeal timely filed, such as the one filed in the
instant case, will stay the immediate implementation of the decision. This
finds support in the Rules of Procedure issued by the Ombudsman itself
which states that "(I)n all other cases, the decision shall become final after
the expiration of ten (10) days from receipt thereof by the respondent, unless
a motion for reconsideration or petition for certiorari (should now be petition
for review under Rules 43) shall have been filed by him as prescribed in
Section 27 of R.A. 6770."
The Office of the Solicitor General insists however that the case of Fabian vs.
Desierto 18 has voided Section 27 of R.A. 6770 and Section 7, Rule III of
Administrative Order No. 07. As such, the review of decision of the
Ombudsman in administrative cases is now governed by Rule 43 of the 1997
Rules of Civil Procedure which mandates, under Section 12 19 thereof, the
immediately executory character of the decision or order appealed from.
The contention of the Solicitor General is not well-taken. Our ruling in the
case of Fabian vs. Desierto invalidated Section 27 of Republic Act No. 6770
and Section 7, Rule III of Administrative Order No. 07 and any other provision
of law implementing the aforesaid Act only insofar as they provide for
appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court. The only provision affected by the Fabian
ruling is the designation of the Court of Appeals as the proper forum and of
Rule 43 of the Rules of Court as the proper mode of appeal. All other matters
included in said section 27, including the finality or non-finality of decisions,
are not affected and still stand.
Neither can respondents find support in Section 12, Rule 43 of the 1997
Rules of Civil Procedure which provides as follows:
Sec. 12. Effect of Appeal. The appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon such terms as it may
deem just.
(4) An appeal shall not stop the decision from being from being
executory, and in case the penalty is suspension or removal, the
respondent shall be considered as having been under preventive
suspension during the pendency of the appeal in the event he wins an
appeal.
Where the legislature has seen fit to declare that the decision of the quasi-
judicial agency is immediately final and executory pending appeal, the law
expressly so provides.
There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on execution
pending review should be applied suppletorily to the provisions of the
Ombudsman Act as there is nothing in the Ombudsman Act which provides
for such suppletory application. Courts may not, in the guise of
interpretation, enlarge the scope of a statute and include therein situations
not provided or intended by the lawmakers. An omission at the time of
enactment, whether careless or calculated, cannot be judicially supplied
however later wisdom may recommend the inclusion. 28
And while in one respect, the Ombudsman Law, the Administrative Code of
1987 and the Local Government Code are in pari materia insofar as the three
laws relate or deal with public officers, the similarity ends there. It is a
principle in statutory construction that where there are two statutes that
apply to a particular case, that which was specially designed for the said
case must prevail over the other. 29 In the instant case, the acts attributed to
petitioner could have been the subject of administrative disciplinary
proceedings before the Office of the President under the Local Government
Code or before the Office of the Ombudsman under the Ombudsman Act.
Considering however, that petitioner was charged under the Ombudsman
Act, it is this law alone which should govern his case.
Respondents, through the Office of the Solicitor General, argue that the
ruling against execution pending review of the Ombudsman's decision grants
a one-sided protection to the offender found guilty of misconduct in office
and nothing at all to the government as the aggrieved party. The offender,
according to respondents, can just let the case drag on until the expiration of
his office or his reelection as by then, the case against him shall become
academic and his offense, obliterated. As such, respondents conclude, the
government is left without further remedy and is left helpless in its own fight
against graft and corruption.
As regards the contention of the Office of the Ombudsman that under Sec.
13(8), Article XI of the 1987 Constitution, the Office of the Ombudsman is
empowered to "(p)romulgate its rules of procedure and exercise such other
powers or perform such functions or duties as may be provided by law,"
suffice it to note that the Ombudsman rules of procedure, Administrative
Order No. 07, mandate that decisions of the Office of the Ombudsman where
the penalty imposed is other than public censure or reprimand, suspension of
not more than one month salary or fine equivalent to one month salary are
still appealable and hence, not final and executory. Under these rules, which
were admittedly promulgated by virtue of the rule-making power of the
Office of the Ombudsman, the decision imposing a penalty of one year
suspension without pay on petitioner Lapid is not immediately executory.